MUHAMMAD AKHTAR SHABBIR, J.--- The present appellant has filed a suit for recovery of Rs.5,59,891.20 against the respondents. The said amount was given to the respondent as a loan for having a separate house for his own. The respondent/defendant promised to return the amount along with interest by the end of June, 1999. The suit was contested by the defendant/respondent, he asserted that he has received the amount as marriage gift. From the factual controversy appearing on the pleadings of the parties, the learned trial Court led to frame the various issues.
After recording, appreciating, the evidence of the parties pro and contra, the learned trial Court dismissed the suit vide judgment and decree dated 13-5-2003. Feeling aggrieved the present petitioner preferred an appeal which came up for hearing before the learned Additional District Judge, Faisalabad, who vide impugned judgment and decree dated 24-6-2004 dismissed the same and affirmed the findings of the learned trial Court.
2. The learned counsel for the petitioner contended that the learned trial Court has failed to frame the proper issues in view of the pleadings of the parties and thus, committed illegality. Further contended that the judgments of the Courts below are result of misreading and non-readings of evidence. He continued that the findings of the Courts below on Issue No.1-A are also contrary to law and facts. The time will start functioning for filing the suit from the date of refusal by the defendant/ respondent.
3. I have heard the learned counsel for the parties and perused the record.
4. Issues are to be framed on the basis of material enumerated in rule 3 of Order 14, with regard to the material proposition of law or facts distinct and separate issues are to be framed for each proposition in dispute. It is the duty of the Judge himself to frame proper issues, so that the parties may know the controversy, the disputed fact on which evidence is to be led and to enable an effective judgment to be rendered but where the parties are not satisfied, it is their duties to get proper issues framed. The appellant during the trial has not objected to the framing of the proper issues or not framed the issues in accordance with the objection raised in the pleadings of the parties. The appellant was duty bound to apply to the trial Court for this purpose and in case of failure would have challenged the order before the next higher Court or at least should have raised this objection in the memorandum of their appeal before the lower appellate Court and the appellant if he failed to raise the objection in the trial Court or in the lower Appellate Court, this objection now at this stage, cannot be raised. In this context reference can be made to the case of Mir Afzal and 2 others v. Muhammad Raza Khan and 13 others 1990 CLC 1617. The other aspect of the case is that mere omission to frame the issues by itself would not be fatal where substantial justice has been done. Where the parties have been aware of the points requiring determination, and had led evidence and the matter had been decided by the Court, in that case the decision rendered by the Court would not be illegal. Reliance in this context can be placed to the case of Fazal Muhammad Bhatti v. Mst. Saeeda Akhtar and 2 others 1993 SCM R 2018 and also a judgment of this Court in the case of Kaura and others v. Allah Ditta and others 2000 CLC 1018; Mst. Sughra Bibi alias Mehran Bibi v. Asghar Khan and another 1988 SCM R 4. Both the Courts below by passing the impugned judgments and decrees have taken into consideration the evidence produced by the parties. The controversy before the trial Court was that the claim of the plaintiff/appellant that 14460 US $ were paid by the plaintiff to the defendant but the defendant has taken the stand that the said amount has been paid by the plaintiff as a marriage gift of the defendant as the were of the defendant is the real niece of the plaintiff/appellant and she has given the said amount as gift to the defendant and his were. The finding of the trial Court dismissing the suit of the plaintiff has been maintained by the lower Appellate Court and there is concurrent findings of facts by the Courts below on question of fact against the appellant. It is settled proposition of law that second appeal will lie where the judgment is uncertain in its meaning and the finding is vague and inconclusive or where the reasons are not given at all. Reference in this context can be placed to the case of Syed Rehmat Ali through Legal Heirs and 2 others v. Syed Sadique Ali through Legal Heirs 1999 YLR 1656. Learned counsel for the appellant has not been able to point out any material non-reading or misreading of the evidence calling for interference by this Court in second appeal as laid down in case of Mushtaq Hussain and others v. Mukhtar Ahmad and others 1999 M LD 3384.
In case of Mussarat Sultana v. Muhammad Saeed 1997 SCM R 1866 the Honourable Supreme Court has observed that the High Court in second appeal had no jurisdiction to go into the question relating to weight to be attached to the statement of the plaintiff. Believing or disbelieving evidence being function of the trial Court, finding recorded in regard thereto was not open to challenge in second appeal by High Court in exercise of its jurisdiction under. Section 100, C.P.C. Simply because some other viewpoint on evidence produced , could also be taken. Interference in concurrent finding of fact could be made by High Court only when evidence was misread and finding was based on surmises and conjectures; or on inadmissible evidence; or there existed error or defect in procedure which might possibly have introduced error or defect in decision on merits.
5. Both the Courts below have rightly observed that the suit is barred by limitation. The case of the plaintiff is that the amount in dispute was paid to the defendant as a loan for construction of their house; therefore, Article 59 of the Limitation Act, 1908 is attracted and the period of three years is provided for filing the suit, which shall commence when the loan is made. Findings of the Courts below on Issue No.1 are affirmed and call for no interference.
6. For the foregoing reasons, this regular second appeal having no force is dismissed in limine.