Syed FARZAND RAZA RIZVI Versus Syed ZAHEER MUSTAFA

1. This Revision application is directed against the judgment dated 4‑10‑1983 passed by the VIIth Additional District Judge, Karachi whereby he set aside the order passed by the XIXth Senior Civil Judge, Karachi.

2. The facts leading to the tiling of the above Revision are that Anjuman Itehs dul Momeneen‑e‑Jareha, filed a suit against Oamar Ali and the present applicant and one S.M. Mehdi. Alongwith the plaint, the said Anjuman Itehadul Momeneen filed an application under Order XXXIX, Rules 1 and 2, CY.C. for restraining the defendants to collect the chanda or funds in the name of plaintiff Anjuman and interfere into the affairs of Imam Bargah Ali Raza and attached mosque till the disposal of the suit. The case as set out in the plaint was that Qamar Ali in collusion with the applicant and one S.M. Mehdi Abbas Rizvi took advantage of temporary management and started collecting the chanda from the public and also called upon the said Anjuman to hand over the record and papers of the Anjuman to him. The application was resisted by Oamar Ali who filed counter‑affidavit wherein he stated that he was the Administrator of the Anjuman whereas the respondent was no more its General Secretary.

3. The learned Senior Civil Judge, by order dated 13‑2‑1983 dismissed the application. The learned Civil Judge, found that the respondent has not made out a prima facie case. The learned Civil Judge also found that the said Qamar Ali has established that the present Anjuman consisted of elected members and they were within their rights to collect Chanda and to manage affairs of the Imam Bargah and attached mosque hence they would‑suffer and not the respondent.

4. The respondent being aggrieved against the order dated 13‑2‑1983 of the XIXth Senior Civil Judge, Karachi preferred Civil Miscellaneous Appeal No. 66 of 1983 before the. Distt Judge, Karachi which was ultimately transferred to the VIIth Additional District Judge, Karachi.

5. The learned Additional District .fudge, after hearing the arguments of the learned counsels for the parties, allowed the appeal by his judgement at 4th October, 1983.

6. The applicant being aggrieved against the said judgment dated. 4‑10‑1983 of Additional District Judge has preferred the present Revision Application on the grounds mentioned in Memo of Revision.

7. I have heard the learned counsel for the parties and perused the impugned judgment as well as order of both Courts below.

8. The learned counsel for the applicant has contended that the learned Additional District Judge has failed to comply with the requisition of an appellate judgement mentioned in Order XLI, Rule 31, C.P.C:

9. The learned Additional District Judge in his judgment has stated that the defendant No.l (Qamar Ali) neither contested the injunction application nor raised any objection at all. This fact is not born out from the order of the learned Civil Judge. A perusal of the order would show that the defendant No.l (Qamar Ali) contested the application and filed counter‑affidavit. In the counter‑affidavit he took the plea that the managing committee as well as office‑bearers of Anjuman Itehadul Momeneen were suspended and appointed Qamar Ali Jarcha as the sole arbitrator and he was also held responsible for holding the elections. The Ahjuman consisted of elected members and they were within their rights to collect chanda and to manage the affairs of the Imam Bargah and attached mosque. The learned Addl. District Judge has not given any reason in his judgment. It is pertinent to reproduce relevant, portion of the judgment which reads thus:‑.

10. "There are allegations and counter‑allegations against each other of the parties. The respondents might be having a good case if they file an application under Order VII, Rule 11, C.P.C. before the lower Court if at all they desire so. So far the application under Order XXXIX, Rules 1 and 2, C.P.C. is concerned the appellant has made out a prima facie case for the temporary relief. The balance of convenience is also in favour of the appellant as they have established that they are the elected members from the year 1980. The matter regarding elections taking place in 1982 is yet under the shadow till so far the evidence is also in favour of the appellant; hence I am unable to uphold the order of the Lower ('curt which is set aside and the prayer regarding application under Order XXXIX, Rules 1 and 2, C.P:C. read with section 151, C.P.C.. is allowed there being no order to costs."

11. The provisions of Order XLI, Rule 31, C.P.C. are mandatory. The judgment of the first appellate Court has to set out points for determination, record the decision thereon and give its own reasons for the said decision. The expression used throughout is "shall state". Looking to the plain language of this rule, it cannot be said that failure to comply with these provisions is a mere irregularity. The Legislature has laid down these rules as that either the second Appellate Court or the Court exercising such extraordinary jurisdiction should be in a position to find out the track traversed by the Appellate Court. It cannot run away from its onerous duties of recording the findings of fact and/or discussing the evidence. Strictly speaking, as one reads the judgment it cannot be said to be a judgment of the first Appellate Court at all within the meaning of Order XLI, Rule 31, C.P.C. otherwise these imperative provisions would be reduced to empty formalities. As I read the judgment of the learned Additional District Judge, nowhere he has ventured to consider the various grounds under Order XXXIX, Rules 1 and 2, C.P.C. In this view of ‑the matter I think it is just and proper that the impugned judgment of first Appellate Court as well as of the trial Court be set aside and the case is remanded to the Civil Judge for disposal on merits in accordance with law.

12. For the foregoing reasons the Revision is allowed and the impugned judgment and order are set aside and the case is remanded to the trial Court for disposal in accordance with law. The parties arc directed through their counsel to appear before the 1st Senior Civil Judge, Karachi East, on 16‑1‑1988. No separate notice will be issued to the parties. or their counsel. I direct the 1st Senior Civil Judge, Karachi East to decide the suit as well as application within six months from 16‑1‑1988. However, there will be no order as to costs.

13. H.B.T./F.64/K ????????????

14. Case remanded.