' AMIN-UD-DIN KHAN, J. --- Through this civil revision plaintiffs-petitioners have challenged the remand order dated 4.3.2004 passed by the learned first Appellate Court.
2. Brief facts of the case are that a suit in the name of Massu the predecessor-in-interest of the petitioners, showing that he was of unsound mind, was filed through Muhammad Akram as next friend on 27.5.1993 to challenge the mutation No, 312 attested on 30.11.1985 as well as mutation No, 322 attested on 28.6.1986. Written statement was filed. Suit was contested. Learned Trial Court framed the issues, invited the parties to produce their respective evidence. Both the parties produced their oral as well as documentary evidence. Learned Trial Court decreed the suit vide judgment & decree dated 14.11.2001. Appeal was preferred by the defendants/judgment-debtors and during the pendency of appeal, three applications were filed; first under Order 14, Rule 5 of CPC for framing of additional issues proposed in the application; second, under Order 41, Rule 27 of CPC for permission to produce additional evidence and. Third application was filed under Order 6. Rule 17 of the CPC for permission to amend the written' statement. Learned first Appellate Court vide remand order dated 04.03.2004 allowed all the three applications and remanded the matter to the learned Trial Court for decision afresh after recording additional evidence, after getting amended written statement as well as framing the additional issues and recording evidence on the additional issues.
3. Learned counsel for the petitioners states that when two sons of the original plaintiff got sanctioned mutation No, 312 dated 30.11.1985 on behalf of the original plaintiff, who was of unsound mind and then transferred the suit property to their cousins who are sons of Chaway Khan the real brother of the original plaintiff Massu, therefore, fraud was in the knowledge of the subsequent transferees. States that on the basis of pleadings of the parties learned Trial Court has rightly framed the issues and there is no need of further framing of any issue and further that application for permission to amend the written statement has also been filed dishonestly in order to take the benefit of their possession upon the suit property and they remained successful and further that it was not a case of grant of permission to adduce the additional evidence as Patwari Halqa and Tehsildar were defendants in the suit and they were proceeded against ex-parte and at proper time defendants have opted not to produce them as their witnesses. Prays for acceptance of the revision petition and setting aside the remand order.
4. On the other hand, learned counsel for the respondents-defendants states that the learned Trial Court_ has not framed the proper issues and further that the suit has been filed with the collusion of defendant Nos. 1 & 2 and they are bona fide purchasers for value, therefore, amendment in the written statement is necessary and further that the permission to produce additional evidence is also necessary and rightly granted by the learned first Appellate Court and there is no defect in the remand order. Prays for dismissal of the revision petition.
5. I have heard learned counsel for the parties at length and gone through the record with their able assistance.
6. So far as framing or non-framing of issues is concerned, now the law has been developed under the judgment of the august Supreme Court of Pakistan reported as "Mst. Sughra Bibi alias Mehran Bib! Versus Asghar Khan and another' (1988 SCM R 4) that though the framing of issues is the duty of the Court but is also the parties to object at the time of framing of issues if the issues are not in accordance with their pleadings. In this case issues were framed on 7.12.1993 and first time the matter of non-framing of issues was agitated at the appellate stage in the year 2001 and further I am clear in my mind that framing or non-framing of proper issues is not relevant as the parties to a litigation have their pleadings in their mind, they are to prove the case pleaded by them, therefore, framing of specific issue on each minor point remains a formality, if the issues generally framed cover the pleadings of the parties. It is not the case of the defendants-respondents that they were not allowed to produce evidence on controversial question of fact. In this view of the matter, further I am fortified by the judgment of the august Supreme Court of Pakistan reported as "Muhammad and 9 others versus Hasham Ali" (PLD 2003 Supreme Court 271). In this view of the matter, the application moved for framing of additional issues was not sustainable under the law.
7. Now comes the question of permission to amend written statement. When the facts are that the applicants are the transferees from defendant Nos. 1 & 2 and further that they are the real nephews. Of the original owner Massu. Therefore, now pleading that they are bonafide purchasers, this plea becomes afterthought- and also after about eight years of filing of suit and that too at appellate stage that they are the bonafide purchasers when they are the close relative of the original owner i,e, Massu, therefore, this application also seems to have been filed just to delay the matter and is not a bonafide application, therefore, the order passed by the learned first Appellate Court while allowing this application is not sustainable under the law. To strengthen the above findings, light can be taken from the judgment of the august Supreme Court of Pakistan reported as "Talib Hussain and others versus Member, Board of Revenue and others" (2003 SCM R 549).
8. So far as application under Order 41, Rule 27 of CPC is concerned, the defendants-respondents have prayed that Tehsildar, Patwari Halqa, Identifier and Lumberdar be permitted to be produced in additional evidence The learned first Appellate Court has noted that no such application was moved before the learned Trial Court. I have further noted that Patwari Halqa who entered the alleged mutations and the Naib Tehsildar have been made party to the suit. They were proceeded against exparte and defendants-respondents opted not to produce them in the witness-box. It is also admitted that names of the said witnesses were not entered in the list of witnesses. The reason given is that inadvertently their name was not mentioned in the list of witnesses. I am afraid that inadvertence is not a ground for permission to produce additional evidence. This is also important that the suit remained pending about eight years before the learned Trial Court and no such effort was made at the proper time and at the appellate stage the application has been filed.
It is settled now that the Court can grant a permission to produce additional evidence if it is required to the Court for coming to a just and proper conclusion of the suit. When no such application was moved before the learned Trial Court and admittedly the Patwan Halqa and Naib Tehsildar are the defendants in the suit and respondents-defendants have not mentioned their names and addresses in the list of witnesses produced in the court at the proper time, the alleged additional evidence is not required to the court, therefore, it seems that it is a case for permission to produce additional evidence in order to fill up the lacuna in the case. In this view of the matte the permission granted to produce the witnesses as additional evidence is not sustainable under the law, same is set aside.
9. For what has been discussed above the remand order passed by the learned first Appellate Court is not sustainable under the law. Resultantly, this revision petition is accepted and remand order dated 04.03.2004 is set aside. Parties are directed to appear before the learned first Appellate Court on 12.5.2014 where appeal filed by the respondents-defendants will be presumed to be pending and the learned first Appellate Court shall decide the same in accordance with law as early as possible. No order as to costs. Civil revision .