1988 PLP 4 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.-- In these two petitions, leave to appeal has been sought from judgment dated 5-11-1979 of the Lahore High Court; whereby two Regular Second Appeals arising out of a case of Muslim gifts, were dismissed. The petitioner-side had asserted that the donor who made the gift/s was in Marzal Maut at the relevant time, therefore, the gift/s would not take effect. It was also asserted that the donor was of unsound mind, was under undue influence and was victim of fraud and misrepresentation. Therefore, for these reasons also the gift/s would not be operative. Admittedly, the findings of fact on these questions are against the petitioner. Notwithstanding the same, the learned counsel for the petitioner has raised three-fold arguments in respect of the same subject-matter: One, that the finding of fact regarding Marzal Maut is against law and facts; Two, that the other questions regarding infirmity of the gift/s unsoundness of mind etc. have not been properly tried and decided; and Three, that the learned trial Court committed procedural errors. After hearing the learned counsel we are not satisfied that) the finding of fact regarding the donor being under Marzal Maut at the relevant time, suffers from any legal or other infirmity. It is also not established that the other alleged defects in the gift/s like unsoundness of mind of the donor is being under undue influence or having been subjected to fraud or misrepresentation, have not been properly tried or decided. It has been observed in the impugned judgment that "the learned trial Court had struck only one issue relating to the plaintiffs contention that the gifts in dispute were illegal and inoperative but the record shows that the parties had led evidence keeping in view the precise grounds pressed by the plaintiffs to avoid the gifts in question. No prejudice was, therefore, caused to the parties due to the framing of an omnibus issue by the learned Civil Judge. In this view of the matter, the contention of the learned counsel for the appellant relating to the framing of the improper issues is of no consequence." We have no reason to differ with the approach of the learned Judge in the High Court on the question raised before that Court and reiterated before us. Similarly, we are unable to agree with the learned counsel that failure to frame one or other issue at the trial stage in the circumstances of this case would have the effect of nullifying the trial. Apart from the fact that the petitioner has not been prejudiced, it needs to be observed that it was also the duty of the parties tot get proper issues framed, if they had any objection or suggestion regarding the framing of the issues. None of the questions raised in these petitions require further examination by this Court. Leave to appeal accordingly is refused. These petitions are dismissed. M.I./S-69/S Petitions dismissed.