' SYED SAJJAD HUSSAIN SHAH, J.---This petition impugns order, dated 31-7-2006 passed by the learned Civil Judge 1st Class, Islamabad dismissing the application of the petitioner for framing of .Additional issues.
2. The petitioner filed a civil suit on 5-7-2005 for declaration/partition and permanent injunction stating therein that the petitioner and respondents Nos. 1 and 2 =are legal heirs of deceased Siraj Valliani who died on 21-12-1996. Thereafter dispute arose between the parties regarding House No,528, Margalla Road, F-10-2, Islamabad. The claim of the petitioner is that the property in question was owned and possessed by his predecessor and in his life time he transferred the same in the name of respondent No,1 (mother of the petitioner) as Benamidar, in order to avoid payment of Wealth Tax and respondent No,1 cannot claim to 'be the sole owner of the said property whereas the petitioner is also entitled for share in the said property as legal heir of deceased Siraji Valliani.
3. Respondents Nos. 1 and 2 filed written statement negating the stance of the petitioner on legal as well as factual grounds by submitting that the said plot was purchased by their predecessor in his life time for exclusive benefit, use and possession of respondent No,1 (mother of petitioner and respondent No,2) for her future security. They further denied the assertion of Benami transaction and stated that constructions over the said plot were made by respondent No,1 of her own pocket.
The trial Court after considering the pleadings of the parties framed the following issues:-- Issues:--
(1) Whether the suit is barred by time? OPD
(2) Whether the plaintiff is estopped by his words and conduct to file the suit? OPD
(3) Whether the plaintiff has got no cause of action and locus standi to file the suit? OPD
(4) Whether the plaintiff has not come in to the Court with clean hands? OPD
(5) Whether the suit is false, frivolous and vexatious, as such, the defendants are entitled to get special costs under section 35-A of C.P.C.? OPD
(6) Whether the plaintiff is entitled to the relief as prayed for? OPP
(7) Relief
4. Issues were framed on 15-11-2005 and the evidence of the parties was concluded on 15-6-2006.
On 21-7-2006, the petitioner filed an application under Order XIV, rules 5, C.P.C. For framing of additional issues, proposing the following issues:--
(1) Whether the suit property was purchased by the father of the plaintiff and the defendant was simply a Benami? OPP
(2) Whether the suit property was constructed by the defendant from her own source of income?
OPD
(3) (3) Whether the suit property is liable to be partitioned between the legal heirs of Siraj Valliani, the predecessor of the parties? OPP
5. The learned lower Court dismissed the application of the petitioner with the following observations:-- ' "The perusal of file shows that the issues were framed by the learned predecessor vide order, dated 15-11-2005. The parties to the suit lead evidence to their entire satisfaction and the case was fixed for final arguments. It is further revealed that on 22-6-2006 the plaintiff/petitioner moved an application to summon proposed witnesses which was dismissed by this Court on 28-6-2006 and the case was again fixed for final arguments. The counsel for plaintiff/petitioner sought several adjournments from 30-6-2006 till 21-7-2006 and filed the application in hand on 21-7-2006 to amend the issues as proposed in his application. Admittedly, the Court can amend or strike out issues at any stage before the judgment is pronounced, but the position in this case is quite different. The plaintiff/petitioner moved application to summon the proposed witnesses to prove the construction of the suit property which was dismissed by this Court and the application in hand is yet another mode to achieve the same object. The parties to the suit were aware of their version and lead evidence in support thereto. Hence, the application in hand, for framing of additional issues has got no merits and the same is hereby rejected. Now to come up for final arguments on 2-9-2006."
6. It is contended by the learned counsel for the petitioner that it was mandatory for the trial Court to amend and frame the issues necessary for determination of real controversy as according to him the real controversy is whether the suit property was in the name of the respondent No,1 as Benami which is admitted by the respondents that it was purchased by the predecessor of the parties and whether respondent made constructions out of her own income. In these circumstances, it was mandatory for the trial Court to frame those issues as it is the only controversy between the parties which is to be determined by the Court. In support of his contention he has relied on the cases reported as Muhammad Khalid and another v. Muhammad Iqbal and another (2005 CLC 970) and Mansab Ali v. Hafizan and 5 others (PLD 1993 Lahore 1).
