2025 C L C 1898
[Balochistan]
Before Muhammad Najam -ud-Din Mengal, J
NAIK MUHAMMAD --- Petitioner
Versus
NAZAR MUHAMMAD and others ---Respondents
Civil Revision No. 548 of 2023, decided on 27th June, 2025.
Civil Procedure Code (V of 1908) ---
----S. 115, O. VII, R. 11 & O.XLI, R. 31 ---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit
for declaration and injunction--- Rejection of plaint ---Non-determination of points in appeal --
-Effect ---Applicant / plaintiff was aggrieved of rejection of his plaint by Trial Court and
dismissal of appeal by Lower Appellate Court ---Validity ---Under O. XLI, R. 31, C.P.C. it
was incumbent upon Lower Appellate Court to frame points for determination, record its
decision on each of such points and assign reasons for decision, whether judgment of Trial Court was affirmed, reversed or modified---Formulation of points for determination and application of an independent judicial mind to the controversy between the partis was essential to demonstrate that Lower Appellate Court had discharged its appellate jurisdiction in accordance with law ---High Court set aside order passed by Lower Appellate Court, as it
had erred in law, while passing order in question, which suffered from misreading and misinterpretation of law ---High Court remanded the matter to Lower Appellate Court for
decision afresh on appeal on its own merits in accordance with the provisions of O. XLI, R. 31, C.P.C.--- Revision was allowed accordingly.
Pakistan Refinery Ltd., Karachi v. Barrett Hodgson Pakistan (Pvt.) Ltd. and others
2019 SCMR 1726 and Naimatullah v. Faizullah PLD 2021 Bal. 21 rel.
Nasruddin Kakar for Petitioner.
Abdul Raheem Kakar and Syed Nazeer Agah for Respondents.
Sultan Barrech, Additional Advocate General for the State.
Date of hearing: 23rd June, 2025.
JUDGMENT
MUHAMMAD NAJAM -UD-DIN MENGAL, J ---This judgment disposes of the
instant Civil Revision Petition filed by the petitioner, against the orders and decree dated
15th September 2023 and 10th October 2023 ("impugned orders and decree") passed by the learned Senior Civil Judge, Chaman ("trial Court") and the learned Additional Sessions Judge, Killa Abdullah at Chaman ("appellate Court"), respectively, whereby the former rejected the suit of petitioner/plaintiff under Order VII Rule 11(a) and (d), C.P.C., while the latter had also rejected appeal of the petitioner.
2. Precisely facts of the instant case are that the petitioner/plaintiff filed a suit for
Declaration and Permanent Injunction against the respondents/defendants before the learned Trial Court with the averments that the predecessor in interest of petitioner/plaintiff namely Dad Muhammad has left behind the legacy the following properties bearing Khewat and Khatooni No. 14/14, Khasra Nos. 21 to 47 total measuring 55 Rods 39 Poles, situated at Mahal and Mouza Aghbargai Tappa Farakhi Tehsil and District, Killa Abdullah and Khasra No. 26, which is Ghair Mumkin Chashma along with other Chashmajat situated nearby the said Chashma from which, the petitioner/plaintiff irrigates the cultivated lands, while the respondents/defendants without having any concern or entitlement illegally interfering in the ancestral properties of the petitioner/plaintiffs.
3. The suit of the petitioner/plaintiff was contested by the respondents/defendants by
means of filing written statement. After framing issues rejected the suit of the petitioner/plaintiff under Order VII Rule 11 (a) and (d), C.P.C., vide order and decree dated
15th September 2023.
4. Being aggrieved, the petitioner/plaintiff assailed the above order before the learned
Appellate Court by means of filing appeal, whereby the learned appellate Court without
issuing any notice to the respondents has rejected the appeal of petitioner, vide impugned order dated 10th October 2023, whereafter the instant civil revision petition has been filed by the petitioner.
5. Heard learned counsel for the parties and perused the available record with their able
assistance. The perusal of record reveals that the learned trial Court, while rejecting the suit of the petitioner has thoroughly attended all the material aspects of the case by framing issues regarding maintainability of the suit.
