' The petitioners, through the institution of the present revision petition under section 115, C.P.C. Have challenged the judgment and decree dated 13-11-1997, whereby the learned Additional District Judge, Sialkot, partly accepted the appeal, filed by the respondents, thereby reversing the judgment and decree dated 13-11-1995, pissed by the learned Civil Judge, Sialkot, whereby he dismissed the suit for declaration and permanent injunction filed by the respondents.
2. The facts leading to the filing of the present revision petition are that the respondent, Ahmad Din, filed a suit for declaration with permanent injunction before the learned Civil Judge, Sialkot, but at the evidence stage, the said Ahmad Din withdrew the suit without seeking any permission to file a fresh suit. Subsequently on the same cause of action, the said respondent again filed a suit for declaration with permanent injunction along with possession before the learned Civil Judge, Sialkot, which was contested by the petitioners thereby raising factual and legal objections. The learned trial Court after recording the evidence of the parties, dismissed the suit of respondent No,1, while awarding special costs to the petitioners vide judgment and decree dated 13-11-1995.
Aggrieved by the said judgment and decree, respondent No,1 preferred an appeal, which was, however, partly accepted by the learned Additional District Judge, Sialkot, vide judgment and decree dated 13-11-1997, hence, the present revision petition.
3. This is a represented case and Ch. Muhammad Amin, Advocate, had been appearing on behalf of Respondent No,1. On 8-6-2001, the learned counsel for respondent No,1 appeared in the morning and requested time in order to prepare his brief and promised to argue the case at 11'0 Clock, but he never turned up thereafter. In order to provide another opportunity for hearing to the respondent No,1, the case was adjourned to 13-6-2001, but even today, despite repeated calls made, neither the learned counsel nor the contesting respondent entered appearance, hence, he is proceeded ex-parte.
4. The learned counsel for the petitioner has contended that the learned First Appellate Court despite maintaining the findings of the learned Civil Judge on Issue No,1, whereby the suit filed by respondent No,1 was had to he not maintainable in view of the provisions of Order XXlll, Rule 1(3), C.P.C., has partly accepted the appeal, which is not sustainable under the law.
5. I have perused both the judgments rendered by the Courts below. The Issue No,1 was framed on the specific assertion of the petitioners to the effect that previously instituted suit by the respondent/plaintiff was withdrawn by him without seeking any permission to file a fresh suit and the suit was dismissed as withdrawn, copy of statement recorded on 13-6-1994 and order of same date Exh.D.1 vouch the said facts. P.W.1, Muhammad lnayat, appeared as Special Attorney of respondent No,1 in cross-examination, specifically admitted that he had earlier filed a similar suit which was dismissed as withdrawn. After discussing the evidence and law on the subject, the learned Civil Judge came to the conclusion that the present suit, which has been filed after the withdrawal of the previous suit, on the same cause of action, is not maintainable and, thus, issue No,1 was decided in favour of the present petitioners. However after giving the specific findings on Issue No,1, in favour of the present petitioners, the learned Civil Judge proceeded to give findings on rest of the issues and dismissed the suit. I am of the view that after rendering the findings on Issue No,1 and specifically holding that the suit is not maintainable, there was no occasion to give findings on rest of the issue.
6. In appeal, the learned Additional District Judge, Sialkot, after undertaking hectic exercise, perusing the copy of the statement, the order dated 13-6-1996 (Exh.D-1) and after observing that the plaintiffs did not obtain any permission to file a fresh suit, came to the definate findings that, as the present suit has been filed on the same cause of action, on which the previously instituted suit was withdrawn without obtaining the permission to file a fresh suit, there fore. The present suit is not maintainable and while maintaining the findings of the learned Civil Judge, on lssue No,1, came to the conclusion that the plaintiff is precluded from instituting the fresh suit in respect of the same subject-matter. After arriving at the above conclusions, that learned lower Appellate Court ought to have avoided to give findings on rest of the issues, which according to my view are uncalled for.
When the First Appellate Court has come to the conclusion that the suit is not maintainable, there was no occasion for the said Court to give the findings on the rest of the issues. If the suit is not maintainable, as held by both the Courts below,. Then the suit is not in existence and the findings on rest of the issues would be neither here nor there.
7. I am of the considered view that after coming to the conclusion that the suit is not maintainable, both the Courts below were not competent in law to render findings on the rest of the issues, because under the circumstances, those issues have become redundant and no findings were called for. Both the Courts below have not discussed that what was the need and occasion of giving findings on the other issues and what objective it would be achieved by rendering judgment on rest of the issues. The judgment of the learned First Appellate Court is even more worst, who after giving findings that the suit is not maintainable proceeded to give findings on rest of the issues and strangely enough partly accepted the appeal. The judgment of the learned Additional District Judge, suffers from material irregularity and he has exercised the jurisdiction with illegality and with material irregularity.
8. In my view the learned Additional District Judge, when came to the conclusion that the suit is not maintainable and confirmed the findings of the learned Civil Judge on the issue regarding the maintainability of the, suit, he should have laid his hands off from the lis. The learned Additional District Judge should have held that the findings of the learned Civil Judge on rest of the issues have become redundant, who could have dismissed the suit only after giving the findings on lssue No,1, but the learned Additional District Judge in complete disregard of law and in complete oblivion of the provisions of Order XXlll, Ride 1(3), C.P.C. Proceeded to give findings rest of the issues and partly accepted the appeal. The impugned judgment and decree definitely calls for interference by this Court in exercise of its revisional jurisdiction, as the impugned judgment is not sustainable in law.
9. In view of the above, the revision petition is accepted and the impugned judgment and decree dated 13-11-1997, passed by the learned Additional District Judge, Sialkot, is set aside, result would be that the judgment and decree passed by the learned trial Court dated 13-11-1995 stands restored with no order as to costs.