2017 PLP 165 (CLCN)

SYED MUHAMMAD FAROOQ SHAH, J.

The plaint of Suit No.1053 of 2002 was rejected under Order VII, Rule 11, C.P.C. by the trial court vide order dated 21:07.2003 mainly on the ground that the plaintiff did not seek any relief regarding restoration of possession of the suit property nor cancellation of sale deed executed in favour of respondent by KDA has been challenged and so also a prayer that the respondent No.2 is not entitled for ownership of the suit property; therefore, no consequential relief has been claimed by the plaintiff and if the evidence would be recorded, it would not help to plaintiff and no such effective decree can be passed in his favour. The said order was impugned before the appellate court in Civil Appeal No. 171 of 2003. The learned appellate court vide judgment dated 29.05.2007 dismissed the appeal hence the appellant has approached this Court by filing the captioned appeal, wherein a prayer has been sought to set aside the impugned judgment and decree dated 29.05.2005.

2. Learned counsel representing the appellant submits that law leans adjudication on merits and for the larger administration of justice, the trial court may have to direct the plaintiff to make necessary amendments in pleadings in view of circumstances of the case as may deem fit and just. To support his contentions, learned counsel for the appellant has placed reliance upon the cases of Mian Niaz Hussain and another v. Imdad Hussain (PLD 1965 (WP) Lahore 172), Dr. K. M. Shaikh v. Karachi Development Authority and another (1988 MLD 2528), Mir Mazar v. Azim (PLD 1993 SC 332), Ghous Bux v. Altaf Hussain and others (PLD 1993 Karachi 410) and the case of Mushtaque Hussain v. Province of Sindh and 6 others (2003 MLD 109). It is next submitted that while deciding the appeal, the appellate court was required to set out the points for determination but during second round while passing the impugned order, amazingly the appellate court did not frame the points for determination as required under Order XLI, Rule 31, C.P.C.; no issue-wise finding appears in the impugned judgment hence the same is defective, more particularly, the compliance of order passed by this Court in Civil Revision No.173 of 2005 has not been made. Anyhow, without dilating upon the consequence of non-framing of points for determination, learned counsel for the appellant submitted that the appellant may be provided opportunity to contest the matter on merits by filing the amended plaint, wherein he may seek all the reliefs including possession and cancellation of lease deed, if so desire, which is necessary for just decision on merits.

3. On the other side, counsel for respondents Nos. 1 and 2 is called absent. It is now 11:50 a.m. On previous date of hearing i.e. 25.01.2016, the matter was adjourned for today's date with caution that in case of non-appearance of counsel for respondents the order dated 17.12.2015 shall follow, whereby the matter was ordered to be proceeded in absence of the counsel for respondents in case of non-appearance and of course on the basis of available material. Deliberate and intentional absence of counsel for respondents Nos. 1 and 2 shows that they do not want to contest the instant appeal.

4. Conversely, Mr. Tahwar Ali Khan, learned counsel for the respondent No.3 recorded his consent regarding adjudication of the matter on merits hence submits that for that purpose matter may be remanded back to the trial court for fresh decision on merits.

5. It is not out of context to mention here that the statute has entrusted a very important duty to the appellate court. It is for that court to decide finally all question of facts on which the disposal of the suit might depend and the appellate court should not easily agree with the trial Court simply because it not inclined to make such trouble over the case. If the appellate court itself does not examine the facts and the evidence and does not even mention the points which the case raises, it would be certainly failing in its duties, these are the words recorded by the Hon'ble Bench of the Supreme Court of Pakistan, reported in 2009 SCMR

589. In the instant case, a bare perusal of the impugned judgment clearly reflects that it has not given due attention to the available evidence on record nor has discussed and dealt with each and every point, separately. The judgment of the appellate court in hand is not a judgment in its true sense. The appellate court should have applied, Order XLI, Rule 31, C.P.C. in stricto sensu.

6. For the foregoing reasons keeping in view the dicta as laid down in the aforementioned case law cited by learned counsel for the appellant, the appeal is allowed. Consequently, impugned judgment and decree are set aside. The appellant may move the trial court for amendment of plaint and if such amendment is allowed, then respondents Nos. 1 and 2 would be entitled to file amended written statements. The trial court may dispose of the suit according to law after providing fair opportunity to the parties to lead evidence. It needs not to iterate that the learned trial court on receipt of this matter shall expedite to decide the suit strictly on merits. The captioned appeal is decided in the manner indicated above. There shall be no order as to cost. ZC/M-45/Sindh Appeal allowed.