SAVED NAJAM-UL-HASSAN KAZMI, J. -- Petitioner filed a suit for recovery of Rs. 23,468/48 against the respondent. The case pleaded in the plaint was that the petitioner was a contractor and general order supplier and was enlisted in the Railway list of contractors. Tenders were called for supply and fixing corrogated perpex sheets 5 M.M. For sky lights etc. On the shelters at Lahore Station. The respondent negotiated the rates and accepted the petitioner's offer to supply the relevant material. Accordingly work order No. 112/112 of 18.2.1992, 19.3.1992 were issued in favour of the petitioner. The petitioner claimed to have made the requisite supply which was duly reflected in the measurement book. It was claimed that the work was inspected by Deputy D.S. DEN-I and AEN-3 Lahore and was found satisfactory. Necessary certificate was issued to the effect that the work was done according to the satisfaction. Petitioner submitted running bill for the work which was prepared at Rs. 23,468.48. The payment was not released despite correspondence on the subject which resulted in filing of the suit.
2. The suit was resisted by the respondent on the ground that the petitioner had not approached the Court with clean hands, the plaint did not disclose cause of action, the Court lacks jurisdiction, the petitioner had no right and locus standi to file the suit in terms of the agreement and that the claim was not tenable.
3. After considering evidence led by the parties the learned Civil Judge decreed the suit on 20.9.1995.
4. Feeling aggrieved, respondent went in appeal which was allowed by the learned Additional District Judge vide judgment, dated 19.1.1998 and in result, the suit of the petitioner was dismissed.
5. In this revision, the judgment of the Appellate Court has been called in question.
6. Learned cc:unsel for the petitioner submitted that issues were framed by the learned Trial Court, parties led evidence in the light of the issues framed and that the learned Civil Judge decided the suit after considering the evidence on record but the learned Additional District Judge, re-framed certain propositions and proceeded to accept the appeal without allowing an opportunity of further evidence. It was added that the petitioner could not be taken by surprise.
7. No one entered appearance on behalf of the respondent despite notice hence proceeded against ex parte.
8. From the available record it is discernible, that the petitioner claimed payment of the amount on account of the work done which, according to the petitioner, was reflected in the measurement book. The learned Civil Judge discussed the entire evidence on record and concluded that as per Exh.P-1, Exh.P-2, Exh.P-3 and Exh.P-4 the work was done which was duly entered in the measurement book. It was, therefore, observed that the petitioner had locus stanch to file the suit.
On merits, the learned Civil Judge observed that according to the specifications, the bill was not paid and that the documentary evidence proved that the petitioner was entitled to the payment for the work done in terms of the conditions of the agreement.
9. In appeal the learned Additional District Judge re-framed the proposition in the form of issues and observed as follows:- "To resolve the controversy between the parties we have to determine the following points:-
(a) Whether the respondent was responsible to make good the loss if accrued to the appellants during the work at the site; and
(b) Whether the work was completed at the site by the respondent."
10. In the light of all these propositions, the learned Additional District Judge returned findings against the petitioner and resultantly the suit was dismissed.
11. It is true that mere framing of the additional issues, would not result in remand of the case but at the same time it cannot be ignored that if certain issues arising in the suit had not been framed and the Appellate Court feels the necessity of additional issues then the proper course would be to reframe additional issues and ask the parties if they intended to produce evidence for and against the same. In this case, both the parties led evidence keeping in view the nature of the issues on which the findings were returned by the Trial Court. The additional propositions which were in fact new issues, required certain evidence as the first mentioned issue would be on the respondent while the second mentioned issue would be on the petitioner to prove. Obviously the question as to whether the petitioner was responsible to make good the loss, if any, to the respondent during the work at site would be requiring evidence for determination as the respondent would have to prove, that the contract provided for such eventuality and that the respondent did suffer some loss on account of the acts of which the petitioner was responsible. Without proving losses and responsibility of the petitioner to make good the same, the respondent could not possibly succeed.
It was thus an issue which could not be decided without additional evidence. In deciding the appeal without opportunity of additional evidence to the parties, learned Additional District Judge acted with material illegality and irregularity in the exercise of his jurisdiction.
12. For the reasons above, this revision is allowed, the judgment of the Appellate Court is set aside and the case is remanded to the learned Addl. District Judge. The learned Additional District Judge will frame proper issues on the additional proposition mentioned in his order and will allow the parties with an opportunity of additional evidence whereafter the appeal of the respondent will be decided in accordance with law and on its Own merits.