1992 PLP 1362 (CLC)

(b) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑O.XX, R.5‑‑‑Failure to give finding on" each issue‑‑‑Effect‑‑‑Order passed by Collector being not in conformity with provision of OXX, R. 5, Civil Procedure Code, 1908, was in violation of mandatory provisions is so much as no clear fording was recorded on each and every issue‑‑‑Case was remanded for decision afresh in accordance with law. M. Rahim for Petitioner. Y Khurshid Ahmad Chaudhary for Respondents. Brief facts of the case are that the petitioner and respondents are real brothers. The respondents brought suit for rent amounting to Rs. 13,212.84 relating to Kharif 1986 to Rabi 1988 against the petitioner in respect of Khata No. 45, Khatauni Nos. 132 to 137 Khasra No.20/14 (4 Kanals), 15 (8 Kanals), 16 (8 Kanals), 17 (8 Kanals), 18 (8 Kanals), 19 (8 Kanals), 20 (8 Kanals) measuring 52 Kanals situated in Chak No.56/DB, Tehsil Yazman, District Bahawalpur in the Court of Tehsildar/AC‑1, Yazman which was subsequently transmitted to the AC/Collector, Yazman as the value of the suit exceeded Rs.10,

000. The AC/Collector vide order dated 20‑12‑1989 decreed the suit in favour of the respondents against the petitioner. That order was unsuccessfully challenged by the petitioner before the Additional Commissioner (Revenue), Bahawalpur inter alia on the ground that besides Chak No.56/DB, the parties also owned land in other estates namely Chak Nos. 53/DB, 95/DB and the' land had been distributed by way of family settlement amongst the parties and the land in dispute way given to him. Hence this revision petition under section $4 of Punjab Tenancy Act, 1887.

2. The learned counsel for the petitioner contended teat the respondents,,. filed a suit for produce regarding Khata No.45 of Village 56/DB for four; harvests on 3‑7‑1988. Such suits are governed by the Civil Procedure Code,, fry, strictly. Under Order VII, rule 10, the plaint should be returned to the plaintiff if presented in a wrong forum. the Tehsildar was therefore bound to return the plaint to the plaintiff‑respondent. This procedure was mandatory and the proceedings in this case by the Tehsildar/AC‑I and the AC/Collector (were) coram non judice. Further, that the suit for four harvests was not maintainable. The respondents had land in Khata No.45 and in other Khatas of other villages. The learned Additional Commissioner had failed to deal with the procedural point. The learned counsel has relied upon PLD 1972 SC 271 that when the mandatory conditions were not fulfilled the proceedings become illegal.

3. The learned counsel for respondents maintained in rebuttal that the petitioner never objected to the question of jurisdiction before the Tehsildar/AC‑

1. Issues were accordingly framed and when the AC‑I noticed that the suit was for the value of more than Rs.10,000 it was sent to the Court concerned. The petitioner has admitted before the Court that he did not pay the share of produce to the respondents and the evidence presented by the petitioner regarding family partition was not satisfactory.

4. I have heard the arguments and perused the case record. A perusal of the record of trial Court show that the petitioner did not aside the above pleas during the trial of the case before the Tehsildar at the tune of submission of his reply to the plaint and also at the time of framing the issues: However, when it was discovered by the AC‑I/Tchsildar that the value of the suit was more than Rs.10,000 it was forwarded to the AC/Collector Yazman and the parties were directed to appear before the concerned Court on 3‑7‑1989. Under Order VII. Rule 10, a plaint can be returned at any stage of the suit and the purpose is that it shall be adjudicated upon by competent forum. The forwarding of the plaint at that time to the competent Court has not resulted in injustice to either party. However, from the perusal of the record it is clear that whereas the Collector had framed five issues, he failed to give clear findings on each and every issue as required by Order XX, rule 5 of the Civil Procedure Code. The order of the Collector being in violation of the mandatory provisions of the aforesaid rule is therefore void ab initio and cannot be sustained. The 9 Additional Commissioner seems to have lost sight of this point in toto. The impugned orders are accordingly set aside and the case is remanded to the AC/Collector, Yazman for fresh decision in accordance with the law and rules after hearing the parties. The A.C/Collector Yazman should also be called upon to clarify as to why the mandatory provisions of the law were not adhered to while deciding the case. AA./464/R. Revision accepted.