LAL JAN KHATTAK, J. Through this judgment, I shall also decide R.F.A. No. 253-P of 2013 titled "Mian Haseeb-ud-Din and others v. Suleman Shah and others" as both the appeals are directed against the same judgment and decree dated 24.07.2012 of the learned Civil Judge-IX, Peshawar whereby suit of Suleman Shah etc. (hereinafter to be referred as the appellants) against Mian Haseeb-ud-Din etc. (hereinafter to be referred as the respondents) has partially been decreed. The partial judgment and decree has been assailed by the appellants through their appeal bearing No. R.F.A. No. 282-P/2012 praying therein for a judgment and decree as prayed for. The respondents have also called in question the judgment and decree of the trial Court through their Appeal bearing No. 253-P/2013 which though is barred by time but as against the same judgment and decree, the appellants have filed their appeal, therefore, the delay in filing of the appeal by the respondents would not matter.
2. Brief facts of the case are that the appellants filed a suit against the respondents for possession of 122 Kanals and 18 merles land falling in the revenue estate of Surezai Payan, Tehsil and District Peshawar. In Prayer-B of their plaint, they had prayed for recovery of Rs.1,23,00,000/-, as alternate remedy, from the respondents being compensation of the suit land having been received by them from the acquiring department i.e. the department of Livestock and Animal Husbandry, Govt. of Khyber Pakhtunkhwa. According to the averments of the plaint, the appellants had purchased from the respondents total 636 Kanals land falling in different khatajat through 03 sale mutations bearing Nos. 6329, 6330 and 6560 attested on 19 07.1995 but they were not handed over full area of 636 Kanals rather an area of 122 Kanals and 18 Marlas was retained by the respondents possession of which was sought by them. It was further the appellants case that thereafter the Government acquired certain land through Award including their land to the extent of 122 kanals and 18 marlas for the establishment o livestock farm compensation of which was received from the Government by the respondents illegally. So in prayer "A" the appellants prayed for a decree of possession of 122 kanals and 18 marlas and in prayer "B" they, alternatively, prayed for the recovery of Rs.
1,23,00,000/- along with 15% compulsory charges and interest as well per bank rate.
3. It is worth to mention that on 16.07.2007, right of defence of the respondents was struck off by the learned trial Court for their failure to file written statement, however, they were allowed to participate in the case proceedings. Respondents on the following day of striking off their right of defence i.e. on 17.07.2007 filed their written statement which was placed on the case file by the learned trial Court and they also led their evidence as DW-1 per order dated 24.12.2011 refuting the suit of the appellants. The learned trial Court after hearing arguments in the case from the appellants partially decreed their suit by holding them entitled only to receive an amount of Rs.3,36,356/- along with 15% compulsory charges of acquisition and interest on the said amount as per bank rate since 1979 till its realization. Against the judgment and decree dated 24.07.2012, both the patties, as mentioned above, have filed their separate appeals.
4 Arguments heard and record gone through.
5. Though the learned trial Court has directed the respondents to pay the appellants an amount of Rs. 3,23,356/-along with 15% compulsory acquisition charges and interest as well at bank rate since 1979 till realization of the decretal amount being compensation of 122 Kanals and 8 marlas land which, according to the learned trial Court, they had received from the acquiring department despite the fact that the acquired land was of the appellants but findings to the ibid effect of the learned trial Court directing the respondents to pay the compensation to the appellants are not borne out from the case evidence as no "Qabz-ul-Wasool" was produced before the trial Court by the appellants nor any person from the acquirng department or from the office of the land acquisition collector appeared before the Court to testify that the respondents had received the compensation which was earmarked for the appellants' 122 kanals and 8 marlas land. As per routine whenever a Government department pays any amount or compensation to anyone as landowner, a complete record is prepared and maintained by it regarding the acquired land, its measurement, market value and full particulars of the recipients. In the attending circumstances of the case, it was obligatory for the appellants to have requested the learned trial Court to requisition the acquisition record of their land from the office of the concerned Collector so that it could have been made known that the respondents had actually received the compensation of 122 kanals and 8 marlas land. In absence of any record to the above effect, no effective finding on the issue that the respondents had received the compensation of the appellant's land can be given for which remand of the case is must so that after ascertaining the above fact of the case an effective finding be returned. No doubt, remand or a case injects a new life of years into the case and same also overburdens the court but sometimes it becomes necessary as in absence of the material evidence no justice could be administered.
6. Another noticeable aspect of the case which cannot be overlooked is to the effect that despite the fact that right of defence of the respondents was struck off on 16.07.2007 but thereafter they filed their written statement on 17.07.2007 and under the direction of the learned trial Court vide order dated 24.12.2011 they produced their evidence before the Court on 17.01.2012 denying therein the appellants' case but the learned trial Court did not consider their evidence on the ground that in absence of pleading no evidence could be led and looked into. True that evidence is adduced on the case issue and issues are framed from pleadings of the parties but according to Order VIII, Rule 10 of C.P.C., when a party fails to present written statement within the time fixed by the court then the court may pronounce judgment against him or may make such order in relation to the suit as it thinks fit. It reveals from the record that when the respondents did not file their written statement, the court did not pronounce judgment against them and put the appellants to adduce their evidence and thereafter also directed the respondents to produce their evidence. In such scenario, the learned trial Court was bound to look into the entire evidence of the case including that of the respondents which omission had rendered the impugned judgment and decree as nullity in the eyes of law for which it cannot be allowed to be sustained.
7. Further, as per order dated 16.07.2007, only right of defence of the respondents was struck off and not their right to disprove the appellants' version which means that they were still at liberty to deny and rebut the appellants' affirmative evidence which they did by adducing their evidence as DW-1 on which even no objection was raised by the appellants. The evidence adduced by the respondents while disproving the appellants' case against them was to be considered by the learned trial Court which legal duty it has not performed as a result the appellants' cause has been prejudiced and on this ground too the impugned judgment and decree is not sustainable.
For what has been discussed above, both the appeals are allowed in terms that the impugned judgment and decree is set aside and the case is remanded to the learned trial Court to decide it afresh by requisitioning record from the concerned Land Acquisition Collector qua the compensation relating to the appellants' land and also to take into account the evidence produced by the respondents to disprove the appellants' case against them and thereafter decide the case on merit. As the matter is too much old, therefore, the learned trial Court shall decide it within a period of three months from the date of receipt of copy of this judgment.