This writ petition calls in question the validity of the order dated 4th of June, 1979, of the learned District Judge, Sheikhupura.
2. The facts relevant for the disposal of the writ petition may be briefly stated. Respondent No. 1 filed a suit for declaration against the petitioners challenging the transaction of sale in respect of land measuring 46 kanals 15 marlas and transaction of gift in respect of land measuring 43 kanals 14 marlas entered into by one Bahadar, deceased, in favour of petitioner No. 1 and petitioners Nos. 2 to 4 respectively on the ground that the said transac--tions had been made by the deceased during Marz-ul-Maut and were obtained through fraud and misrepresentation. In the alternative, it was claimed that Babadar, deceased, had inherited the land, in dispute, under custom and as such his right to transfer the land was not unfettered. The transfers effected by him in favour of the petitioners being without lawful necessity were of no legal effect as against the reversionary rights of respondent No. 1. On the pleadings of the parties, the trial Court framed the following issues on 15th of January, 1977
(1) Whether the suit is not maintainable in its present form ? OPD.
(2) Whether suit has been properly valued for purposes of Court fee and jurisdiction ? If not, what is the correct valuation ? OP Parties.
(3) Whether the impugned alienations were effected during Murz-ul-Maut and in a state of affairs when the decesed Bahadar had lost his senses due to prolonged disease as alleged in the plaint?
OPP It is an admitted fact that the evidence of the parties was concluded on 15-1-1979. The case was initially fixed for arguments in the trial Court on 7-2-1979 and later adjourned to 15-2-1979.
Respondent No. 1 made an application before the trial Court on the said date for framing of an additional issue so as to cover the alternative plea taken by him in the plaint. The application of respondent No. I was rejected by the trial Court by an order dated 16-4-1979 (Annexure 'C') on the ground that respondent No. 1 could not attack the legality of the alienation under the alternative plea of customs because for doing so he should accept the transaction to have been brought about by Bahadar, deceased, while in his senses. It was further observed that the plea of custom to challenge the validity of alienation was contradictory to the other pleas raised by the petitioners.
Lastly it was observed that respondent No. 1 approached the Court at a very late stage and, therefore, relying on the dictum laid down in Munshi Muhammad Afzal Khan and another v.
Khadim Hussain Khan PLD1978SC(AJ&K)73rejected the application. The respondent filed a revision petition before the learned District Judge, Sheikhupura, which was accepted on 4th of June, 1979 (Annexure 'D'). The basis of acceptance the revision petition was that the learned Civil Judge did not properly appreciate the significance of the pleas taken in the alternative by the petitioners. It was held that it was open to respondent No. 1 to have challenged the alienation under customs and that the trial Court ought to have framed the additional issue sought for in the very first instance. It was further observed that the trial Court failed to exercise jurisdiction vesting in it by not framing the issue, in dispute, which has resulted in miscarriage of justice to respondent No. 1. It was further observed that the mere fact that respondent No. I did not press for the framing of the issue at the earlier stage, would not debar him from raising that issue later. The petitioners assailed validity of the aforesaid order of the learned District Judge by means of Writ petition No, 4696 of 1979, which was dismissed in limine by my learned brother C. A. Rehman, J. By an order dated 19- 9-1979. The operative part of the judgment as contained in paragraph 4 reads thus :- "4. The impugned order was made by the learned District Judge keeping in view the provisions of Order XIV, rule 5, Code of Civil Procedure, which empower the Court to amend or frame additional issues at any time before passing a decree, if such amendment or additional issue is considered to be necessary for determining the matters in controversy between the parties. It may be noticed that the Court is competent to amend an issue or frame an additional issue at any time before passing a decree. Thus the power exercised by a Court under Order XIV. Rule 5, Code of Civil Procedure, cannot be questioned on the ground that it was exercised at a very late stage of the trial. The plea of estoppel against a party also, does not appear to be available in such a case, because primarily it is the duty of the Court to strike out issues, which arise from the pleadings of the parties and which are necessary for determining the matter in controversy between the parties. It is an admitted fact that respondent No. 1 had also challenged the transaction of sale and gift of the disputed land made by Bahadur deceased on the, ground of being contrary and against the customary law, which was applicable to the two alienations in question. The petitioners had controverted the above plea taken up by the respondent. Under the circumstances, it was incumbent upon the learned trial Court to have framed issues covering the above pleas. The learned District Judge, therefore, had acted well within his jurisdiction when he interfered in exercise of his revisional jurisdiction under section 115, Code of Civil Procedure, and directed the learned trial Judge to frame additional issues; which arose from the pleadings of the parties. Thus, the impugned order is not legally assailable. Moreover, the extra--ordinary jurisdiction of this Court conferred under Article 199 of the Constitution cannot be invoked in the present case, because the peti--tioners can challenge the impugned order even at the appellate stage, if it can be shown that framing of additional issues amounted to irregularity in proceedings and that it had affected the merits of the case or the jurisdiction of the Court. The Appellate Court has ample power under sections 99 and 105, Code of Civil Procedure Code, to consider the petitioners above objection against the impugned order. It, therefore, cannot be said that the petitioners have been left without any legal remedy against the impugned order and as such the only course open to them is to invoke the writ jurisdiction of this Court."
