WAKEEL KHAN Versus AFSAR KHAN
ORDER
IJAZ-UL-HASSAN KHAN, J.--- The facts necessary for the disposal of instant civil revision are, that Afsar Khan, plaintiff instituted suit in the Court of Senior Civil Judge, Nowshera, against his brother Wakil Khan and others, defendants for a declaration to the effect that. plaintiff was owner in possession of suit house, detailed in the plaint, having purchased the same from his mother late Mst. Shabnam Bibi, on the basis of `Iqrar Nama' dated 22-2-1999 and defendants had no concern with it and sale or transfer, if any, relating to suit house was illegal, fraudulent and liable to cancellation. The plaintiff also prayed for specific performance, claiming that defendants 1 to 4 were bound to get registered the house in suit in the name of plaintiff. A prayer for possession of suit house, in case the plaintiff was not found in possession of the same, was also made.
2. The suit was contested by defendants Nos.1 and 5 alone. The remaining defendants did not resist the suit and filed "Iqbal Dawas" in favour of the plaintiff. As many as eight issues were formulated. After recording such evidence, as the parties wished to adduce in support of their respective stance, learned trial Judge in view of her findings on Issues Nos. 1 and 4 to 6 decreed suit by judgment, dated 24-11-2005, maintained in appeal by learned District Judge Nowshera vide judgment, dated 21-7-2006.
3. Learned counsel for the petitioners contended that impugned judgments and decrees of the two Courts below are the result of misreading and non-reading of evidence on record; that sufficient evidence was brought record to dislodge the claim of the respondents, which has been ignored and kept out of consideration; 'that issues formulated in the case do not fully reflect the pleadings of the parties and a vital issue, regarding genuineness of the deed dated 2-2-1942 has not been framed and judgment of the Appellate Court is not in conformity with the requirements of Order XLI, rule 31, C.P.C.
4. Having considered the matter from all angles, I am of the view that the trial Court as well as Appellate Court adverted to every aspect of the case, rightly decided the issues agitated and rendered reasonable judgments, which are not amenable to the revisional jurisdiction of this Court. Both the Courts below have given exhaustive judgment after due appraisal of evidence on the file and after discussing all the pros and cons. There appears to be no legal defect in their judgments, which are in consonance with the evidence on the file. The conclusion of fact arrived concurrently by both the lower Courts is not open to challenge in civil revision, particularly when no specific misreading or non-reading of evidence has been pointed out.
5. Adverting to the objection raised by the petitioner regarding non-compliance of the provisions of Order XLI, rule 31, C.P.C., I find that learned Appellate Court was alive to the situation and the issue involved has been dealt with and decided in a careful manner. The Appellate Court has given its findings on all the points of controversy and no prejudice seems to have been caused to the petitioners. So far as the question of giving issue-wise findings by the Appellate Court is concerned, the same is not the requirement of law under Order XLI, rule 31, C.P.C. It is sufficient for the Appellate Court to deal with all the issues as are material for disposal of the controversy excepting those abandoned by the appellant. An Appellate Court recording its findings on the points raised before it, without discussing the issues separately cannot be said to have committed any illegality or error. Even otherwise law regarding framing of issues is firmly settled to the effect that where parties enter into trial of the case with all awareness of controversy between them, its framing or non-framing looses importance. Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others 1993 SCMR 2018.
6. Learned counsel could neither point out as to which issue was improperly framed nor could he draw my attention to any material portion of evidence which was overlooked or misread by the Appellate Court. Neither there appears to be any misreading of evidence nor any material piece of evidence appears to have been overlooked by the. Appellate Court while deciding the appeal.
7. Adverting to the question regarding remand, it may be observed that the appellate and revisional Courts are always empowered to remand the case in terms of Order XLI, rule 25, C.P.C. but this discretionary power is used only in exceptional situation and if the parties have led evidence with regard to the particular point and the Court of first instance by giving specific finding on the said point decided the same in the light of evidence available on record, the remand of the case in appeal or revision is not proper exercise of the jurisdiction.
8. Pursuant to above, I am of the view that the findings recorded by learned trial Judge and affirmed by learned Appellate Court are not only in consonance with the record of the case but the same are also in accordance with the law on the subject. The civil revision is devoid of force which is dismissed in limine. The listed application also meets the same fate.
H.B.T./115/P Revision dismissed.