' SYED SAJJAD HASSAN SHAH, J.-- This judgment will dispose of Regular First Appeals Nos.4 of 2007 and 5 of 2007, as arising out of common questions of law and fact are involved and arise out of the same transaction and between the same parties. More so, in earlier round of litigation, the honorable Bench of this Court decided both the appeals by single judgment made in R.F.A. No,18, 2003 decided on 24-5-2006.
2. Briefly stated, facts are that respondent-plaintiff has filed Suit No,987 of 1999 on 27-9-1999 seeking the decree for recovery of Rs,31,00,000 as detailed in the plaint against the appellant- defendant. The respondent-plaintiff averred in the plaint that he has sold two Trucks bearing No,7615/QAD and 7532/PRL, for a sale consideration of Rs,24,00,000, Rs,12,00,000 for each truck, an agreement deed was executed between the parties dated 22-2-1994. Appellant-defendant paid a sum of Rs,6,00,000 whereas rest of the amount Rs,18,00,000 was promised to be paid within a period of one year. Pursuant to the agreement, the respondent-plaintiff handed over to the appellant-defendant, all those documents regarding the said vehicles. He further averred that the appellant-defendant failed to pay the said amount within the stipulated period and sought the extension for its payment, thus, the respondent-plaintiff agreed to extend the time till 30-9-1996 and in case the appellant-defendant failed to pay the amount within the period agreed upon, he would be liable to pay yearly income of truck; therefore, he further prayed for the recovery of the income as agreed by the appellant-defendant.
3. The appellant-defendant contested the suit by filing written statement and denied the execution of above said sale-deeds, however, pleaded that the defendant had sold the said trucks to the respondent-plaintiff and the portion of sale consideration still outstanding, therefore, he has also filed a Suit No,399/R instituted on 23-7-1997 for the return of those trucks, or for the payment of remaining sale consideration amounting to Rs,22,50,000. -It was averred in the plaint that he had purchased those trucks on cash payment at the rate of Rs,8,00,000 per truck whereafter sold to the respondent for a sale consideration of Rs,13,04,000. It was further agreed that payment would be made in equal instalments of Rs,32,000 per month. The respondent failed to pay the entire amount of the sale consideration, therefore, filed the suit for the recovery of the remaining amount. The respondent contested the suit by filing written statement and pleaded that in fact the Truck No,7615/QAD was purchased by appellant (defendant in Suit No,987/1) for a sale consideration of Rs,12,00,000 on yearly payment. The appellant paid a sum of Rs,6,00,000 to the respondent whereas rest of the amount was outstanding to the appellant. He further averred that another Truck No,7632/PRA was also purchased by the appellant on yearly payment of Rs,12,00,000, out of which a sum of Rs,2,00,000 was said to the respondent whereas rest of amount is outstanding to the appellant.
4. The learned trial Court proceeded and framed the issues separately, in both the suits, arising out of the divergent pleas of the parties. The parties produced evidence as they wished to adduce, whereafter both the suits were dismissed. Both the parties assailed the judgment and decree by filing their separate appeals, which were accepted by this Court and the cases were remanded to the learned trial Court with the direction to decide afresh after discussing the entire material available on record.
5. After remand, the learned trial Court vide separate judgments dismissed the suit filed by the appellant whereas the suit of the respondent was decreed, thus, filed the instant appeals.
6. Learned counsel appearing on behalf of the appellant contended that the learned trial Court while deciding the suit filed by the respondent-plaintiff has not adverted to the written statement wherein it was denied in unequivocal terms that the appellant has nothing to pay to the respondent-plaintiff, however, the trucks were sold by the appellant-defendant as per detail of sale consideration and its payment as mentioned in the written statement. It is further argued that the respondent-plaintiff has failed to pay the sale amount. The learned trial Court has not framed any issue to this effect and while discussing issue No,4 rendered the finding beyond the scope of said issue. He further contended that Issues Nos.1, 2, 3 and 5 have been jointly decided in spite of the fact that all those issues are quite different and distinct in nature, required to have been decided separately. As a result of findings under Issue No,4, the learned trial Court decreed the suit of the respondent-plaintiff against the appellant-defendant for the recovery of Rs,31,00,000. Since no issue was framed to the effect that the appellant-defendant was entitled for recovery of Rs,31,00,000 (along with detail given in the plaint), eventually prejudice has been caused to the defence of appellant defendant. He further contended that in the light of written statement filed by the appellant-defendant, no issue at all has been framed. He has also made the reference of suit filed by the appellant wherein issue No,6 has been decided as not pressed, relating to the payment made for the disputed trucks to the appellant by the respondent. Likewise, the finding under rest of issues was also not made in accordance with the remand order passed by this Court. Reliance was placed upon the cases titled as Mst. Sughran Bibi and others v. Jamila Begum and others (2001 SCM R 772), Muhammad Yasin Khan and others v. Akhtar Nawaz Khan (2000 CLC 2008) and Bakht Zaman v. Said Majid (1989 SCM R 1719).
