' This judgment shall decide Civil Revisions Nos.812 and 1682 of 1999, as they proceed against common judgment of a learned Additional District Judge.
2. On 7-5-1984 the respondent filed a suit against the petitioners. In the plaint it was stated that by means of an oral agreement on 9-2-1970 the petitioner No,1 agreed to sell the suit land, mentioned in para. 1 of the plaint, to the respondent for a consideration of Rs,5,000 which amount was paid to him and possession was delivered; he built a house on the land on his own expenses; that the sale- deed was not got executed because the respondent was told that plot has been purchased from Shamshad Nargis etc. On instalments and a mutation has yet not been attested in his favor; that when mutation will be attested the sale-deed will be got registered; that after attestation of the mutation in his favor,. Petitioner No,1 proceeded to sell the suit plot to the petitioners Nos.2 and 3 vide registered sale-deed dated 25-6-1981. It was stated in the plaint that petitioners Nos. 2 and 3 were aware of the oral agreement dated 9-2-1970. With these averments a decree for specific performance of the said agreement was sought. The petitioners in their written statement denied having entered into any agreement or to have received any money from respondents.
3. On 22-7-1995 the petitioners Nos.2 and 3 filed a suit for possession as well as recovery of compensation against the respondents. The suit was resisted by the respondents in line with the statement made by him in the plaint. Both the suits were consolidated and following issues were framed:--
(1) Whether defendant No,1 was not competent to execute any agreement to sell in favor of the plaintiff as he was not owner of the property at the time of alleged agreement? OPD
(2) Whether defendant No,1 has not entered into agreement to sell of the disputed property in favor of the plaintiff? OPD
(3) Whether the suit is incorrectly valued for the purposes of court-fee and jurisdiction, if so, what is the correct valuation? OP Parties
(4) Whether defendants Nos.2 and 3 are the bona fide purchaser with consideration without notice? OPD 2 and 3
(5) Whether the suit is barred by time? OPD
(6) Whether the plaintiff is estopped by his words and conduct to file this suit? OPD
(7) Whether the suit is not maintainable in its present form? OPD
(8) Whether the plaintiff is entitled to the decree prayed for in view of the averments made in the plaint? OPP
(9) Whether Civil Suit No,322/1 of 1988 is bad due to misjoinder of causes of action? OPP
(10) Whether Civil Suit No,322/1 of 1988 is not maintainable in its present form? OPP.
(11) Whether the suit house was constructed by Khushi Muhammad the defendant in Civil Suit No,322/1 of 1988, if so, in what capacity and with what effect? OPP
(12) Whether Muhammad Idrees and Muhammad Aslam plaintiffs in Civil Suit No,322/1 of 1988 are estopped to bring that suit by their own words and conduct? OPP
(13) Whether the Civil Suit No,322/1 of 1988 is barred by time? OPP
(14) Whether Civil Suit No,322/1 of 1988 has been incorrectly valued for the purposes of court-fee and jurisdiction. If so, what is the correct valuation? OP Parties.
(15) Whether plaintiffs of Civil Suit No,322/1 are owners of the suit house? OPD 2 and 3.
(16) Whether Khushi Muhammad defendant in Civil Suit No,322/1 of 1988 is residing in the suit house as the tenant under the plaintiffs namely Muhammad Idrees, Muhammad Aslam in that suit? OPD 2 and 3.
(17) Whether Khushi Muhammad, the defendant in Civil Suit No,322/1 of 1988 has not paid the rent since October, 1983 to January, 1985? OPD 2 and 3.
(18) If the above Issue No,17 is proved, then that what was the rate of rent? OPD 2 and 3.
(19) Relief.
' Evidence of the parties was recorded. The learned trial Court found under Issue No,1 that petitioner No,1 was not competent to enter into any contract on the said date. Under Issues Nos.15 and 16 it was observed that since the petitioners Nos.2 and 3 have not entered the witness-box in support of the said issues, the same are found against them. Issues Nos.2 to 14 and 17 to 18 were declared redundant. Resultantly both the suits were dismissed vide judgment and decree dated 27-5-1992.
Against said judgment and decree the respondents filed a first appeal while the petitioners filed cross-objections. These proceedings were taken up together by the learned Additional District Judge, Sheikhupura. Vide order, dated 23-11-1994 an agreement of the learned counsel for the parties was recorded that the learned trial Court has failed to decide Issues Nos.2 to 14 and 17 to 18.
Thereafter abruptly it was stated that appeal of Khushi Muhammad i,e, respondent is accepted and impugned judgment and decree is set aside and the case remanded to the trial Court for fresh decision "on whole of the issues" in accordance with law. The cross objections were dismissed with the observation that a separate appeal ought to have been filed.
4. Upon receipt of the said order directing the learned trial Court to decide "whole of the issues" the learned trial Court vide judgment and decree dated 9-10-1995 proceeded to hold Issues Nos.1 to 6 against the petitioners. Under Issue No,7 form of the suit was found to be proper in the suit of the respondents. Issue No,8 was answered in favor of respondents. Issues Nos.9 to 18 were decided by observing as follows:-- "The onus to prove this issue was on the shoulders of Khushi' Muhammad but since the Suit No,322/1 of 1988 has already been dismissed, no appeal has been preferred by the aggrieved party and also cross-objections regarding which by the Appellate Court have been rejected, so dismissal order of said suit has got finality, as such the issue which was framed consolidated now has become redundant, so any findings can disturb the judgment which has already got finality. The issue is decided accordingly."
