2011 CLC 550 (PLP)

SARDAR SHAUKAT HAYAT, J.

Questioned herein is the judgment and decree dated 27-5-2010 of learned District Judge/Zilla Qazi, Chitral whereby the appeal filed by petitioner was dismissed and maintained the judgment and decree dated 8-10-2009 of learned Civil Judge/Illaqa Qazi, Mastuj at Booni.

2. Brief facts of the case are that the petitioner/plaintiff filed a suit against the respondents/defendants for declaration, possession and perpetual injunction in the court of Civil Judge/Illaqa Qazi, Booni, in terms, that land measuring about one chakernm, detail whereof given in the heading of the plaint, is owned by him vide deed dated 19-10-1955 and respondents 1 to 3 are liable to pay Rupees three lacs as sale consideration of the suit property to him and in return are entitled to take the suit property from respondent No.4. In the alternative, the petitioner/plaintiff is entitled to the decree in respect of the suit property and the sale-deed dated 8-9-1964 allegedly in favour of respondent No.4 by plaintiff is illegal and ineffective upon the rights of plaintiff. Defendants were put on notice, who on their appearance denied the averments of the plaint by submitting written statement. The learned trial Court framed the issues, pro and contra evidence was led and at conclusion of the trial the suit of the plaintiff was dismissed. Aggrieved therefrom, the plaintiff filed appeal before the learned appellate forum which also met the same fate, hence the instant revision petition.

3. Learned counsel for petitioner argued that the judgments and decrees of the courts below are the result of misreading and non-reading of evidence, hence liable to be set aside. Further argued that the petitioner filed an application under Order XLI, rule 27 of Code of Civil Procedure Code before the learned appellate forum, which was replied by the respondents. The learned appellate court ordered that the said application would be decided with the main appeal. Full arguments on the application as well as the appeal were addressed by both the parties, however, the learned appellate court did not pass any order on the application of petitioner and decided the main appeal which has resulted into miscarriage of justice to the petitioner.

4. On the other hand, learned counsel for respondents supported the impugned judgments and argued that the application filed by petitioner for production of additional evidence is just to prolong the matter in dispute and nothing else. I have heard learned counsel for the parties and perused the available record.

5. The perusal of record transpires that the petitioner/plaintiff claims his ownership over the suit property on, the basis of sale-deed dated 19-10-1955 executed by respondents 1 to 3 in favour of petitioner. While on the other hand respondent No.4 relies on a sale-deed pertaining to the suit property executed by the plaintiff in his favour. The learned trial court while discussing the material issues Nos.6 and 7 regarding the sale deeds have not only admitted the sale-deed in favour of plaintiff, but on the other hand also held that the petitioner/plaintiff could not prove the sale deed to be fake or forged executed by him in favour of respondent No.4. The petitioner's stance is that he initially. filed an application before the learned trial court for summoning of one Shams Wali marginal witness of the deed, executed in favour of defendant No.4 but the learned trial court without passing any proper order on the said application, dismissed the suit of the plaintiff while preferring the appeal against the impugned judgment and decree of the learned trial court, the petitioner again filed an application under Order XLI, Rule 27, C.P.C. along with an affidavit of one Shams Wali being marginal witness of the deed in favour of defendant No.4, which was entertained and replied by the respondents and the case was fixed for arguments both on the application as well as appeal of the petitioner. However, the learned appellate court omitted to decide the application of the petitioner and decided the appeal on merits.

6. As it is evident from record that the petitioner twice, once before the learned trial court and then before the learned appellate court filed application for summoning of the marginal witness, namely, Shams Wali to the deed Exh.D.W.1/1. An affidavit was also filed by the said Shams Wali denying to be the signatory of the above deed. The learned appellate court though ordered that the application and appeal to be heard together but decided the appeal without taking into consideration the application of petitioner qua the affidavit filed by marginal witness to the deed Exh.D.W.1/1. The application remained pending and no order thereon was passed by the learned appellate court. The suit of plaintiff was dismissed mainly on the execution of sale-deed Exh.D.W.1/1 in favour, of defendant No.4. The learned appellate court was required to have considered and decided the application of petitioner which appears to have direct bearing on an important issue in the case, particularly in view of the affidavit filed by the marginal witness. If a court is of the opinion that the controversy is not likely to be resolved without taking further evidence, it must take additional evidence in order to render a just decision in the case. Reliance is placed on cases titled Syed Muhammad Hassan Shah and others v. Mst. Bint-e-Fathima and another (PLD 2008 SC 564), and Muhammad Azam v. Muhammad Abdullah through L.Rs reported through 2009 SCMR

326. In view of the above and without touching the merits of the case, the instant revision petition is accepted. The impugned judgment and decree dated 27-5-2010 of learned appellate court is set aside. Case is remanded back to it for decision afresh on merits in accordance with law after dealing with the application for additional evidence. No order as to costs. Parties are directed to appear before the learned District Judge/Zilla Qazi, Chitral at Booni on 8-11-2010. S.A.K./399/P Case remanded.