Malik Abdul Ghafoor vs Farzana Bashir etc.

Stereo.HCJDA 38.

Judgment Sheet

LAHORE HIGH COURT

RAWALPINDI BENCH RAWALPINDI

JUDICIAL DEPARTMENT

WRIT PETITION NO.2688 of 2022

MALIK ABDUL GHAFOOR

Versus FARZANA BASHIR and 3 others

JUDGMENT

Date of hearing: 22.09.2026 Petitioner by: Mr. Muhammad Haris Awan, Advocate.

Respondents No.1 & 2 by: Mirza Umar Asadullah, Advocate.

Amicus Curiae: Mr. Mujeeb ur Rehman Kiani, Advocate.

MIRZA VIQAS RAUF, J. This petition in terms of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 assails the vires of order dated 12th September, 2022, whereby learned Additional District Judge, Gujar Khan, while dismissing the revision application filed by the petitioner affirmed the order dated 30th March, 2022 passed by learned Civil Judge Class-I, Gujar Khan.

2.Facts in brief necessary forming background of this constitutional petition are that the petitioner instituted a suit for declaration, specific performance and injunction averring therein that he is owner of the suit property whereas respondent No.1 (hereinafter referred to as “respondent”) is merely “Benamidar”. With this claim, the petitioner sought cancellation of mutations No.207, 327, 313, 276, 274, 273, 270 & 269. Suit was resisted by respondent as well as respondent No.2 by filing their respective written statements wherein the assertions contained in the plaint

were controverted. From the divergent pleadings of the parties, multiple issues were framed and evidence was recorded. During proceedings, the petitioner moved an application under Order XIV Rule 5 of the Code of Civil Procedure (V of 1908) (hereinafter referred to as “C.P.C.”) for framing of additional issues, which was allowed vide order dated 9th March, 2022 and the issues were accordingly rephrased. The petitioner then moved an application for producing additional evidence in the light of additional issues but it was declined vide order dated 30th March, 2022. Feeling aggrieved, the petitioner filed a revision application before learned Additional District Judge, Gujar Khan but that too was dismissed vide order dated 12th September, 2022.

3.This petition was admitted for regular hearing vide order dated 27th September, 2022 on the basis of principles laid down in the case of MUBARAK ALI SHAH versus MUHAMMAD KHAN and 3 others (2014 CLC 1117) and notice was issued to the respondents. In view of proposition involved in this constitutional petition, Mr. Mujeeb ur Rehman Kiani, Advocate was appointed as amicus curiae to assist the Court vide order dated 8th May, 2024, who addressed the Court and while making reference to Order XIV Rule 5 of the C.P.C. submitted that it is nowhere necessary to allow parties to lead evidence in all the circumstances after framing of additional issues. Learned amicus curiae also made reference to Order XLI Rule 25 of the C.P.C.

4.Learned counsel for the petitioner submitted that after framing of additional issues, the trial court was obliged to extend an opportunity to the parties to lead evidence. It is contended with vehemence that the petitioner though moved an application for leading evidence in the light of newly framed issues but it has been discarded without assigning any lawful reasoning. Placed reliance on MUBARAK ALI SHAH versus MUHAMMAD KHAN and 3 others (2014 CLC

5.Conversely, learned counsel for respondents No.1 & 2 submitted that though additional issues were framed on the

application of petitioner but there was nothing surprising for the parties, as the additional issues have only been framed for rephrasing issues already settled. Learned counsel submitted that there is no illegality or material irregularity justifying interference by this Court in exercise of constitutional jurisdiction.

6.Heard. Record perused.

7.Suit was instituted by the petitioner with the stance that he is owner in possession of the suit property and though it is recorded in the name of respondent but she is merely “Benamidar”. On the other hand, respondent seriously controverted the claim of the petitioner. In the light of divergent stances of the parties, learned Civil Judge Class-I, Gujar Khan proceeded to frame multiple issues vide order dated 13th May, 2018 and parties were directed to submit list of witnesses alongwith certificate of readiness within seven days of the order. The proceedings were then adjourned for recording of evidence of the petitioner. After availing numerous opportunities, the petitioner produced his witnesses, whose statements were recorded and the oral evidence was thus closed on 21st February, 2022. The petitioner then moved an application under Order XIV Rule 5 of the C.P.C. for framing of additional issues, which was allowed vide order dated 9th March, 2022 and following additional issues were framed :-

3A. Whether the defendant No.1 is “Bainamidar” of the suit land? OPP 3B. Whether the plaintiff is in possession of the suit land as original owner? OPP

3C. Whether the plaintiff is entitled decree for specific performance in his favour against defendant No.2 as prayed for in the head note of the plaint? OPP

The petitioner then moved an application for adducing evidence in the light of additional issues but it was declined by the trial court vide order dated 30th March, 2022, which was further affirmed by the revisional court through the impugned order.

