ORDER SHEET.

IN THE: HIGH COURT OF SINDH BENCH AT SUKKUR.

Civil Revision: Application.No.103 of 2011.

 

 

 

 

Applicants:           Dr. Ghulam Hussain and others through: Mr. Mukesh Kumar G. Karara Advocate.

 

Respondents:    Ahmed Nawaz and others through Mr. Syed Jaffar Ali Shah Advocate.

                                    Mr. Agha Ather Hussain Asstt, AG.

 

Date of Hearing: 25th February, 2013.

 

 

                                    JUDGMENT         

           

SALAHUDDIN PANHWAR, J:- The applicants have assailed the Judgment dated  27th May, 2011 passed by  learned 3rd Additional District Judge, Khairpur in Civil Appeal No.15/2011 Re.(Dr.Ghulam Hussain and others v Ahmed Nawaz and others), whereby,  maintained Judgment dated 31.1.2011 and Decree dated 18.2.2011 passed by   Senior Civil Judge, Gambat in F.C.Suit No.04/2009.

 

2.         Succinctly, relevant facts are that the agricultural land; survey No.1339, 1405, admeasuring 4-4 ghuntas, situated in deh Lower Setharja, Taluka Sobhodero, was owned by Illahi Bux, grandfather of the plaintiffs, who sold out to the plaintiffs by way of registered sale deed No.508 dated 21.5.2003, at that time, plaintiffs were minors therefore same was purchased through their mother (defendant no 6). On attaining majority plaintiff No.1 came to know that suit land is not in their names, as the same is sold out to defendant No.5 by defendant No.6, within capacity of their real mother; thereafter defendant no. 05 also transferred the said land through registered sale deed to defendants no.1 to 4 and the defendant No.1 was already in possession of the suit land being leases. The defendant Nos.5 to 7 with the help of revenue authorities and Sub-Registrar Gambat got a fraudulent registered sale deed No.968 dated 16.10.2003, of the suit property executed in favour of defendant No.5 on behalf of the plaintiffs by their mother, without getting Guardianship Certificate. Both the registered sale deed and entry No.243 are null and void and illegal in the eye of law and same are liable to be cancelled.

 

3.         Defendant Nos.1 and 4 filed their written statement, wherein denied the averment of plaintiff and stated that they are owner of subject matter land by way of registered sale deed; plaintiff No.1 has no cause of action to file the instant suit. The plaintiffs were in knowledge regarding sale transactions in favour of defendant no 05 and defendants no 1 to 4.The defendant No.6 was natural guardian of plaintiffs; therefore sale transaction is according to law.

 

4.         Whereas Defendant Nos.5 to 7 supported the case of the plaintiffs and stated that defendants No.5 to 7, who actually had sold out the suit property in the betterment of plaintiffs, however, the proper and due course of law was not adopted as provided under the guardians and wards act, and this all had happened due to unawareness regarding procedure to get themselves appointed as guardian of the person and property of the minors. Neither the defendant Nos.5 to 7 were aware of the procedure, nor they were intimated by anybody, nor any objections have ever been raised on such sale of the suit property to the defendant Nos.1 to 4 by any of the revenue authorities or sub-Registrar Gambat, because all the arrangements and documents were obtained through the help of defendant Nos.1 to 4.

                                   

5.         Learned counsel for the applicants/defendants inter alia contended that impugned Judgment is in violation of Order 41 Rule 31 CPC; which is mandatory provision; no points of determination were framed; therefore, the impugned Judgment on this score alone is not sustainable under the law. The trial Court has awarded mesne profits to the plaintiffs but appellate court has not discussed that issue, such ignorance has seriously prejudiced the case of plaintiffs.

 

6.         Conversely, the learned counsel for the respondents/plaintiffs, while refuting the contention argued that the appellate Court has not committed any illegality and it is a case of concurrent findings  and in revisional Court the facts recorded by the inferior Courts cannot be disturbed, therefore, this revision is not maintainable under the law.

