Present
Mr. Justice Aqeel Ahmed Abbasi
Irtiza Nisar . Applicant
Versus
Dr. Irfan Tariq Mirza and others .. Respondents
Date of hearing : 12.03.2013
Date of judgment : 15.04.2013
Mr. Zafar Alam Khan, advocate for the applicant
Mr. Adnan Ahmed, advocate for the respondent No.1
Mr. Shoaib Ali, advocate for the respondent No.2.
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Aqeel Ahmed Abbasi, J: Being aggrieved and dissatisfied with the judgment and decree dated 27.04.2011 and 07.05.2011 respectively passed in Civil Appeal No.79 of 2007 by the learned 1st Additional District Judge, Karachi East, whereby the judgment and decree dated 29.05.2007 passed by the learned trial Court, decreeing the Suit No.1590/1992 filed by the applicant, was reversed and the appeal filed by the respondent was allowed, the applicant has filed instant civil revision application under Section 115 CPC with the prayer to set aside the impugned judgment and decree passed by the appellate Court and/or to pass any or further order which may be deemed fit and proper by this Court.
2. Brief facts as stated in the Memo of instant revision application are that on or about 04.11.1992, the applicant filed Suit No.1590 of 1992 in the Court of Senior Civil Judge, Karachi East, against the respondents No.1 & 2 wherein it was claimed that applicant is the owner of plot of land No.C-56, Block-A, situated in the KDA Officers Cooperative Housing Society Ltd., Karachi, whereas following relief was sought by the applicant:-
a) Declaration that Power-of-Attorney dated 15.12.1990 is a forged and fake document, not executed by the plaintiff and liable to be cancelled.
b) Permanent injunction against the defendants, their agents, representatives, executors and assigns from utilizing or acting on the strength of Power of Attorney dated 15.12.1990 alleged to be executed by the plaintiff.
c) Ad-interim restraining orders/injunction against the defendants No.1 & 2, their agents, executors, administrators, attorney or assigns from further acting on the strength of Power of Attorney dated 15.12.1990 or any gift made by virtue of the said power in respect of the suit plot No.C-56, Block A situated in KDA Officers Co-operative Housing Society and convey/transfer the name in any manner from the name of the plaintiff to anyone else during pendency of the suit.
3. Respondent No.1, after service of summons and without filing written statement, filed an application under Order VII Rule 11 CPC on 22.11.1992, which was rejected vide order dated 22.02.1994, however, by then the respondents No.1 & 2 had already filed their written statements on 29.11.1993 and 13.01.1993 respectively. While rejecting the said application the learned trial Court was pleased to settle the following issues:-
1. Whether the plaintiff is entitled for the relief claimed?
2. Whether the suit is hit by any law especially Section 70 and 70-A of the Society Act, as well as Section 42 of Specific Relief Act?
3. Whether Muhammad Iqbal Mirza is the necessary party?
4. Whether the plaintiff has given the power of attorney in year of 1982? If yes, its effects?
5. Whether the power of attorney dated 05.12.1990 is a genuine one? If not its effect?
6. Whether the suit is under valued?
7. What should the decree be?
4. On 13.01.1993, the respondent No.2 viz. KDA Officers Cooperative Housing Society Ltd., filed its written-statement, whereas the respondent No.3 filed his written statement dated 03.11.1998 on 23.11.1998.
5. Since respondent No.3 was directed to be impleaded as defendant No.3 vide order dated 07.08.1998, he filed his written statement thereafter on 23.11.1998, as such, the issues as under were reframed and resettled on 22.03.1999:-
1. Whether the power of attorney dated 05.12.1990 is forged and fake document?
2. Whether the suit property was legally gifted to the defendant No.3 by the defendant No.1?
3. Whether the suit is not maintainable under any provisions of law particularly hit by Section 170 and 170-A of Societies Act and so also Section 42 of Specific Relief Act?
4. Whether the plaintiff had paid Rs.1,50,000/-, to defendant No.2, if so, what effect?
5. Whether the plaintiff is entitled for the relief as claimed?
6. What should the decree be?
After settlement of aforesaid issues on 22.3.1999, none of the parties ever applied for amendment or resettlement thereof, hence the same were treated as the finally settled issues.
6. The learned trial Court was pleased to decree the suit vide judgment and decree dated 04.04.2002 and 17.04.2002 keeping in view the evidence and the issues as settled hereinabove.
7. Being aggrieved by such judgment and decree dated 04.04.2002, the respondents No.1 & 2 preferred a Civil Appeal No.116 of 2002 and in the said civil appeal an order of remand dated 21.04.2007 was passed. Thereafter, the learned trial Court again decreed the suit vide judgment and decree dated 29.05.2007. Such judgment and decree was again assailed by respondent No.1 and 2 through Civil Appeal No.79 of 2007 whereby the learned 1st Additional District Judge (East) Karachi vide impugned judgment and decree has set aside the judgment passed by the learned IInd Senior Civil Judge (East) Karachi.
