MIRZA VIQAS RAUF , J. This petition in terms of section 115 of the Code of Civil Procedure (V of 1908)
(hereinafter referred as "C.P.C.") assails the vires of order dated 6th March, 2019, whereby the learned Additional District Judge, Sheikhupura proceeded to dismiss an application under Order XLI, Rule 25 "C.P.C." moved by the petitioners.
2. Precisely , the facts necessary for adjudication of instant petition are that the petitioners instituted a suit for specific performance and permanent injunction on the basis of an agreement to sell averring therein that respondent No.1 being the owner of suit land entered into an agreement to sell with Shaukat Ali, predecessor-in- interest of the petitioners. As per terms and conditions of the agreement, sale consideration was settled as Rs,70,000/- out of which vendor received Rs.40,000/- whereas remaining Rs.30,000/ were to be paid at the time of transfer of the land in favour of vendee. Suit was resisted by the respondents. Both the sides produced evidence in support and contra to their respective pleadings and finally suit was dismissed by way of judgment and decree dated 20th December , 2017. The petitio ners, feeling aggrieved, filed an appea l before the learned Additional District Judge, Sheikhupura. During pendency of appeal, an application under Order XLI, Rule 25 "C.P.C." was moved by the petitioners seeking a direction to the learned Trial Court for framing of additional issues. The application was resisted by the respondents and finally it was dismissed by way of impugned order .
3. Learned counsel for the petitioners contended that the learned Trial Court has failed to frame the proper issues from the divergent pleadings of the parties. He added that some material issues were left to be framed by the learned Civil Judge, which resulted into grave miscarriage of justice. It is argued that after dismissal of suit, an application was moved before the learned Appellate Court for framing of necessary issues but the same was declined through impugned order . Learned counsel emphasized that the impugne d order is not tenable under the law and non framing of proposed issues amounts to an illegality which requires interference by this Court. In support of his contentions, learned couns el places reliance on "Muhammad Bashir v. Muhammad Hussain and 16 others " (2009 SCMR 1256 ), "Mst. Rasheeda Bibi and others v. Mukhtar Ahmad and others " (2008 SCMR 1384 ) and "Iqbal Ahmed v. Managing Director Prov incial Urban Development Board, N.W.F.P. Peshawar and others" (2015 SCMR 799 ).
4. Heard. Record perused.
5. The suit was rested upon an agreement to sell dated 9th November , 1978, which was purportedly entered into between predecessor-in-interest of the petitioners namely Shaukat Ali and Muhammad Aslam i.e. respondent No.1.
Since the matter in issue relates to the aspect of non-framing of certain issues by the learned Trial Court, so there is no need to ponder upon any other aspect of the matter .
Record reveals that on the basis of divergent pleadings of the parties, the learned Trial Court framed multiple issues to the following ef fect:-
1. Whether the defendant No.1 entered into an agreement to sell dated 09.11.1978 in consideration of Rs.70,000/-?
OPP
2. If above issue is proved in affirmativ e, whether plaintif f is entitled to decree for specific performance and permanent injunction? OPP
3. Whether the plaintif f has no cause of action to file the instant suit? OPP
4. Whether the plaintif f is estopped by his own words and conduct to file the suit? OPD
5. Relief.
After going through the issues referred hereinabove, it can safely be observed that since the matter in controversy relates to the performance of terms and conditions of agreement to sell dated 9th November , 1978, so the controversy was duly captured by the learned Civil Judge through the issues. It is evident from the record that issues were framed on 29th March, 2017. The petitioners never moved any application to the learned Trial Court for recasting or reframing of issues. Both the sides being well aware of the matter in controversy produced their evidence. After completion of evidence, the learned Civil Judge, on due appraisal, proceeded to dismiss the suit by war of judgment and decree dated 20th December , 2017. An appeal was filed by the petitioners wherein they have also taken one of the grounds with regard to framing of material issues. During the pendency of appeal, the petitioners moved an application under Order XLI, Rule 25 "C.P.C." before the learned Appellate Court for framing of proposed issues.
7. There is no cavil that an appellate Court is vested with the power to frame issues while hearing the appeal and can refer the matter for trial to the Court from whose decree the appeal is preferred. In order to properly comprehend the proposition involved in the instant matter , it would be advantageous to first go through the relevant provision i.e. Order XLI, Rule 25, "C.P .C.", which reads as under:-
25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from......
Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary , frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the addition al evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellat e Court together with its findings thereon and the reasons therefor .