The petitioners filed a review petition No. 101/79 against -the aforesaid judgment. The review petition was accepted by my learned brother by an order dated 3rd of May, 1980, Inter alia with the following observations :- "The main ground on which the petitioners' writ petition was not admitted to hearing was that an alternative remedy was available to them inasmuch as they could raise the question of additional issues framed by the trial Court under the direction-of the District Judge in appeal if the suit was decided against them: The learned counsel for the petitioners has contended that order dated 4- 6-1979 was passed by the learned District Judge after hearing the parties, and as such it would not be legally possible for the petitioners to raise the question of additional issues at the time of appeal as the said order would operate as res judicata. Learned counsel -for the petitioner has referred to the decision of Privy Council in Run Kirpal v. Amp Kuarl (1883) 11 I A 37) where it was held that upon general principles of law an interlocutory judgment in a suit would be binding upon the parties in every proceeding in that suit., The legal issue raised by the petitioners' counsel requires further consideration. I, accordingly, review my order dated 19-9-1979 and admit the petitioners' writ petition to hearing. Notice shall issue to the respondents for a date to be fixed by the office."
3. The learned counsel for the petitioners has assailed the validity of the N' impugned order mainly on the ground that the order passed by the learned Civil Judge was not open to revision, in that, the conditions precedent laid down in section 115, C. P. C. Were not satisfied. The learned counsel for the petitioner has also submitted that the learned trial Court, in the exercise of its discretion, refused to frame the additional issue, and therefore, the order passed by him was not open to interference in revisional jurisdiction, in that, the order, in question, was passed after taking into consideration the conduct of respondent No. 1 in not pressing the issue at the relevant time until the case was ripe for arguments for the second time. The learned counsel for the petitioners further submits that the conduce of the respondent No. 1 in not agitating this matter at the appropriate stage tantamounts to waiver on his part and, therefore, the discretion exercised by the trial Court in refusing to reject the application of respondent No. 1 did not suffer from any legal infirmity. Reliance is placed on Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies (1), wherein it was held that "every irregularity or illegality in exercise of jurisdiction will not render the subordi--nate Court's order void and without jurisdiction". Reference was also made to The Universal Life and General Insurance Co. Ltd., Lahore v. Ejaz Mahmood (2), wherein it was held that "It is true that an error in a decision of a Subordinate Court does not by itself involve that the Subordinate Court has acted illegally or with material irregularity so as to justify interference in revision under subsection (c), nevertheless if the erroneous decision results in the Subordinate Court exercising a jurisdiction not vested in it by law or failing to exercise a jurisdiction so vested, High Court can interfere in revision under sub--section (b) of section 115, Civil Procedure Code."
5. The learned counsel, for the contesting respondent submits that in terms of Order XIV, rule 5 of the Code of Civil Procedure, a duty is- cast on the trial Court to have framed the issues arising out of the pleadings of the parties. In the instant case, the trial Court failed to exercise the powers vested in him under the aforesaid provisions and, therefore, the order of the learned District Judge in the exercise of his revisional jurisdiction, whereby trial Judge was directed to frame the additional issue, was intra vires of the provisions of section 115, C. P. C. Reliance is placed on Premier Insurance Company of Pakistan, Karachi v. P & O and B. '1. (Strath Services Cunard Brocklebank), Karachi and another (3), wherein it was held that "where the issues framed do not bring out the real point in controversy or do not cover the entire controversy, it is imperative on the Court to frame such additional issues as may be necessary and the power can be exercised at any stage prior to final disposal of the case": Reliance is also placed on Ananta Kumar Majumdar and others v. Gopal Chandra Majumdar and others (4), wherein it was held that. In terms of Order XIV, rule 1
(5) of the Civil Procedure Code, it is the duty of the Court to frame issues on the pleadings of the parties and after examination of the parties, if necessary and the plea that the party did not press it, is no ground for not framing the necessary issue. Reference is also made to Mst. Noor Jehan Begum v. Muhammad Ehsan Ullah Khan and others PLD 1960 (WP.) Lah. 181wherein it was observed that "it is the duty of the Court to frame proper issue arising from the pleadings in a case and to determine all matters in controversy". In the precedent case, the revisional jurisdiction was exercised by the High Court under section 115, Civil Procedure Code and a direction was issued to the trial Court to frame proper issue arising out of the pleadings of the parties in the interest of justice.