6. The plain reading of the impugned order passed by the learned appellate Court
transpires the entire finding has been given in one page, as such, the same does not conform to the mandatory requirements of Order XLI Rule 31 of the Code of Civil Procedure, 1908 ("C.P.C."). As per the said provision, it is incumbent upon the appellate Court to frame points for determination, record its decision on each of such points, and assign reasons for
the decision, whether the judgment of the trial Court is affirmed, reversed, or modified. The
formulation of points for determination and application of an independent judicial mind to
the controversy between the parties is essential to demonstrate that the appellate Court has discharged its appellate jurisdiction in accordance with law. For convenience, the relevant provision i.e., Order XLI Rule 31, C.P.C. is reproduced as under:
"Order XLI, Rule 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 that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."
7. The above provisions of ibid law made it crystal clear that the learned appellate Court
was duty bound to deal with each and every aspect of the case, while delivering the impugned order by reopening the overall controversy and should have gone through the issues framed by the learned Trial Court, but the perusal of impugned order reveals that the same has been decided in cursory and slipshod manner, which neither can be appreciated nor maintained. Admittedly, it is settled proposition of law that the appellate Court is required to set out points for determination, records the decision thereon and give its own reasons for the decision in the terms of Order XLI, Rule 31, C.P.C. Reliance in this regard is placed on the case titled as "Pakistan Refinery Ltd., Karachi v. Barrett Hodgson Pakistan (Pvt.) Ltd. and others, (2019 SCMR 1726)", whereby the Hon'ble Supreme Court of Pakistan has held as under:
"The issue raised in the instant lis has serious implications. Whether it is the trial court or the court of appeal the lis before either of the two has to be decided with due application of mind which should be a writ large on the face of the judgment. Else the rule providing for a reasoned judgment would be reduced to a dead letter. A judgment delivered by the trial Court would not be a judgment in the real sense of the word if it does not conform to the requirements of Rule 5 of Order XX of the C.P.C. S imilarly,
a judgment delivered by the first court of appeal and final court of fact would not be a judgment if it does not conform to the requirements of Rule 31 Order XLI of the C.P.C. The rationale or raison d'etre behind these provisions is that not only the party loosing the case but the next higher forum may also understand what weighed with the court in deciding the lis against it. Such exercise cannot be dispensed with even in the cases of affirmative judgments otherwise who would know that arguments
addressed were accepted or rejected with due application of mind. A perusal of the impugned judgment would reveal that the Division Bench of the High Court did not state the points of determination, decision thereon and reasons therefor. What led the
Division Bench of the High Court to affirm the finding handed down by the learned
Single Judge of the High Court has neither been adverted nor alluded to. Arguments of the learned counsel for the parties have been reproduced in the impugned judgment but whose arguments merited acceptance and whose arguments merited rejection have been eluded altogether. The judgment against this background cannot be said to have
been rendered in substantial compliance with Rule 31 of Order XLI, C.P.C. We,
therefore, do not agree with the argument of the learned Sr. ASC for the respondent
that the impugned judgment has been handed down in substantial compliance with Rule 31 of Order XLI, C.P.C. The judgments rendered in the cases of Girilanandini Devi and others v. Bijendra Narain Choudhry and Mst. Roshi and others v. Mst. Fateh and others (supra) are, therefore, not applicable to the case in hand. Even otherwise, we would not encourage an argument of such tenor which would tend to pass the buck of responsibility to the next higher forum and require the latter to do what is the exclusive domain of the first court of appeal and final court of fact and set at naught the parameters prescribed for exercise of jurisdiction at different levels of hierarchy.
An argument with such implications would rather hamper than advance the cause of
justice when even an executive authority under section 24- A of the General Clauses
Act is required to record reasons for making the order or issuing the direction. Having
thus considered, we don't think the impugned judgment conforms to the requirements of Rule 31 of Order XLI, C.P.C. by any stretch of imagination. It thus cannot be
maintained.
8. Similar view has also been taken by this Court in its reported judgment in the case of
"Naimatullah v. Faizullah, (PLD 2021 (Balochistan) 21) while describing the mandatory
provisions of Order XLI Rule 31, C.P.C.
9. In view of the above, it appears that learned appellate Court has erred in law, while
passing the impugned order, which suffers from misreading and misinterpretation of law, thus the same cannot be maintained.
For the foregoing reasons, the instant petition is partly allowed and the impugned
order dated 10th October 2023 passed by learned Additional Sessions Judge, Killa Abdullah at Chaman is set aside and the matter is remanded to the learned appellate Court with direction to decide the appeal on its own merits in accordance with the provisions of Rule 31 of the Order XLI C.P.C. within a period of three months, positively without unnecessary adjournment.
MH/76/Bal Case remanded.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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