Muhammad Akbar Vs Faisal Naeem etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT

JUDICIAL DEPARTMENT.

Writ Petition No.2863-P/2023

J U D G M E N T

Date of hearing : 15th April, 2024

Petitioner : By Mr. Aman Ullah Pirzada, (Muhammad Akbar) Advocate.

Respondents : By Mr. Sagheer Iqbal Gulbela, (Faisal Naeem etc.) Advocate.

S. M. ATTIQUE SHAH, J.- Petitioner, through the instant writ petition, has called in question the judgment and decree dated 19.06.2023 of the learned Additional District Judge-XIV, Peshawar, whereby his appeal against the judgment and decree dated 24.02.2023 of the learned Rent Controller-I, Peshawar accepting the eviction petition of the respondents, has been dismissed.

2.During the course of brief submissions, attention of the court has been invited / drawn by the learned counsel for the petitioner to the point that judgment of the learned appellate court is no judgment in the eye of law as the same, on the touchstone of Order XLI Rule 31 CPC, is found to be violative of the provisions of the ibid rule because while deciding the appeal of the petitioner neither the evidence of the respondents / landlords with respect to the personal need was discussed nor even an oblique reference has been made on the other material facts, which could substantiate the plea of

the respondents, hence, remand of the case in the present scenario is vital to meet the ends of justice. When the learned counsel for the respondents was confronted with this situation, he could not wriggle out of the same and ultimately came to an agreement that this case should be remanded back for its decision afresh to meet the ends of justice

3.Notwithstanding merits of the case, the judgment of the learned appellate court, on the touchstone of Order XLI Rule 31 CPC found to be violative of the provisions of the ibid relevant rule. Perusal of the same reveals that the learned appellate court while handing down the impugned findings has not taken due care of the aforesaid provision of the Statute and has, in a very haphazard and; cursory manner without discussing the evidence of the parties, passed the same, even points for determination were not set out.

The concept and theme behind the aforesaid provision of law is that, the court while seized of an appeal before it, is supposed to consider the controversy between the parties entirely afresh by applying its own judicial mind keeping in view the questions of facts and law, involved therein and also required to give its decision in respect of each point, which otherwise is supposed to be self-explanatory, illuminative and in the nature of a speaking order. In other words, the provisions of Order XLI Rule 31 CPC are mandatory in nature

and the court without observing / fulfilling the same and without framing points of determination cannot dispose of any appeal in a cursory / causal manner rather it is incumbent upon the court to thrash out findings of the learned trial court by setting out points for determination involved in the case.

Where appellate court overlooks, ignores, fails to consider evidence on record or order of appellate courts lacks application of judicial mind, it would amount to failure to comply with mandatory provision of this rule. In the case in hand, though both the parties have produced the ample evidence and accordingly recorded the statements of their respective witnesses but the learned appellate court failed to appreciate or for that matter discuss the same in proper manner, as such, has landed into the field of error. Where a judgment does not substantially comply with the requirement of this rule, it is a bad judgment and is not warranted by law. It is incumbent upon the learned trial court as well as the learned appellate court to consider and discuss the evidence of both the parties properly so that it may be visible that the courts below have applied their judicial mind because justice is not only to be done but seems to have been done. Even otherwise, when the opinion of the first Court of appeal, which is also final Court of fact cannot be interfered with, unless, of course, it is based on misreading, non-reading of evidence or erroneous assumption of law and fact, then, in that eventuality

this court understands, that the learned appellate court is to be more careful and vigilant while seized of an appeal of any party because heavy responsibility is caused upon it and in the case in hand, the learned appellate court has practically failed to discharge such responsibility. When this being the position, impugned findings of the learned appellate court warrant reversal, hence, remand of the case to it in the present scenario is imperative and also inevitable for adjudicating the matter afresh.

4.For the reasons discussed above, this court, in the peculiar facts and circumstances, without touching the merits of the case, lest it may prejudice the case of either party, set aside the impugned judgment and decree dated 19.06.2023 of the learned Additional District Judge-XIV, Peshawar / appellate court and, resultantly, send the case to the learned District Judge, Peshawar, who shall decide the same of his own or may entrust it to any other court of competent jurisdiction for decision afresh after hearing arguments of the learned counsel for the parties strictly in accordance with the law by giving issue-wise findings. Both the parties are directed to appear before the learned District Judge, Peshawar on 06.05.2024 for further proceedings at that end. This petition is allowed in the above terms.

Announced

15. 04. 2024 JUDGE

(Fayaz Shingu) (S.B) Justice S. M. Attique Shah, HJ