This revision petition has been filed against the order of Additional District Judge Muzaffarabad dated 14.04.2008, whereby the application of the petitioner for reconstruction of record was dismissed.
The precise facts giving rise to the instant revision petition are that the present petitioner has filed an application in the Court of Additional District Judge Muzaffarabad for reconstruction of record of the above titled case. It was averred that the case was subjudice before the Court of Additional District Judge Muzaffarabad and was fixed for 10.10.2005. It was further averred that the record of the case was destroyed during the earth quake 2005 and case is not mentioned in the available lists of recovered cases. The applicant prayed that proceedings may be initiated for reconstruction of the file.
After hearing the parties, the learned Additional District Judge, Muzaffarabad dismissed the application vide his order dated 14.04.2008, hence this revision petition.
Written arguments already filed by the learned counsel for petitioner have been reiterated by Mr. Muhammad Aslam Rathor, the learned counsel for petitioner and further argued that the learned Additional District Judge Muzaffarabad without framing the issues has announced a telegraphic order which is bad in law. He has requested that by setting aside the impugned order, the file should be remanded to the trial Court with the direction to frame issues and after recording the evidence of the parties to dispose off the matter in accordance with law. The learned counsel referred 2005 SCR-25 and PLD 1988 SC AJK-184 in support of his contentions.
While controverting the arguments of the learned counsel for petitioner, Mr. Aftab Ahmed Awan, the learned counsel for respondents stated that the revision petition is without any force because the application for reconstruction of record filed before the trial Court on 17.04.2007 is totally frivolous and fake one. It is alleged that the photo copy of memo. of appeal was not appended with the application. The photo copies of plaint, judgment and decree of Senior Civil Judge Muzaffarabad were appended with the application. Later on through an application dated 06.12.2007 a photo copy of memo. of appeal was cited by the petitioner which was repudiated by filing objections, wherein it is alleged that the signature of late Nazir Ahmed Waani Advocate are fictitious and forged one, which has rightly been dismissed by the trial Court. He argued that the impugned order against which the appeal was stated to be pending before the Court at the time of earth quake in 2005 is totally false. It reveals that the impugned judgment and decree of Civil Judge Muzaffarabad was passed on 30.09.2004, hence the last date for filing the appeal was 29.12.2004, much earlier then the tragedy of earth quake. The photo copy of the memorandum of appeal appended with the record shows no date of writing/typing or signing of the counsel, where-from it can be concluded that any such appeal was pending at the time of earth quake or not. It was further argued that copies of plaint, judgment and decree of Senior Civil Judge Muzaffarabad were shown to be issued on 01.12.2004, if it was the case then the memo of appeal should have been dated properly. Moreover, the application for reconstruction and other pleadings also shows that the application has been filed without any legal authority of the petitioner/MDA and no affidavit is to the effect of the petitioner is on the record. The trial Court has rightly appreciated all the documents and averments made in the pleadings of the parties and opined in a legal, fashion with affirmed view that process of law should not be utilized for perpetuating the fictitious litigation.
Lastly, the learned counsel prayed for the dismissal of the revision/appeal.
After hearing the learned counsel for the parties, gone through the record of the case and impugned judgment/order, it transpires that the application of the appellant/petitioner for re- construction of the record of the appeal case titled "Chairman MDA Vrs. Muhammad Ayyub and others was filed on 17.04.2007 in the Court of Additional District Judge Muzaffarabad, it deems proper to know the update of contesting parties. An application for impleadings the legal heirs of Respondent No, 12 was reported to have been expired during the pendency of the appeal has been filed by the petitioner/appellant on 03.04.2009 and vide interim order dated 04.05.2009 the respondents were given opportunity to file objection, but thereafter no order has been passed on this application as the record shows that it was reported by the Process Server on 03.01.2009 that Nasreen Respondent No, 12, Mustafa Begum Respondent No, 16 (now 22) and Mehmood Begum Respondent No, 14 have died, but except Nasreen, (now 20) no application for impleading the legal heirs of those two deceased respondents were filed by the petitioner/appellant, hence the revision/appeal to the extent of Respondents No, 14 and 16 stands abated and legal heirs of Respondent No, 12 Mst. Nasreen (deceased) i,e,
1. Khurshid husband;
2. Ajmal,
3. Akmal,
4. Adil, 5.
Amar sons,
6. Smera,
7. Samra daughters of Nasreen wife of Khurshid are hereby incorporated in the line of respondents as Respondents No, 12 to 18 as legal heirs of said deceased respondent and renumbering the other Respondents as 19 to 28.
Now coming to the other point, it is noticed that no copy/photocopy of the memo. of appeal is annexed/appended with the application, however it was placed before the first appellate Court on 06.12.2007 through a separate application.
On notice to the opposite party, the respondents filed objections on 03.04.2008 whereby repudiating the averments made in the petition and alleged, that no appeal was ever filed by the petitioner/MDA against the judgment and decree of the Senior Civil Judge Muzaffarabad dated'
30.09.1994 and negated the facts of signatures of the counsel for petitioner and objected the presentation of application by the counsel who could not legally filed the application etc. On filing of the objections, the learned Additional Ditrict Judge vide order dated 03.04.2008, fixed the case for arguments.
The averments made in the pleadings of the parties relate to facts alleged by one and negated by the order, which could be decided in the light of evidence of the parties.
Without embarking upon the detailed facts, suffice to say, that the point needs deliberation could only be addressed and decided on the basis of the evidence. It is requirement of law that, where the parties are at issue, then the issues had to be framed and the lower Court without framing of the issues and giving opportunity of adducing evidence to the parties decided the case summarily, which is not warranted by law. Courts should pronounce their opinion on all relevant points/facts which arise or have been raised in a case. This view of our, finds support from a Davison Bench case of the Apex Court titled 'Muhammad Hussain Khan Vrs. Said Muhammad and 11 others" reported in PLD 1988 SC (AJ&K) 184 and another Division Bench case titled "Bushra Mehmooda Khatoon Vrs. Secretary Education and others" reported in 2005 SCR 217.
In view of the above, I have left with no option except to remand the case to learned Additional District Judge Muzaffarabad for fresh decision in accordance with law, after framing the proper issues and giving opportunity to parties to lead the evidence. Therefore, by accepting the instant appeal/revision, the impugned order/judgment dated 14.04.2008 passed by the learned Additional District Judge Muzaffarabad is hereby set-aside and the case is remanded to decide the same as indicated above, with no order as to costs.