MUHAMMAD YOUSAF Versus Haji MURAD MUHAMMAD

JAVED IQBAL, J .‑‑‑This appeal by leave of the Court is directed against the judgment dated 9‑5‑2000 passed by the learned Single Bench of the High Court of Balochistan, Quetta, whereby civil revision preferred on behalf of appellants has been dismissed and judgment and decree dated 10‑2‑1998 passed by learned Majlis‑e‑Shoora has been kept intact.

2. Leave to appeal was granted vide order dated 2‑8‑2000 to examine "as to whether decree for return of articles details whereof are given in the plaint or in the alternative to make payment of Rs.94,200 has been passed by Qazi Tump vide judgment and decree dated 17th December, 1997 and confirmed by Appellate Court i.e. Majlis‑e‑Shoora by means of judgment and decree dated 10th February, 1998 and the revisional Court respectively without evidence to substantiate the claim in view of issues framed by the trial Court".

3. Briefly stated the facts of the case are that respondent No. 1 filed a suit for recovery of certain household articles, electric equipments and crockery, details whereof have been mentioned in the list appended with the plaint or in alternative, an amount of Rs.94,200 in lieu thereof, equivalent to the value pf said items. In view of the divergent pleadings of the parties, following issues were framed by the learned trial Court:‑‑

4. After recording evidence pro and contra, the learned Qazi decreed the suit vide judgment/decree dated 2nd October, 1997, Being aggrieved, an appeal was preferred by the appellants, which met the same fate and dismissed by learned Majlis‑e‑Shoora, vide judgment and decree dated 10th February, 1998. The appellants approached learned High Court of Balochistan by means of civil revision bearing No. 112 of 1998 which has also been dismissed, hence this appeal.

5. We have heard Mr. Tahir Muhammad Khan, learned counsel for the appellants and Mr. Muhammad Riaz Ahmed, learned Advocate‑on‑Record for respondents at length. The judgment dated 2nd October, 1997 passed by learned Qazi, judgment dated 10th February, 1998 passed by learned Majlis‑e‑Shoora and judgment impugned were perused carefully. We have thrashed out the entire evidence with the eminent assistance of the learned counsel for she parties.

6. A careful scrutiny of the entire record would reveal that the foundation of concurrent findings by the Courts below, seems to be the admission of appellants concerning removal of various articles, but a careful examination of contents of written statement would reveal that the claim of respondents was repudiated, which aspect of the matter 'escaped notice and resulted in serious miscarriage of justice. It further transpired from the scrutiny of record that pleadings were never perused with diligent application of mind by the learned trial Court and thus proper issues clinching the controversy could not be framed and resultantly the parties failed to substantiate their respective claims by adducing worthy of credence evidence as the issues framed by the learned trial Court were ambiguous and vague. The learned trial Court itself was not clear as to by whom onus of the framed issues was to be discharged. The provisions as contained in Order XIV, Rule 5, C.P.C. were not kept in view and ignored completely by the learned trial Court while framing the issues as a result whereof controversy regarding removal of household articles could not be set as naught. There is no cavil to the proposition which was settled decades ago and still holds the field "that where an issue, though in terms covering the main question in the cause, does not sufficiently direct the attention of the parties to the main questions of fact, necessary to be decided, and the parties may have been prevented from adducing evidence, or fresh issue may be directed to try the principal question of fact". (Olagappa v. Arbuthnot (1875) 14 BLR 115‑142, 14/268, 316. "The duty of raising issues rests under the Code of Civil Procedure on the Court and it would be unsafe to presume from the failure of the Court to raise the necessary issues an attention of the defendant to admit the fact, which the plaintiff was bound to prove". (Ganou v. Shri Devsidhes War, 1902 AIR 26 Bom. 360‑3621.

7. In the light of what has been stated above this appeal is accepted. The judgments of learned trial and appellate Courts including judgment impugned are set aside and the case i~ remanded back to the learned trial Court to commence the proceedings afresh after framing proper issues by strictly following the provisions as contained in Order XIV, C.P.C. and after perusing the pleadings vigilantly. There shall be no order as to costs.

M.B.A./M‑700/S Appeal accepted.