7.         Heard the learned counsel for the respective parties and perused the record.

8.         After consideration of contention raised by the counsel for the respective parties and meticulous examination of available record, I would like to respond to objection of the learned counsel for the respondents with regard to scope of the revision. I am quite conscious of the fact that revisional jurisdiction is limited but a question of law or departure from mandatory requirement of procedure can very well be examined in exercise of revisional jurisdiction as the same fall within meaning and definition of irregularities more particularly when such irregularities are claimed to have caused prejudiced.

09.       Reverting to the merits of the case, I feel it quite proper to refer the provision of Order 41 R 31 of the Code as learned counsel for the applicants had confined its arguments to such an extent. The provision reads as under:-

R.31. Contents, date and signature of Judgment. The judgment of the Appellate Court shall be in writing and shall state—

                        a) the points for determination;

                        b) the decision thereon;

                        c) the reasons for the decision; and

d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled;

and shall at the time it is pronounced be signed and dated by the judge or by the judges concurring therein.

 

Bare perusal of above provision , it is suffice to say that the use of word ‘shall’ leaves nothing to doubt that such procedure is mandatory in nature hence the appellate Court, while writing the Judgment shall follow the prescribed procedure within its letter and spirit. The purpose of insisting of points for determination, seems to be nothing, but to have all legal and factual controversies, judicial determined which are agitated or come out from the judgment of lower court. The reading of the sub-rule (b) and (c) of the said Rule further explains that judgment of the appellate Court has been confined to such framed points for determination hence proper framing of points of determination can not be denied because in absence; whereof there can be no purpose of sub-rule (b) and (c) of the said Rule, resulting in making a Judgment of appellate court as not-sustainable under the law. I can further add here that though the provision is silent as to how the points for determination would be framed, as has been defined in Order XIV R 1(3) of the Code, however the objective of point for determination seems to be same as that of issues hence while framing / forming the point for determination the appellate Court should keep in view all the agitated grounds or which appear from the record. It has never been requirement of the law and procedure that there must be number of point for determination; attempt should be made to achieve the objective and spirit by framing / forming proper point (s) for determination which cover all the legal and factual issues, either agitated or appearing from the record, so that one cannot come with a plea of prejudice in result of departure from mandatory requirement of law.  

 

10.       Per available record of the case in hand it is an admitted position that the appellate Court has not determined the points for determination properly which could be said to have covered all the factual and legal points, agitated or borne out from reading of the judgment of trial court, though it was the mandatory requirement of the law under Order 41 Rule 31 CPC. However, I am in agreement with the counsel for the respondents that in many precedents a view is held that if all points have been discussed but mere points in shape of issues are not available, such irregularity cannot be termed as illegality but this exception is only when it is found that issues decided by the trial Court and grounds taken in appeal have been discussed by the appellate Court and decided properly. In this context I have examined the impugned Judgment and have found that except issue No.2, which was on legal point to the effect of legal status of mother, as seller of properties of her minors children, no other issues have been discussed by the appellate Court though the trial Court in issue Nos.5,6 and 7 has given findings regarding mesne profits in favour of plaintiff but the appellate Court has not discussed the same and has not recorded its findings thus there is a departure from a mandatory requirement of law within spirit of Rule-31 of the Order 41 of the Code; which departure cannot be approved more particularly when applicants claimed prejudice due to such departure in respect of legality of mesne profit. 

 

11.       Since the appellate Court has failed to frame the points for determination, such adopted course, has caused prejudice to the applicants, therefore this is a fit case to be remanded to the appellate Court, which is competent, in its appellate jurisdiction, to frame the relevant points in compliance of Order 41 Rule 31 CPC. Accordingly, the judgment of the learned appellate court is hereby set-aside and matter is remanded back to learned appellate court which will frame proper points of determination ; decide the same within spirit and objective of sub rule (b) and (c) of the said Rule after hearing the parties.

 

12.       Above  are the reasons of a short order dated 25.2.2013, whereby this civil revision was allowed, impugned Judgment dated 27.05.2011, was set aside and the case was remanded back to the appellate Court to decide afresh after providing an opportunity of hearing to both the parties within a period of two months.

 

                                                                                                                        JUDGE

 

 

 

Akber.