7. Learned counsel further contended that the learned trial Court while deciding the execution of agreement deed dated 26-9-1995 (Exh.P.W.1/2) failed to see, as to whether it was proved in accordance with requirement of law. He further pointed out that the learned trial Court while deciding both the suits by means of separate judgments and decrees, committed gross illegality and irregularity while not consolidating and deciding the same by a single consolidated judgment.
8. The learned counsel appearing on behalf of the respondent strenuously rebutted the arguments of the learned counsel for the appellant and contended that the appellant had purchased the trucks and the disputed amount was outstanding against him, which was duly proved by leading evidence on the record and the learned trial Court after appraisal of the entire evidence arrived at the conclusion that the appellant-defendant has to pay the disputed amount, thus the suit was validly decreed against the appellant. He further contended that no illegality or irregularity has been committed in the proceeding. More so, the suit of the appellant-defendant was rightly dismissed.
9. Arguments of the learned counsel for the parties considered and record carefully perused, in the light of which my discussion is as under:--
10. In view of the arguments of learned counsel for the parties, the following questions required consideration and adjudication:--
(a) Whether the learned trial Court decided the suits in letter and spirit of the remand order made by this Court dated 24-5-2006,
(b) While deciding the suits, followed the law relating to the proof of execution of document, ' Whether ii was legally permissible to decide both the suits separately notwithstanding that parties and subject matter in both the suits were the same, ' Whether the trial Court has committed legal error by not framing the necessary issues arising out of the pleadings.
11. From the perusal of record, it transpired that the learned trial Court has not adhered to the directions made by this Court in remand order, that plethora of evidence was recorded and a good number of issues framed in both the suits but the learned trial Court neither considered nor decided the same in the light of material available on the record. While remanding the case, honourable Bench of this Court observed that:--- "It is, by now, too settled that a speaking judgment is a primary requirement in every case before a Court of law so that the party losing the case on the one hand and the next higher forum on the other may know as to how and why a lis was decided against it. Therefore, remand of the case for a proper decision shall be but imperative."
' The learned trial Court while deciding the suits by way of impugned judgments left most of the important issues undecided and discussed jointly all the issues which were not inter-related, therefore, the remand order has not been implemented in its letter and spirit. It was argued that the learned trial Court granted the decree to the respondent-plaintiff but without there being framed any issue to the effect that whether the respondent-plaintiff entitled to a decree of recovery of Rs,3100,000. In absence of such issue, how the decree can be granted to the respondent-plaintiff. Non-framing of issue has prejudiced the cause of appellant-defendant. He has also averred in his written statement that certain amount in respect of sale consideration of those trucks was outstanding against the respondent-plaintiff, for which he has also filed a suit.
The learned trial Court not adverted to the afore-stated material aspect of the matter. Moreover, to decide the matter conclusively and once for ever, all the controversial points must he canvassed and decided in the impugned judgment, but the learned trial Court despite feeling difficulty to decide Issue No,4 framed in Suit No,987/1, has not properly discussed the same in its judgment although made reference to the claim of the appellant. There was no impediment to frame the issues and to record the evidence if so desired by the parties. The trial Court has power to frame any issue arising out of the pleadings or the other material, if it appears that it is essential for complete and conclusive adjudication of the controversy between the parties. Reliance is placed upon a case titled Mst. Sughran Bibi and others v. Mst. Jemeela'Begum and others (2001 SCM R 772).
