CH. IJAZ AHMAD, -- Brief facts out of which the present revision petition arises are that the respondents filed suit for recovery of Rs. 39,968.67 against the petitioner before the Civil Judge 1st Class, Lahore. Petitioner filed written statement controverted the allegations levelled in the plaint.
Out of the pleadings of the parties the Trial Court framed the following issues:-
(i) Whether this Court lacks the jurisdiction to-try this suit?
OPD
(ii) Whether the suit is time-barred? OPD
(iii) Whether the suit is not maintainable in its present form?
OPD
(iv) Whether the plaintiff has no cause of action to file this suit? OPD
(v) Whether the plaintiff has filed this suit with a male fide intention and has not come to the Court with clean hands? If so, to what effect? OPD
(vi) Whether the defendants owe the suit amount. To the plaintiff? OPP
(vii) Whether the suit is bad for mis-joinder of parties? If so, to what effect? OPD
(viii) Whether the defendants are entitled to the set off of Rs. 17,731.33? OPD
(ix) Relief.
The Trial Court dismissed the suit of the respondents vide judgment and decree dated 1.2.1996. The respondents being aggrieved filed appeal before the Addl. District Judge who accepted the same vide judgment and decree dated 31.3.1999. Learned counsel for the petitioners submits that judgments of both the Courts below are at variance. He further submits that the first Appellate Court did not advert to the reasoning of the Trial Court. He further submits that first Appellate Court did not give any finding on Issues Nos. 3 to 5 inspite of the fact that the same were decided Against the respondents by the Trial Court. He further submits that judgment of the first Appellate Court is not sustainable in the eyes of law as the same is in violation of the mandatory provisions of CPC i.e. Order 41., Rule 31, CPC.
2.: Learned counsel for the respondents submits that judgment of the first Appellate Court is in accordance with the law. The material issues between the parties are Issues Nos. 6 and 8 and first Appellate Court decided the same after proper appreciation of evidence against the petitioner.
Therefore, judgment of the first Appellate Court is in accordance with law. -
3. I have given my anxious consideration to the contention of the learned counsel for the parties and perused the record. It is admitted fact that first Appellate Court .Did not decide the Issues Nos.'
3 to 5 at all. Learned 1st Appellate Court did, not give any finding either to reverse the finding of the Trial Court or upheld the finding of the Trial Court on the aforesaid issues. Therefore, judgment itself is . Not sustainable in the eyes of law. The judgment of the first Appellate' Court is not in accordance with law laid down by the Hon'ble Supreme Court in PLD 1969 SC 617 "Madan .Gopal and 4 others" case.
4. It is pertinent to mention here that Issues Nos. 3, 4 and 5 are material issues but the Ist Appellate Court as mentioned above did not give any finding qua the aforesaid issues meaning thereby the Ist Appellate Court failed to apply its judicial mind to the extent of aforesaid issues. It is settled proposition of law that remand can also be made in exercise of inherent residuary powers under Section 151,, CPC where material issues have not been determined by the Courts below. In arriving to this conclusion I am fortified by the judgment of this in Fateh Muhammad's case (2000 CLC 695). The aforesaid proposition of law is also supported by the law laid down in the following judgments:- Haji Sardar Ali's case (PLD-1952 Baghdad-ul-Jadid 30).
M/s. Mine Development Corporation's case (1991 CLC Note 359).
It is settled proposition of law that the Appellate Court is required to set out points for determination, record the decision thereon and give its own reasons for the decision in terms of Order 41, Rule 31, CPC as per Rule laid down in the following judgments:- (1992 CLC 1022) "Jumma Khan.'s case": (1992 CLC 1407) "Bagh Ali's case".
(1987 CLC 2281) "Syed Hassan Shah's case".
(1996 S.C. Judgment 359) "Syed Iftikhar-ud-Din Haider Gardezi's case".
It is pertinent to mention here that 1st Appellate Court decided the case without adverting to the reasoning of the Trial Court at all, therefore, same is not sustainable in the eyes of law as per law laid down in Madan Gopal's case supra.
5. In view of what has been discussed above, the judgment and decree dated 31.3.1999 is set aside and the case is remanded back to the 1st Appellate Court to decide it afresh after hearing the parties and deciding the appeal in accordance with provisions of Order 41, Rule 31, CPC. I myself do not want to give finding on the aforesaid issues so that either party shall not be deprived one remedy of the revision before this Court. Parties are directed to appear before the Ist Appellate Court on 1916.2000. Since it has become an old appeal, the Appellate Court is .Expected to dispose of appeal expeditiously. There is no order as to costs. Disposed of.