MUHAMMAD HANIF Versus MUHAMMAD ASLAM
MUHAMMAD TARIQ ABBASI, J.--- This single judgment is intended to decide the above captioned revision petitions, as in the both consolidated judgment and decrees dated 13.12.2004, passed by the learned Additional District Judge, Rawalpindi, has been called in question.
2. The facts in short are that Muhammad Hanif etc. (the petitioners in Civil Revision No.41), filed a suit, against Muhammad Aslam (the respondent in the said Civil Revision), whereby possession of four rooms and courtyard, fully described in the plaint, was sought. Muhammad Aslam, Mst. Fazal Jan, Mst. Raheem Jan and Mst. Qudrat Jan (the respondents in Civil Revision No. 40 of 2005), also preferred a suit against the above named Muhammad Hanif etc., whereby the possession of a house consisting of one room, fully narrated in the plaint, was demanded.
3. Both the above mentioned suits were proceeded in the learned trial Court and decided through judgments and decrees dated 23.11.2002, whereby the suit filed by Muhammad Hanif etc. was decreed and that of Muhammad Aslam etc., was dismissed.
4. Muhammad Aslam etc. preferred appeals, which came up for hearing before the learned Additional District Judge, Rawalpindi, from where consolidated judgments and decrees 13.12.2004 were pronounced, whereby the suit filed by Muhammad Hanif etc. was dismissed, whereas preferred by Muhammad Aslam etc. was decreed. Consequently, the revision petitions in hand.
5. Arguments of both the sides have been heard and the record has been perused.
6. The record shows that in the suit filed by Muhammad Hanif etc. the following issues were framed:-
(1) Whether the plaintiffs have no cause of action to bring the suit?
(2) Whether the suit is time barred?
(3) Whether the suit has not been correctly valued for the purposes of court fee and jurisdiction? If so what is its correct valuation for both the purposes?
(4) Whether the suit is bad for non-joinder of necessary parties?
(5) Whether the plaintiffs are owners of the suit property and as such are entitled to the decree for possession of same?
(6) Relief.
(6-A) Whether the defendants are licensee on the suit property of the plaintiffs? OPP
(6-B) Whether the suit property had been purchased by the father of defendant from father of plaintiffs? OPD
7. Whereas in the above mentioned other suit preferred by Muhammad Aslam etc. the following issues were settled by the learned trial Court:-
(1) Whether present suit is time barred? OPD
(2) Whether the present suit is bad for non-joinder of necessary party? OPD
(3) Whether the present suit is incorrectly valued for the purpose of court fee and jurisdiction, if so, what is correct valuation? OPD
(4) Whether the plaintiff is entitled to a decree for possession of the property in dispute and as a consequential relief for permanent injunction to restrain the defendants from changing the condition of the suit house and from alienating the same? OPP
(5) Relief.
The learned trial Court, in both the suits, had given the issue wise findings and ultimately passed the judgments and decrees dated 23.11.2002, in the above mentioned terms.
8. The decree by the learned trial Court in favour of Muhammad Hanif etc. was as a result of the findings given under issue Nos.5, 6-A and 6-B mentioned above. Whereas the dismissal of the suit of Muhammad Aslam etc. was in consequence of the decision made under issue No.4 described above.
9. It has been observed that when the matters have gone before the learned Additional District Judge, Rawalpindi, in shape of the above mentioned appeals, the learned Additional District Judge without adopting the requirements of Order XLI of C.P.C. and without discussing any issue or setting aside any findings made therein, in an ambiguous manner has passed the judgment and decrees dated 13.12.2004.
10. When the above mentioned situation was confronted to the learned counsel appearing on behalf of the respondents he has frankly stated that the judgment of the learned Appellate Court is not issue wise and that findings of the learned trial Court regarding any issue has not been disturbed, however, the appeals have been decided, as mentioned above.
11. When the law prescribed that as thing should be done in a particular manner then the said thing must be done in the said particular manner or should not be done at all. Reliance in this regard is placed upon Tehsil Nazim TMA, Okara v. Abbas Ali and 2 others (2010 SCMR 1437), Muhammad Akram v. Mst. Zainab Bibi (2007 SCMR 1086), Khalil-ur-Rehman and another v. Dr. Manzoor Ahmed and others (PLD 2011 SC 512), Raja Hamayun Sarfraz Khan and others v. Noor Muhammad (2007 SCMR 307). In the situation in hand, under Order XLI of C.P.C., it has clearly been mentioned that the learned Appellate Court should record the issue wise findings but, as stated above, the said procedure has not been complied with. In the judgments reported as Madan Gopal and 4 others v. Marn Bepari and 3 others (PLD 1969 SC 617) and Ch. Muhammad Shafi v. Shamim Khanum (2007 SCMR 838) the Hon'ble Supreme Court of Pakistan has laid down the law that the appellate Court must give his judgment with reasoning and also meet out all the points of the judgment of trial Court.
12. Resultantly, the impugned judgment and decrees of the learned Appellate Court could not be termed to have been passed while considering the law and the procedure on the subject.
13. Consequently, both the revision petitions in hand are accepted, the impugned judgment and decrees dated 23.12.2004 are set aside, with a direction to the learned Appellate Court to take up the appeals again and while hearing all the concerned, pass a valid judgment, warranted under the law, and procedure positively, within a period of one month from the date of receipt of this order. No order as to costs.
ZC/M-281/L Petition allowed.