In paragraph-7 the following observations have been made by august Supreme Court - "We are afraid, the argument in the facts and circumstances of this case has no force. No doubt, parties in the suit are entitled to make application for the amendment of issues but the fact A remains that primarily it is the duty of the Court to frame the issues correctly so that the same should reflect correctly controversies arising from the pleadings of the, parties so that effective judgment could be rendered on the disputed facts and the parties should know as to on what facts the evidence was to be led, therefore, the act of the Court in the case of not framing issue correctly and debarring the petitioner from leading evidence to prove his case as made out in the pleading was rightly corrected by framing Issue No,5 and sending the case for production of evidence and decision of the appeal thereafter which should not have been interfered with as it did not suffer from any material irregularity amounting to illegality or jurisdictional defect calling for interference under section 115, C.P.C."
' It is also well-settled principle that the Court may frame any issue even if not raised in the pleadings, nonetheless, it comes to the notice of the Court during the course of evidence, in order to resolve the controversy between the parties. Reference is made to a case titled Muhammad Yasin Khan and other v. Akhtar Nawaz Khan and others (2000 CLC 2008) relevant portion of the judgment at page 244 is reproduced below:--- "It is well-settled that where a material point not raised in the pleadings comes to the notice of the Court during the course of evidence the Court may frame an issue regarding it and then try it. The object of framing issues is with a vice to ascertaining the real dispute between the parties by narrowing down the area of conflict and determining where the parties differ. Since, in this case both the Courts below have failed to appreciate the real issue in controversy regarding ownership of suit house Khana Shumari No,13 both the parties claiming ownership, in holding plaintiffs Nos.5 to 7, besides the owner, as mortgagors under defendants Nos.17 to 29, in my opinion the Courts below have travelled beyond the pleadings of the parties."
' For a fair and proper adjudication, the issues must be framed regarding the controversy existing between the parties so that it might be decided to ward off further litigation and any sort of controversy between the same parties, in support whereof reliance is placed upon a case titled Bakht Zaman v. Said Majid reported in 1989 SCM R 1719 wherein it is held:--- "In the circumstances, the High Court was justified in setting aside the judgments and decrees of the Courts below because the matter had not been pointedly raised and contested. To that extent the learned counsel for the petitioner supports the judgment of High Court. However, as there was extensive evidence on the record and it has been brought on record without objection from any of the parties to the litigation, a fair and proper adjudication required that there should have been an issue on the subject so that the parties do not remain unaware of the exact controversy involved. It was, therefore, within the powers of the High Court to set aside the judgments and decrees of the Courts below and direct that the case be reheard on the issue framed by it in the light of evidence of the parties."
12. Another fact to be taken note of is that the trial court has not considered the necessary requirements for proving a document involving financial transaction. Such document is covered under Article 17 of the Qanun-e-Shahadat which provides that:--- "17. Competence and number of witnesses.--- (1) The competence of a person to testify, and the number of witnesses required in any case shall be determined in accordance with the injunctions of Islam as laid down in the Holy Quran and Sunnah.
(2)
(a) In matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly; and (b)
' Similar provision is available in Article 79 of Qanun-e-Shahadat, same is reproduced below for ready reference:-- "79. Proof of execution of document required by law to be attested.--- If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence: ' Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
' If we examine the finding of the trial Court, we would reach to the conclusion that the above provisions of law have not been taken into consideration, as it believed only one marginal witness.
There is nothing available on record, showing the reason of not examining or producing the second witness, as required by Article 80 of Qanun-e-Shahadat. The learned trial Court was required to consider this aspect and other lapses pointed above.
13. It is also one of the important and material facet of the case that since common questions of law and fact were involved in both the afore stated suits, therefore, the learned trial Court was fully competent to have consolidated and framed consolidated issues arising in both the suits to avoid the conflicting judgments. In this case, the learned trial Court could not decide independently the common question of payment of sale consideration of the vehicles.
14. For the reasons discussed' above, we are constrained to allow these appeals, set aside the impugned judgments and decrees passed in both the suits and remit the cases to the learned trial Court to decide the same in accordance with the above observations. Since the matter is old one, therefore, the learned trial Court is directed to decide the same within two months. The office is directed to immediately transmit the record to the trial Court.