2012 Y L R 2115
[Balochistan]
Before Muhammad Noor Meskanz ai, J
MURAD ---Petitioner
Versus
SYED MUHAMMAD and 2 others ---Respondents
Civil Revision No.247 of 2007, decided on 31st May, 2012.
Civil Procedure Code (V of 1908) ---
----O.XLI, R. 31 ---Specific Relief Act (I of 1877) S. 42 ---Suit for declarati on---Judgment in
appeal ---Essentials ---Suit was decreed by Trial Court but dismissed by Appellate Court ---
Appellate Court had failed to adhere to the mandatory provisions of O. XLI, R. 31, C.P.C. ---
Where a decree was to be reversed, the Appellate Court was bound to reappraise the evidence
with reference to the issues by forwarding cogent reasons in support of its findings ---
Appellate Court's judgment lacked the prerequisites of O. XLI, R. 31, C.P.C. and reversed
findings of the Trial Court through a short o rder which could not be termed as a "judgment";
and was not sustainable in law ---High Court set aside order of Appellate Court and remanded
the case to the Appellate Court --Revision was allowed, in circumstances.
Jan Muhammad v. Mulla Abdul Rehman and 4 others 1998 Quetta P. 34 rel.
Petitioner in person.
Rehmatullah Barech for Respondents.
Date of hearing: 18th May, 2012.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. ---Through this judgment, I propose to dispose of
the instant petition filed by the pet itioner against the judgment and decree dated 25th April,
2007 passed by Majlis -e-Shoora, Turbat, whereby the appeal filed by the respondents against
the judgment and decree dated 29th November, 2006 passed by Qazi, Pasni was accepted.
2. Facts in nutshe ll are that the petitioner filed a Suit bearing No. 70 of 2005 on 14th
April, 2005 before the learned Qazi, Pasni. It was the case of petitioner that he and the
respondents are the descendents of late Mehrab son of Mehmood, who was the grandfather of
the p arties. The grandfather left certain properties, in Mouza Shenzani Tehsil Pasni, which is
joint among the parties. Boundaries whereof have been given in the plaint. The petitioner
claimed his legal share according to Islamic law.
3. The suit was conteste d by respondents by way of filing written statement. The
respondents while filing written statement disputed the boundaries of the property and also
raised objection upon maintainability of the suit on the ground of misjoinder of necessary
parties. The sui t was claimed to be barred by time, however the relationship between the
parties was not denied but claim was refuted on the ground that the mother of petitioner was
treated during the course of illness and the mother of petitioner has waived her right in the
property through a document dated 9th July, 1974.
4. Out of the pleadings of the parties, the learned trial Court framed four issues.
Whereafter the petitioner produced P.W.1 Sharaf, P.W.2 Habib and got recorded his own
statement. Whereas in rebutt al, the respondents produced DW -1 Dad Bakhsh, DW -2 Haji
Qadir Bakhsh, DW -3 Khuda -e-Dad, besides recorded their statements through attorney. The
learned trial Court after observing the codal formalities decreed the suit vide judgment and
decree dated 29th N ovember, 2006. The respondents feeling dissatisfied with the said
judgment and decree passed by learned Qazi, Pasni preferred Appeal bearing No.29 of 2007
on 26th February, 2007. The learned appellate Court after hearing the parties accepted the
appeal, se t aside the judgment and dismissed the suit vide judgment and decree dated 25th
April, 2007, hence this petition.
5. I have heard Mr. Shams -ur-Rehman Rind, Advocate for petitioner on 6th April, 2012,
whereas on the said date Mr. Rehmatullah Barech, learn ed counsel for the respondents could
not be heard due to his absence, hence case was adjourned and on 18th May, 2012 the learned
counsel for the respondents appeared and advanced his arguments.
The learned counsel for the petitioner submitted that the pe titioner has proved his case by
producing tangible evidence. The relationship between the parties has not been disputed.
Moreover, the ownership of the property in question by the grandfather of both the parties is
established. Under such circumstances, th e petitioner is entitled for 'Shar'i' share in the
property. The trial Court after attending all the aspects of the case and evaluating the
evidence in its true perspective has rightly decreed the suit. The appellate Court set aside the
decree on flimsy gr ounds. It was maintained that the appellate Court has badly failed to
observe the mandatory provisions of Order XLI Rule 31, C.P.C.
On the other hand, the learned counsel for the respondents argued that the judgment passed
by the trial Court was not in c onformity with the law. The petitioner has failed to prove his
case, therefore, the appellate Court has rightly accepted the appeal. Upon a query, as to
whether the appellate Court has complied with the mandatory provisions of Order XLI,
Rule 31, C.P. C., he felt difficulty in satisfying the Court, however, submitted that since
substantial notice has been done, therefore, the judgment passed by appellate Court is liable
to be maintained.
6. I have carefully considered the contentions put forth by the parties learned counsel
and gone through the record of the case minutely. The appellate Court has reversed the
findings of the trial Court and dismissed the suit, which was decreed by the trial Court. I am
feeling no hesitation in holding that the appellat e Court entirely failed to adhere to the
mandatory provisions of Order XLI Rule 31, C.P.C. Particularly, in a case where a decree is
reversed, the appellate Court is bound to reappraise the evidence with reference to the issues
by forwarding cogent reasons in support of its findings. The judgment impugned herein is
absolutely lacking the prerequisites of Order XLI Rule 31, C.P.C. It is painfully noted that the
appellate Court reversed findings by short order, which cannot be termed a judgment. For the
sake of convenience, the impugned judgment is reproduced as under: --
The perusal of the impugned judgment leaves no room for doubt that the same is contrary to
law and in flagrant violation of the mandatory provisions of Order XLI Rule 31, C.P.C. and,
therefo re, is not sustainable. By holding the view, I am supported with the dictum laid down
in the judgment reported in PLD (1998, Quetta page 34 (Jan Muhammad V. Mulla Abdul
Rehman and 4 others relevant at page 36), wherein it has been held as under: --
"The M ajlis-e-Shoora, as is evident from the impugned judgment did not consider the
evidence on record nor recoded any reason or finding based upon evidence in the case,
inasmuch as; it did not apply its mind to the facts of the case. Without dilating upon the o ther
contentions raised before this Court, by no stretch of arguments, the impugned judgment
can be termed as 'judgment' within the meaning of Order XLI, Rule 31 C.P.C.
Appellate Court is under legal obligation to decide each of the point involved in the matter to
which it is seized of, must to state its reasons for the decision arrived at and at least
substantial compliance with the requirements of Rule 31 of Order XLI, C.P.C. is mandatory
so that it should be evident from judgment that Appellate Court a pplied its mind consciously
to the matters involved in the case; which enabled Court to pronounce the judgment.
The bare perusal of the judgment indicates that the Appellate Court did not take into
consideration the evidence on record nor did it record a ny reason for the decision pronounced
by it, thereby rendering the impugned judgment and decree as unsustainable in law;
consequently, the impugned judgment and decree dated 26 -3-1997 passed by Majlis -e-
Shoora, Kalat Division at Mastung is set asi de, with the directions to re -write judgment in
Civil Appeal No. 103 of 1996 in accordance with law, after affording opportunity of
hearing to the parties,"
In the light of above discussion, the petition is accepted, the judgment and decree passed by
the appellate Court i.e. Majlis -e-Shoora, Mekran at Turbat dated 25th April, 2007 are hereby
set aside and the case is remanded back to the appellate Court with the direction to re -write
the judgment after hearing the parties by strictly adhering to the manda tory provisions of
Order XLI, Rule 31, C.P.C.
K.M.Z./44/Q 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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