ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Civil Revision Application No. S-45/2007.

Civil Revision Application No. S-59/2001.

 

Date

               Order with signature of Judge

 

For regular hearing.

 

Date of hearing .20-11-2017.

           

 

Mr. Parya Ram, advocate for applicants.

 

Mr. Mian Abdul Salam Arain, advocate for respondent No. 1.

 

O R D E R.

 

 

MUHAMMAD FAISAL KAMAL ALAM, J.  These two Civil Revisions have arisen out of same piece of land, but different decisions of the learned Trial Court as well as Appellate Court. The property in question is a piece of land measuring 37 Ghuntas falling in Survey number 231/1 in Deh Kamu Shaheed, Taluka Ubauro, “the subject property”. The undisputed facts are that parties hereto are litigating in respect of two transactions concerning the above land. First one (first transaction) is an outcome of a sale agreement dated 06-04-1977 (as claimed) between Applicant No. 1 and respondent (Nasrullah son of Muhammad Ramzan) and the other one is about the registered sale deed dated 16-03-1978 which was executed between the present applicants; Totomal son of Wandhomal as vendor and Applicant No. 2 (Manzoor Ahmed) as purchaser,  who is now being represented by his legal heirs as the said Manzoor Ahmed passed away during pendency of this litigation.

 

2.                     Both the applicants have questioned the above sale agreement dated 06-04-1977 (Exhibit-47) being a forged document, whereas Respondent (Nasrullah) has sought cancellation of the above mentioned sale deed dated 06-04-1977 (Exhibit-54),on the ground that oncethe above property in question sold to Respondent (Nasrullah) then the same cannot be further transacted by applicant No. 1 with applicant No. 2.

 

3.                     The connected Civil Revision Application No.S-45/2007 has been preferred by the legal heirs of Manzoor Ahmed, in whose favour, the aforementioned registered sale deed was executed and his legal heirs are arrayed as applicant No. 2 in connected Civil Revision Application No. S-59/2007. The issue in the instant Civil Revision Application No.S-45/2007 is that the Rent Agreement purportedly entered into between said Respondent No. 1(Nasrullah) and Applicants, was held to be a forged one by the learned Trial Court in the Civil Suit No. 55 of 1995 instituted by present Respondent No. 1. The finding of Trial Court has been mentioned by the learned Appellate Court. Both judgments are now impugned in this revisional proceeding. It is also necessary to mention that Respondents Nos. 2 and 3 in Civil Revision Application No. S-45/2007 are not as such contesting parties.

 

4.                     Learned counsels for the parties have advanced their respective arguments for and against the present civil revisions and have cited case law.

 

5.                     Since both the impugned judgments in this civil revision are inter dependent, therefore, they are decided by this common decision.

 

6.                     Suit in which the present respondent has questioned the above mentioned registered sale-deed, while seeking a decree for specific performance was filed in the year 1985, as it is evident from the plaint available at page No. 83 ( New Number is Suit No. 54 of 1995).

7.                     The above Civil Suit was filed with regard to the specific performance of aforementioned sale agreement dated 06-04-1977 and, inter alia, for cancellation of the registered sale deed dated 25-03-1978; Exhibited at 47 and 54 respectively.

 

8.                     When in the pleadings/written statement, the denial was categoricby present applicants about the sale agreement, then in my considered view an Issue with regard to the applicability of Articles 91 and 113 of the Limitation Act, 1908, should have been framed in respect of both the above documents, viz. sale agreement dated 06-04-1977 and the subject sale deed dated 25-03-1978, which admittedly was never framed.

 

9.                     Secondly, the learned Appellate Court in the Civil Appeal No. 1 of 1999 should have taken note of this glaring omission, going to the root of controversy. The learned Appellate Court did not even frame Points for determination as envisaged in Order 41 Rule 31 of Civil Procedure Code while handing down its impugned judgment; had the same were mentioned, then it would have covered the issue of limitation.  Considering the nature of controversy in the matter and the infirmities as observed above, the impugned decision of the first Appellate Court suffers from material irregularity, that justifies interference in this revisional jurisdiction.

