' Syed Muslim Hassan Zaidi, the predecessor-in-interest of the petitioners, brought a suit for declaration to the effect that the order dated 30th November, 1959 passed by the Deputy Settlement Commissioner, Lahore transfering property, No, S. IV-8-S-2, known as 3-Cooper Road, Lahore in favour of the respondents was illegal, obtained by fraud and misrepresentation and all subsequent orders based thereon were also void with consequential relief, restraining the respondents from implementing the afore-mentioned order. The suit was resisted by the respondents on number. Of grounds and no less than ten issues were framed by the learned trial Judge. The parties led evidence in support of their versions. The learned Civil Judge vide his judgment and decree dated 17th January, 1979 dismissed the suit, with costs holding that no fraud was committed upon the plaintiff in respect of the transfer of the. Disputed property and that the plaintiff was estopped by his conduct to challenge the order of transfer as he had appeared before the Deputy Settlement Commissionet and showed his unwillingness to have the disputed property transferred in his favour and further that the suit was barred by principle of res judicata. The plaintiff went in appeal which was dismissed by the impugned judgment dated 5th June, 1982 of the learned Additional District Jadge, {{PAGE CUTT LAST LINE IN BOOK}}
2. Learned counsel for the petitioners contended that the impugned judgment is violative of the provisions of Order XLI, rule 31, C. P. C. Which required that the appellate judgment must state the points of determination, the decision thereon and the reasons for the decision. It was further contended that the impugned judgment shows that the learned Additional District Jugde did not apply his conscious mind to the facts of the case and the points of law arising therefrom. He referred to paragraph 3 of the impugned judgment and pointed out that at no stage the case of the parties was before the Additional Chief Commissioner as observed by the learned Judge. It was asserted that the learned Judge did not take note of the contentions raised by the parties nor adjudicated upon them. In support of his contentions he relied on Allah Bakhsh etc. v. Noor Khan etc. and Ch. Abdul Kabeer v. Mian Abdul Wahid and others.
3. Learned counsel for the respondents supported the impugned judgment and contended that since the judgment of the learned trial Court was affirmed in appeal the requirement of the provisions of Order XLI, rule 31, C. P. C. Was substantially complied with and non-compliance of the provisions thereof would not vitiate the judgment and render it a nullity. He relied on Mahomed Hossain Chaudhary and another v. Rabia Khatun alias Pori Banu Bibi. It was also asserted that failure to state reasons in the judgment by itself is no ground for interference in the revision and quoted Subbaya Maniyagarar v. Kandaswami and another for the proposition.
4. I have considered the contentions raised by learned counsel for the parties and find substantial force in the submission made by the learned counsel for the petitioners. The learned Judge in para. 3 of the impugned judgment expressed as follows :- "The appellant, appears to have a grievance against the settlement department. Where he failed and started litigation before different forums. I am afraid he has no case on merits. The decision of the Settlement Department is based on a finding of fact and finding of fact is always fact. The appellant has failed up to the Additional Chief Commissioner to get his grievance redressed. The learned counsel for the appellant has not been able to make out a case for interference with the impugned judgment and decree."
' Whereas the relevant portion of Order XLI, rule 31, C. P. C. Reads :- "31. The judgment of the Appellate Court shall be in writing and shall state- a. The points for determination ; b. The decisions thereon ; c. The reasons for the decision ; and d.
It is apparent that the learned Additional District Judge (Malik Nazir Hussain A wan) did not discuss in the impugned judgment, the evidence led by the parties, the points of law arising in the appeal and gave no reasons for decision thereon. It appears that he has failed to apply his conscious mind to the facts of the case and points of law arising therefrom. Obviously his judgment suffers from patent illegality and material irregularity inasmuch as that it is violative of the provisions of Order XLI, rule 31, C. P. C.
5. The precedents cited by the learned counsel for the respondents are not helpful for determination of the point in issue because the same are based on distinguishable facts. For instance in Mahomed Hossain's case it was observed that the judgment of appellate Court whether is in accordance with law or not would depend upon the facts of each case. In that case the learned appellate Court had discussed full facts of the case but by a short judgment affirmed the judgment of lower Court the question raised therein was that the judgment was in a short form.
In the instant case, however, the learned Judge did not discuss the factual aspects of the case ; rather mentioned incorrect facts which manifests lack of the application of mind. In the second case Subbaya Maniyagarar v. Kandaswami and another, it was observed that mere failure to give reasons in the order may not justify interference under section 115, C. P. C. In that case, an order directing the father to pay Rs, 25 per month to his children as maintenance allowance was challenged in revision before a Single Judge of High Court ; wherein it was observed :- "The lower Court might no doubt have stated the reasons for the order more fully, but it is not the failure to state the reasons but want of jurisdiction or the irregular exercise of it that gives the ground for revision. Even if my view of the law is wrong, I do not think this is a case in which the interests of justice demanded that the order of the lower Court should be revised."1 2 3 4 ' The learned Judge maintained the impugned order for the special circumstances of that case and expressed doubt about the legal validity of the observation made. It is, therefore, clear that the observation of the learned Judge was only obiter dicta and not law laid down.
6. On the other hand, the Supreme Court in Ch. Abdul Kabeer's case observed that when important points of law are involved in a case the appellate Court must indicate the points raised and the reasons for its decision.
' Similarly in Allah Bakhsh's case this Court observed :- "The object requiring the Appellate Court to record a self-evident judgment duly supported by elaborate reasoning is two-fold, namely (i) to afford the parties an opportunity of knowing and understanding the grounds of the decision with a view to enable them to exercise if they see fit and so advised for seeking further remedy of second appeal under section 100, C. P. C. Of that of revision under section 115, C. P. C. And (ii) to enable the High Court to Judge whether the Court of first appeal had independently considered the case with a clear consciousness of relevant points which arose for adjudication. The provisions of Order XLI, rule 31, C. P. C. Are imperative and the judgment which is not in accordance with it is bad and illegal."
7. The upshot of the above discussion is that the impugned judgment of the learned first appellate Court being illegal is set aside, this petition is accepted and the case remanded to Malik Nazir Hussain Awan, learned Additional District Judge, Lahore for fresh decision of the appeal in accordance with law.
8. The parties to appear before him on 21st October, 1982 and he shall decide the case after requisitioning the record within one month from the afore-mentioned date.
9. There shall be no order as to costs. 1980 CLC 498 (Lah.) 1968 SCMR 464 AIR 1923,Cal. 163 AIR 1935 Mad. 105