7. On the other hand, the learned counsel for the respondents contested the suit by submitting that the parties were conscious to the controversy and they lead their evidence to resolve the actual controversy narrated in the plaint and the petitioner prior to moving this application, filed an application for additional evidence which too was dismissed and through this petition, the petitioner wants to adduce additional evidence after framing of additional issues. Reliance is placed on the cases reported as Mst. Sughra Bibi alias Mehran Bibi v. Asghar Khan and another (1988 SCMR 4), Muhammad Shafi v. Muhammad Rafique and 7 others (1994 MLD 925), Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others (1993 SCMR 2018), Ahmed Khan v. Malik Fazal Dad (1983 CLC 74) and Punjab Bricks Company through Abdul Rashid and another v.
Messrs Pervaiz Coal Agency and another through its Sole Proprietor (2001 YLR 1373).
8. I have carefully considered the arguments advanced by the learned counsel for the parties and perused the record minutely by giving anxious consideration to the submissions made by the learned counsel for the parties. There is force in the arguments advanced by the learned counsel for the petitioner. The objection regarding framing of a particular issue necessary for disposal of case if not at all claimed by an effected party during the trial or before the Appellate Court in an appeal against the final decree, the same may be deemed to have been waived or abandoned.
The question of waiver or abandonment or objection that the parties were aware of the controversy, does not arise if during the pendency of the trial and before passing a decree, a party makes an application to the trial Court for framing of issue necessary for determining the matter in controversy between the parties, as in the present case. The case-law referred by the learned counsel for the respondents is not applicable to the facts of the present case. In the cases referred by the learned counsel, the omission in framing of a particular issue was never brought to the notice of the trial Court and was raised for the first time before the appellate Court or the Supreme Court. In the instant case, the objection was raised prior to the disposal of the whole case but the trial Court failed to exercise the jurisdiction vested in it under Order XIV, rule 5, C.P.C. Mainly due to a mistaken view of law. The order of trial Court refusing to frame the additional issues was not only illegal but was violative of the provisions of Order XIV, rule 5, C.P.C. Which makes it mandatory upon the Court to amend or frame issues necessary for determining the controversy arising out of the pleadings of the parties.
9. It is the duty of the Court to frame proper issues arising out of the pleadings of the parties to determine all matters in controversy. After going through the pleadings of the parties, I am not satisfied with the issues framed in the suit by the trial Court. The case of the petitioner in the suit is that the property in dispute i.e, 528- Margala Road, F-10-2, Islamabad measuring 1266.6 Sq. Yards was purchased by the predecessor of the parties from one Mrs. Dr. Riffat Moazam Zaman in the year, 1992. However, in order to avoid Wealth Tax etc., the predecessor in interest of the parties transferred the said plot in the name of respondent No,1, as Benamidar. This claim of the petitioner was denied by the respondents in their written statement. It was stated that said plot was purchased by predecessor of the parties, for exclusive benefit, use and possession of respondent No,1 with the intention of vesting the full and exclusive ownership in respondent No,1 in order to provide her safety on his behalf in his life time. She further stated in the written statement that she constructed house on the plot in question with her own money only because the plot was in possession of her exclusive property but no issue has been framed on these points. I, therefore, hold that issues framed by the trial Court do not cover the real controversy which is imperative upon the Court to frame such additional issues as may be necessary and the power can be exercised at any stage prior to the final disposal of the suit.
10. Resultantly, this civil revision is allowed. The impugned order, dated 31-7-2006 is set aside. The trial Court is directed to frame proper issues in the light of the pleadings of the parties and thereafter proceed in the matter in accordance with law. The parties are left to bear their own costs.