38/2010 R.A (Civil Revision) Junaid Ahmed Siddiqui (Applicant) V/S M.Yaqoob Khan Niazi & Another (Respondent)
Sindh High Court
Bench: Hon'ble Mr. Justice Nazar Akbar
Order Date: 18-MAY-20
(a) Civil Procedure Code (V of 1908)--- ----O.XX, R.5, O.XIV, Rr.1, 2 & O.XLI, R.31---Suit for cancellation of lease and possession---Recording evidence of the parties after framing of issues---Dismissal of suit while deciding issue of maintainability without touching any other issues---Scope---Plaintiff filed suit for cancellation of lease and possession wherein issues were framed and evidence was recorded---Trial Court dismissed the suit while giving findings on issue of maintainability while treating it preliminary issue without deciding issues of facts which was upheld by the Appellate Court---Validity---Purpose of conferring power on the Court to first decide the case or any part thereof only on the issue of law was to save the time of Courts and litigants---Court for deciding a case on the issue of law should form a conscious opinion in the light of pleadings of the parties and give notice to the parties that in its opinion the case mighty be disposed of on the issues of law and it should try those issues first---Trial Court, in the present case, had neither consciously framed issue of law nor expressed its intent to dispose of the case on the issue of law---Even settlement of issues of facts had not been postponed and evidence of both the parties had been recorded---Once Court had consumed time in recording evidence then efforts were to be made to decide the case both on law points as well as on merit---Trial Court after completing trial should have passed judgment on all the issues, in circumstances---Courts below had failed to appreciate the pleadings of the parties in correct perspective---Plaintiff had prayed for recovery of possession of suit property on the basis of registered title document and his suit was simple suit for recovery of possession under S.8 of Specific Relief Act, 1877---Plaintiff had not sought any declaration as to his entitlement to any legal character---Even defendant had not raised any legal objection with regard to bar to the present suit in terms of S.42 of Specific Relief Act, 1877---Dispute between the parties was with regard to entitlement to possession specific suit plot on the basis of title documents---Question of title of the plaintiff and/or defendant could have automatically been determined had the Court decided the issues of facts with regard to entitlement of possession of suit land---Provisions of Ss.42 & 8 of Specific Relief Act, 1877 were not complementing each other and were independent provisions of law and dealt with different kinds of grievances---Any person who had been deprived of his immovable property by any unscrupulous person could sue the said illegal occupant and recover its possession without seeking a declaration of his entitlement to his legal character---Findings recorded by the Courts below treating issue of maintainability as preliminary and dismissing the suit were not sustainable, in circumstances---Impugned judgments and decrees passed by the Courts below were set aside---Matter was remanded to the Trial Court for decision afresh while giving findings on each and every issue---Revision was allowed, in circumstances. Syed Iftikar-ud-Din Haider Gardezi and 9 others v. Central Bank of India Ltd., Lahore 1996 SCMR 669; Sh. Abdul Kabeer v. Mian Abdul Wahid and others 1968 SCMR 464; Sultan Mehmood Shah through L.Rs. v. Muhammad Din and 2 others 2005 SCMR 1872; Muhammad Aslam v. Mst. Ferozi and others PLD 2001 SC 213 and Cantonment Board through Executive Officer, Cantt. Board, Rawalpindi v. Ikhlaq Ahmed and others 2014 SCMR 161 distinguished. Hafiz Muhammad Siddique Anwar v. Faisalabad Development Authority and others 2007 SCMR 1126 and Taj Wali Shah v. Bakhti Zaman 2019 SCMR 84 rel. (b) Specific Relief Act (I of 1877)--- ----Ss.42 & 8---Provisions of Ss.42 & 8 of Specific Relief Act, 1877 were independent provisions of law and dealt with different kinds of grievances---Principles.Full judgment text for this case is not yet available on Pakistan Law Reports. Check the official Sindh High Court case law portal for the complete order.
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