From the bare perusal of above referred provision of law, it is manifestly clear that an Appellate Court can only direct the framing of issues if the Court from whose decree the appeal is preferred omit
(i) to frame issue
(ii) try any issue
(iii) to determine any question of fact, which in the opinion of the learned Appellate Court is essential for arriving at right decision of the suit. The appellate Court is vested with the power that after framing of issues refer the same for trial to the Court from whose decree the appeal is preferred and in such case shall direct such Court to take the additional evidence required and such Court shall proceed to try such issues and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor . It is, thus, discretionary with the Appellate Court to accord the permission for framing of issues, if the Court is of the opinion that such issues are essential to the right decision of the suit.
8. After making comparative analysis of the issues framed by the learned Trial Court and 'the proposed issues, it becomes crystal clear that it cannot be held that the learned Trial Court has omitte d to frame or try any issue or to determine any question of fact involved in the lis. The matter in controversy was duly covered by the learned Trial Court by virtue of Issues Nos.1 and 2.
9. So far contention of learned counsel for the petitioner that issues were not properly framed, which renders the impugned judgment nullity in the eyes of law, it is observed that though under Orde r XIV of "C.P.C." court is obliged to frame issues arising out of a material proposition of fact and law as is affirmed by.one party and denied by the other but while going through the issues framed, it can safely be held that court while framing the issues has committed no such illegality or perversity , as a result of which any of the parties were unable to comprehend the controversy or some prejudice is caused to any of them. Record reveals that while leading the evidence, both the sides were well conversant with the matter in issue and all the necessary and available evidence was produced pro and contra to the issues. Had there been objection in this regard the petitioners was at liberty to move an application for recasting of the issues under Order XIV, Rule 5 of ".C.P .C." but this was admittedly not done during trial of the suit. Even otherwise mere non-framing of an issue by the learned trial court will not affect the vires of the judgment if it is established that the parties, while leading their evidence, were well conscious and aware of the matter in issue and they have led the relevant evidence to that effect. The suit of the petitioners was dismissed on the ground that they have failed to prove the agreement to sell. It appears that the petitioners are now endeavoring to get framed the proposed issues so as to obtain a direction from the learned Appellate Court for recording of additional evidence in the garb of which they can fill up the lacunas in the evidence. Such a mode is not " permissible under the law. Guidance in this regard can be sought from the principles laid down by the Hon'ble Apex Court in the case of "Abdul Karim v. Haji Noor Badshah" (2012 SCMR 212). The relevant extract from the judgment supra is reproduced below:- "7. In the absence of miscarriage of justice due to non-framing of issue on a particular controversy in the matter , like where Court did not allow the parties to lead their evidence in support of their contentions for want of issue, if on a question of fact a specific issue required to be framed in the light of the pleadings of the parties is not framed but parties have led evidence in support of their respective stances, the decision on such question can be rendered in the light of evidence available on record without framing the issue.
In the case of Fazal Muhammad Bhatti v . Saeeda Akhtar , (1993 SCMR 4), it was held:- "The pleadings and the issues as originally framed show that the parties were fully aware what was the subject- matter of controversy and what evidence was to be led by each one. The Court did not prevent the parties from leading evidence at the trial with regard to the defects in the gift. The non framing of a specific issue in such circumstances is inconsequential."
The same view was further reiterated by the Hon'ble Apex Court in the cases of "Amjad Ikram v. Mst. Asiya Kausar and 2 others" (2015 SCMR 1), "Eada Khan v. Mst. Ghanwar and others" (2004 SCMR 1524 ), "Muhammad and 9 others v. Hasham Ali" (PLD 2003 Supreme Court 271). Even this Court in the case of "Muhammad Ashraf and others v. Metropolitan Corporation, Lahore" (2007 CLC 1079 ) and "Mst. Saeeda Akhtar Sadiq through Special Attorney v . Tauqir Akhtar" (2006 CLC 1430 ) has adopted the same principles.
10. The judgments in the cases of Muhammad Bashir as well as Mst. Rasheeda Bibi's supra are based on entirely different facts. So far Iqbal Ahmed' s supra is concerned, there can be no second opinion that revisional jurisdiction can be invoked where the subordinate forums have committed jurisdictional error or had misread evidence or had ignored material aspects affecting very root of case suggesting perversity but the petitioners have failed to point out any such infirmity in the impunged order .
11. In view of above narrated circumstances, I am of the considered opinion that the learned Additional District Judge was justified in dismissing the application under Order XLI, Rule 25 of "C.P.C.". The petitioners have failed to point out any illegality or perversity in the order under challenge.
12. For the foregoing reasons, instant petition fails and is dismissed in limine .