ANWAARUL HAQ PANNUN, J. Precisely, necessary facts for the decision of this civil revision petition are that plaintiffs (hereinafter called as the petitioners) filed a suit for declaration along with recovery of possession besides Rs.24,000/- as mesne profit since the years 1991-92 to 1998-99 against the defendants (hereinafter called as the respondents) with regard to the land measuring 12-Kanals 10-marlas, bearing Khewat No..14 min, Khatuni No.50, Square No.68, Killa No.7(Western) 24 min, 25(8-Kanals), situated at Chak No.284/GB, Tehsil and District Toba Tek Singh, with their averments in the plaint that despite being legal heirs of Ghulam Rasool son of Muhammad Din and owners of the disputed property, they have been deprived of their due share out of the disputed land on the basis of impugned mutation No.524 dated 27.02.1991, attested against facts and law and result of collusion, hence liable to be cancelled. While submitting their written statement, respondents Nos. 1 and 2, raised a number of preliminary objections and controverted the averments of the plaint on facts, with the assertion that the late Ghulam Rasool had sold disputed property to respondent No.1 Mst. Aisha, who, after receiving sale consideration of Rs.3,00,000/-, transferred the disputed property to the vendee and delivered the possession through the impugned mutation No.524 dated 27.02.1991 and prayed for dismissal of the suit. Respondents Nos.
3, 6 and 7, however filed their conceding written statement. Out of pleadings, learned Civil Judge, Toba Tek Singh, framed the following issues on 23.04.2001:-
1. Whether the plaintiffs have no cause of action or locus standi to file this suit? OPD
2. Whether the plaintiffs suit is barred by time? OPD.
3. Whether the suit has not been properly valued for the purposes of course and jurisdiction of so what is the correct valuation? OPD
4. Whether the suit is bad due to mis-joinder of parties? OPD
5. Whether the plaintiffs are estopped to sue by their words and conduct? OPD
6. Whether the suit is hit by section 11, C.P.C. and liable to dismissal? OPD
7. Whether the suit is not maintainable in its present form? OPD
8. Whether the defendants Nos. 1 and 2 are entitled to get special costs under section 35-A, C.P.C., if so, to what extent? OPD
9. Whether sale mutation No.534 dated 27.2.1991 in favour of defendant No.1 is against low and facts, collusive, based on fraud and liable to cancellation? OPP 10: Whether the plaintiffs being legal heirs of deceased Ghulam Rasool son of Muhammad Din are owners of the suit land? OPP
11. Relief.
The record of suit appended with this petition reflects that after framing the issues, as usual, the parties were directed to produce their respective evidence, to shed the onus of proof lying on their shoulders in the light of relevant issues. On three dates of hearing i.e. 14.07.2001, 13.10.2001 and 02.11.2001, evidence of the plaintiffs was not present, however on 02.11.2001, the petitioners moved an application seeking permission to introduce certain amendments in para No.9 of the plaint, which was contested by the respondents through their reply. In the meanwhile, the suit was withdrawn from the Court of learned Civil Judge Toba Tek Singh and entrusted to the learned Senior Civil Judge, Toba Tek Singh, vide order dated 02.01.2002, passed by the learned District Judge, Toba Tek Singh, accordingly notice pairve were ordered to be issued to the respondents and till 13.04.2002, the suit remained pending for service of the respondents. The suit from 06.05.2002 to 08.04.2006, remained fixed for evidence of the plaintiffs. The case also remained fixed from 09.09.2006 to 29.03.2007, for arguments on application for amendment in plaint, which ultimately was disposed of by the learned trial Court, vide its order dated 29.3.2007, with the observation that "the issue regarding the valuation of the suit has become the mixed question of law and facts keeping in view the respective contention of the parties, therefore, the same cannot be decided without recording the evidence of the parties, therefore, hereby put the onus of the above mentioned issue No.3 upon both the parties, as such, the issue No.3 is hereby amended in the following manner:- "Whether the suit has not been properly valued for the purpose of court fee and jurisdiction if so what is the correct valuation? OP Parties."
Again on 12.04.2007, an application for correction of the valuation of the suit for the purpose of court fee and affixation thereof accordingly was filed by the defendants/respondents, which was decided by the learned trial Court, vide its order dated 06.09.2007 while treating issue No.3 as preliminary issue, directed the plaintiff to adduce the evidence first, upon the said issue. Thereafter, despite availing sufficient opportunities, the petitioners failed to produce their evidence, consequently, the learned trial Court was pleased to proceed under Order XVII, Rule 3, C.P.C. and struck off rights of the petitioners to produce their evidence and dismissed the "suit" for lack of evidence with costs, vide its judgment and decree dated 18.11.2008. The petitioners being aggrieved, filed an appeal, which was also dismissed by learned Addl. District Judge, Toba Tek Singh, vide its judgment and decree dated 04.04.2009. Hence this revision petition.
2. Learned counsel for the petitioners contends that in absence of evidence, the trial Court at the most should have ordered the petitioners to make good deficiency of court fee, while deciding the preliminary issue against him and the provision of Order XVII, Rule 3, C.P.C. could have been applied with a different effect and suit as such could not have been dismissed. He further argued that the lower appellate Court has also failed to exercise its jurisdiction properly.
3. Learned counsel for the respondents contends that since the petitioners despite availing sufficient opportunities could not produce his evidence thus the learned trial Court has rightly closed their right to produce evidence while invoking the provision of Order XVII, Rule 3, C.P.C. and dismissed the suit. He has resisted the instant civil revision petition.
