' MUHAMMAD ALAM, .J.---This is a Civil First Appeal, whereby, order/judgment dated 30-5-2011 of the learned trial Court has been challenged.
2. Appellant's tenders, for construction of PTV building at Skardu, were accepted. Parties entered into agreement of the said construction on 08-06-1996. Appellant is the contractor of the said building and as such has undertaken to construct the same in accordance with the terms and conditions arrived at through the agreement between the parties. Appellant/plaintiff completed the construction of the building and handed over the same to respondents in the year 2001. While finalizing the scheme of construction of PTV building at Skardu, respondents deducted 25% amounts. Plaintiff claimed Rs.6,67,227/- as escalation amounts in addition to the amounts of bills of actual work. Respondents refused to make the payment of escalation amounts and also to refund the deducted amounts, amounting to Rs.88,239/-, therefore, appellant/plaintiff filed suit C.S. No.102/2003 in the trial court praying for specific performance of agreement and payment of suit amount of Rs.10,53,952/-.
3. It is not disputed that the agreement between the parties contained provision for referring disputes between themselves to the arbitration according to the occasion. On 20-04-2004, respondents filed an application for referring the dispute between the parties to the arbitration.
Order sheet dated 20-12-2004 shows that the counsel for appellant/plaintiff agreed for reference of the dispute between the parties to arbitrators. Parties nominated two sets of arbitrators, one set by each of the party, and court directed the arbitrators for submission of their award till 23-02- 2005. The arbitrators submitted their separate awards on 24-09-2005. Learned trial court obtained objections from both the parties. Then the learned trial court, after completing trial proceedings, gave the impugned judgment/order in the following words:- ' As to Issue No.10.
"Since the plaintiff cannot prove issue No.9, suit stands dismissed for being non maintainable except to the extent of escalation rates in the sum of Rs.4,97,313.19 in view of the award passed by the arbitrators and was made rule of the court. File."
4. Feeling aggrieved from the impugned judgment/order, appellant/ plaintiff filed appeal in hand.
We have heard arguments of the learned counsel for parties and have perused the record. It is not disputed that the learned trial court framed the following issues during trial proceedings:--
(1) Whether the instant suit is not maintainable in its present form? OPD
(2) Whether the suit is barred by law hence liable to be rejected under Order-VII, Rule-11 of C.P.C.? OPD
(3) Whether the agreement dated 8.6.1996 on the basis of which the instant suit has been filed is itself not enforceable under law as such the suit is liable to be dismissed? OPD
(4) Whether the plaintiff has not come to .The court with clean hands, hence he is not entitled to any relief as prayed for? OPD
(5) Whether the arbitrators in the Arbitration Act have properly assessed the case of the plaintiff and the award has been made as rule of the court, hence nothing is outstanding against the defendants? OPD
(6) Whether the plaintiff has no cause of action, hence the plaint is liable to be rejected under Order-VII, Rule-11 of C.P.C.? OPD
(7) Whether the defendants have carried-out extra work amounting to Rs.2,98,495/- through the plaintiff and if so whether the plaintiff is entitled to receive the said amount from the plaintiff is entitled to receive the said amount from the defendant? OPP
(8) Whether under the contract agreement and as per undertaking of defendant No.2 non-BOQ items were exempted from 25% rebate and whether the defendants have deducted an amount of Rs.88,239/- as 25% rebate and whether the plaintiff is entitled to the said amount? OPP
(9) Whether suit is within time? OPP
(10) Relief.
5. We have noted that findings of the learned trial court on issue No.9 are very important. This issue contains the question of limitation. It is not disputed that learned trial court did not frame the issue of limitation at the stage of framing of issues, and instead, framed the same while writing the impugned judgment which is evident from the findings of the learned trial court on issue No.9. We reproduce the relevant part of the said findings hereunder:-- ' As to Issue No.9.
"In para No.10 of the plaint, plaintiff contended that the suit B is within time. The issue was not framed while framing of issue I hereby add the issue as issue No.9.
Plaintiff was burdened to prove that the suit is within time.
' So it is established that learned trial court did not afford chance for the parties for adducing evidence in proof and rebuttal of issue No.9. Learned counsel for parties debated before us the consequences of not affording chance to parties for producing evidence in proof and rebuttal of issue No.9. Learned counsel for respondents is of the opinion that the case in hand is based on documentary evidence and parties have filed the documentary evidence. Learned counsel for appellant/plaintiff contended that learned trial court must have afforded chance for the parties for producing evidence in proof and rebuttal of the said issue. In para No.10 of the plaint, appellant/plaintiff has averred that suit is within time, and in parawise reply to the same, respondents/defendants have termed the contents of para No.10 of the plaint as legal.
6. In our opinion, the framing of additional issue by the trial court is correct but the issue of limitation is a mixed question of law and fact, therefore, the trial court must have at least afforded chance to the parties for producing evidence in proof and rebuttal of the same. Instead of taking up all issues for discussion, we deem it proper for remanding the case to the trial court with direction to afford chance to the parties for producing evidence in proof and rebuttal of issue No.9.
Appeal accepted accordingly. Impugned order set aside but only for rewriting the judgment/decree after affording chance to the parties for producing evidence in proof and rebuttal of issue No.9. After recording evidence or statements of the parties regarding the evidence in proof and rebuttal of issue No.9, the trial court is free to record his similar opinion as already recorded or a different one according to the circumstances. Appeal partly allowed in the above terms and conditions and case stands remanded to trial court. Record of the trial court be returned back. File be consigned to record.