 

10.                   The learned counsel for the respondents vehemently argued that the other Civil Revision No. S-45/2007 only relates to the agreement of tenancy on which present applicants are relying and since the same was disproved in the proceedings below, hence the connected Civil Revision No. S-45/2007 should proceed on its own merits. The impugned decision of the First Appellate Court given in Civil Appeal No. 90 of 2006 also suffers from material irregularity as it also did not hand down the impugned decision in accordance with Order 41 Rule 31 of Civil Procedure Code. In both these Civil Revisions, the impugned judgments, particularly, of first appellant Courts show that they (appellate Courts) have failed to exercise jurisdiction vested in them. Thus it is not possible to accept the submissions of respondent's side; considering the nature of inter-connected controversy and the relationship between the parties to the present litigation.

 

11.                   Two reported cases of the Hon’ble Supreme Court provide a guidance and solution to the present situation. The first one is 2007 SCMR Page-307 (Raja Humayon Sarfraz Khan Versus Noor Muhammad) and the other one is 2009 SCMR Page-589 (Gul Rehman Versus Gul Nawaz Khan).

 

12.                   In the second Judgment of Gul Rehman (Ibid) it was held, inter alia, that if the High Court came to the conclusion that the first Appellate Court did not adhere to Order 41 Rule 31 (CPC)then the case should have remitted back to the Appellate Court with some directions instead of deciding the same in revisional jurisdiction. Consequently, in the above reported case, the learned Apex Court remanded the case to the first Appellate Court for writing a fresh Judgment. 

 

13.                   Similarly, in the above case of Gul Rehman, duties of the Appellant Court have been underlined vis-ŕ-vis Order 41 Rule 31 of CPC. In both these reported decisions, the said provision (Order 41 Rule 31 of CPC) is held to be mandatory. It would be advantageous to reproduce the relevant paragraph from the Judgment in order to highlight the significance of the jurisdiction of Appellant Court and specially the first Appellate Court, being the ultimate Court of facts, as also held in the above cited decision.

“8.          Regarding duties of the Appellate Court, specially the first Appellate Court, learned Narayan, J, in paragraph 2 of Judgment in the case of Sailajananda Pandey and another (supra) has clearly stated that “it has been repeatedly pointed out that the legislature has entrusted a very important duty to the first appellate Court. It is for that Court to decide finally all questions of fact on which the disposal of the suit might depend and the appellate Court should not easily agree with the trial Court simply because it was not inclined to take much trouble over the case. If the lower Appellate Court does not examine the facts and the evidence for itself and does not even mention the points which the case raises, it will be certainly failing in its duty”. In the instant case, a bare perusal of title judgment of the first appellate Court clearly reflects that it has not given due attention to the available evidence on record. Three important statements of witnesses i.e. Doulat Khan PW-2, Gul Nawaz available on record and the appellate Court should have thrashed to a definite conclusion. The Judgment of the Appellate Court in hand is not a judgment in its true sense and it it even admitted by the High Court that the first appellate Court has followed the path least resistant. The Appellate Court should have applied order XLI, rule 31, CPC in stricto senso as it has got ample powers under Order XLI, rules 32 and 33, CPC.”

 

14.       In the first case of Raja Hamayon (supra), the nature of revisional jurisdiction is equated with that of certiorari, inter alia, a supervisory jurisdiction.

 

15.       The upshot of the above discussion is that the first Appellate Courts, being the ultimate Courts of facts, while passing the impugned decisions have not taken into the account, the apparent irregularity highlighted in the preceding paragraphs. Following the dictum of Gul Rehman case (supra), the impugned Judgments are set-aside and the cases are remanded to the first Appellate Court for decision afresh, after taking into the account the aforementioned observations and particularly the dicta of Hon’ble Supreme Court as laid down in the cited decisions. Both the first Appeals will be decided within a time frame preferably of two months from today.

 

16.                   The Appellate Court if deems necessary, can allow the parties to produce /adduce additional evidence in terms of the Order 41 Rule 27 of Civil Procedure Code.

 

17.                   In view of the above, both these Civil Revision Applications are disposed of and remanded to the First Appellate Court. Parties are left to bear their costs.

                                   

                                                                                    Judge

Irfan/P.A