MUHAMMAD BASHIR KHAN JEHANGIRI J:- Civil Revisions No. 95, 96 and 97 of 1986 have been filed by Maza Din petitioner against the judgments and decrees passed by a learned Civil Judge, Bannu, Camp Lakki, on 24-5-1986 and affirmed by a learned Additional District Judge Bannu at Lakki vide his judgments dated 8-10-1986 whereby the plaintiffs' suits in respect of the land bearing certain khasra numbers as described in the heading of the plaint and situated in village Khan Khan Mandozai, Tahsil Lakki were decreed. Since common questions of fact and law are involved in theses three petitions, therefore, this Single order will dispose of these petitions.
2. The relevant facts briefly stated are that Gulroz Khan plaintiff filed a suit on 13-11-1979 bearing No. 679/1 against defendants 1 to 13 for a declaration to the effect that he and proforma defendants 40 to 42 have prescribed their title to the suit land measuring 225 kanals and 14 marlas fully described in the heading of the plaint and situated in the revenue estate of village khan Khan Mando/ai, Tahsil Lakki on the ground of having not been redeemed within 60 years and the rights of the mortgagors to redeem the said land had extinguished by afflux of time. Sardar Ali and Gulu Khan defendants'34 and 37 contested the suit while the other defendants were placed ex parte. The pleading of the parties were reduced to the following issues:-
1. Whether the plaintiff and proforma defendants are in possession of the suit land as mortgagees, if so, whether the mortgage is time barred ? OPP.
2. Whether the suit is competent in its present form? OPP
3. Whether the suit land has since been redeemed?OP.
4. Relief.
The following additional issues were also framed in the case:
1. Whether the plaintiff and proforma defendants are in possession of the suit land as mortgagees for over 60 years? OPP.
2. Whether there is another suit pending in this Court? OPD.
3. IF answer to issue No. 2 lies in the affirmative, then whether the two suits are liable to be consolidated? OPP.
4. Whether the plaintiff and proforma defendants are entitled to the relief prayed for? OPP.
3. By his order dated 20-10-1983, the learned Civil Judge First Class, Lakki, after recording his findings on all the issues, granted a declaratory decree as prayed for in respect of the land measuring 3 kanals comprising in khala No. 103, 23/54th share out of 37/54 share in khata No. 104, 20/54th share out of 36/54 share in khate No. 105 eluding the share of defendants No. 1,2,4,34, 37 and 43 in these khatas. The suit of the plaintiffs and proforma defendants 40 to 42 with regard to khata No. 307 was, however, dismissed. It appears that Maza Din, defendant No. 31 since dead and represented by Hamdullah Khan, his son, filed an appeal which was accepted by the order dated 23-10-1984 of an Additional District Judge, Bannu, whereby the suit was remanded for trial denovo.
Because the plaintiff-respondent No. 1 therein was allowed to amend his plaint with a view to correct the number and date of attestation of a mutation of mortgage. After the remand, the case was adjourned for 5/6 time and then an amended plaint was filed on 3-4-198?. The case was posted to 8-5-1985 for filing written statements. On the last mentioned date, defendants 3,5 and 38 filed their amended written statements while the learned counsel i.e Faqir Shah and Nek Mohammad, defendants 1 and 3 relied upon their original written statement. Since the name of Mirza Ali, one of the contesting defendants in the original suit, was left out in the amended plaint, therefore, he was allowed to be impleaded as a defendant. His counsel too did not i.e fresh written statement and instead placed reliance on his original written statement.
4. Faqir Shah, plaintiff-respondent No. 1, instituted on 8-4-1979 suit No. 266/1 against Mir Akbar and 26 other defendants for a declaration to the effect that he and proforma defendant 28 to 39 have matured their title to 88 kanals 7 marlas of land out of khata No. 107 bearing khasres No. 701 and 702 situated in village, khan Khan Mandazai, on the ground that mortgagors have failed to redeem it within the prescribed period of 60 years. Gulu Khan, Sardar Ali and Gul Sarwar defendants, 11,21 and 26 contested the suit. As many as 6 issues were also framed. The evidence of the parties was recorded.
