IMAM DINO and others vs NAWAZ ALI SHAH

ORDER

1. ' This revision application under section 115, C.P.C. Is directed against the judgment and decree, dated 14-10-1993 and 21-10-1993 respectively passed by the learned District Judge, Thatta, dismissing Civil Appeal No,13 of 1993 and upholding the judgment dated 23-9-1992 and decree, dated 1-10-1992 passed by the Senior Civil Judge, Thatta, in First Class Suit No,167 of 1989.

2. ' Heard Mr. K.B. Bhutto, learned counsel for the applicants and Mr. Fahim Riaz Siddiqui, learned counsel for the respondent.

3. ' Mr. K.B. Bhutto has submitted that, in addition to the other grounds, the impugned judgment in first appeal is not sustainable in law as it suffers from a gross illegality. Elaborating his contention he has submitted that, the learned First Appellate Court has not adhered to the mandatory requirements of Order 41, rule -31, C.P.C. Whereby the Appellate Court is required to state the points for determination and to give decision thereon supported with the reasons. He has taken me through the impugned judgment to show that, the learned District Judge, Thatta, has not formulated the points of determination and has not given findings on all the issues framed by the trial Court with the result that even substantial compliance has not been made with requirements of Order 41, rule 31, C.P.C. He has further submitted that, the learned District Judge, Thatta, has decided one issue only and that too partly because the contention raised on behalf of applicant to the effect that, the suit property was a Waqf Property has not been considered and the learned District Judge, has failed to apply his mind and to give any findings, as to how and under what circumstances, the applicant came in possession of the suit property.

4. ' Mr. Fahim Riaz Siddiqui, learned counsel for the respondent has supported the impugned judgment, but he is not able to rebut the contention raised by Mr. K.B. Bhutto.

5. ' I have carefully perused the impugned judgment and have considered the contentions raised by the learned Advocates for the parties.

6. I am of the considered opinion that, the Appellate Court is required to give its decision with regard to each and every point for determination and the contentions raised for and against should be disposed of by a speaking order. The Appellate Court is further required to discuss all the grounds on which the finding of the Court below is based. A perusal of the judgment by the trial Court shows that learned Senior Civil Judge has given elaborate findings on each issue framed by it. However, the learned District Judge has disposed of the appeal by a summary and slipshod order and consequently, the non-compliance of the provisions contained in Order 41, rule 31, C.P.C. Has rendered the impugned judgment unsustainable in law. Such judgment cannot be held to be in accordance with the law and consequently, I am of the opinion that, it is a fit case to be remanded to the learned First Appellate Authority enabling it to record a speaking judgment in accordance with the law.

7. The impugned judgment and decree passed by the learned District Judge, Thatta, dated 14-10- 1993 and 21-10-1993 respectively in Civil Appeal No,13 of 1992 is therefore, set aside and the case is remanded back to the learned District Judge, Thatta, for rehearing and fresh decision.

8. ' After hearing the learned Advocates for the parties in Court today, the revision application was allowed by a short order which reads as follows;-- "For the reasons to be recorded later on, the revision application is allowed. The impugned judgment of First Appellate Court is set aside and the case is remanded back to. District Judge, Thatta, with the direction that the parties may be reheard and fresh judgment be given keeping in view the provisions contained in Order 41, rule 31, C.P.C.

9. ' Since, it is a very old matter, therefore, both the parties are directed to appear before the learned District Judge, Thatta, on 12th September, 2002, without any further notice of intimation from the District Judge, Thatta. After hearing the learned Advocates for the parties, the learned District Judge, Thatta, should dispose of the matter before 31st October, 2002. The compliance report be submitted to the M.I.T. High Court."

10. ' These are the detailed reasons in support of the above short order. The office is directed to return the R&Ps of the lower Court to the District Judge, Thatta, within three days from today so that the case file is received by the learned District Judge well within time and the direction pertaining to the schedule of hearing and disposal is complied with.

11. ' The revision is allowed as above.