Mst. FEROZA vs ANJUMAN-E-ITTEHAD-E- BALUCHAN, and others
These two consolidated civil revision applications arose from a judgment and decree in two consolidated suits, where the applicant's subsequent appeals were dismissed by the first appellate court. The High Court of Sindh examined whether the lower courts' judgments complied with the mandatory procedural requirements of the Code of Civil Procedure 1908. The High Court found that the trial court failed to follow Order XX Rule 5 of the Code of Civil Procedure 1908 by not recording issue-wise findings. Furthermore, the first appellate court failed to comply with Order XLI Rule 31 of the Code of Civil Procedure 1908, as it did not frame points for determination, record issue-wise findings, or fully weigh the evidence on record. Consequently, with the consent of the parties' counsel, the High Court set aside the findings of both lower courts and remanded the matter to the trial court. The trial court was directed to allow the parties to produce further documents and evidence, and to expedite the disposal of the suits without unnecessary adjournments.
- What is the legal consequence if a trial court fails to record its findings issue-wise in accordance with Order XX Rule 5 of the Code of Civil Procedure 1908?
- Does the failure of an appellate court to frame points for determination and weigh evidence violate the mandatory requirements of Order XLI Rule 31 of the Code of Civil Procedure 1908?
- Can a High Court set aside concurrent findings and remand a case to the trial court for fresh evidence with the consent of the parties' counsel under civil revisionary jurisdiction?
- Order XX Rule 5, Code of Civil Procedure 1908
- Order XLI Rule 31, Code of Civil Procedure 1908
ORDER
' By this common order, I intent to dispose of these two civil revisions being numbers 199 and 200 of 2000 which have arisen out of a judgment and decree in two consolidated suits against which two separate appeals filed by the applicant/ plaintiff were dismissed.
2. After hearing the learned counsel for the parties at length and after examining the evidence available on record and the findings of the two Courts below, I feel inclined to remand this case to the learned trial Court after setting aside the findings recorded during the trial and the appeal because the learned trial Court, has not followed Order XX, rule 5, C.P.C. Strictly in accordance with law as held in the case of Ali Muhammad v. Muhammad Hayyat and others 1982 SCM R 816.
Moreover, the findings do not appear to be appropriate. Same is the case with the judgment of the learned Ist Appellate Court wherein the mandatory requirement of Order XLI, rule 31, C.P.C. Have been ignored. Neither the findings have been recorded issue-wise nor the points for determination were framed. The evidence on record has not been fully weighed or considered. Reliance can be placed on the case of Mst. Sahib Noor v. Manzoor Haider Shah PLD 1989 SC 568.
3. With the consent of learned counsel for the parties this case shall go back to the learned trial Court which shall provide a fresh opportunity to the parties to produce any further documents and evidence in support of their respective contentions if they so desire, so as to enable the learned trial Court to reach at a just and fair conclusion under the circumstances of the nature of dispute.
There will be no order as to costs. Since the matter is very old, hence the learned trial Court is expected to expedite the disposal of the suit and to avoid unnecessary adjournments. In order to avoid issuance of any notice by the learned trial Court to the parties, I will direct them to appear before the learned IIIrd Senior Civil Judge, Karachi (South) on 1-2-2003. These revision applications stand disposed of accordingly.
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