1. This civil revision u/S. 115, C.P.C. is directed against the judgment and decree dated 16.10.2006 of the learned Additional District Judge, Lahor District Swabi whereby the petitioners' appeal, against the judgment and decree dated 13.10.2003 of the learned Civil Judge, Lahor, Swabi, has been dismissed.
2. Brief facts of the case are that the petitioners filed a suit against the respondents u/S. 9 of the Specific Relief Act; 1877 (hereinafter to be referred as the Act) for possession of landed property, fully detailed in the heading of plaint. Respondents contested the suit by filing their written statements, wherein, they refuted the petitioners' claim. On the case issues, parties adduced pro and contract evidence hereafter the learned trial Court dismissed the suit with which the learned appellate Court concurred, hence the instant civil revision.
2. 3.Arguments heard and record gone through.
3. 4.Perusal of the case record would show that the petitioners' suit was under Section 9 of the Act and on the basis of evidence produced in the Court, the learned trial Court came to a conclusion that no case under the ibid section of law had been made out and reluctantly the petitioners were non-suited. Record of the case further shows that during tendency of the appeal, petitioners- appellants moved an application for amendment in their plaint so as to delete therefrom Section 9 of the Act but the learned appellate Court left the ibid application undecided and dismissed the petitioners' appeal by holding that no case u/S. 9 of the Act had been made out.
4. 5.It is well settled that whenever a miscellaneous application is filed in a Court of law, then it becomes necessary for the Court to first decide the same preferably prior to giving final decision ii case or along-with the main case.. Leaving a miscellaneous petition undecided can be termed as non-exercise of jurisdiction vested in a Court of law, which should not go unnoticed either by appellate or revisional Court, as the case may be.
5. 6.In the attending circumstances of the instant case, giving a finding in accordance with law on the petitioners' application for amendment of their plaint was a legal duty of the learned appellate Court, which failure has caused grave miscarriage of justice to the petitioners for which remand of the case to the learned appellate Court is imminent. No doubt, remand of a case should be avoided to a possible extent as same not only compounds miseries of the parties but injects a new life of years in a case, however, sometimes remand becomes a necessity so that complete justice could be done in a case.
6. 7.For what has been discussed above, this revision petition is allowed, judgment and decree of the learned appellate Court is set aside and the case is remanded to the learned appellate Court with direction to decide it afresh after giving a decision on the petitioners' application for amendment of the plaint. As the case is too much old, therefore, the learned appellate Court is further direct ed to decide the case within a period of one month. Parties present in Court are directed to appear before the learned appellate Court. on 06.03.2017. Office is directed to send the case record to the learned appellate Court forthwith.