1994 PLP 511 (CLC)

ISSUES: (1) Whether the plaintiff has no cause of action to file the suit? OPD (2) Whether the suit is not maintainable under the law? OPD (3) Whether the plaintiff has not come with clean hands? OPD (4) Whether the defendant is entitled to a special cost under section 35‑A of C.P.C.? OPD (5) Whether there exist a written agreement between the parties, if not, whether the suit is not maintainable under the law? OPD (6) Whether the defendant paid Rs.1,38,000 instead of Rs.1,21,000 to the plaintiff as advance money? OPD (6‑A) Whether the plaintiff is entitled for a decree as prayed for? OPP (7) Relief.

4. The learned trial Judge, after recording the evidence of the parties and hearing their counsel, granted preliminary decree to the plaintiff‑petitioner for the rendition of account and appointed Mian Riaz‑ud‑Din, a retired Municipal Engineer, for measurement of the work done and submission of report. The defendant‑respondent challenged the findings of the Court below in appeal and the learned Additional District Judge, by the impugned judgment, dismissed the suit after recording his findings on issue No.2 that the suit was not maintainable in the present form. He, however, did not record any finding on other issues. Dissatisfied with these findings, the plaintiff‑petitioner has come up in revision to this Court.

5. With reference to the memorandum of appeal filed by the defendant- respondent in' the Court of the learned Additional District Judge, the learned counsel for the plaintiff‑petitioner submits that in paragraph No.5(G), the defendant‑respondent had challenged the findings of the trial Court on issues Nos.l, 3 and 4 but the learned Additional District Judge of his own accord taking up issue No.2 proceeded to illegally decide it in favour of the defendant -respondent and on that account dismissed the suit of the plaintiff‑petitioner, without discussing other issues.

6. The learned Counsel for the defendant‑respondent has tried to support the impugned judgment on the ground that in the appeal the entire judgment and decree of the trial Court had been challenged and the learned appellate Court was justified in recording its finding on issue No.2.

7. There is substance in the contention of the learned counsel for the plaintiff‑petitioner. In the memorandum of appeal the findings of the trial Court on issue No.2 were not challenged and ordinarily it could not be agitated before the appellate Court. Even if this issue could be agitated, even then the defendant‑respondent could not succeed on it because in the circumstances of this case, the final decree could only be passed if the accounts had been rendered, after taking measurement of the work done by the plaintiff petitioner. Therefore, the rendition of account in this case was necessary for coming to the conclusion regarding amount due from the parties to each other. There was, therefore, nothing wrong with the form of the suit. Even if there was some defect, the suit could not be dismissed before affording the plaintiff petitioner an opportunity of rectifying the form of his suit.

8. In view of the above, the findings of the Court below on issue No.2 are reversed. I Consequently the revision petition is accepted, the impugned judgment and decree of the appellate Court are set aside and the case is remanded to it (which henceforth be the Court of Pirzada Atta Mohy‑ud‑Din, Additional District Judge, Lahore) with the direction that he shall, after hearing the learned counsel for the parties, decide the appeal afresh in accordance with law. '

9. Parties are directed to appear before the learned Additional District Judge on 10‑2‑1993 and he is directed to decide this appeal within a period of two months, under intimation to the Deputy Registrar (Judi) of this Court. H.B.T./A‑342/L Petition accepted.