1997 PLP 1334 (CLC)

This appeal is directed against the judgment and decree dated 3‑11‑1991 and 23‑11‑1991 passed by the learned IIIrd Senior Civil Judge (Central), Karachi in Suit No.3880 of 1982 filed by the appellant for specific performance, declaration and injunction which suit was dismissed. The facts of the present case are that the appellant and the respondent were on friendly terms with each other as they both were employed in Karachi Electric Supply Corporation. It is alleged in the plaint that the respondent defendant entered into an agreement dated 7‑1‑1976 with the appellant‑plaintiff for sale of his house situated on Plot No.143/15 Federal 'B' Area, Karachi for the total consideration of Rs.55,000 as per the said agreement of sale signed by both the parties on 7‑1‑1976 in presence of witnesses. Out of this total sale consideration of Rs.55,000 the respondent‑defendant received a sum of Rs.30,000 from the appellant‑plaintiff towards the sale consideration and executed a separate receipt on the same day that is on 7‑1‑1976. Photostat copies of both these documents were filed alongwith the plaint before the trial Court. The respondent‑defendant then handed over the vacant possession of the said house with relevant documents to the appellant‑plaintiff and after taking over the possession of the said house the appellant‑plaintiff was enjoying the peaceful possession of the house without any hindrance of any kind whatsoever. It was agreed that the appellant would pay the remaining amount in monthly regular instalments of Rs.2,500 each towards the loan taken by the respondent‑defendant from KESC and thus the appellant‑plaintiff paid a sum of Rs.15,

750. It is alleged that the appellant‑plaintiff being blind and the respondent taking undue advantage of his blindness and with mala fide intention asked him to hand over the file containing the relevant documents of the suit property in order to ascertain the actual position of the payment made to him towards the said loan taken from the Karachi Electric Supply Corporation by the respondent defendant. The appellant‑plaintiff in good faith took out the file and thereafter the defendant with bad intention took forcefully the said file from his possession, the appellant demanded the return of the said file but he was beaten up by the respondent‑defendant. In this way the litigation between the parties started as respondent‑defendant wanted to disassociate from the said agreement of sale but after the occurrence of this incident the appellant‑plaintiff lodged F.I.R., at the Police Station as the original agreement executed by the parties was forcibly with mala fide intention snatched away by the respondent‑defendant taking full advantage of the blindness of the appellant. However, no fruitful result came out from the lodging of the F.I.R., therefore, the appellant filed the suit for specific performance of contract and declaration and injunction against the respondent‑defendant with the following prayer: (i) To grant decree for Specific Performance of Sale Agreement dated 7‑1‑1976 directing the defendant to execute sale‑deed in favour of the plaintiff of the suit property. Failure to do so the Nazir of this Hon'ble Court be directed to execute the sale‑deed in favour of the plaintiff. (ii) Declaration that the sale agreement dated 7‑1‑1976 is valid, legal, effective, operative and binding on the defendant. (iii) Declaration that ejectment order dated 31‑7‑1982 is null and void, ineffective, inoperative, and of no legal effect as the same having obtained by the defendant fraudulently, by playing a fraud upon the Court. (iv) To grant permanent injunction restraining the defendant, his agents, servants, legal heirs, administrators, representatives, attorneys, successors and/or any other person/persons claiming through or under him not to eject, disturb, dispossess or interfere in any manner whatsoever with the peaceful possession of suit property viz. house situated on Plot No.143/15, Dastagir Society, Federal 'B' Area, Karachi and/or to execute the said ejectment order dated 31‑7‑1982. (v) Cost of the suit. (vi) Any other relief this Hon'ble Court deems fit and proper. On the other hand, the respondent‑defendant Abdul Karim filed his written‑statement before the trial Court in which he had rebutted the averments raised in the plaint by the appellant‑plaintiff and has further stated that disputed house belongs to him as he is its owner and the appellant‑plaintiff was in possession of the house as his tenant at the rate of Rs.1,