5. Mirza Ali Khan plaintiff instituted on 8-5-1979 another suit No. 463/1 against Mir Akbar and 26 other defendants for a similar declaration to the effect that he and defendants 28 to 30 have matured their title to 1/2 share out of land measuring 151 kanals 19 marlas bearing khasra Nos. 701 and 702 and situated in village Khan Khan Mandazai due to mortgagors failure to redeedm it within the prescribed period of 60 years. This suit was also contested by Gulu Khan and Sardar Ali defendants 11 and 21 and pleadings of the parties were reduced to the following issued:
1. Whether the suit is bad for non-joinder of necessary parties?
2. Whether the suit is competent in its present form?
3. Whether plaintiff and proforma defendants are mortgagees with possession of the suit land. If so whether the mortgage is over sixty years old?
4. Relief.
6. In the meantime, an application was moved by the parties for staying proceedings in suits No. 266/1 and 463/1 because the land involved in these suits was also sub-judice in an appeal pending decision against the judgment and decree in suit No. 679/1.
7. In consequence of acceptance of the said appeal, these two suits No. 266/1 and 463/1 were restored on 2-5-1985 to their original number. Ultimately, on 8-5-1985 these two suits and earlier suit No. 679/1 received by the trial Judge were consolidated.
6. Despite comprehensive issues made in suit No. 679/1, reproduced in para. 2 ante, the learned trial Judge ignored those issues and instead framed the following consolidated issues:-
1. Whether the plaintiff and proforma defendants are in possession of the suit land as mortgagees.
If so, whether the mortgage is time barred? OPP
2. Whether the suit is competent in its present form? OPP
3. Whether the suit is bad for non-joinder of necessary parties? OPP
4. Whether the suit land has since been redeemed? OPD.
5. Relief.
7. In suit No. 679/1 in, the learned trial Court recorded on 24-5-1985 the following statement of one Sarfaraz, the attorney of plaintiff-respondent No. 1: {{ Urdu text miss }}
8. In suit No. 266/1 in, Faqir Shah, plaintiff made the following statement:- . y .
2^/3 dtf'lSl {{ Urdu text }}
9. In suit No. 463/1, Mirza Ali plaintiff deposed to the following effect:- {{ Urdu text miss }}
10. On the same day, the learned Civil Judge passed the impugned order, Since this order has a direct bearing on the disposal of this petition as well as the connected petitions No. 96 and 97 of 1986, it is reproduced verbatim: "Parties present. In this case the defendants were proceeded ex parte except defendants No. 11 and
21. Now the plaintiffs have patched up the matter with these defendants. In this read statement of the plaintiff is recorded. In light of the same the case of the plaintiff is decreed leaving the share of defendants No. 11 and 21 in the suit property. The parties to bear their own costs. After completion the i.e be consigned to R.R."
11. Khamdullah Khan son of Maza Din defendant filed three appeals against the impugned orders dated 24-5-1986 of the learned trial Court. After hearing the learned counsel for the appellant, the learned appellate Court observed that record of the cases would show that Maza Din, father of the appellant the learned appellate Court observed that record of the cases would show that Maza Din, father of the appellant was placed ex parte on 15-12-1979 and ultimately the impugned decrees were passed against him and others on 24-5- 1986; that the petitioner had not satisfied the appellate Court that he had no knowledge of the ex parte order during all these years or that he had ever approached the trial Court during this period for setting aside the ex parte order. The learned Additional District Judge held that since no illegality or irregularity had been pointed out in the impugned orders of the learned trial Judge, therefore, he dismissed the appeals in limine.
Hence these petitions.
12. Haji Sadullah Khan Mia\ Khan, the learned counsel for the petitioner, has urged:
(i) that Maza Din deceased and after his death his sm Khamdullah petitioner was never served either before or after the two suits No. 266/1 and 463/1 were restored and suit No. 679/1 was received after remand and, therefore, petitioner even if he had been placed ex parte earlier, had no knowledge of the suits being restored or received back on remand by the learned trial Judge;
(ii) that, in any case, and notwithstanding the compromise between the plaintiff-respondent and the answering defendants-respondents, the learned trial Judge ought to have decided the case after giving his findings on all the issues joined by the parties, and thus the impugned judgments in the three suits are no judgments in the eye of law. Provisions of rule 5 of Order XX C.P.C, were invoked;
(iii) that remedies available against an ex parte decree are;
(a) An application under Order IX, rule 13 C.C.C.;
(b) An appeal under section % (2) C.P.C>;
(c) An application under Order XLVII, rule 1 C.P.C, and
(d) An application under section 12 (2) C.P.C, on the ground of misrepresentation or laud.
