MUHAMMAD and 9 others vs HASHAM ALI-7

MUHAMMAD NAWAZ ABBASI, J.---This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been directed against the judgment dated 11-7-2001 passed by a learned Single Judge of Lahore High Court in a civil revision arising out of a suit for declaration.

2. The relevant facts in small compass are that Hashim Ali, respondent herein, filed a suit for declaration against the petitioners wherein he stated that he being owner of land measuring 19 Kanals, 13 Marlas situated in Chak No,8-GB, Faisalabad, mortgaged the same with possession for a sum of Rs,9,000 with Ahmed Din, predecessor-in-interest of the petitioners in 1979. The respondent pleaded in the suit that the mortgagee fraudulently by converting the mortgage deed into the sale-deed got it registered in the name of the petitioners, his successor-in-interest and he came to know about the fraud when he sought redemption of mortgage in the Revenue Record through payment of mortgage money. The suit was resisted by the petitioners by denying the claim of respondent and pleaded in the written statement, that they obtained possession of the land under the sale and were not mortgagee of the land. The learned trial Judge in the light of pleadings of the parties, framed three issues firstly on the question of limitation, secondly the maintainability of the suit in its present form and thirdly whether the sale deed was void, without consideration, fraudulent and ineffective to the rights of respondent/plaintiff. The suit was dismissed by the learned trial Judge vide judgment dated 7-2-1990 but in appeal filed by the petitioners, the learned Additional District Judge, Faisalabad, remanded the case to the trial Court vide judgment dated 23-1-1991 with permission to add the consequential relief of possession through amendment in the plaint. The petitioners being dissatisfied with the remand order passed by the Appellate Court, preferred a Civil Revision bearing No,477 of 1991 in the Lahore High Court, Lahore and a learned Single Judge by setting aside the findings of the First Appellate Court on Issues Nos. 1 and 3 partly allowed the civil revision through the impugned judgment wherein the case was remanded to the trial Court with the direction that a proper issue on the question of mortgage should be framed and that the respondent may amend the plaint for inclusion of consequential relief of possession in the suit. The parties were also allowed to produce further evidence and trial Court was directed for decision of the case within six months without being influenced by the findings of the First Appellate Court in appeal or by the High Court in the civil revision.

3. The petitioners have assailed the judgment of the High Court mainly on the ground that sufficient evidence was available on record to ascertain the true character of transaction and remand of the case by the First Appellate Court and the High Court in revision with direction for inclusion of relief of possession in the suit through amendment in the plaint and for framing the additional issue was not proper disposal of the appeal and the civil revision. Notice was issued in this petition without grant of leave vide order dated 29-4-2002 and on 27-11-2002 following order was passed:- "Mr. Gul Zarin Kiani, learned Advocate Supreme Court is present on behalf of petitioners points out that Hasham Ali has expired and consequently he has filed Civil Miscellaneous Application bearing No,2275 of 2002 for bringing on record legal heirs of the deceased. The application is accepted subject to all legal exceptions.One Muhammad Anwar is present, who is grandson of Hashim Ali (deceased). Notice also be issued to the rest of the respondents. In view of the peculiar circumstances of the case and submission of Muhammad Anwar, matter may be fixed on 2-12-2002."

4. Learned counsel for the petitioner has contended that the mere fact that a specific issue "whether the transfer was mortgage or sale" was not framed, would not be a valid ground for remand of the case to the trial Court and the Appellate Court and the High Court were under legal obligation to decide the appeal and civil revision on merits as no further evidence was required to be brought on record by either party and the controversy could conveniently be resolved on the basis of existing evidence.. Learned counsel submitted that Issue No,2 relating the maintainability of suit was framed on the basis of objection raised by the present petitioner in the written statement but he would not press the said objection and would be interested in the decision of matter on merits on the basis of existing evidence without framing of additional issue and bringing on record any further evidence. The learned counsel while placing reliance on Fazal Muhammad Bhatti v. Saeeda Akhtar 1993 SCM R 2018, Laloo v. Ghulaman 2000 SCM R 1058, Mst. Sughra Bibi v.

Asghar Khan, 1988 SCM R 4 and Mehr Din y. Bashir Ahmed Khan 1985 SCM R 1 has submitted that the remand of the case to the trial Court in the given facts was without any legal justification. The respondent is represented through his special attorney who is also interested in early disposal of the matter on the present record.

5. The controversy in the suit related to the character of transaction whether a mortgage or a sale and the parties being conscious to the nature of dispute, concentrated on it in their pleadings in the suit and also led the evidence in support of their respective stance regarding the character of transaction. The Court of first instance in the light of pleadings of the parties and evidence held that the transaction was sale whereas the Appellate Court having appraised the evidence in detail, declared it mortgage but due to the defect of not claiming consequential relief in the plaint by the respondent, remanded the case with grant of permission for necessary amendment in the plaint.