8.The precise question requiring determination before this Court in exercise of constitutional jurisdiction is as under :- Whether after framing of additional issue(s), the court in all eventualities is obliged to allow the parties to lead evidence on newly framed issue(s)?

Order XIV of the C.P.C. deals with settlement of issues and determination of suit on issues of law or on issues agreed upon. Rule 1 of Order XIV of the C.P.C. provides the manner and mode of framing of issues, which reads as under :-

“1. Framing of issues.—(1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.

(2)Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.

(3)Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.

(4)Issues are of two kinds: (a) issues of fact, (b) issues of law.

(5)At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and after such examination of the parties as may appear necessary, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.

(6)Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence.”

Power to amend or frame additional issues is vested with the court in terms of Rule 5 of Order XIV of the C.P.C. which for ready reference and convenience is reproduced below :- “5. Power to amend, and strike out, issues.—(1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed.

(2)The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced.”

The petitioner resorted to the above noted rule and learned Civil Judge Class-I, Gujar Khan, while invoking the powers framed the additional issues mentioned hereinabove.

9.Before proceeding further, it would be advantageous to observe that the object and purpose of framing of issues is to enable the parties to clearly understand the point at issue, so as to lead evidence in support of their claim. The framing of issue is one of the most important stages of the trial as after framing of issue(s) not only the parties become able to understand the matter in controversy effectively and properly but in terms of Order XVIII Rule 2 of the C.P.C. the parties are required to prove the issues and not the pleadings. Moreover, Order XX Rule 5 of the C.P.C. casts a duty upon the court to give decision on each issue framed. Order XIV of the C.P.C., however, nowhere compels the court to afford an opportunity to the parties to lead evidence after framing of additional issue(s). It is Rule 25 of Order XLI of the C.P.C. which ordains that where the court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefore.

10.It is noticed that initially in the light of respective stances of the parties in their pleadings, learned Civil Judge framed issues, which become necessary for resolving the proposition involved herein and as such same are reproduced below :-

1.Whether the plaintiffs are entitled to get a decree of declaration regarding the suit property detailed described in the head note of the plaint and mutations No.207, 327, 313, 276, 274, 273, 270, 269 are liable to be set aside/cancelled on the grounds mentioned in the plaint? OPP

2.Whether the plaintiff is entitled to a decree of permanent injunction restraining the defendant from alienating the suit property in any manner? OPP

3.Whether the suit of the plaintiff is false, frivolous and vexatious hence, liable to be dismissed with special cost under section 35-A CPC? OPD

From the comparative analysis of the issues framed in the first instance and the additional issues framed later, it is manifestly clear that the root cause of controversy inter se parties is as to whether the petitioner is original owner and the respondent is “Benamidar”. The matter in controversy was though encapsulated in the initially framed issues but not in a comprehensive manner. In order to remove the anomaly, learned Civil Judge proceeded to frame additional issues, which specifically covers the points of controversy inter se parties. It is, however, an undeniable fact that parties were well aware of the matter in controversy and they produced evidence in support and contra to the same. In such a situation it is not necessary for the court to allow the petitioner to lead additional evidence in support of additional issues. Even otherwise it is not a rule of universal application that in all eventualities when additional issues are framed, the parties should be afforded an opportunity to lead evidence. Guidance in this respect can be sought from MUHAMMAD IBRAHIM (DECEASED) through LRs and another versus TAZA GUL and others (2020 SCMR 2033) wherein the Supreme Court of Pakistan held as under :-

