ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

 

Civil Revision Application No. 138 of 2012

 

Applicant:                             M/s Pakistan International Terminal Limited,

                                                through Mr. Muhammad Shafiq Mughal, Advocate.

 

Respondents:                        (1) SadaruddinJiwani s/o. Sher Muhammad Jiwani.

 

                                                (2) M/s Pacific International Line (PTE) Ltd.

 

                                                (3) M/s Pacfic Delta Shipping (Pvt) Ltd.  

                                                (nemo)

                                                =========

Date of hearing:                    17.01.2017

Date of order:                        17.01.2017

=========

 

ORDER

 

 

ZAFAR AHMED RAJPUT, J:- This Civil Revision Application under Section 115 C.P.C.is directed against the judgment and decree dated 03.05.2012 and 09.05.2012 respectively,passed in Civil Appeal No. 227 of 2011wherebylearned VthAdditional District Judge, Karachi-South,while setting aside the Judgment and Decree dated 22.09.2011 passed by the learned XVIth Civil Judge, Karachi-SouthdismissingCivil Suit No. 636 of 2009, filed by the respondent No.1 / plaintiff against the applicant/respondent No.3 and respondents No. 2 & 3/ defendants No. 1 & 2 decreed the suit for recovery of Rs.46,651/- in favour of respondent No.1.

 

2.         Briefly stated facts of the case are that the respondent No.1 /plaintiff filed a civil suit for recovery of Rs. 46,651/- against applicant / defendant No.3 and respondents No. 2 & 3 / defendant No.1 & 2 with the following prayers:-

 

“The plaintiff therefore prays for judgment and decree against the defendants No. 1 & 2 jointly or severally for payment/refund of Rs.32,000/- and against defendant No.3 of Rs.14,651/- with loss of profit/markup at 15% per annum from the date of this suit till payment, with proportionate cost and or such other reliefs which this Hon’ble Court deems fit and proper in the circumstances.” 

 

3.         The respondents No. 2 & 3 / defendants No.1 and 2 filed their joint written statements, while applicant / defendant No.3 filed his separate written statement. From the pleading of the parties following issues were settled by the learned trial Court:-

           

1.         Whether the suit is not maintainable in law and barred by law or                  any principle of law?

 

2.         Whether the phrase/words “FREIGHT PRE PAID” AS ARRANGED “CY/CY” mentioned in the bill of lading I, imply that all the charges/payments received by the defendants No.2 and 3 were already paid by the plaintiff to defendant No.1/shipper?

 

3.         Whether the defendant No.2 was entitled to receive Rs.32,000/- from plaintiff/ clearing agent of the plaintiff before issuing delivery order?

 

4.         Whether the defendant No.1 was entitled to receive Rs.14,651/- from plaintiff/clearing agent of the plaintiff before giving delivery of the suit consignment to the plaintiff/clearing agent of the plaintiff?

 

5.         Whether plaintiff is entitled for any relief? 

 

6.         What should the decree be? 

 

4.         The learned trial Court after recording pro and contra evidence of the parties decided Issues No. 1 to 5 in favour of applicant and respondents No. 2 & 3 anddismissed the suit with no order as to costs. The respondent No. 1 / plaintiff preferred Civil Appeal No.227 of 2011 before the learned District Judge, Karachi-South, which was heard and allowed by the learned Vth Additional District Judge,Karachi-South,  setting aside Judgment and Decree passed by the learned trial Court and decreeing the suit in favour of respondent No.1 / plaintiff. Being aggrieved the applicant / defendant No.3 has maintained this Civil Revision Application.

 

5.         I have heard the learned Counsel for the applicant and perused the record.

 

6.         At very outset, the learned counsel for the applicant while inviting the attention of this Court to the judgment passed by the learned appellate Court has contended that the learned appellate Court without framingany point for determination, as required under Order XLI rule 31 C.P.C.allowed the civil appeal of respondent No.1.He has further contended that impugned judgment passed by the leaned appellate Court is tangibly unjust and based on material irregularity in the exercise of the jurisdiction; therefore, the same is not sustainable in eyes of law.

 

7.         From perusal of the impugned judgment of learned appellate Court, it appears that the learned trial Court while dismissing the suit of respondent No.1 recorded its findings on Issues No.1 to 5. Issue No.1 is issue of law with regard to the maintainability of suit while Issues No. 2 to 5 are issues of fact. But the learned appellate Court, without framing points for determinationand discussing the maintainability of the suit, allowed the appeal by reversing the findings of trial Court thus, violating the mandatory provisions of law, the appellate Court has committed material irregularity in exercise of his jurisdiction.

 

8.         The expression “judgment” is defined in sub-section (9) of Section 2 of C.P.C. as “statement given by the judge of the grounds of a decree or order”.This can be elaborated as “judicial decision of a Court or Judge”.Order XLI, Rule 31 C.P.C. provides that judgment of an appellate Court shall state (i) the points for determination, (ii) the decision thereon, and (iii) the reasons for the decision. In the case of Allahyar and Others (supra) Mr. Justice Muhammad Ather Saeed, in the capacity of a Judge of High Court of Sindh, as hisLordship then wasreferring the cases of Iftikhar-ud-din Haider Gardezi and 9 Others v. Central Bank of India and 2 others (1996 SCMR 669),Juma Khan V. Shamim (1992 CLC 1022) andMuhammad Tufail v. Fauji Fertilizer Co. Ltd. (2000 CLC 1838) held that the provisions of Order XLI, Rule 31 C.P.C. are mandatory in nature and the Appellate Court cannot dispose of an Appeal without following the provisions of the above mentioned statute and framing points for determination.      

 

9.         Itispersistently being observed by the superior Courts that it has become practice of the subordinate Courts to avoid giving findings on all the issues before it. Such practice is to be deprecated as it causes delay. It is duty of the subordinate Courts to give findings on each and every issue before it separately, if the issues are not inter linked, so that at the appellate or revisional stages all the issues can be agitated so as to avoid the remand of the cases for recording findings on the issue, finding of which had not been given. 

 

10.       For what has been discussed above, it is obvious that the judgment of the appellate Court is unjust and cannot be called decision upon the rights of the parties in the manners provided by law, as such, is based on material irregularity in the exercise of the jurisdiction by the appellateCourt; therefore, the same is set aside while allowing this Civil Revision Application and the case is remanded to the learned appellate Court with the direction to pass a de novo judgment and decree preferably withinthree months from the date of the receipt of this order by stating findings, with the reasons upon points to be framed by the learned appellate Court in the appeal, in accordance with law and after giving both the parties opportunity to advance their arguments, With these observations, this revision application is allowed with no order as to costs. 

 

            Above are the reasons of my short order dated 17.01.2017.

                                                                       

JUDGE