SALIM KHAN, J. - Zair Shad the present petitioner, had instituted a Suit No. 595/1 on 7.12.2001 against Fazal Akbar vendee-defendant for possession through pre-emption of the suit property mentioned in detail in the plaint The suit was decreed by the learned Civil Judge, Mardan, vide his judgment and decree dated 20.6.2002.. The appeal, after remand by this Court, was again decided and allowed by the learned Additional District Judge-IV, Mardan, in Civil Appeal No. 7/13 of 2002 decided on 24.3.2004. The petitioner felt aggrieved of the said judgment and. Decree and approached this Court with the present civil revision.
2. The learned counsel for the parties argued the details of the ease. Qn reading para. 11 of the judgment regarding "Talb-e-Ishhad" and the statement of Najibullah (DW-1) to the effect that it was. Correct, that notice Talb-e- Ishhad was received by Nisar shop keeper and was handed over to the defendant by him it was found that the learned Additional District Judge had either not read the said part of the statement or it had slipped, his attention. The case to this extent, however, was the case of non-reading f the evidence.
3. Ln para. 12 of the said judgment, the learned Additional District Judge, Mardan, recorded "I do not deem it. Proper/necessary to touch the other points of improvements and market value of the disputed property". Para. 6 of the said judgment was "as the submissions made at the bar were mainly confined to the issues of Talabs, market value of the property and its improvements, therefore, the evidence on these points requires consideration". The judgment, therefore, was not in- accordance with the provisions of Order XLI, Rule 31 of the Code of Civil Procedure Code, 1908.
The guidance regarding explanation of the provisions of the said Rule was already provided in the case of Government of N.W.F.P, through Secretary, Forest Department. Peshawar and 2 others v.
Zain Khan (PLD 1993 Pesh. 131).
4. The non-speaking judgment of the learned Additional District Judge, Mardan, regarding the points concerning improvements and market value as mentioned above, warrant interference of this Court due to non-reading of some part of the evidence and due to non-compliance with the provisions of Order XLI, Rule 31 of the Civil Procedure Code, 1908. The .Circumstances in this case require that the case be remanded to the learned District Judge, Mardan, with the direction to transfer the said case of appeal to an Additional District Judge at Mardan for hearing the arguments of the parties in the light of their evidence and for writing of the judgment in the light of the provisions of the above quoted Rule.
5. I, therefore, accept the present civil revision, set aside the impugned judgment and decree of the learned Additional District Judge-IV, Mardan in' Appeal No. 7/13 of. 2002 decided on 24.3.2004 and remand the case-back with, the directions as mentioned above. Parties are directed to appear before the learned District Judge, Mardan for further orders on 16.5.2005.