' The brief facts out of which the present revision petition arises are that the plot in question i,e, Plot No,196-A measuring 7 Marlas, 229-sq.Ft. Was originally allotted to one Muhammad Sharif by Faisalabad Development Authority vide order, dated 20-4-1957. Father of the respondent No,1 Muhammad Iqbal executed an agreement with respondent No,2/defendant No,2 on 23-11-1971.
Father of respondent No,1 did not construct the building over the plot in question in terms of the agreement executed between respondents Nos.1 and 2/defendants Nos.1 and 2. Late Muhammad Sharif executed an agreement with the petitioners/plaintiffs through Ghulam Muhammad, father of the petitioner No,1 /plaintiff No,1 who also executed irrevocable power of attorney in favour of Ch. Abdul Hamid Arshad father of petitioner No,2/plaintifT No,2. The plaintiffs raised construction over the plot in question. They are paying the utility bills after securing the connections from the concerned Departments. The original allottee died in the year 1980. Ghulam Muhammad father of petitioner No,1 also died. The petitioners secured the document in question from the "Munchhi" of late Ghulam Muhammad father of the petitioner No,1. The petitioners after receiving the said documents filed a suit for specific performance in the Court of Civil Judge, 1st Class, Faisalabad on 10-7-2001, who dismissed the same vide impugned judgment and decree dated 21-7-2001 on the ground of limitation. The petitioners being aggrieved preferred an appeal in the Court of Additional District Judge,. Faisalabad, who also dismissed the same vide impugned judgment and decree dated 17-9-2002. The petitioners being aggrieved filed this revision petition.
2. The learned counsel of the petitioners submits that time is not the essence of the contract qua the agreement executed with regard to an immovable property. He further submits that both the Courts below erred in law to dismiss the suit of the petitioners as time-barred. He further submits that both the Courts below also erred in law not to frame issue with regard to limitation in terms of Order XIV, C.P.C. In support of his contention, he relied upon the following judgments:- ' Muhammad Anwar v. Bahan 2000 YLR 378; Ch. Zia Ilahi, Advocate v. Khushi Muhammad PLD 1999 Lah. 238; Abdul Hamid v. Abbas Bhai PLD 1962 SC 1; Ashfaque Ahmad Sheikh v. The State PLD 1972 SC 39 and Kaniz Fatima v. Sh. Muhammad Sohail 2002 CLC 923.
3. The learned counsel of respondent No,2 submits that Courts below have concurrently decided against the petitioner, therefore, revision petition is liable to be dismissed as the learned counsel of the petitioners fails to point out any infirmity or illegality in the judgments of the Courts below. He further submits that the petitioners have not submitted any document for the change of the ownership of the plot in question, which was allotted by respondent No,2 in favour of the father of petitioner No,1/plaintiffs No,1, therefore, respondent No,2 is not necessary and proper party. It is pertinent to mention here that respondent No,1 has engaged Mr. Muhammad Yasin Bhatti-I, Advocate C.C. No,12385 who had already filed power of attorney on behalf of respondent No,
1. His name is also mentioned in the cause list. Office has also sent notice to the respondents on 23-2- 2005 for 24-3-2005. Despite repeated calls, nobody entered appearance on behalf of respondent No, I. In such circumstances, I have no other alternative except to proceed against respondent No,1 ex parte. The reason qua delay of cases was noted by the Honourable Chief Justice of Pakistan in his speech delivered in SAARC Conference reported in PLD 2004 Journal 65, which is to the following effect:- "Adjournments are sought and granted in routine. Unless the Judges and the lawyers make concerned efforts to avoid the phenomenon of adjournments, the goal of expeditious dispensation of justice will remain illusory.Pace of trial proceedings in civil and criminal cases must be quickened. Judges must spend more time in the Courtrooms, in conducting trials and resolving disputes. Equally, the members of the legal profession must extend their fullest support and cooperation in the dispensation of justice. The press must also play its due role in highlighting the issues and problems confronting the system of administration of justice in the country."
4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
5. It is settled principle of law that question of law can be raised at any stage as per law laid down by the Honourable Supreme Court in Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690. It is also settled principle of law that law must be in the sleeves of the Judge and it is no excuse that counsel of the parties did not B cite law before the Court as per law laid down by the Honourable Supreme Court in Mst. Salma Afroze's case PLD 1992 SC 263. It is duty and obligation of the Courts to frame issues on the basis of the divergent pleadings of the parties.
It is also settled principle of law that each C material proposition should be reflected in distinct issue, point raised in one issue should not be stretched in other issue as per law laid down in Major (Retd.) Mazhar Mahmood Khan v. Khushhal Khan Jadoon 1995 MLD 316. It is basic and fundamental duty of the trial Court to settle proper issues for decision nonetheless, in case of omission on its part litigant party was equally responsible to invite the attention of Court for supplying such deficiency as per law laid down in Muhammad Ismail v. Mukhtar Ahmad and another 1994 MLD 402. Every material proposition affirmed by one party and denied by the other to be put to issues so that the parties to lead evidence and to avoid prejudice being caused to either side due to absence of material issues as per law laid down by the Karachi High Court while interpreting Order XIV, rule 1, C.P.C. In Ghulam Ali v. Muhammad Hussain Kathawala PLD 1985 Kar.
152. The mandate of aforesaid rule reveals that it is incumbent upon the Court to frame issues, in the light of the controversies raised in the pleadings of the parties. Issues of law and facts are to be illustrated clearly, to enable the parties to understand the points at issue to support their respective claims by relevant evidence on all material points as per law laid down in the following judgments:-- ' Faiz Muhammad Khan v. Syed Qabil Shah PLD 1949 Pesh. 5; Azizur Rehman v. L.D.A. 1985 CLC 2028; Naseem Sadiq v. Ghulam Ghause 1980 CLC 286; Gul Nawaz v. Gul Bazar and others 1996 MLD 1406 and Rehmat Khan v. Iftikhar Ahmad and 8 others 1991 MLD 981.
