' In this petition judgment and decree dated 10-9-1995 of the learned Additional District Judge, Jhang has been challenged whereby the appeal preferred against the judgment and decree of the learned Civil Judge, Jhang dismissing the suit of the petitioner-plaintiff, was dismissed.
2. Brief facts of the case are that the petitioner-plaintiff Khair Deen instituted a suit for possession through specific performance of an agreement to sell dated 17-1-1983 regarding the disputed house. It has averred in the plaint that Fateh Deen, father of the respondents through his general attorney entered into an agreement to sell the house in dispute to the petitioner in lieu of Rs,22,000.
A sum of Rs,20,000 was paid and the balance amount of Rs,2,000 was agreed to be paid at the time of execution of the sale-deed. Fateh Deen died on 23-2-1983 and the respondents, who are his successors refused to execute the sale-deed and accordingly suit was filed.
3. The respondents-defendants in their written statement denied the averments made in the plaint and specifically stated that their predecessor had not appointed any general attorney and the alleged power of attorney and the agreement to sell are false and fictitious documents. On the pleadings of the parties the following issues were frame:--
(1) Is this suit time-barred? OPD
(2) Has the plaintiff no cause of action and locus standi to file the suit? OPD.
(3) Is the plaintiff estopped by his words and conduct to file this suit? OPD
(4) Is this suit not maintainable? OPD
(5) Is this suit not frivolous and vexatious, if so, whether the defendants are entitled for special costs? OPD
(6) Is this suit correctly valued for the purposes of court-fee and jurisdiction? OPD
(7) Whether, Fateh Deen, the predecessor-in-interest of the defendants, entered into the alleged agreement to sell dated 17-1-1983 through general attorney with the plaintiff on the terms and conditions detailed in para No,1 of the plaint? OPP.
(8) Whether the plaintiff throughout remained willing to perform his part of the contract? OPP
(9) If above issues Nos.7 and 8 are proved, whether the plaintiff is entitled for a decree for possession, specific performance of contract and for permanent injunction prayed for against the defendants, who are the heirs of Fateh Deen, OPD.
(10) Relief.
4. Learned trial Judge decided issues Nos.2, 3. 4, 5, 7, 8, and 9 against the petitioner-plaintiff and consequently the suit was dismissed and the said decree was upheld in appeal.
5. Learned counsel for the petitioner has contended that an application for permission to produce additional evidence was moved by the petitioner before the Appellate Court but without disposing of the said application, the appeal of the petitioner was dismissed on merits and as such it suffers from an illegality. In support of his plea, learned counsel has relied upon 1993 CLC 334 (Karachi) titled Pak. Carpet Industries Limited v. Government of Sindh. Learned counsel has further argued that the evidence of the respondents relied upon by both the lower Courts neither inspires confidence nor is believable.
' Respondent No,1 is present in person and states that he is not in a position to engage a counsel.
He submits that the general power of attorney and agreement to sell relied upon by the petitioner are false and fictitious documents.
6. I have heard the learned counsel for the petitioner and the respondent No,1 and gone through the record. Perusal of the application under Order 41, Rule 27, C.P.C. Which is available at page 68 of this petition indicates that registered general power of attorney has been relied upon by the petitioner and the same has not been included in the evidence, therefore, it was submitted that the said document may be permitted to be produce in evidence as the trial Court has wrongly refused to accept the said document in evidence. It was further submitted that an issue whether the general power of attorney was executed by the predecessor-in-interest of the respondents or not, was necessary to be framed in the light of the pleadings of the parties and as such permission was sought for production of said additional evidence. The application was replied by the respondents on 7-12-1992 but its disposal is not mentioned anywhere in the impugned judgment. It is submitted by the learned counsel for the petitioner in para. C of the grounds of the revision that the said application was not disposed of nor any issue was framed on the controversy of general power of attorney. Learned counsel contends that without deciding the said application learned Appellate Court was not justified to dismiss the appeal. I have gone through the authority, Pak Carpet Industries Limited v. Government of Sindh (supra) relied upon by the learned counsel for the petitioner. It was held in the said case.
"Before hearing arguments in a suit or an appeal, it was incumbent upon the Court to first ensure that every miscellaneous application filed by any of the parties stood disposed of irrespective of the fact whether the party concerned pressed it or not. If it is not pressed, it may be dismissed on that account but a specific order must be passed in that regard. Since this was not done, the impugned appellate order dated 29-11-1987 is liable to be set aside."
' Similarly in PLD 1976 Karachi 1075 (Haji Ibrahim v. Ismail) it was held that failure of the lower Court in first disposing of a pending application while deciding the main suit was one of the grounds for setting aside the order of the lower Court.
6-A. Since the Appellate Court has neither adverted to the application referred to above nor any indication regarding its disposal is available on the record, the contention of the learned counsel has force. There is no contrary material available on the record.
7. As far as contention of the learned counsel that there was no sufficient evidence available on the record to believe the version of the respondents is concerned, I need not comment upon it at this stage as the other contention of the learned counsel regarding non-disposal of the application under Order 41, Rule 27, C.P.C. Appears to be substantial and the case is to be remanded to the learned Appellate Court. Accordingly the impugned judgment and decree of the learned Appellate Court is set aside and the case is remanded to it for its fresh decision after disposing of the application of the petitioner for additional evidence, referred to above. The parties are directed to appear before the learned Additional District Judge, Jhang on 26-2-1996 who shall redefied the appeal within three months from the said date. The revision accordingly succeeds and is allowed.
No order as to costs.