The High Court in the civil revision without expressing on the material question involved in the case, set aside the finding of the Appellate Court on the pivotal issue and disposed of the revision petition with direction to the trial Court to also frame an additional issue and allow the parties to produce further evidence. The contention of the learned counsel that neither there was any need of framing fresh issue nor any party desired for production of further evidence and that the appeal and revision could conveniently be decided in the light of pleadings of the parties and the evidence brought by them on record but the Appellate and the Revisional Court committed jurisdictional error by sending the case back to the trial Court instead of deciding the same on the basis of existing record, is not without force. It is settled principle of law that if on a question of fact a specific issue required to be framed in the light of the pleading of the parties was not framed but the parties have produced evidence on the controversial question of fact, the decision can be legally rendered on such question

6. Without framing the issue. In the present case it is an admitted position that none of the parties at any stage of the proceedings made any request either for an amendment in the pleadings or for framing the additional issue despite the fact that main contest between the parties related to the nature of transaction whether a sale or mortgage. In Laloo v. Ghulaman (2000 SCM R 1058) it was held that nothing would turn upon failure to frame an issue on the question of limitation if throughout the proceedings, no request was made for framing an additional issue and the judgment could not be challenged on the said score. It was also held in the above judgment as under:-- "As to the maintainability of the 'snit for not having claimed possession as consequential relief, we have already observed that the steps shall be taken by the respondent for redemption of the mortgage by invoking the jurisdiction of the Assistant Commissioner under the West Pakistan Redemption and Restitution of Morigaged Lands Act."

5-A. The Court in Mst. Sughra Bibi v. Asghar Khan (1988 SCM R 4) held that no prejudice was caused to the parties due to the framing of an omnibus issue by the Civil Judge and the contention relating to the framing of improper issue was of no consequence.

6. In Fazal Muhammad Bhatti v. Saeeda Akhtar (1993 SCM R 2018) it was held as follows:-- "The pleadings and the issues as originally framed show that the parties were fully aware what was the subject-matter of controversy and what evidence was to be led by each one. The Court did not prevent the parties from leading evidence at the trial with regard to the defects in the gift. The non- framing of a specific issue in such circumstances is inconsequential. It was held by this Court in the Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others (PLD 1971 SC 82) that if issues are not framed but allegations made in the plaint are challenged in the written statement and the Court has allowed evidence to be led, then a decision rendered without framing of the issues is not illegal. That has been the established law in the sub-continent as would appear from Sayed Muhammad v. Fateh Muhammad (22 Indian Appeals 4)."

7. The ratio of above-referred judgments is that in a case in which the pleadings of the parties related to a controversial question of fact .And the parties have led evidence in support of their respective stance and decision on such question can be rendered in the light of .Evidence available on record, the framing of separate issue and recording of further evidence in the matter, is not an essential requirement of law for rendering the decision. This is a settled principle that if an ancillary or incidental relief can be granted on the basis of evidence on the record, the formal amendment in the plaint for inclusion of such a relief can be allowed by the Court at any stage. The dispute in the present case related to the character of the transaction and the witnesses produced by the plaintiff have stated that the defendants in the suit were in possession of the land as mortgagee .Whereas the evidence of the defendants was that they having purchased the land were in its possession as owner. The interpretation of a document, is a mixed questioned of law and facts and the disputed document in the present case is a registered document which can conveniently be interpreted in the light of evidence available on record for determination of the true character of transaction and therefore, in the given situation, it was not at all necessary to remand the case for framing of a specific issue. The controversial question relating to the character of the transaction being a mixed question of law and facts could be decided on the present record without recording any further evidence and the omission of seeking consequential relief of possession, could be removed by granting permission for amendment in the plaint even in appeal. Anyhow the omission of prayer of ancillary or consequential relief in the suit is a curable defect and would not materially affect the suit and the plaintiff in case of success in the suit could take necessary steps for redemption of the mortgage through a separate suit or under West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964 as the case may be.

8. The Appellate and the Revisional Court is always empowered to remand the case in terms of Order 41, 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 as a pivotal question of fact decided the same in the light of evidence available on record, the remand of the case in appeal or revision for mere reason that specific issue was not framed on such point is not proper exercise of jurisdiction. The case in hand was not of the nature in which without framing a specific issue the controversial question regarding nature of transaction whether sale or mortgage could not be decided by the Appellate Court on the basis of evidence available on record therefore, remand of the case by the Appellate Court to the trial Court was not proper and further the High Court instead of saving the parties from unnecessary agony of litigation committed the same mistake and remanded the case to the trial Court with additional direction of framing of fresh issue and recording of further evidence if need be. The proper course for the High Court was to send the case back to the Appellate Court for decision of appeal on merits.

8-A. For the foregoing reasons, we while setting aside the judgment of the High Court direct that the Appellate Court shall decide the appeal afresh on all issues on the basis of available evidence.

The petition is converted into an appeal and is accordingly allowed. The appeal was earlier decided by a learned Additional District Judge, Faisalabad, but now it shall be decided by District Judge, Faisalabad, within three months. The parties are left to bear their own costs.