1990 PLP 1107 (CLC)

Syed Muhammad Ali Gillani for Appellant. Mian Manzoor Ahmad for Respondents. Date of hearing: 2nd October, 1989. The present appeal arises out of a suit for specific performance of the contract dated 21‑2‑1973 and for cancellation of the decree dated 3‑3‑1975 and the sale‑deed dated 29‑3‑1975 in favour of respondents Nos.l and

2. The suit was decreed by the learned Civil Judge, Khanewal, vide his judgment and decree dated 12‑10‑1987. The appeal filed by the respondents against the said decree was accepted by the learned Additional District Judge, Khanewal, who framed four additional issues (7‑A, 7‑B 7‑C and 12‑A) and remanded the case to the trial Court, vide his judgment dated 4‑4‑1988.

2. The learned counsel for the appellant urged that there was no necessity to frame the additional issues because the matter embodied in the additional issues was covered by issue No.9. At any rate, he urged that the material on the record was sufficient to decide the fresh issues. Hence, the remand order was totally uncalled for. He also urged that the appeal was filed without payment of court‑fee and was belatedly paid at the time of the final hearing of appeal. Hence, it merited dismissal as being time‑barred. On the other counsel for the respondents argued that the new issues were rightly struck in the light of the pleadings of the parties. However, he specifically stated that the respondents would rely on the evidence already recorded in the case and that no fresh evidence was to be produced by them. He seriously urged that the plaint itself merited rejection under Order VII rule 11 of the C.P.C. as, according to him, the plaintiff‑appellant had no cause of action. In reply, the learned counsel for the appellant agreed that the new issues be decided by the Appellate Court below in the light of the evidence already produced by the parties.

3. In view of the above submissions made by the learned counsel for the parties, I allow this appeal, set aside the remand order so far as it relates to remittance of the case to the trial Court for recording evidence on additional issues and fresh decision of the suit and direct the learned Additional District Judge to decide the appeal afresh (on all the issues framed by the trial Court as well as the additional issues framed by the lower Appellate Court) in the light of the evidence already produced by the parties. The question regarding non payment of court‑fee on the memorandum of appeal and its belated payment may be raised by the appellant before the learned Additional District Judge, who shall determine the effect of initial non‑payment and the belated payment of court‑fee in the light of the relevant law and precedents of the superior Courts. Similarly, the learned counsel for the respondents may raise all the law points including the one pertaining to the rejection of the plaint under Order VII, rule 11 of the C.P.C. before the learned Additional District Judge, who shall decide the same in accordance with the law.

4. I am informed by the learned counsel for the parties that the appeal was earlier decided by Chaudhry Muhammad Ali, Addl. District Judge, Khanewal, who has since been transferred and has been succeeded by Malik Mushtaq Hussain. The parties are, therefore, directed to appear before Malik Mushtaq Hussain, Additional District Judge, Khanewal, on 21‑1 ‑1989. He may hear the appeal on the said date or adjourn the same to any other date. However, he shall try to dispose of the appeal expeditiously, preferably within a period of three months. The parties are left to bear their own costs. H.B.T./M‑1847/L Appeal allowed.