Nasir Ali Shah Vs Kabir Hussain Shah

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

D.I.KHAN BENCH

(Judicial Department)

C.R. No.110-D/2016.

JUDGMENT

Date of hearing: 08.02.2017.

Appellant-Petitioner Nasir Ali Shah by Malik Muhammad Asad Advocate.

Respondent Kabir Hussain Shah by Mr. Muhammad Wahid Anjum Advocate

MUHAMMAD AYUB KHAN, J.- Through the instant revision petition, petitioner has challenged the judgment dated 29.4.2016 rendered by the learned Additional District Judge-V, D.I.Khan, whereby the appeal preferred by respondent against the impugned judgment dated 15.5.2012 passed by learned Civil Judge-VI, D.I.Khan was accepted and case was remanded to the trial Court.

2.Brief facts leading to filing of instant petition are that respondent/plaintiff filed declaratory suit against the petitioner/defendant in respect of the suit house fully described in the head-note of the plaint and for recovery of rent etc. The suit was contested by the respondent through submission of his written statement. Out of divergent pleadings of Kifayat/*

the parties, the learned trial Court framed as many as seven issues, whereafter the parties produced their respective evidence. The learned trial Court after hearing both sides dismissed the suit vide judgment dated 15.5.2012, which was assailed in appeal before District Judge, D.I.Khan. The appeal was entrusted for disposal to Additional District Judge-V, D.I.Khan. During pendency of appeal, the respondent submitted an application for appointment of local commission, which was replied to by the petitioner, however, the learned appellate Court vide impugned judgment dated 29.4.2016, accepted the appeal, set aside the judgment of trial Court and remanded the case to the trial Court by framing two additional issues i.e. (1) Whether through wasiqa No.1784 dated 13.8.2009 defendant has not sold present property; and (2) What shall be the relief if property mentioned in wasiqa No.1784, Bahi No.1 dated 13.8.2009 matches description given in plaint. Hence, the instant revision petition.

3.I have heard arguments of learned

counsel for parties and have carefully gone through the available record.

4.Perusal of the record would reveal that parties are brothers inter se. Admittedly, registered Kifayat/*

sale deed No.1784 dated 138.2009 was executed among them. The contention of respondent was that he purchased the suit house, detail given in the heading of plaint, through above undisputed registered sale deed, while the petitioner’s defence was that a plot was sold to the respondent vide abovementioned registered sale deed. Same is the real controversy between the parties. It was agitated before the learned appellate Court. Vide impugned judgment dated 29.4.2016, the learned appellate Court framed additional issues to determine the real controversy between the parties and directed for appointment of local commission and rightly so, because Order 41 Rule 25 C.P.C. empowers the appellate Court to frame issues and refer them for trial to Court whose decree is impugned before it. In the above circumstances, the learned appellate Court has judiciously exercised its jurisdiction and committed no illegality or irregularity warranting interference by this Court in exercise of its revisional jurisdiction, therefore, the instant petition being bereft of merit, is hereby dismissed with no order as to costs. However, the word “not” between has and sold of additional issue No.1 is deleted.

Announced Dt: 08.02.2017. JUDGE Kifayat/*