“6.........So far as framing of specific issues in accordance with the pleadings of the parties or non-framing of any issue is concerned, we have already declared that framing or non- framing of issue cannot be a ground for reversing the judgment and decree of any court and party cannot pray for remand of the matter at later stage on the basis that any issue which was required in accordance with the pleadings of the parties was not framed. We are of the view that the evidence of the parties is to be led in accordance with the pleadings. It is not a legal defect if any specific issue is not framed and party claiming that issue do not agitate the matter for decades and if the language of existing issues is not in accordance with the wishes of any of the parties. We have seen that the issues already framed, specially Issue No. 8 was with regard to the purchase by the appellants and in

rebuttal thereof they were having full opportunity to produce their evidence. We are of the view that a pleading is ever in the mind of a party and the party has to prove the case pleaded by it through oral as well as documentary evidence, therefore, framing of any specific issue or non-framing thereof does not prejudice the case of the party in any manner unless the party claiming a fresh issue had raised his voice at the time of framing of issues and claiming specific prejudice for non-framing of the issue and prima-facie its claim is borne out from the record and in the upper fora the party vas continuously raising this issue. The position is otherwise in the matter in hand. First time before this Court framing of two issues without any specification has been claimed. This claim is not sustainable in any manner before us.........”

Reference to the above effect can also be made to AMJAD IKRAM versus Mst. ASIYA KAUSAR and 2 others (2015 SCMR 1) and ABDUL KARIM versus Haji NOOR BADSHAH (2012 SCMR 212).

11.This Court in the case of ASHFAQ AHMAD and 2 others versus RANA BROTHERS COTTON & OIL INDUSTRIES, SAHIWAL through Managing Partner (2010 CLC 721) has also followed the same principles. The relevant extract from the same is reproduced below :- “The order of the learned Civil Judge dated 10-10-2009 is gone through in the light of above assertions made by both of the parties and the issues framed, the copy of which is annexed to the present revision petition. The ground about maintainability, if raised as purely touching the question of law and have nothing to do vis-a-vis about question of facts, then the legal ground can be raised by the defendant at the time of arguments even without framing of issue. With regard to payment of certain cheque, the lower Court has rightly observed concerning framing of issue as the more comprehensive issue with regard to entitlement of the plaintiff to receive the claimed amount i.e. Rs.64,48,279 had been framed and the mode with regard to payment, in fact attacks the entitlement of the plaintiff to receive the said amount. As the issue pertaining to entitlement is crystal clear, therefore, it remains only question of fact to prove that entitlement or disentitlement by proving certain mode of payment. With regard to that no specific issue was necessary to be framed at. Further as the case is on final leg for disposal, therefore, there is no need to reopen the whole of the case by framing of the fresh issues and in fact to provide the petitioner with the chance to adduce the evidence pertaining to which the right was closed by the Court through an order which was never assailed and had attained finality. The revision petition is dismissed.”

12.So far the case of Mubarak Ali Shah supra, heavily relied upon by learned counsel for the petitioner, is concerned, it is noticed that certain material issues arising from the pleadings were not

framed by the trial court and even the parties did not lead any evidence thereupon. Finding such omission resulting into miscarriage of justice, the Peshawar High Court, with the concurrence of learned counsel for both sides, set aside the judgments and decrees of the courts below and remanded the matter for decision afresh. Thus, the principles enunciated therein were founded upon omission to frame material issues and consequential failure to adduce evidence. In such situation, the facts in the said case runs on entirely different premises and as such principles laid therein are not attracted to the present case.

13.The exercise of constitutional jurisdiction in terms of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 is discretionary which can only be invoked in extraordinary and exceptional circumstances. The petitioner has badly failed to point out any illegality or material irregularity in the impugned orders, warranting interference by this Court in exercise of constitutional jurisdiction. This Court, while invoking its constitutional jurisdiction always exercises restraint in interfering with the judgment or order passed in exercise of revisional jurisdiction unless some perversity or patent illegality is floating on the surface of record. The constitutional jurisdiction can only be exercised in such an eventuality if the impugned judgment or order suffers with certain legal infirmities or patent illegalities, resulting into failure of justice. Reference in this regard can be made to MUHAMMAD HUSAIN MUNIR AND OTHERS versus SIKANDAR AND OTHERS (PLD 1974 Supreme Court

14.In view of above discussion, the instant petition being devoid of any merits is dismissed with no order as to costs.

(MIRZA VIQAS RAUF)

JUDGE

APPROVED FOR REPORTING

JUDGE

Shahbaz Ali*