KARACHI DEVELOPMENT AUTHORITY and 2 others vs TAJ MAHAL NURSERY and 3 others

' Before proceeding on merits, I would like to quote the order, dated 1-12-1998 passed by Honourable Chief Justice of this Court which reads as follows : "It is stated that this revision was heard by a learned. Judge and reserved for judgment, but after some time it was fixed for rehearing when it was heard by another learned Judge and the judgment was reserved, but subsequently, it was again fixed for rehearing and this time the board was discharged, and therefore, could not be heard. Both the counsel request that it may be taken up at an early date. By consent, this application is disposed of in the manner that the office is directed to fix this revision for regular hearing in accordance with roster on 16-12-1998 as number one in the list of cases fixed for regular hearing on that date."

' Today, this case was fixed at Serial No,6 for regular hearing in total disregard of the above order passed by the Honourable Chief Justice. The case file was sent to the Court at 9-10 a.m. The Superintendent of Civil Branch was called who was not in a position to explain this irregularity. In these circumstances, I direct the concerned Superintendent and Superintendent, Roster Branch to submit their explanation in view of the above order within two weeks.

2. This is a revision petition filed under section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as C.P.C.). The respondents are plaintiffs who filed a suit for declaration and injunction on 14th March, 1987 which was decreed vide judgment, dated 29-5-1988 by the 1st Senior Civil Judge, Karachi East. Appeal filed against the said judgment/decree was disallowed through the impugned judgment, dated 31st January, 1991 by the learned 'Ind Additional District Judge, Karachi East against which the instant' petition for civil revision has been filed by the applicant. I have heard Mr. Muzaffar Imam, Advocate for the applicant. Since morning, none has appeared on behalf of the respondent. Since I have no other matter to proceed with, I have heard Mr. Muzaffar Imam, learned counsel for K.D.A. And have gone through the record. He has challenged both the orders of the subordinate Courts on the ground that they were passed in gross misreading of the evidence and contrary to the documentary evidence brought on record A by the applicant. While going through the impugned judgment, it was noted that the learned 1st Appellate Court has passed the judgment contrary to the provisions of Order XLI, Rule 31, C.P.C. Admittedly, no points for determination were framed by the Appellate Court nor evidence of both the parties was discussed keeping in view the points for determination. There are several reported cases on this point.

However, before discussing the case-law, it would be advantageous to quote Order XLI, Rule 31, C.P.C. Which reads as follows:-- "31. Contents, date and signature of judgment.--- The judgment of the Appellate Court shall be in writing and shall state--

(a) the points for determination;

(b) the decision therein;

(c) the reasons for the decision; and

(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges occurring therein."

3. In the case Miran alias Mir Muhammad v. Ghulam Hussain PLD 1985 Kar. 674, while hearing a revision application under section 115, C.P.C. This Court accepted the same, setting aside the order of 1st Appellate Court and decreed the suit for specific performance with cost on the ground, inter alia, that the conclusions and findings of the Appellate Court were in total disregard of provisions of Order XLI, Rule 31, C.P.C. And had no merit or sanction in law. This view was also upheld by another Judge of this Court Syed Haider Ali Pirzada, J. (as he then was) in Wazir Khan v. A. Aziz Burney and 2 others 1992 M LD 1758 when a judgment passed by 1st Appellate Court in disregard of Rule 31 of Order XLI, C.P.C. Was held to be contrary to law. Again, this Court, in the case Muhammad Mustaqeem through his legal heirs v. Abdul Haleem through his legal heirs and others 1992 CLC 435 at 440, accepted a revision application and set aside the judgment of the 1st Appellate Court on the ground that the findings of the trial Court were set aside by the Appellate Court but no reasons were shown for such decision. Reliance was placed on the case of Syed Hussain Shah v. Malook and another 1987 CLC 2281, Juma Khan v. Mst. Shamim and 3 others 1992 CLC 1022 at 1024, a learned Single Judge of this Court, Syed Haider Ali Pirzada, J. (as he then was) interpreted Rule 31 of Order XLI, C.P.C. In the following manner:- "... The provisions of Order 41, Rule 31 of the Code of Civil Procedure 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 Legislature has laid down these rules so that either the second Appellate Court or the revisional Court should be in position to find out the track traversed by the Appellate Court. It cannot run away from its onerous duties of recording the finding of fact and/or discussing the evidence. Strictly speaking and with the respect to the learned Additional District Judge, 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 41, Rule 31 of the Code of Civil Procedure...."

4. The above-noted provisions of C.P.C. Were also considered by a learned Single Judge of Lahore High Court in Manzoor-ul-Haq and 3 others v. Mst. Kanzee Begum 1993 CLC 109 at 114 and it was held, inter alia, that under Order XLI, Rule 31, C.P.C. The 1st Appellate Court is bound to decide each and every issue separately by objective appraisal of evidence in consonance with law. In the present case, it is clearly apparent from the reading of impugned judgment that no points for determination were framed by the 1st Appellate Court. There is no discussion on the quality and quantity of the evidence produced by the parties. The trial Court framed five issues including one issue on the point of maintainability of the suit and another on the plaintiff's right to seek remedy in respect of the suit property. But there is no discussion on these issues, while the learned trial Court has discussed the issue of maintainability in detail which is spread over five typed pages of the judgment of the trial Court. All this shows that the impugned judgment was passed in violation of Order XLI, Rule 31, C.P.C. And is, therefore, not maintainable.

5. As a result of the above discussion, this revision application is accepted and the impugned judgment passed by learned IInd Additional District Judge, Karachi East in Civil Appeal No,111 of 1988 is set aside. The matter is remanded back to the Appellate Court for decision afresh on merits and strictly in accordance with the provisions of Order XLI, C.P.C. Since the appeal pertains to the year 1988, it is ordered that the learned Appellate Court should dispose of the 1st appeal within three months after giving notice to the respondents. There shall be no order as to costs in so far as the instant revision petition is concerned.

Revision .