' The appeal is addressed against the order of the learned Additional District Judge, Bhimber, passed on March 18, 1992, whereupon acceptance of appeal, additional issues were framed and the case was remanded for fresh decision on all issues.
2. Muhammad Shafi, Muhammad Rafique, Muhammad Hanif, Muhammad Aslam, and Muhammad Akram, brought a suit for perpetual injunction in respect of the suit land measuring one Kanal 16 Marlas and possession of land measuring one Kanal one Marla, on eastern side of Survey No, 1767 measuring 2 Kanals 17 Marlas, situate in village Dubb Sandoah. It was averred that land measuring 2 Kanals 17 Marlas out of 4 Kanals one Marla comprising Survey No, 1767, was in the ownership and possession of the plaintiffs. Muhammad Rafique, Muhammad Rashid, Mst. Bashir Begum and Mst.
Sakeena Bibi, defendants forcibly raised a cottage on a portion of the land and were trying to convert it into proper house. During the pendency of the suit, the defendants made further encroachment and forcibly occupied the land measuring one Kanal, on the eastern side of the aforesaid survey number. The plaintiffs prayed for restitution of possession of land forcibly occupied by the defendants and issuance of directions in the shape of perpetual injunction against the defendants to refrain from making encroachment by dispossessing the plaintiff. The suit was instituted on August 28, 1983. Amended plaint was submitted on October 19, 1988. The defendants in their written statement filed on July 11, 1984, repudiated the claim of the plaintiffs and made counterclaim to the effect that land measuring one Kanal 4 Marlas was already in their possession and rest of the land was in possession of Muhammad Zaman and others. The house of the defendants, it was averred, was already constructed. The title of the plaintiffs in the suit land was denied and the suit was sought to be dismissed for want of cause of action and for its not being in proper form. The trial Court framed issues and decreed the suit. On appeal, an objection was raised to the effect that the issues were not raised according to the pleadings of the parties, as such the defendants had been prejudiced. The objection prevailed and the learned Additional District Judge, Bhimber framed additional issues and remanded the case for its fresh decision on merits. The order was passed on March 18, 1992. This order is assailed in present appeal.
3. Raja Muhammad Siddique Khan, the learned Counsel for the appellant contended that additional issues framed by the learned Additional District Judge were redundant as the same were in conflict with issues Nos. 1, 2 and 5, already framed by the Court. The learned Counsel relied on PLD 1981 SC 40. Mian Muhammad Saeed, the learned Counsel for the opposite side controverted the aforesaid points and supported the impugned order. It was emphasised that framing of additional issues was essential in the interest of justice as by omission to frame the said issues, the defendant-respondents were likely to suffer immense loss. Reference was made to 1981 CLC 121.
4. Issues are raised in the light of the material propositions of facts and law as affirmed by one party and denied by the other. Thus all material propositions affirmed by one party and denied by other, constitute issues of facts and law.
5. It is enjoined upon the Court and the parties and their Counsel to ensure that necessary issues were raised in the light of the controverted pleadings of the parties. Unless the controverted points were reduced into issues, it was likely that the real controversy between the parties may not be properly settled and the same may result in injustice. This rule was, however, subject to exception where an issue was omitted to be framed but the parties were alive to the controversy and they led evidence to that effect. In such case, an omission to frame an issue was not fatal. The duty of the Court was to ensure substantial justice to the parties. Therefore, mere omission to frame an issue, being an irregularity, was least fatal. In the case, where substantial justice was shown to have been done. When it was satisfied that the parties went to trial with full knowledge of their own case and the case of their rival and led all the evidence in support of their respective claims and also rebutted the evidence of their opponents, it cannot be construed that absence of an issue in a particular form or language was fatal to the case. Therefore, in absence of any apparent prejudice resulting in injustice, mere an omission to frame an issue was not sufficient, to ask for framing of such issues and to remand case for fresh disposal of the entire case on merits.
6. The principle of law referred to above finds support from Syed Bahauddin's case 1982 CLC 1480. It was held that mere omission to frame an issue by itself was not fatal when substantial justice was shown to have been done and the irregularity had not affected the merits of the case. The parties being fully aware of point requiring determination, leading evidence and the controversy having been decided by the Court, there was no necessity to raise an issue in the circumstances of the case. In Ahmed Khan's case 1983 CLC 74, it was held that where the parties were fully cognizant and all the evidence was directed towards establishment of nature and character of the suit land, failure of the trial Court to frame specific issue, bringing out the real controversy between the parties, was of no consequence. It was, however, held that framing of issue by the trial Court in general or wide or in a particular form and non-framing of the same in respect of question arising out of the pleadings, looses significance in the case where parties were cognizant of real controversy and, in fact, produced evidence in respect thereof.
7. In Syed Bunyad Ali Shah's case 1981 CLC 121, an objection was raised to the effect that unnecessary issues may be struck down as the same were not arising out of the pleadings and secondly, because such issues arose between the defendants. The objection was repelled as the issues under consideration were found arising out of the plaint and written statement of the parties. In para 5 of the same order, it was held that it was available and open to a party to abandon an issue and if the party does not press an issue, it would be taken that the party has abandoned it.
8. In Khadim Hussain's case PLD 1981 SC (AJ&K) 40, an objection was raised that an issue arising out of the pleadings was not framed and it resulted in injustice. The contention was repelled as the objection was not raised in the lower Court and secondly, it was held that the parties were alive to the controversy and adduced evidence in support and rebuttal thereof. If a party omitted to claim an issue, no capital could be made out of such issue and such issue shall be deemed to have been abandoned. In Mst. Iqbal Begum's case PLD 1983 SC (AJ&K) 65, it was held that remand of a case was only necessary when a prima facie case was established and the wisdom of the lower Court seemed to be essential on the point. But when remand would serve no purpose and the case could be decided by this Court, without affecting the case of a party, it would be a futile exercise to remand the case.
9. In the present case, as noticed elsewhere the plaintiffs explicitly averred that they were owner in possession of the land in dispute. The defendant-respondents forcibly occupied a portion of the land and raised a cottage over it. During the pendency of the suit, it was further averred that further encroachment was made and land measuring one Kanal one Marla was forcibly occupied by the defendants. The claim of the plaintiffs was controverted by making counterclaim to the effect that land measuring 1 Kanal 4 Marla was already in possession of the defendants, in their own right. Rest of the land was in possession of Muhammad Zaman and others. The controversy was, therefore, reduced to the position as to whether the plaintiffs were owner in possession of the land and defendants made encroachment by raising forcibly a `Chhappar' over it and that during pendency of the suit, they made further encroachment over an area of one Kanal one Marla and forcibly dispossessed the plaintiffs. In case the claim of the plaintiffs was not proved and counterclaim made by the defendants was proved, the controversy was likely to be settled effectually and finally.
10. The appropriate issues arising out of the pleadings of the parties were framed. Both the parties were alive to their respective claims and on account of their awareness to the position, they led their evidence, documentary and oral both. On going through the evidence of the parties, least doubt is left to believe that mere an omission to frame an issue in the form and manner suggested by the defendants, has caused any prejudice, as such, injustice to the defendant-respondents. The principle of law enunciated in the aforesaid authorities is squarely attracted in the present case.
The learned Additional District Judge failed to appreciate the proposition in its true perspective and misdirected himself to advert to frame additional issues and reopen the whole case for its fresh decision on merits. The order is not found sustainable. It is, therefore, reversed. The appeal is accepted and the case is restored on the file of the learned District Judge, Bhimber for its disposal on merits. No order as to costs.