' HAFIZ ABDUL REHMAN ANSARI, J.---Through this civil revision filed under section 115 of C.P.C. The petitioner assailed the judgments and decrees of two Courts below. First judgment and decree which is assailed is passed by learned Civil Judge Layyah dated 21-2-2004 and second judgment and decree dated 28-4-2004 which is assailed through this civil revision is passed by learned Additional District Judge, Layyah.
2. The brief facts of the instant revision petition are that on 13-2-1997 the petitioner filed a suit for specific performance along with the application for permanent injunction against the respondents.
The agreement to sell was executed between the parties for agricultural land, Lot No,31 Triangle No,55 Killa Nos.3 to 5 measuring 24 Kanals situated in Chak No,113/ML, Tehsil Keror Lal Eisen District Layyah. According to the agreement to sell the deal was decided for Rs,99,000 from which Rs,10,000 were paid at the time of agreement and the possession was handed over to the petitioner, while the remaining amount was to be paid at the time of registry on 30-1-1995 and petitioner was responsible for getting the proprietary rights of ownership. On 30-1-1995 petitioner remained present but respondent did not come to execute registry in favour of the petitioner. The petitioner filed suit for specific performance before the Senior Civil Judge, Layyah.
3. The respondent filed written statement controverted the contents of the plaint. In the light of divergent pleadings of B the parties the learned trial Court framed the following issues:-- ISSUES.
(1) Whether defendant No,1 had agreed to sell the land in dispute in favour of the plaintiff in lieu of consideration of Rs,99000, vide impugned agreement dated 5-9-1994? OPP
(2) Whether defendant No,1 after receiving the earnest money of Rs, 10000 delivered the possession of disputed land to the plaintiff? OPP.
(3) Whether the plaintiff has got no cause of action to file this suit? OPD
(4) Whether the suit is time barred? OPD
(5) Whether the suit is not maintainable in its present form? OPD
(6) Whether the suit is barred by principle of res judicata? OPD
(7) Whether the description of the disputed land is incorrect? If so, its effect and what is the correct description? OPD
(8) Whether the suit is under-valued for the purposes of court-fee and jurisdiction? If so, its effect and what is the correct valuation? OPD
(9) Whether the suit is bad for non-joinder of necessary parties? OPD
(10) Whether the defendant No,1 is entitled to any special cost? If so to what extent? OPD
(11) Relief.
'The plaintiff-petitioner produced as many as three witnesses including the documentary evidence as Exh.P.1 to Exh.P.10, while the defendant-respondent No,1 has produced two D.Ws. As well as the documentary evidence as Exh.D.1 and Exh. D.2.
4. After recording the evidence of both the parties the learned trial court vide judgment and decree dated 21-2-2004 dismissed the suit of the plaintiff/petitioner. The petitioner on 16-3-2004 filed appeal C against the judgment and decree dated 21-2-2004. The learned Additional District Judge upheld the judgment and decree of the learned trial Court and dismissed the appeal of the present petitioner vide judgment and decree dated 28-4-2004, hence the petitioner has assailed through this revision petition both the above-mentioned judgments.
5. Prior to arguing the case on merit learned counsel for the petitioner submitted that a miscellaneous application filed under D Order XLI, rule 27, C.P.C. Filed by the petitioner before the learned lower appellate Court for recording of additional evidence, was not decided and main appeal was decided, finally. Certified copy of application allegedly filed by the petitioner before the learned lower appellate Court is annexed with this petition.
6. Learned counsel for the petitioner submitted that the learned Additional District Judge without adjudicating the miscellaneous application finally decided the appeal. He further submitted that it was incumbent upon the lower appellate Court Additional District Judge first to adjudicate the miscellaneous application and then could have decided the main appeal. In this regard he placed reliance on a case titled Muhammad Ismail and another v. Bahadur and 2 others 1993 CLC 1637, Mst. Begum through Legal Heirs and 27 others v. Allah Ditta 2000 CLC Lah.744. After arguing this aspect of the case learned counsel further argued the case on merit not deciding this civil revision on merit.
