SHAHID BILAL HASSAN-J: Brief facts, giving rise to the instant appeal are as such that respondents No.1 to 5 instituted a suit for partition with respect of the suit property against the present appellant and respondent No.6, which was duly contested by the rival party. Out of the divergent pleadings of the parties, the learned trial Court framed issues and evidence of the parties was recorded. The learned trial Court vide impugned judgment and decree dated 17.09.2007 passed preliminary decree in their favour. The appellant(s) being aggrieved preferred an appeal but it was dismissed vide impugned judgment and decree dated 24.02.2010; hence, the instant regular second appeal.
2. Heard.
3. Considering the arguments and going through the record, it is observed that after deletion of properties in terms of order dated 05.01.2005 by allowing amendment in the plaint, the present appellant(s) submitted amended written statement and in reply to para No.1 (On Merits) the appellant(s) pleaded as such:-
1. Denied. That the plaintiff is requesting the court for partition of properties of his own choice whereas it is a settled principle of law that all the joint properties are required to be partitioned between the joint co-owner in one suit, but the plaintiff has deliberately on the basis of malafide and creating harassment to defendant No.1 has withdrawn from the claim of other joint property i.e. Gulistan Cinema Gojra and agricultural land. Therefore the suit of the plaintiff is no more a suit for partition and it does not fall in the ambit of partition suit, hence merits dismissal. Further area of the properties as given in the paragraph are not admitted to be correct.in Gulistan Cinema Gojra Defendant No.1 has 2/9th share.
As regards House No.2148-B Model Town, Plaintiff No.1 received the consideration of Rs.1,15,000/- in lieu of her share in the said house from Defendant No.1 in presence of witnesses, on 3-4-87 and surrendered her share by way of family settlement in favour of Defendant No.1 in 1987. Therefore, she is estopped to institute the present suit in respect of the aforesaid house.
Further Defendant No.1 constructed a Kitchen, a room and two quarters and laid floors in the courtyard with chips with the huge expenditure of Rs.3,00,000/- in the year 1987-88. No partition of the house can take place without payment of the aforesaid amounts.
After submission of amended written statement, the learned trial Court, if anything new was introduced by the defendant(s), may require the plaintiff, obviously on an application, to submit replication by adopting procedure provided under Rule 9, Order VIII, Code of Civil Procedure, 1908, which reads:- 'Subsequent pleadings. No pleading subsequent to the written statement of a defendant other than by way of defence to a set-off shall be presented except by the leave of the Court and upon such terms as the Court think fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same.'
Reliance in this regard is placed on Sardar Sakhawatuddin and 3 others v. Muhammad Iqbal and 4 others (1987 SCMR 1365), NAMA LIKA SILK INDUSTRIES v. Messrs ULTIMATE DRIVING MACHINE and others (2003 CLC 1139) and Mst. Najma Yasmin and another v. Mst. Firdous Khalid and 2 others (2002 CLC 1085-Lahore).
It is a settled principle of law that no evidence beyond pleadings can be produced and considered.
However, the learned trial Court neither called upon the plaintiff to file written statement/replication in answer to the defendants allegations nor bothered to frame additional issues after submission of amended plaint and written statement, which otherwise was necessary, because the above said objection/plea raised by the appellant(s) goes to the root of the case that whether suit for partial partition was maintainable or not. It seems that the learned trial Court was not acquainted with the real myth of framing of issues, because the parties have to lead evidence keeping in mind the burden of proof placed upon their shoulders while formulating issues. The issues framed by the learned trial Court make it vivid that proper issues with regards to rival claim of the parties have not been framed, meaning thereby the provisions of Order XIV, Rule 1 of the Code of Civil Procedure, 1908 have been defiled. Evidence is led after framing of issues. The stage of framing of issues is very important in trial of civil suit because at that stage the real controversy between the parties is summarized in the shape of issues and narrowing down the area of conflict and determination where the parties differ and then parties are required to lead evidence on the said issues. The importance of framing correct issues can be seen from the fact that parties are required to prove issues and not pleadings as provided by Order XVIII, Rule 2, CPC. The Court is bound to give decision on each issue framed as required by Order XX, Rule 5, CPC. Therefore, the Courts while framing issues should pay special attention to Order XIV of CPC and give in deep consideration to the pleadings etc. for the simple reason that if proper issues are not framed, then entire further process will be meaningless, which will be wastage of time and energy and would further delay the final decision of the suit.
4. For the foregoing reasons, the learned Courts below have failed to adjudicate upon the matter in hand as per mandate of law and have committed material illegality. As such, the appeal in hand is accepted, impugned judgments and decrees are set aside and case is remanded to the learned trial Court with a direction to frame proper issues keeping in view above observations as well as amended pleadings of the parties and record evidence, if intends to be produced by the parties, where-after decide the suit afresh in accordance with law. The adversaries are directed to appear before the learned trial Court on 14.02.2023.