Which besides being concurrent are initial! Not exclusive of each other and the petitioner had exercised the choice of filing an appeal under section 96 ibid:
(e) that the learned Appellate Court has erred to dismiss the appeal which was pending before it under section 96 of the C.P.C, without adverting to the merits of the case. Relevance was made to Azizullah Khan Vs Arshad Hussain L D 1975 Lahore 879) and Mohammad Amin Vs Mushtaq Ahmad (PLD 19S0 Lahore 789) and Lastly,
(f) that it is almost now a settled practice that dismissal in limine of first appeal is not the general rule but is resorted to only in those cases which are of such a simple nature that no question of fact or law arises for consideration. Reliance was placed on the authority of Ahid < Hussain Vs. Afsar Jehan Begum. (PLD 1973 SC 1).
13. As against this, S. Zafar Abbas Zaidi, the learned counsel for the answering respondent argued that perusal of rule 5 of Order XX C.P.C. would show that generally in suits in which issues are framed, the Court shall record its findings upon each separate issue but this rule has also made an exception in that if any finding on any particular issue will dispose of the entire suit then in that case the findings upon any one or more of the issues would be sufficient for decision of the suit. He also controverted the contention of the learned counsel for the petitioner that the learned Appellate Court had fallen into an error to dismissed the appeal in limine and maintained that under Order 41 rule 11(1) C.P.C, after admission and registration of the appeal the Court may dismiss it in limine without serving notice on the respondent. The learned counsel for the answering respondent, however, conceded that in view of the dictum laid down by the august Supreme Court in Shah Mohammad Vs Ghulam (PLD 1970 SC 196) that remedy by way of appeal under section 96 and by application under Order IX rule 13 C.P.C, is concurrent and that the appellate Court ought to have decided the appeal on merits because the defendant-petitioner could join the suit or the appeal at any moment.
14. There is no cavil with the proposition that under rule 5 of Order XX C.P.C, in the suit in which issues have been struck, the Court shall record. Its finding upon each separate issue. It would, however, be an exception that if the finding on any particular issue will dispose of the entire suit, then in that case the Court may dispose of the suit on that issue. Nonetheless it is now a settled proposition that in appealable cases the Courts below generally should, as far may be practicable, pronounce their opinion on all issues joined. The instant case is not one of those cases in which the suit could be disposed of in that summary manner in which the learned trial Judge has decided it.
With due deference to the trial Judge, the impugned order has been passed in a very perfunctory and slipshod manner. It would, however, be for the appellate Court to decide whether in a suit in which evidence had been recorded the disposal of the suits in the manner in which those have been decided was or was not warranted by law or it had or had not violated the principles of equity and justice.
15. It is now also settled that a defendant can join the proceedings onweards from the stage he put in appearance. Reference may be made to: (1) Habib Ismail Bajwa Vs. Ghulam Mahvuddin (PLD 1970 Lahore 428), (2) Azizullah Khan. Vs Irshad Hussain (PLD 1975 SC 879) and, (3) Mohammad Amin Vs Mushtaq Ahmad (PLD 1980 Lahore 784). I have, however, left this question open for the appellate Court to come to its own decision in the light of the contentions raised by the learned counsel for the petitioner reproduced in para, 12 ante. The perusal of the impugned appellate order would show that the learned appellate Court has been unnecessarily influenced by the ex parte proceedings and ex parte orders passed by the learned trial Judge against the petitioner herein without adverting to the other contentions taken up in the grounds of appeal and urged before it on the merits of the case. The learned appellate Judge has prima facie disposed of the appeal merely on the ground that the petitioner appellant or his deceased father had been proceeded against ex part on 15-12-1979 and that, therefore, ex parte decree passed against hem on 24-5- 1986 could not be interfered with. The learned Additional District Judge had obviously erred in law to have not decided the appeal on merits having resort to the issues one framed in suit N. 679/1, but later on consolidated. It is also left to the learned Appellate Court to determine as to whether consolidated issues truely reflected the pleadings of the parties.
16. Undoubtedly the learned appellate Court may dismiss the first appeal in limine, nonetheless it is a discretionary power which is not to be exercised arbitrarily. It may not be out of place oto observe that the primary object of Courts is always to do full and substantial justice in matter s brought before them after affording due opportunity of hearing the parties. It may also be added that it is always preferable to decide the added that it is always preferable to decide to decided the controversies between the parties with due adjudication rather than throwing them out of Court on technical grounds.
17. In view of the foregoing discussion, while allowing these petitions, I would set aside the impugned orders dated 8.10.1986 passed by the learned Additional District Judge, Bannu, at Lakki, and remand the cases to him with the direction to decide the appeals in accordance with law.
Costs to follow the event.