' CH. IJAZ AHMAD, J.---We intend to decide the following two appeals (R.F.As. Nos.132 and 133 of 1987) by one consolidated judgment having similar facts and law, arising out of the same judgment and one cross objection (R.F.A. No.133-A of 1987).
2. Brief facts, out of which the aforesaid appeals arise are that the appellant filed two suits for recovery against the respondents, amounting to Rs.5,30,388.22 and Rs.4,78,014.98, before the Civil Judge 1st Class, Lahore, on 7-2-1977 and 20-1-1982, respectively. Both the suits were consolidated by the trial Court. The respondents filed written statements controverting the allegations levelled in the plaints and also submitted counter claim amounting to Rs.1,50,35,000. Out of the pleadings of the parties the trial Court framed the following issues:--
(1) What was the gold rate at the time of loan? OP. Parties.
(2) Whether the defendants are bound to pay back the loan in Pakistani currency in terms of gold?
OPP.
(3) Whether the bank withheld the machinery unjustifiably and what is its effect? OPD.
(4) To what amount plaintiff is entitled? OPP
(5) What is the effect of Presidential Order No.3 of 1982 on its suit? OP Parties.
(6) Whether the plaintiff-Bank is entitled to recover the amounts mentioned in both the consolidated suits along with interest? If so what is the specific amount? OPP.
(7) Whether the defendants Nos. 1 and 2 are entitled to the counterclaim on the basis of the averments contained in the written statements? If so, what is the specific amount to be recovered by them? OPD.
(7-A) Whether this Special Court Banking Multan has the jurisdiction to hear the dispute of counter- claim as averred by defendants Nos. 1 and 2? OPD 1 and 2.
(8) Whether the written plea of counter-claim is maintainable? OPD.
(9) Relief.
' The learned trial Court dismissed both the suits of the appellant, and accepted the claim of the respondents, to the extent of Rs.1,50,000, vide impugned judgment and decree, dated 29-3-1987, hence the present appeals and cross-objection.
3. Learned counsel for the appellant submits that the learned trial Court dismissed the suits of the appellant on the basis of Exh.P-1, counter guarantee, furnished by the respondents, being fictitious, without framing any issue. He further submits that the whole judgment of the trial Court revoles around Exh.P-1, as is evident from findings of the trial Court in para. 30 of the impugned judgment.
Learned counsel for the respondents submits that the parties were conscious qua the controversy arising out of suits and written statements and led their evidence, therefore, the impugned judgment of the trial Court is valid and controverted the contentions of the learned counsel for the appellant.
4. We have considered the contentions raised by the learned counsel for the parties and perused the record ourselves.
5. The learned trial Court has decided the case without appreciation of evidence on record and on surmises and conjectures. It is settled principle of law that the Courts have to decide the cases after applying its independent mind with cogent reasons. In arriving to this conclusion, we are fortified by the law laid down in Mollah Egahar Afi v. Government of East Pakistan and others (PLD 1970 SC 173). In case, the contents of the plaints and written statements are read as a whole even then the judgment rendered by the learned trial Court is the result of misreading and non-reading of record coupled with the fact that the learned trial Court had given findings qua Exh.P/1 being fictitious and bogus document, without framing any issue qua this respect and did not provide proper opportunity to the parties to adduce the evidence in this respect.
6. We have examined the record ourselves and found that the trial Court, while giving its findings on a question of fact, has committed material irregularity and has omitted to read the evidence on a certain question which has resulted in miscarriage of justice.It is evident from the findings of the trial Court, qua Exh.P-1, in para. 30 of the impugned judgment, wherein the trial Court has given findings on Exh.P-1 as bogus and fictitious, in spite of the fact that the respondents did not deny the factum/execution of Exh.P-1 in paras. 9 and 10 of preliminary objections raised by the respondents in their written statements and without framing issue with regard to genuineness of Exh.P-1, therefore, we regret to note that the inferences drawn by the learned Judge is wholly unfounded and proceeded upon assumption not supported by record or pleadings of the parties. This fact alone is sufficient to come to the conclusion that the trial Court has given findings on a fact without proper appreciation of evidence. In fact, the learned trial Court has given findings on all issues on surmises and conjectures without proper appreciation of the evidence on record and rendered the findings which is not borne out from the record. The learned trial Court has decided the case on the basis of the evidence which is not in accordance with the, pleadings of the parties, therefore same is not admissible in evidence which should have been discarded. In arriving to this conclusion, we are fortified by the following judgments:-- ' Tariq Mohsin Siddiqui's case (PLD 1999 Karachi 196) Amir Ali's case (PLD 1981 Karachi 150).
' Additionally, we feel that issues were not in accordance with the pleadings of the parties.
In view of the above discussion and the aforementioned reasons the impugned judgment is not sustainable in law, thus, both the appeals are allowed, cross objections are dismissed and the impugned judgment is hereby set aside. Resultantly, both the suits shall deem to be pending before the learned trial Court, who is directed to frame proper and fresh issues including about the genuineness of Exh.P-1, allow the parties to adduce their evidence afresh and thereafter to decide both the suits in accordance with law and, of course, in view of the terms of the instant judgment.
There is no order as to costs. Parties are directed to appear before the trial Court on 30-4-2003.