(1)- PLD 1964 SC 97 (2) PLD 1978 Lab. 475
(3) PLD 1980 Kar. 412(4) PLD 1961 Dacca 65
6. The learned counsel for the contesting respondent further submits that the question of waiver .May be relevant at the appellate or revisional stage against a final decree, but the plea of estoppel/waiver does not arise during the course of hearing of the trial in the terms of Order XIV, rule 5 (1), Civil Procedure Code and that an affected party can approach the Court at any stage of the trial and before passing a decree.
7. I have given anxious consideration to the submissions made by learned counsel for the parties.
There appears to be great force in the argu--ments advanced by the learned counsel for respondent No. 1. The objection regarding framing of a particular issue necessary for disposal of case, if not at all claimed by an affected party at trial or any objection in such regard not raised before the appellate Court, in an appeal against a final decree, A may be deemed to have been waived or abandoned. However, the question of waiver/abandonment or estoppel does not arise, if during the pendency, of trial and prior to the passing of a decree, a party makes an application to trial Court for framing of an issue necessary for determining the matters in controversy between the parties. The ratio raid down in Muhammad Afzal Khan v. Khadim Hussain Khan PLD 1978 SC (A J & K) 73, is not applicable-to the facts of the present case. In the precedent case, the omission of framing of a ,particular issue was never brought to the notice of the trial Court or e. En "before- the appellate Court but was raised for the first time before the Supreme Court. In the instant case, the objection was raised prior to the disposal of. The whole case but the trial Court failed to exercise the jurisdiction vested in it under Order XIV, rule 5 (1); Civil Procedure Code, mainly due to a mistaken view of law that respondent No. 1 deemed to have abandoned his claim for framing of an additional issue. The order of the trial Court refusing to frame the. Additional issue was not only illegal but was violative of the provisions of Order XIV, rule 5 (1) of the Civil Procedure Code, which makes' it mandatory upon the Court to amend or frame issues necessary for determining matters in controversy between the parties.
8. The scope of revisional jurisdiction under section 115 of the Civil Procedure Code, is meant primarily for correcting errors made by the subordinate Courts, if they suffer from excess of jurisdiction, failure to exercise jurisdiction and illegal exercise of jurisdiction, in violation of some statutory provision or principle of natural justice as would render the proceedings coram non judice. It is manifest that the trial Court failed to exercise juris--diction due to misapprehension of law and in lack of appreciation of its own jurisdiction and powers and as a result thereof refused to frame the additional issue which tantamounts to decline to exercise jurisdiction vested in it. Thus visualised, the order of trial Court was open to correction by the District Judge in the exercise of his revisional jurisdiction under section 115 (2), Civil Procedure Code. It was also held in Muhammad Swaleh's case relied upon by the learned counsel for the petitioners that where the failure to exercise jurisdiction was due to a mistaken view of law, the Supreme Court will interfere. Universal Life and General Insurance Company Ltd., Lahore's case relied upon by Ch. Hassan Muhammad, Advocate, does not advance the case of the petitioner. The ratio laid down in the precedent case is that the revisional jurisdiction under section 115, C. P. C. Can be invoked where the erroneous decision of the trial Court results in failure to exercise a juris--diction vested in it.
9. I am also in respectful agreement with the view earlier expressed by my learned brother in para. 4 of his judgment dated 19-9-1979, as to the scope. Powers and functions of the trial Court, in terms of Order XIV, rule 5 of the Code of Civil Procedure and that, "the learned District Judge, therefore, had acted well within his jurisdiction when he interfered in exercise of his revisional jurisdiction under section 115, Civil Procedure Code and directed the learned trial Judge to frame additional issues which arose from the pleadings of the parties. Thus the impugned order is not legally assailable". In the case of The Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others PL D 1971-SC' 82, it was held that if issues are not framed but allegations are made in the plaint and they are challenged in the written statement, it is open to the Court to allow the parties to lead evidence on such point and to give decision on it without framing any issue.
10. The above discussion clearly shows that the District Judge had perfect jurisdiction to decide the matter which was before him in the exercise of its revisional jurisdiction. Whether an interlocutory judgment in a suit would be binding upon the parties in every .Proceedings in that suit, is not necessary to be examined- in the context of the present case, as even if such an order would operate as res judicata, as contended by learned counsel for the petitioner, that by itself would not render the impugned judgment of the District Judge as without lawful authority warranting interference in the exert sell of writ jurisdiction.
In view of the above, the writ petition fails and is hereby dismissed with costs.