8. Learned counsel for the applicant has vehemently assailed the impugned judgment passed by the learned Appellate Court mainly on the ground that the learned Appellate Court has passed the impugned judgment by misreading and non-reading of the evidence and also in total violation and disregard to the provisions of Order 41 Rule 2CPC. Per learned counsel, the suit filed by the applicant was decreed in his favour by the learned trial Court on the basis of issues formulated therein and after examining the evidence produced by the parties in support of their respective claims. However, per learned counsel, the learned Appellate Court, without referring to the issues formulated by the learned trial Court, has decided the appeal on extraneous considerations and entirely on different issues, which were neither formulated nor the applicant was ever confronted with such issues. Per learned counsel, the appeal has been decided beyond the pleadings and finding has been recorded on the issues which were neither formulated by the learned trial Court nor any notice was given by the Appellate Court on the said issue which was not even formulated by the Appellate Court. It has been argued that entire appeal has been decided erroneously on the basis of such issue, without even providing any opportunity to the applicant in this regard. Learned counsel for the applicant has referred to the issues formulated by the learned trial Court to demonstrate that no such issue was formulated by the learned trial Court. Reference to the Memo of Appeal filed by the respondent before the learned Appellate Court has also been made by the learned counsel to show that even no such ground was raised by the respondent in appeal upon which the Appellate Court has recorded its finding and the appellant has been non-suited. Per learned counsel, the impugned judgment is perverse and violative of the provision of Order 41 Rule 2 CPC, hence liable to be set-aside. In support of his contention, learned counsel for the applicant has placed reliance on the following judgments:
1. Khadim Hussain & 8 others v. Manga Khan PLD 1981 SC (A J & K) 40
2. Ghulam Nabi v. Mst. Hussain Bibi and 3 others 1981 SC (A J & K) 42
3. Zaheer-ur-Din and others v. Mst. Khurshida Begum 1996 CLC 580.
9. Conversely, learned counsel for the respondent No.1 has supported the impugned judgment and has referred to the provisions of Order 41 Rule 31 CPC and contended that the Appellate Court can formulae additional issue and give its finding based upon such issue. Learned counsel for the respondent has also referred to the provision of Order 20 Rule 5 CPC. It has been argued that the scope of revision is limited to the extent of illegality pointed out by any party in the impugned order/judgment, whereas no such illegality has been pointed out in the impugned judgment. In support of his contention, learned counsel for the respondent has placed reliance on the following cases:
1. Malik Khuda Bakhsh & another v. Syed Hamad Ali Shah 1981 SCMR 196
2. Syed Kamal Shah v. Inayat Muhammad & others 2002 CLC 1704
10. Learned counsel for the respondent No.2 has supported the arguments advanced by the learned counsel for respondent No.1.
11. I have heard both the learned counsel, perused the record and the impugned judgment passed by the learned Appellate Court. Since the learned counsel for the applicant has mainly assailed the impugned judgment and decree on the ground that the same has been passed in violation of the provisions of Order 41 Rule 2 CPC, therefore, it will be advantageous to examine the provisions of Order 41 Rule 2 CPC, which are reproduced as under:
Order 41 Rule 2. Grounds which may be taken in appeal.The appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the Appellate Court, in deciding the appeal, shall not be confined to the grounds of objection set forth in the memorandum of appeal or taken by leave of the Court under this rule:
Provided that the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground.
12. In view of hereinabove provisions, an Appellate Court, while hearing an appeal against the impugned judgment passed by the trial Court, is required to base its finding on the grounds urged before the Appellate Court and on the basis of pleadings, grounds raised and the issues formulated by the trial Court. However, a contesting party has a right to raise additional grounds and to seek decision on additional issues, however, subject to leave of the Appellate Court, provided the Appellate Court shall put the other party on notice of such new ground or plea urged by the appellant. From perusal of the Memo of Appeal filed by the respondent in the instant case before the learned Appellate Court it is noted that no such fresh ground or plea was either raised by the respondent nor the Appellate Court ever formulated such fresh legal issue, nor the appellant was put on notice regarding such fresh ground or the issue. From perusal of the impugned judgment, it further transpires that none of the parties has advanced any arguments on the issue upon which learned Appellate Court has based its impugned judgment. No finding has been recorded by the Appellate Court in its impugned judgment on the legal issues which were formulated by the learned trial Court, whereas learned Appellate Court has taken entirely a different issue into consideration and has held as follows:-
The accumulative effect of the evidence brought on record is that the plot was apparently in the name of the plaintiff as benami. In fact the original allottee was defendant No.3 Mr. Iqbal Mirza, who was entitled for such an allotment being a KDA officer ....................................
Therefore, I am of the view that plaintiff has failed to establish a valid genuine and binding allotment in his favour, therefore, the question of the cancellation of power of attorney does not arise. The impugned judgment and decree is hereby set aside and appeal is allowed. Resultantly, the suit of the plaintiff shall stand dismissed, with no order as to costs.
13. From perusal of the issues formulated by the learned Appellate Court and the Memo of Appeal filed by the respondent before the Appellate Court, it appears that no such controversy was either agitated nor any legal issue in this regard was formulated by the learned Appellate Court. Moreover, the applicant was never confronted with such legal controversy, hence he has been condemned unheard, whereas the impugned judgment is also violative of the express provisions of the Order 41 Rule 2 CPC. The ratio of the case law relied by the learned counsel for the applicant is attracted to the facts of the instant case, whereas the reference to provision of Order 41 Rule 31 CPC, Order 20 Rule 5 CPC and the reliance on the case law by the learned counsel for the respondent is misconceived and is not attracted to the facts of the instant case.
14. Accordingly, I am of the view that the impugned judgment and decree is not sustainable in law, which is hereby set-aside and the matter is remanded to the learned 1st Additional District Judge Karachi (East) to decide the appeal afresh, preferably within a period of three months after providing complete opportunity of being heard to the concerned parties. Both the parties are directed to appear before the Appellate Court on 21.04.2013. No fresh notice is required to be issued to the parties.
Instant Civil Revision Application stands disposed off in the above terms.
JUDGE