' This observation was recorded against each of the said issue. The suit filed by the respondents was accordingly decreed.
5. Learned counsel for the petitioners contends that the entire proceedings in these cases stand misdirected and that his clients stood condemned for no fault of their. According to the learned counsel issues arising out of the case were improperly framed sealing the fate of his clients. Further contends that learned trial Court has proceeded to misinterpret the remand order, dated 23-11- 1994. Learned counsel for the respondents on the other hand vehemently argues that no objection was taken to the frame of the issue and as such no interference can be made in these civil revisions. Further contends that learned trial Court rightly held that only suit for specific performance is to be decided when the other suit filed by the petitioners Nos.2 and 3 stood dismissed. Also contends that learned trial Court as also learned Court of Appeal have properly read the evidence on record.
6. I have gone through the copies of the records appended with these civil revisions, with the assistance of the learned counsel for the parties. I have already referred to in some detail, the pleadings of the parties. Now in these cases whereas . The respondents alleged an oral agreement of sale where under he paid the entire price and the petitioners, particularly petitioner No,1 had denied the said fact, learned trial Court proceeded to frame following issue:-- "(2) Whether defendant No,1 has not entered into agreement to sell of the disputed property in favor of the plaintiff?"
' Now it is true that primarily it is duty of the parties to point out the defect in the proceedings but it is equally true that ultimately it is for the Court to see to it that no defect occurs in the proceedings which may ultimately affect the merits of the case. I may refer here to the judgment in the case of Mst. Sughran Bibi v. Mst. Jameela Begum and others (2001 SCM R 772) wherein it was thus observed by the Hon'ble Supreme Court in para.7 of the judgment at page .774 of the report:-- "No doubt, parties in the suit are entitled to make application for the amendment of issues but the fact remains that primarily it is duty of the Court to frame the issues correctly so that the same should reflect correctly controversies arising from the pleadings of the parties so that effective judgment could be rendered on the disputed facts and the parties should know as to on what facts the evidence was to be led."
' To my mind the said wrong framing of the issues has caused grave prejudice to the petitioners.
Inasmuch as the learned trial Court has in fact recorded a finding to the effect that no witness was produced by the petitioners to prove the said issues except petitioner No,1 who made a statement denying the execution of the agreement. It was on this premises that the learned trial Court examined other evidence. While learned Additional District Judge has proceeded to endorse the findings by stating that the same are in accordance with law and facts. I will restrain myself from commenting upon the evidence in the case for the order I propose to pass in these civil revisions.
7. Now what happened in these cases was that two suits were consolidated and as many as 18 issues were framed. As stated by me above, the judgment passed by the learned trial Court on 27- 5-1992 is neither here nor there. This brings me to the crucial question arising in these cases. It is true that respondents filed a first appeal while petitioners were advised not to file an appeal but they did file cross objections against the consolidated judgment and decree dated 27-5-1992. Now the learned Additional District Judge refers to the agreement of the learned counsel for the parties that the learned trial Court had wrongly failed to decide Issues Nos.2 to 14 and 17 to 18. Now the learned Additional District Judge proceeded to accept the appeal and to set aside the judgment and decree and further to direct the trial Court to make a fresh decision "on the whole of the issues". Notwithstanding the fact that cross-objections were dismissed, it is matter of record and order, dated 23-11-1994 so speaks that the entire judgment and decree was set aside and learned trial Court was directed to decide all the issues afresh. Now none of the parties challenged this order and file went back to the learned trial Court. Unfortunately the learned trial Court placed its own interpretation on the said order as reproduced by me above and in the process refused to comply with the command contained in the remand order by the Court of Appeal that after setting aside of the judgment and decree the case is being remanded and all issues are to be decided afresh. The result was that the learned trial Court treated the suit for possession filed by the petitioner as having been dismissed and dismissal was affirmed in appeal whereas the remand order states that the entire judgment and decree has been set aside and all the issues are to be decided. Now the result is that the learned trial Court proceeded in the matter with a pre- determined mind under the impression that the suit filed on the basis of title stands dismissed and this certainly caused prejudice to the petitioners.
8. To my mind learned counsel for the petitioner is right in complaining that the entire proceedings stands misdirected and impugned judgments and decrees are result of material irregularity on the part of learned trial Court and affirmed by learned Court of Appeal, in the exercise of their respective jurisdiction.
9. In view of the above discussion, I allow both the civil revisions and set aside the impugned judgments and decrees of both the learned Courts below. The result would be that both the suits filed by the parties against each other shall be deemed to be pending in the Court of learned Civil Judge 1st Class at Ferozewala. Learned trial Court in the first instance shall correct and reframe Issue No,2 as follows:-- "(2) Whether defendant No,1 entered into an oral contract of sale on 9-2-1970 promising to sell suit land in favor of the plaintiff for sum of Rs,5,000?
(2-A) If Issue No,2 is proved whether plaintiff paid Rs,5,000 to the defendant No,1? OPP (2-B) Whether defendant No,1 delivered the possession of the land to the plaintiff under the said agreement? OPP ' Consequently Issue No,11 will be re-casted as follows:-- ' If Issues Nos.2, 2-A and 2-B are found in affirmative whether Khushi Muhammad constructed the house on the suit land acting under the said agreement? OPP
10. Learned trial Court then shall give an opportunity to the parties if they wish to produce any other evidence and thereafter to decide all the said issues and consequently consolidated suits afresh.
No order as to costs.
11. Parties to appear before the learned Civil Judge 1st Class, Ferozewala, on 20-5-2002.