' MUSARRAT HILALI, J.---Impugned herein is the judgment of learned Additional District Judge-IV, Mardan dated 26-11-2009 whereby appeal of the petitioner against the judgment and decree of learned Civil Judge-XI, Mardan dated 30-4-2008 has been dismissed.
2. Brief facts, as per record of the case are, that petitioner filed a suit against the respondents for permanent mandatory injunction by restraining the respondents on the ground that the suit hujra is his ancestral property having in its possession since long and respondents have no concern therewith. Prayer for recovery of Rs,23,500 was also contained in the plaint.
3. Respondents were summoned who contested the suit by filing written statement, whereafter from the divergent pleadings of the parties, issues were framed. It is on record that Suit No,332/1 of 1997 pertaining to the same controversy was also pending between the parties.
' The suit was consolidated with the suit in hand, however, Suit No,332/1 of 1997 was dismissed for non-prosecution and in the case in hand respondents were proceeded against ex parte.
4. In order to prove his case, beside him, the petitioner has produced as many as three witnesses.
The learned trial court after hearing arguments of the learned counsel for the petitioner and considering the available record, dismissed the suit of the petitioner on 30-4-2008. Feeling dissatisfied, the petitioner filed appeal against the said judgment and decree, which was also dismissed on 26-11-2009, hence this revision petition.
5. Learned counsel for the petitioner contended that the learned trial court while passing its judgment did not comply with the mandatory provisions of Order XX Rule 5 of C.P.C. As it has failed to give its findings on each issue separately; that the ownership of the suit hujra has been disputed by both the parties but still no issue with regard to ownership of the said hujra was framed. Learned counsel added that the learned appellate court while dismissing the appeal of the petitioner has committed grave irregularity and has erred in law by confirming the judgment and decree of the learned trial court.
6. Conversely, learned counsel for respondents contended that the petitioner has miserably failed to establish his case before the learned courts below without any shadow of doubt; that the provisions of Order XX, Rule 5 and Order XLI, Rule 31, C.P.C. Are directory in nature and non- compliance therewith would not vitiate the proceedings carried out before the learned courts below. Lastly contended that in view of concurrent findings on question of law and fact, the petitioner has made no case for interference therewith, hence instant revision petition merits dismissal.
' Arguments heard and record perused.
7. While going through the judgment of the learned trial court dated 30-4-2008, it appears that the learned court has decided the case summarily and in a slipshod manner. The learned court altogether has framed as many as 8 issues but while writing the judgment, neither the same were discussed nor any findings were recorded thereupon. The learned trial court was required to have adhered to the provisions of Order XX, Rule 5, C.P.C., which provides that in a suit in which issues have been framed, the court shall state its findings or decision with reasons upon each issue. The learned trial court while giving its judgment has neither touched any issue framed by it nor analyzed the evidence recorded thereon, hence the conclusion drawn is not based on well founded reasons. It feels as if the learned Judge has only commented upon the plaint and written statement of the parties.
8. Issues are the disputed points of law or question of facts set forth in pleading and denied by the other party. In the case in hand the petitioner in para-1 of the plaint claimed that the suit hujra was his sole property and that he was in possession of the same for the last 80 years being his ancestral property. This claim of petitioner was, however. Vehemently denied by respondents in paras-2 and 3 of their written statement. It has been noted that no issue vis-a-vis the factum of ownership of the suit hujra was framed by learned trial court.
9. It was imperative for the court to have thrashed out the controversy in light of the pleadings of the parties and framed issues covering all the disputes, which exercise has not been carried out by learned trial court rendering its judgment nullity in the eye of law.
10. The judgment of learned appellate court dated 26-11-2009 is also not in conformity with Order XLI, Rule 31, C.P.C. As it being the first appellate court was also a court of facts and it was enjoined upon the learned court to have decided the matter by giving its issue-wise findings ID as was required under the law.
11. In similar circumstances, the Hon'ble apex Court in the case of Ali Muhammad v. Muhammad Hayat and others (1982 SCM R 816), has held that "the learned trial court had disregarded the mandatory provisions of Order DC, Rule 5, C. P.C. And, therefore, had acted in exercise of its jurisdiction with material irregularity". Similar view was taken by the Hon'ble Supreme Court in the cases reported through PLD 2003 SC 271 and 2009 SCM R 371.
Thus, for what has been discussed above, this court is left with no option but to allow this revision petition and remand the case to learned trial court, who shall frame an additional issue with respect to ownership of suit hujra and provide opportunity to both the parties to adduce their respective evidence, if so desired, and thereafter record its findings on each and every point whether of fact or law, however, the matter be decided one way or the other but within a period of three months.