Nasir Hameed v. Rais Muhammad Akram,

2011 MLD 587

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

NASIR HAMEED and another ---Petitioners

Versus

RAIS MUHAMMAD AKRAM and 10 others ---Respondents

Civil Revision No.494 of 2010, decided on 6th December, 2010.

(a) Specific Relief Act (I of 1877) ---

----S. 42---Civil Procedure Code (V of 1908), O.XIV, R.2 ---Suit for declaration ---Issues of law and fact and limitation ---Trial Court dismissed the suit for being time barred ---Appellate Court accepted the appeal of plaintiffs remanding the suit to Trial Court for dec ision on merits after framing issues of fact and recording evidence of the parties ---Validity ---Where issues of both law and fact arose, court could dispose of the case by deciding the issues of law first under O.XIV, R.2, C.P.C., but mixed question of law and fact could only be decided by recording the evidence of parties ---Controversies of relationship of landlord and tenant and entries in the record of rights could be decided after recording the evidence of both the parties ---Limitation was also a mixed question of law and fact which could not be decided without recording the evidence ---Appellate Court made the right judgment which did not suffer from any illegality warranting interference of High Court ---Revision was dismissed.

(b) Civil Procedure Co de (V of 1908) ---

----O. XIV, R.2 ---Issues of law and fact ---Nature ---Where issues of both law and fact arose in the same suit, the court could dispose of the case by deciding the issues of law first under O.XIV, R.2, C.P.C., but mixed question of law co uld only be decided by recording the evidence of the parties.

Muhammad Usman Yousafzai for Petitioners.

Nemo for Respondents.

ORDER

MRS. JUSTICE SYEDA TAHIRA SAFDAR, J ,---The petitioners being aggrieved of judgment dated 11 -10-2010 of Majlis -e-Shoora Mastung whereby the appeal filed by the present respondents Nos.1 to 11/appellants was accepted and case was remanded to the trial court after setting aside of judgment dated 10 -4-2010 of Qazi Dasht, for deciding it afresh on merits after recording of evidence of the parties, preferred instant revision petition seeking revision of the order of appellate court with prayer that judgment and decree of by trial court be restored. It is their contention that as the issues framed by the trial court were i n respect of legal objections, thus required to be decided as per provisions of Order XLII Rule 2 C.P.C., the trial court rightly directed the parties to advance arguments. The appellate court without appreciating the relevant law and without any legal jus tification set aside the judgment of trial court. The appellate court further failed to observe the provisions of Order XIV Rule 2, C.P.C. They have prayed for setting aside of impugned judgment.

The learned counsel for the petitioners is heard at length and material placed on record is perused. The suit filed by Rais Muhammad Akram and 10 others/present respondents Nos.1 to 11 was for declaration of their title, permanent injunction and correction of entries in Revenue Record, wherein present petitioners were arrayed as respondents Nos.22 and 23. The defendants to the suit filed their written statements,' the trial court on objections raised therein framed issues of law on 20 -3-2010. After hearing the parties the trial court through order dated 10 -4-2010 dismissed the suit while holding that as the suit is time barred, while the parties prayed for deciding the existence of relationship of tenancy rights and as no previous litigation remained pending between the plaintiffs (respondents Nos.1 to 11) and defendant No.26 (respondent No.35), as such no ownership right is in existence, thus the suit is not mentionable. The appellate court after hearing the parties held that as the trial court arrived to the conclusion that the court has no jurisdiction to adjudic ate upon the matter, it was not required to give findings on remaining issues. Further, the issue of limitation is mixed question of law and' facts, which requires evidence. Moreover the law of estoppel also not applicable nor any case can be dismissed on the same. The appellate court while accepting the appeal set aside the judgment and decree of trial court and remanded the suit with direction that after receiving written statement of defendant No.26 (respondent No.35) and after framing of factual issues, evidence of both sides be recorded, whereafter case' be decided on merits.

In instant case the trial court though framed issues of law and also decided the same without going into factual controversy through judgment dated 10 -4-2010, though there is no legal defect in the same to said extent. As under Order XIV Rule 2, C.P.C. it is requirement of law that issue of law have to be determined at first instance, whereafter, settlement of issues of fact are to be made. But it is required to be seen by the cou rt, wherein suit has been instituted and under trial, that whether the issue of law can be decided without procuring of the evidence or otherwise, if so, it can decide the same by only hearing the arguments made by the parties. But in case the matter is ot herwise the matter in issue though of law, but interrelated with facts of the case, it can not be decided without recording of evidence, thus in such case only arguing the matter by the parties will not serve the purpose, rather recording of evidence would be essential before giving decision on the same. In present case too the ascertainment of rights of the parties about existence of relationship of landlord and tenants and correction of entries in record of rights can only be made after recording of evide nce of both the parties, as there is assertion from one side and denial from the other about existence of the right. As such is the position in respect of issue regarding to limitation, it is also a mix question of law and fact and cannot be resolved witho ut recording of evidence in such like cases. The appellate court has arrived to the decision, which does not suffer from any illegality or irregularity, thus does not require any interference by this court.

The petitioners have failed to point out any il legality and any such irregularity in impugned judgment, which requires consideration by this court. It will be better for them to defend and establish their right and title before the court of competent jurisdiction. The petitioners have failed to make ou t any case for revision of impugned judgment. In view of above discussion there is no merit in the petition, which is hereby dismissed in limine.

A.R.K./115/Q Petition dismissed.