Gulab Shah etc vs Ghulam Yaseen etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, D.I.KHAN BENCH

(Judicial Department)

Civil Revision No.13-D/2012

JUDGMENT

Date of hearing ___________05.11.2014_______________ Appellant-petitioners Gulab Shah and others by_________ Mohammad Jehangir Awan, Advocate.________________ Respondents Ghulam Yaseen and others by Mr. Noor Gul Khan Marwat, Advocate.___________________________ IKRAMULLAH KHAN, J.- Through the instant revision petition, the petitioners have called in question the judgment and decree dated 17.10.2011 rendered by the learned Additional District Judge-VI, D.I.Khan, whereby the appeal filed by respondents No.1 to 15 was accepted, impugned judgment and decree dated 23.12.2010 of learned Civil Judge-VII, D.I.Khan was set aside and the suit was remanded to the trial Court with the directions to frame proper issues in accordance with pleadings of parties.

2.The brief facts giving rise to the instant revision petition are that respondents No.1 to 15 filed a suit against the petitioners and proforma respondents for declaration- cum-perpetual injunction and as an alternate relief, for possession of landed property fully detailed in the heading of the plaint.

3.The suit was contested by petitioners and proforma respondents through submitting their written statement. The learned trial Court framed issues arising out of the pleadings of parties. The parties produced their respective evidence as they wished to adduce. After hearing the arguments of learned counsel for the parties, the learned Civil Judge-VII, D.I.Khan partially decreed the suit of respondents No.1 to 15, vide judgment and decree dated 23.12.2010.

4.Dissatisfied with the judgment and decree dated 23.12.2010, respondents No.1 to 15 preferred an appeal.

The learned Additional District Judge-VI, D.I.Khan, vide impugned judgment and decree dated 17.10.2011, accepted the appeal, set aside the impugned judgment and decree dated 23.12.2010 and remanded the case to the trial Court with the directions to frame proper issues in accordance with pleadings of parties.

5.The learned counsel for the petitioners contended that the impugned judgment is against law and facts on record; that a time barred appeal filed by respondents had accepted without any plausible reason;

that the impugned judgment is result of misreading and non-reading of evidence, which has adversely affected the petitioners, while patent irregularity is floating on the surface of record which has caused gross miscarriage of justice.

6.On the other hand, the learned counsel for the respondents argued that essential issues were not framed by the trial Court which had affected the merit of the case, therefore, the impugned judgment is based on proper appreciation of law and appraisal of evidence.

7.I have heard both the learned counsel for parties and carefully gone through the record.

8.The learned appellate Court had set aside the impugned judgment of the learned Civil Judge on the sole ground that the learned Civil Judge had not framed the required issues, out of the pleadings of the parties. No doubt, framing of the required issues in a suit is compulsory and mandate of law, but in case, even if same issues, which do not affect the merit of the case, were not framed by the trial Court and both parties led their evidence, without any protest or objection over already framed issues or non-framing of some of the issues, it would be not a valid ground for remand of the case. The provision contained in Rule 1 of Order XIV C.P.C contemplates that issues arise when a material proposition of fact or law is affirmed by one party and denied by the other, while 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. In case in hand, the material proposition which was to be framed was “whether the

inheritance mutation No.895 dated 12.01.1959 and mutation No.1071 dated 21.9.1967 were void, fictitious and its effect.” Likewise, no issue in regard to the newly impleaded defendants, who had alleged to be bonafide vendees, was framed, but thereafter at the conclusion of trial, the learned trial Court had secured and saved their rights of ownership in view of the provision contained in section 41 of the Transfer of Property Act. In such state of affairs when the grievance of the newly impleaded defendants were redressed by the learned trial Court and the petitioners had not filed either appeal or cross objection against the impugned judgment of the learned Civil Judge, D.I.Khan, the remand of case by the learned appellate Court below through the impugned judgment, is not legally justified.

9.It is established principle of law in view of Rule 24 of Order 41 C.P.C, where the evidence upon the record is sufficient to enable the appellate Court to pronounce judgment, the appellate Court may, after re-settling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the appellate Court proceeded. The record is bereft of the fact that what were the issues, which ought to be framed and decided by the trial Court, had not explained by the appellate Court, which constrained him to remand the case. The purpose of

provisions of C.P.C is meant to advance cause of justice and not to hinder justice. Mechanical remand of the case without reasonable grounds is not permissible in view of the case Mohammad Bakhsh. Vs. Mst. Iqbal Begum and 6 others (1989 MLD 313 Lahore).

10.In so far the question of limitation in regard to filing appeal, beyond the prescribed period of limitation provided thereunder the provisions contained in Article 152 of the Limitation Act, is not procedural one. Once a person acquired vested right due to non-filing of an appeal by the adverse party within the prescribed period provided by law, without reasonable explanation, a person, who had accrued vested right could not be deprived of his rights on whims and wishes of the other party. In case of Aftab Shahban Mirani. Vs. President of Pakistan and others (1998 SCMR 1863), the apex Court had held as:- “The petitioner has not filed any application for condonation of the above delay though it is a well-settled proposition of law that delay of each day is to be explained in filing of a petition for leave to appeal beyond the limitation period.”

The same view is re-agitated by the Apex Court in case Mohammad Zubair. Vs. Haji Muhammad Tufail and another (2003 SCMR 1334).

11.The respondents were bound to explain each and every day by filing an application for condonation of delay under section 5 of the Limitation Act, but they had

also failed to fulfill their legal responsibility of filing the same for condonation of delay in filing appeal beyond the prescribed period provided under section 152 of the Limitation Act. Such delay in filing of appeal could not be condoned.

12.For the reasons given hereinabove, this revision petition is partly allowed, the impugned judgment of the learned appellate Court below is set aside and the case is remanded to the learned appellate Court below to decide the appeal on available evidence in accordance with law on merits.

Announced.

Dt:05.11.2014.

Habib/* JUDGE