MUHAMMAD AMEER BHATTI, 4. - Through this single judgment, I propose to decide all the connected matters C.R. No. 1593/2004, C.R. No. 1592/2004, R.S.A. No. 80/2004 and R.S.A. No. 83/2004, which have arisen from consolidated judgment and decree dated 07.04.2004. And 02.12.2000 passed by both the Courts below.
2. The brief facts of the case are that Abdul Majeed one of the respondents in these petitions filed a suit for possession through specific performance in respect of an agreement to sell of house No. 113-D situated at Peoples Colony No. 1, Faisalabad. The other suit was filed by Muhammad Ismaeel against Irfan Ali and others, whereby he sought the declaration of registered sale-deed and general power-of-attorney being a fraudulent, without consideration mala fide and void. The third suit was filed by Abdul Majeed against Muhammad Ismaeel. The fourth suit was filed by Mst. Zahida Parveen against Irfan Ali etc., whereby the sale- deed No. 3919, dated 10.06.1996 in respect of property area measuring 1-Marla and 137 Square Feet and the general power-of-attorney executed in favour of respondent No. 3, dated 07.05.1996, was illegal and without lawful authority.
All the suits were consolidated and the written statements were filed by the parties respectively and the learned Trial Court vide order dated 16.07.1997 framed the consolidated issues from the divergent pleadings of the parties. The parties were allowed to lead their evidence according to their onus on issues and thereafter the learned Trial Court decreed the suit for possession through specific performance filed by Abdul Majeed and consequently, all the other three suits were dismissed. Against the impugned judgment of the learned Trial Court, dated 02.12.2004, appeals were filed before this Court but subsequently, due to enhancement in the pecuniary jurisdiction of the District Judge from Rs. 2,0, 000/- to 25,00,000/- by Ordinance 2001, the appeals were transmitted to the learned District Judge, Faisalabad who entrusted the same to the learned Additional District Judge. The learned first Appellate Court vide judgment dated 07.04.2004 dismissed the three appeals on the ground of limitation. The relevant para of the observation of the learned first Appellate Court is as under:- "In this way, the appellant Mst. Zahida Perveen has badly failed to prove their case against the respondent Muhammad Saleem. Moreover, vide order dated 26.02.2003, the appeals filed by Mst.
Zahida Perveen were returned for presentation before the Court of competent jurisdiction but the appellant made appeals on 10.03.2003 and though an application for condonation of delay has been filed with the appeals but the appellant Mst. Zahida Perveen has remained un-successful in proving the fact that the delay was justified and had a good ground/cause for condonation of the same. In these circumstances, the appellant Mst. Zahida Perveen has failed to prove their appeals and the appeals three in number titled as 'Mst. Zahida Perveen v. Muhammad Saleem' are hereby dismissed."
So far as the appeal of Abdul Majeed is concerned, it was dismissed on merits in the following terms:- "Whereas the appeal filed by the appellant Abdul Majeed is also merits dismissal as Abdul Majeed by way of suit for possession through specific performance of the agreement has challenged the registered sale-deeds in favour of Muhammad Saleem respondent but he despite producing number of witnesses failed to prove factum of sale agreement."
3. The learned counsel for the petitioners contends that the learned first Appellate Court has erred in dismissing the appeals of the petitioners being barred by limitation, as the petitioners and the appellant had filed their appeals within time before this Court and there was no justification for the learned first Appellate Court to dismiss the appeal, on the technical ground of limitation. Further contends that the learned first Appellate Court has failed to justify its order as to how the appeals of the petitioners were time-barred. About the appeal of Abdul Majeed, the learned counsel for the petitioners contends that the learned first Appellate court has not taken into consideration any evidence on record and without giving any justification and reason declared that the appellant has failed to prove the factum of sale agreement and by declaring this did not refer any evidence which could not persuade the judicial mind of the learned first Appellate Court as it was duty of the learned first Appellate Court to decide the matter with reasons.
4. On the other hand, the learned counsel for the respondents vehemently argued the case and contends that the matter has been thoroughly examined by the learned Trial Court and the finding of the learned first Appellate Court is based on the order of the learned Trial Court, hence the ends of justice have been adequately met and there is no illegality in the judgment of the learned first Appellate Court. By referring to Section 99, C.P.C., contends that any illegality or irregularity (if any) affecting the merits of the case is curable, hence the matter be scrutinized in the light of evidence available on the record by this Court. He admits that learned first Appellate Court neither discuss nor referred to any piece of evidence nor gave any reason while holding that the appellant failed to prove the case.
5. I have considered the arguments of the parties and gone through the record of the case.
6. It is observed that the. Learned first Appellate Court while deciding three appeals on the question of limitation, has not given any detail of the appeals of the said petitioners/appellants, how those were time-barred. Neither there is any reason in support of his conclusion nor it could be found out from his order wherefrom he gathered that the appeal of the petitioners/appellants were time- barred. Even otherwise, it is settled law that if one appeal is pending against the same judgment; the other appeal even if time- barred, the delay would have been condoned. Reliance is placed on Noon Sugar Mills Ltd. v. Market Committee and others (PLD 1989 S.C. 449). Therefore, the judgment of the learned first Appellate Court to this extent is contrary to the settled provision of law and to this extent is set aside. So far as the other appeal Of Abdul Majeed is concerned, which' was decided on merits, I find that the learned first Appellate Court was duty-bound to state the precise points raised by the appellant and the grounds on which it was rejected. It has been time and again held by the Hon'ble Supreme Court that a judicial order must be a speaking order and it is a matter of public policy that justice should not only be done but must appear to have been done.
Even otherwise, it is noticed that the mandatory requirement of law is that the judgment should state points for determination, decision thereon and reasons for decision. By declaring that the petitioner Abdul Majeed has failed to prove the factum of sale agreement, the learned Judge did not bother to point out and discuss the evidence led by the parties. Therefore, the conclusion drawn by the learned first Appellate Court is without convincing reasons or application of mind, rather presumptive in nature.
7. I have otherwise scrutinized the files of the cases and it is found that there were first two crucial issues which were related to the suits against whom the appeals of the petitioner/appellants were dismissed on the technical grounds. Even if it is presumed that the appeal of Abdul Majeed was decided on merits, the fact remains unsolved that the issues Nos. 1 & 2 had not been decided on merits.
8. In the light of foregoing discussion, the impugned judgment of the learned first Appellate Court lacks the meticulous appreciation of evidence available on record, thus constraining this Court to hold that the judgment impugned is not judgment in its true sense. So, this Court is left with no alternative but to remand all these cases to the learned first Appellate Court for their decision afresh on the basis of merits by giving the reasons in each and every case. Consequently, these petitions are accepted and the judgments of the learned first Appellate Court are set aside. The matters are remitted back to the learned first Appellate Court, which shall adjudicate the same strictly in accordance with law within a period of one month from the entrustment of these appeals. Parties are directed to appear before the learned District Judge on 30.06.2012, who shall take on this matter either himself or entrust it to any learned Additional District Judge for adjudication.
9. In view of the above salutary principles, these appeals stands accepted.