' MIFTAH-UD-DIN KHAN, J.---Petitioner Fiaz Khan and others have lodged the present revision petition against the judument and decree dated 14-6-2010 of learned Additional District Judge-I Haripur, whereby the appeal of the respondent was accepted and the judgment and decree dated 8-1-2010 of learned Civil Judge-III. Haripur was set aside and the case was remanded to the learned trial Court for decision afresh.
2. The brief facts of the case are that the present petitioners instituted as suit for declaration to the effect that they are owners in possession of their share in Khasra No, 574 measuring 8 kanals and 9 marlas situated in village Shadi Tehsil Haripur and Mutation No, 1381 attested on 22-2-1981 in favour of respondent Muhammad Ashraf is wrong, illegal, without consideration, ineffective and void. The petitioners alleged in the plaint that they were minors at the time of attestation of impugned mutation, therefore, alienation of their share through the impugned mutation is wrong, illegal and void. The suit of the petitioners was contested by respondent by submitting written statement, wherein the pleas of limitation as well as dismissal of suit of the petitioner on account of non- impleading of necessary parties were raised. The learned trial Court framed six issues ignoring the above material issues raised by respondent in his written statement. The learned trial Court after recording evidence, hearing learned counsel for the parties decreed the suit of the present petitioner against the respondent. The respondent preferred an appeal before the learned Additional District Judge who accepted the appeal vide judgment and decree dated 14-6-2010 and remanded the case after framing two issues with the direction to the learned trial Court to take additional evidence if the parties so desired on the issues framed and thereafter decide the case on merit in accordance with law. Aggrieved from the same, the petitioners have filed the present revision petition.
3. Mr. Haji Ghulam Basit, Advocate, learned counsel for petitioner, contended that framing of issues was not mandatory under Order XIV, Rule-3, C.P.C. And in spite of fact that issues were not framed by the learned trial Court but the learned trial Court has given findings on the point of limitation and in respect of impleadment of necessary parties at the time of discussion on issues Nos. 2 and 3, therefore, the learned appellate Court was required to decide the appeal on the aforesaid issues and there was no legal justification for remand of the ease to subject the parties to an other'round of litigation. He placed reliance on PLD 2003 SC 271, 2000 SCMR 258, 2008 M LD 259 and 2007 CLC 357.
4. Mr. Khalid-ur-Rehman Qureshi, Advocate, learned counsel for respondent contended that it was the duty of learned trial Court to frame issues on the material proposition of law and facts raised by the parties in their pleadings but the learned trial Court in spite of the fact that the issues of limitation and impleadment of necessary parties were raised in the written statement by respondent has failed to frame issues in this connection on account of which no opportunity was afforded to the parties to lead evidence in this connection. He further submitted that issue. No, 2 was in respect of competency of the suit while issue No, 3 was in respect of merits of the case, therefore, the learned trial Court was not legally justified to give findings on the point of limitation and impleadment of necessary parties while deciding the above issues. He further submitted that the decision of learned trial Court on material legal and factual point without framing issues on the same was apparently wrong and illegal hence the learned appellate court has rightly remanded the case to the learned trial Court. He placed reliance on PLD 1994 Peshawar 60, PLD 1995 SC 629, 1989 SCM R 1719, 2003 YLR 24 and 801.
5. The contention of the learned counsel for petitioner has got no force because once material issues were raised by respondent in his written statement specifically the issue of limitation which was a mix question of law and fact then it was the duty of learned trial Court to frame specific issues raised in the written statement by the respondent in order to enable the parties to lead pro and contra evidence to set the controversy at rest once for all but the learned trial Court has not framed the relevant issue which was necessary in the interest of justice. No doubt the learned trial Court after realizing material irregularity in this connection has made discussion on point of limitation but such discussion without framing of specific issue and affording an opportunity to the parties to lead evidence in this connection was not legal, proper and justified. The learned trial Court before passing decree should have resorted to the provision of Order XIV, Rule 5, C.P.C. And avoided decision without framing issues. In these circumstances, the learned appellate court was quite justified to fill up the legal flaw by framing the relevant issues and remanded the case to the learned trial Court with the direction to decide these issues after recording evidence of the parties over the same. The impugned order of the learned appellate court is neither illegal nor based on improper appraisal of facts and evidence hence warrants no interference in exercise of revisional jurisdiction by this court. The present revision petition is without any substance hence dismissed.