It is also settled principle of law that separate issue on controversial points be framed instead of joint issues as per law laid down by the superior Courts in the following judgments:-- ' Dr. Sajjad Ahmad v. Dr. Muhammad Bashir PLD 1979 Lah. 304; Gul Baz v. Abdur Raziq PLD 1995 Pesh.
38 and Fazal Mahmood and others v. Tajar Khan 1992 MLD 1439.
It is also settled principle of law that parties failed to press the issue is no ground for not framing proper issues as per law laid down in Ananta Kumar Majumdar and others v. Gopal Chandra Majumdar and others PLD 1961 Dacca 65. It is also settled principle of law that in case any issue improperly framed could be raised by a party at any stage as per law laid down in Raja Ghulam Haider v. Major (Retd.) Jamshed Alain Khan 1991 MLD 1284 on the well-known principle that it is the primary duty of the Court to frame proper issues arising from the pleadings of the parties as per law laid down in Mst. Hafizan v. Muhammad Yasin and 2 others 1985 CLC 1448. It is also settled principle of law that omission on the part of the trial Court to frame issues is irregularity not curable under section 99 of C.P.C. Parties have been prejudiced by such omission as per law laid down in Azizur Rehman v. L.D.A. 1985 CLC 2028. It is also settled principle of law that nobody is prejudiced by the act of the Court when the trial Court has not framed the issue then the parties should not be penalized by the said omission on the well-known principle that nobody should be prejudiced by act of the Courts as per law laid down in Sardar Khan v. Muhammad Jan and others 1997 CLC 361. It is duty of the Judge himself to frame proper issues. In arriving to this conclusion I am fortified by the law laid down in the following judgments:- ' Roazi Khan and others v. Nasir and others 1997 SCMR 1849 and Mansab Ali v. Nawab and others 1994 CLC 2208.
The object of framing issues is to ascertain real issue between the parties by narrowing down the area of conflict and determine between the parties where the parties differ coupled with the fact that the framing of issues is one of the most important stage of the trial in view of Order XIV, rule 2, C.P.C. Read with Order XX, rule 5 and Order XVIII, rule 1, C.P.C.
In view of the aforesaid principles now I examine the present case. It is pertinent to mention here that respondents filed written statement by raising nine preliminary objections. The trial Court has framed omnibus Issue No,1 which is to the following effect:- "Whether the suit is bad and liable to be dismissed with special costs in view of preliminary objections?"
' Mere reading the aforesaid issue, it reveals that in case the respondents/defendants are able to prove their preliminary objections then the suit be dismissed with special costs, this fact alone brings the issue in question that issue was framed by the trial Court without highlighting the real controversy between the parties that is why the petitioners are prejudiced by omission of the trial Court. The respondents have not produced the evidence With regard that the suit of the petitioners is time-barred as is evident from the impugned judgment of the First Appellate Court. Muhammad Khalid one of the petitioners/plaintiffs stated during the cross-examination that prior to the filing of the present suit respondent No,1 has given his refusal. Now there is no corroboration of the statement of the petitioners/plaintiffs through any other independent source from the statement of P. Ws. As is evident from para.10 of the impugned judgment of the First Appellate Court. As mentioned above, trial Court has not properly framed the issues which are in the nature of omnibus and this fact was also not noted by the First Appellate Court and in fact the First Appellate Court has countersigned the judgment of the trial Court without adverting to Order XIV, rule 1, C.P.C.
Therefore, impugned judgment of the First Appellate Court is in violation of Order XIV, rule 1, C.P.C.
And the law laid down by the superior Courts as mentioned above. It is pertinent to mention here that both the Courts below have non-suited the petitioners on the ground of limitation but both the Courts below have not framed any issue with regard to limitation,.N which is duty of the Court in terms of Order XIV, C.P.C. As per law laid down by the superior Courts mentioned above. As both the Courts below have not discharged their duties in terms of the law laid down by the superior Courts in the aforesaid judgment. In case both the Courts below failed to discharge their duties in terms of the law laid down by the superior Courts then it is termed as material irregularity as per law laid down by the Honourable Supreme Court in the following judgments;-- ' Kanwal Nain's case PLD 1983 SC 53 and Shaukat Nawaz's case 1988 SCMR 851.
Both the Courts below have decided the case in violation of the parameters prescribed by the superior Courts in the aforesaid judgments, therefore, this Court has ample jurisdiction to interfere in the concurrent finding of fact arrived by both the Courts below while exercising powers under section 115, C.P.C.
6. In view of the aforesaid circumstances the judgment and decree of the First Appellate Court is set aside and the case is remanded to the First Appellate Court to frame the issues keeping in view the divergent pleadings of the parties in clear terms without any ambiguity and then proceed in the matter in accordance with law either to record the evidence himself or send the same to the trial Court to decide the case in terms of the additional issues framed by the First Appellate Court after recording the evidence of the parties in accordance with law. Parties are directed to appear before the District Judge concerned on 19-4-2005, who is directed either to hear the appeal himself or entrust the same to the Additional District Judge concerned, who is directed to decide the case afresh in terms of the aforesaid direction without being influenced by the observation of this Court in accordance with law, after notice to the parties. Parties and their counsel are directed to cooperate with the concerned Court so that the matter may be finalized within the prescribed period. In case any of the parties or its counsel fails to cooperate with the concerned Court then the concerned Court is directed to invoke the penal provisions against the said party.