500. He also denied that the appellant used to pay Rs.2,500 per month towards the loan or that he had paid an amount of Rs.15,750 towards the said agreement for sale. The respondent has further stated that on 2‑6‑1981 the appellant‑plaintiff had asked his son to go for taking the rent and when his son went to the house of the appellant‑plaintiff he was beaten up by the appellant who also refused to pay the rent. However, on the pleadings of the parties the learned trial Judge framed the following issues for determination: (1) Whether the defendant agreed to sell the house in suit for a sum of Rs.55,000 to the plaintiff and executed the alleged agreement of sale, dated 7th January, 1976? (2) Whether the plaintiff paid a sum of Rs.30,000 to the defendant and the defendant executed the alleged receipt dated 7‑1‑1976? (3) Whether after execution of said sale agreement and receipt of Rs.30,000 dated 7‑1‑1976 the defendant handed over the vacant possession of the property in suit and other relevant documents to the plaintiff? (4) Whether the plaintiff used to pay a sum of Rs.250 as monthly premium towards the loan taken by the defendant from KESC? (5) What should the decree be? On the above issues appellant‑plaintiff examined himself and produced the copy of the F.I.R. lodged by him vide Exh.2, receipt of Rs.30,000 vide Exh.3, Agreement of sale vide Exh.4 and copy of F.I.R., lodged by Abdur Rahim vide Exh.5. He also examined one Afzal Hussain Khan Exh.6, Abdul Hakeem Exh.7, Muhammad Ismail vide Exh. 8 and Rehmat Ali vide Exh.9 who had supported the case of the appellant‑plaintiff. On the other hand, the respondent‑defendant examined Muhammad Siddique as D.W.1 vide Exh.14 who has produced a letter from the KESC Exh.15. Respondent also examined himself vide Exh.16 and produced the following documents: Exh.17, the FIR lodged by Assadullah. Exh.18, the statement of the plaintiff recorded in Criminal Case No. 337 of 1981. . Exh 19, the order under section 249‑A of the Cr.P.C. in Cr. Case No.337 of 1981. Exh.20, the complaint under section 425/506 of .Cr.P.C. filed by Assadullah against Abdul Karim and Abdur Rahim. Exh.21, the statement of Assadullah. Exh.22, the statement of Afzal Hussain Khan Exh.23, the statement of Abdul Hakeem in Complaint No.569 of 1982. Exh.24, the order of application under section 249‑A, Cr.P.C. Exh.26, the National Identity Card of Abdul Karim. Exh.27, the statement of Abdul Karim in Criminal Case State v. Assadullah. After recording the evidence of the concerned parties and hearing the arguments the learned IIIrd Senior Civil Judge decided the Issues 1 to 4 together and dismissed the suit of the appellant as stated above. Learned counsel, Mr. Anwar Hussain, appearing on behalf of the appellant contended that the learned trial Judge has not fully discussed the averments and the documents produced by the appellant and has decided the important issues 1 to 4 together by which serious irregularity has been committed by the learned trial Judge as decision on these important issues together violates the provisions of Order 20, Rule 5, C.P.C. Learned counsel further contended that the authenticity of the documents that is the agreement for sale was not in dispute as the respondent has not specifically denied the execution of such document and moreover, it was the appellant that is the plaintiff‑appellant who should have sought its cancellation, however, the documents in question were declared as void by the learned trial Judge without assigning any cogent reason. On the other hand, learned counsel, Mr. Zafar Alam Khan, appearing on behalf of the respondent‑defendant has submitted that the documents in question that is the agreement for sale was not in existence at all on the ground that it was stated by the appellant‑plaintiff that the documents in question were snatched away by the respondent on 2‑6‑1981 whereas he has clarified in his cross‑examination that he got the photostat copies of these documents made the originals on 6‑8‑1981, therefore, the documents in original were in possession of the appellant and were not snatched by the respondent. May it be as it is, but the legal position according to law is that the learned trial Judge was bound to discuss each and every issue and had to give his reasons for declaring the documents in question as void. The impugned judgment also shows that each and every issue was not discussed fully as contemplated under Order 20, Rule 5, C.P.C. It is well‑settled by now that the trial Judge not giving reasons for his decision on each issue separately and disposing of issues together by simply observing that all these issues have no substantive force in view of the findings on particular issue such decision was P held to be not in accordance with law as laid down in Order 20, Rule 5, C.P.C. In this litigation the appellant being a plaintiff was himself a party. This was not the case pleaded by stranger but the document that is agreement for sale was executed by the plaintiff himself and witnessed by some other independent witnesses, its correctness should not have been doubted. This was done so because the most important issue that is issue No. l was not discussed properly by the trial Judge. In view of the above discussion there are sufficient grounds to remand the suit to the trial Court for adjudication according to law after hearing the arguments of the Advocate for the parties on each and every issue and at the time C of their decision comprehensive reasons should be given. The suit is, therefore, remanded back to learned IIIrd Senior Civil Judge for disposing it of after discussing all the issues separately. The appeal is disposed of accordingly. The learned trial Judge is directed to dispose of the suit within a time of three months under the intimation to this Court. A.A/A‑1608/K Case remanded.