4. Arguments heard and file perused.
5. It may be observed that the affirmation of material proposition of facts or law by one party (in the plaint) and explicit denial thereof (in written statement) at the outset as the case may be, give rise to issues or an issue as the case may be. The propositions of law or facts which plaintiff proceeded to allege in order to show a right to sue or a defendant alleges in order to constitute his defence, are known as material propositions. Each material proposition affirmed by one party and denied by the other forms the subject of a distinct issue. Order XIV, Rule 1, C.P.C. specified two kinds of issues i.e.
(1) Issues of facts,
(2) Issues of law.
The Court at the first hearing of the suit, after reading the plaint and the written statement, if any and after examination of the parties as may appear it to be necessary and their assertion upon all the material proposition as of a facts or of law, which the parties are at variance and thereupon, proceeded to frame and record the issues on which the right decision of the case appears to depend. The Court however, is not required to frame and record issues where it finds at the first hearing of the suit that the defendants have made no defence. After having arisen the issues both of law and facts in the same suit if the court is of the opinion that the case or any part thereof may be disposed of on issue of law only, it may try those issues first and for that purpose if it thinks fit, may postpone the settlement of issues of facts till the determination of issues of law. Needless to observe that the Court has power to examine witnesses a document before framing issues.
Similarly, in addition to what has been stated above, the Court is also possessed with the power to amend and strike out the issues or framed additional issues on such terms as it thinks fit at any stage before passing a decree. Such amendments or framed additional issues, subject to the opinion of the Court, may be necessary for determining the controversy between the parties.
Similarly, the Court at the same time, is also vested with the power to strike out any issue which appears to it having been wrongly framed or introduced at any stage before the final decision.
6. It is well settled by now that if some evidence is required to be recorded for decision of a preliminary issue, it must be tried and decided along with other issues on merits. In this case, issue No.3 which pertains to suit valuation, out of framed issues, was ordered to be treated as preliminary issue. The trial court offered the parties to produce evidence, on the said issue. It clearly indicates that the subject issue is not purely an issue of law. This Court as well as apex Court of Pakistan in various cases observed that if an issue raises a mixed question of law and facts, then, for its decision, evidence is required to be led, such issue cannot be treated as a preliminary/legal issue. Furthermore, the apex Court in case reported as "I.C.I.C. v. Mian Rafiq Saigol and others"
(PLD 1996 Lahore 528) observed that:-- "a mixed question of law and facts, which require resolution after recording of evidence, which is overlapping and also affects the issues on merits as well, should be decided together and piecemeal decision of such issues should be avoided."
Reliance may also be placed upon case reported as "Irshad Ali v. Sajjad Ali and 4 others" (PLD 1995 SC 629).
7. In the facts and circumstances, noticed hereinabove and the discussion made so far, in my view, in the present case, since issue No.3 being mixed question of law and facts, could not have been decided without recording evidence. The learned trial Court after framing issues had already offered the parties to produce their evidence, therefore, the order dated 6.9.2007 treating issue No.3 as preliminary issue, necessitating recording of piecemeal evidence, shows that the Court had acted in exercise of its jurisdiction illegally and with material irregularities, hence the entire edifice built thereon has to crumble. The learned first appellate Court has also failed to take notice of this fact and as such, has failed to exercise its jurisdiction, vested with him by law to rectify the wrong committed by the learned trial Court. Both the learned Courts' below have failed to consider this aspect of the case and on erroneous and wrong assumptions, dismissed the suit of the petitioner.
Moreover, it is established that the issue of improper valuation is not considered as a formal defect and a suit cannot be thrown away on the ground of improper valuation because the valuation of the subject-matter of the suit, both for the purposes of jurisdiction and payment of court-fee can be corrected by the Court after recording evidence. It has been held by the august Supreme Court of Pakistan in case reported as "Sardar Muhammad Kazim Ziauddin Durrani and others v. Sardar Muhammad Asim Fakhuruddin Durrani and others" (2001 SCMR 148) that:- "11. As far as improper valuation of the subject-matter of the suit is concerned it also does not tantamount to constitute formal defect because the valuation of the subject-matter of the suit both for the purposes of jurisdiction of the Court and payment of court-fee can be corrected by the Court after recording evidence and if it comes to the conclusion that deficient court-fee has been paid on the plaint then it can call upon the plaintiffs/ petitioners to make the deficiency good in exercise of its jurisdiction conferred upon it by section 149, C.P.C. because the question of payment of court-fee is a matter between the subject and State as it has nothing to do with opponents as held in the case of Siddique Khan v. Abdul Shakoor Khan and another (PLD 1984 SC 289). Similarly if the Court comes to conclusion that the valuation of the subject matter is more than its pecuniary jurisdiction then either it can proceed with the matter considering that if it has jurisdiction because such determination has taken place during the pendency of trial of the suit or if the Court forms an opinion otherwise then it can transfer the case through administrative Judge to Court of competent jurisdiction. However, for such defect which again is a latent in its nature suit cannot fail."
8. For the afore-discussed reasons, by setting aside the impugned judgments and decrees dated 18.11.2008 and 04.04.2009, passed by the learned courts' below, the case is remanded to the learned trial Court with the direction to decide the same afresh in the light of the observations made hereinabove, expeditiously. This revision petition is accordingly allowed.