' Questioned herein is the judgment and decree of learned Senior Civil Judge, Mardan, dated 27.10.2010, whereby Suit No, 147/1 of 2004 filed by the appellant was dismissed.
2. Learned counsel for appellant argued that the plaintiff/appellant sought decree of specific performance for enforcement of oral agreement of sale against which an amount of Rs,15,94,600/- was paid to the defendant/respondent, vide five different cheques. In alternative, the plaintiff/appellant also sought recovery of Rs, 15,94,600/- alongwith interest at the rate of 20% from the defendant/respondent. He maintained that despite specific averment of the plaint, no issue was framed with regard to the alternate relief nor any findings have been recorded by the trial Court which has seriously prejudiced the cause of appellant. He contended that by virtue of Order XLI Rules 24 & 25, CPC, it is imperative to remand the instant case by framing specific issue and recording findings thereon by the trial Court. He maintained that the case be remanded for the same and he would not record any evidence because he has already produced sufficient evidence in support of his aforesaid stance.
3. Learned counsel for respondent contended that only two witnesses, consisting of one attorney and another were examined, thus the appellant has failed to prove the oral agreement of sale. He contended that previously his Civil Revision No, 1161/2009 against rejection of his application for his examination as witness was turned down by this Court; that mere non-framing of an issue when the parties are alive to the respective stance, would not prejudice the cause of either party; that since the primary prayer with regard to the enforcement of oral agreement has not been proved, so there was no need of any findings on alternative relief. He maintained that the cheques were encashed but the property was reverted because of the cancellation of the mutation by the Land Commission being inviolation of Land Reforms Rules. He maintained that ultimately the property has been allotted to the brother of the appellant, hence this appeal is liable to be dismissed.
4. I have heard learned counsel for the parties and have also gone through the record with their valuable assistance.
5. It is very much evident from the averments of the plaint that the plaintiff/appellant had sought specific performance of oral agreement with regard to the sale of the property, described in the heading of the plaint against sale consideration of Rs,15,94,600/- which according to the plaintiff/appellant has been paid through five different cheques on different dates, the detail of which has been provided in Para-2 of the amended plaint. The plaintiff/appellant in alternative has also prayed for recovery of Rs, 15,94,600/- alongwith 20% interest, in case his first prayer is denied.
The plaintiff, in support of his stance, has examined Shahid Khan ex-Manager, UBL as PW.2 and Muhammad Irfan, Assistant UBL as PW.3, apart from other evidence of agreement and revenue officials. The specific point of fact, alleged in the plaint, was denied by the defendant in his written statement, as such, the parties were at issue on that particular point. Since a specific plea has been raised in the plaint, it was required to be reflected in the issues but the learned trial Court has failed to discharge its obligation cast by Order XIV Rule 1, CPC. The plaintiff has led his evidence being conscious of his case but the learned trial Court while recording its findings on the issues, did not bother to return its finding on that aspect of the case. True that there is no need of remand of the case for framing of an issue, when the parties are conscious and alive to their causes and pursuant thereto have brought a considerable evidence in support thereof but in such cases there must be some findings of the Court on the specific plea, though there may not be a specific issue.
In the instant case, neither issue has been framed nor the learned trial Court has recorded its findings on that plea of the plaintiff/appellant which certainly has prejudiced the case of the appellant because he has filed the suit with two prayers firstly for specific performance of agreement of sale of property for which he had paid a specific amount and; secondly for recovery of said amount, in alternative, which was paid as a sale consideration. The learned trial Court did record its findings on the plea of specific performance but failed to utter a single word with regard to the second prayer of the plaintiff which was imperative to be considered, discussed and decided either way. In this backdrop of the facts, second prayer sought in alternative by the plaintiff/appellant is undecided as yet by the trial Court on which findings of the Court are inevitable, in absence of which, that part of the suit of the plaintiff shall be deemed to be unresolved as yet.
6. In view of this anomalous situation, remand of the case is the only course open because in absence of any findings of the trial Court on a specific plea, the cause of plaintiff would be prejudiced. Thus additional issue is framed as follows: "Whether the plaintiff, in alternative, is entitled to the decree of recovery of Rs,15,94,600/- alongwith interest @ 20% ?
' The learned trial Court shall record its findings after providing opportunity to the parties to lead evidence, if they so wish and decide the case within a period of two months positively, if not earlier than that. The parties shall appear before the Senior Civil Judge, Mardan, on 20.12.2014.