7. This aspect of the case whether it was essential or necessary or obligatory upon the Additional District Judge to decide the miscellaneous application filed under Order XLI rule 27, C.P.C. Filed by the present petitioner, respondent in the appeal before the learned Additional District Judge Layyah; prior to finally deciding main appeal I am not incorporating the arguments advanced by the learned counsel for the petitioner on merit.
8. Rebutting the arguments of the learned counsel for the petitioner about the pendency of miscellaneous application the learned counsel for the respondent asserted that no such application under Order XLI rule 27 of C.P.C. Was filed during the pendency of appeal. It was subsequently manoeuvred by the present petitioner and was added or attached with the record of the appeal. However, learned counsel did not controvert the citations produced by the learned counsel for the petitioner cited at bar. Learned counsel for the respondent also argued the case at length and made submission about the civil revision on merits which are not being produced in this order.
9. I have heard the learned counsel for the parties and perused the record.
10. The certified copy of the miscellaneous application filed under Order XLI rule 27 C.P.C. Before the lower appellate Court for additional evidence is F appended with this civil revision. However, learned counsel for the respondent argued that this application is subsequently manoeuvred and is brought on record. This argument of learned counsel for the respondent is neither convincing nor there is any justification to accept this logic. The Court record has the sanctity over any other material to the contrary, unless strong and G unimpeachable evidence is brought on the record in the rebuttal of the same. The case of Fayyaz Hussain v. Akhtar Hussain and others 2004 SCMR 964 can be referred in this respect wherein the apex Court has held that:-- '--Judicial proceedings-Presumption of correctness is always in favour of judicial proceedings--- Credibility is attached to proceedings before a judicial forum---Strong and unimpeachable evidence is required to rebut such presumption.
However, the sanctity is attached to the proceedings and record of the case. The perusal of the order sheet of the learned H lower appellate Court reveals that there is no mentioning of filing this miscellaneous application in the order sheet of the appeal. However, it might be omitted by the learned lower appellate Court, on account of this omission of the Court, party cannot H be penalized. Anyhow, the certified copy of this application is appended with the civil revision so on account of mistake of Court party should not suffer. In this regard I am fortified from the case of Maqsood Ahmad and others v. Member Board of Revenue, Punjab, Lahore and others 2007 SCMR 399 (b). In another case of D.B. Of Lahore High Court it is observed that on account of mistake of Court no party should be made to suffer due to any mistake of Court. Case titled Tariq Masood Ch. v. Dastagir Paper and Board Mills (Pvt.) and 8 others 2007 YLR 1374 (a).
11. It is consistent view of the Courts, that if any miscellaneous application is on the file of the case, civil suit or appeal, such miscellaneous application should be decided first then the main case should be decided. I am fortified from the judgment titled Haji Ibrahim v. Ismail and 9 others PLD 1976 Kar.1075, wherein it is observed that failure of the lower Court in the disposal of a miscellaneous pending application while deciding the main suit was one of the grounds for setting aside the order of lower Court. The appeal is also a continuation of suit. In the cases of Messrs Bashir Leather Industries (Pvt.) Limited and 2 others v. Muslim Commercial Bank Ltd. Through Manager 2006 CLD 132 Lahore. M. Shahid Sehghal v. Al-Towfeek Investment Bank Ltd. 2005 CLD 920 Lahore, it is observed that miscellaneous application not decided, main case decided, failure to decide miscellaneous application K prior to decision of the main case vitiate the judgment in the main case. Similar view is taken in many others cases also Pak Carpet Industries Limited v.
Government of Sindh and 2 others 1993 CLC 334, Muhammad Yaqub v. Baqir and 2 others 1993 CLC 1319, Khair Deen v. Rehm Deen and 4 others 1996 CLC 1731, Gul Muhammad through Legal Heirs v.
Karachi Development Authority and another 1998 MLD 150.
12. In the light of above discussion without commenting on the merit of the case in following the dictum laid down in the above-mentioned cases as the miscellaneous application filed under Order XLI rule 27, C.P.C. Read with section 151, C.P.C. Is not decided prior to the decision of the main appeal, hence this case is remanded back to learned Additional District Judge Layyah who will first decide the miscellaneous application under Order XLI rule 27, C.P.C. And then will decide the main appeal. This civil revision is disposed of with no order as to cost. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.