Agreement to sell is comprised of reciprocal promises and corresponding obligations to be performed in the manner provided for.

Agreement to sell is comprised of reciprocal promises and corresponding obligations to be performed in the manner provided for. A vendee cannot seek enforcement of reciprocal obligation on the part of vendor to execute sale deed, unless he demonstrate that he not only has the financial capacity but he was and is also always willing and ready to meet the sames. The Promisor/Appellant (Vendor) need not perform his part of promise or obligation to execute conveyance, unless the promisee/Respondents, (the vendee) "is ready and willing to perform his reciprocal promise." This Court in a recent case held it to be "mandatory for such party that on first appearance before the court or on the date of institution of the suit, it shall apply to the Court for permission to deposit the balance amount. Any omission in such regard would entail the dismissal of the suit decreta! of the suit, if it was filed by the other side"9. In a case where a party seeking specific performance of agreement to sell moveable property ('Shares" in a corporate cntity),
It was held by this court that "It is now well settled that a party seeking specific performance of an agreement to sell is essentially required to deposit the sale consideration amount in court. In fact, by making such deposit, the plaintiff demonstrates its capacity, readiness and willingness to perform its part of the contract, which is essential requirement to seek specific performance of a contractio.
Specific Performance is a discretionary relief, and the Courts are not bound to grant such relief mechanically merely, because it is lawful to do so. The discretion to grant relief of specific performance or otherwise, by the Court is not something mechanical or arbitrary exercise of jurisdiction but, is structured on sound and reasonable judicial principles, amenable to judicial review and Genesis of agreement to sell correction by the court of appeall. draws its lineage from the Contract Act 1872 and principles enumerated therein, have direct bearing on interpretation and deciphering the intent, purpose, manner and consequences flowing from agreement to sell. However, in contemporary jurisdiction in India, Specific Relief Act, 1963 has replaced archaic Specific Relief Act, 1877 thereby substantially and suitably amended to addresses many ground realities having direct bearing on specific performance of promise and obligations arising out of contracts. Attending to present case, the reciprocal' obligations under the agreement are to be performed, in the manner and sequence it is provided for. Where the agreement does not expressly provided the manner such obligations are to be accomplished, than the respective obligations are to be performed in the manner and sequence, which the nature of transaction requires. In case in hand as noted, the Respondent under the agreement, was required to make the balance payment on or before 15.4.2015, where upon the Appellant was correspondingly obligated to sign and execute the conveyance deed, and hand over the possession. Foremost requirement to seek specific performance, for a vendee is to demonstrate his readiness and willingness to perform the agreement". The Promisor (vendor) need not perform his part of promise or obligation, unless the promisee (i.e vendee) "is ready and willing to perform his reciprocal promise." In cases arising out of agreement to sell, a vendee to demnonstrate his readiness and willingness to perform his part of obligation, has to plead, that he had offered to pay, was and is always prepared to pay the consideration. In a recent case, cited as Mst. Samina Riffat v Rohand Asghar and others', such aspect of the matter was considered, this court cited with approval case of Abdul Hamid v. Abbas Bhai- Abdul Hussaino. The court held "In the first place, willingness to perform one's contract in respect of purchase of property implies the capacity to pay the requisite sale consideration within the reasonabie time. In the second place, even if he has the capacity to pay the sale consideration, the question still remains whether he has the intention to purchase the property. On consideration of all the facts, it appears that the appellant was not in a position to pay the balance sale consideration. At any rate, the appellant was not willing, even if he had the capacity to pay the money, to have the sale deed completed."
Suit for specific performance/Agreement to sell
C.P.852/2020
Muhammad Jamil & others v. Muhammad Arif 


















S. 115--Specific Relief Act, (I of 1877), S. 9--Suit for possession--Decreed--Appeal--Dismissed--Purchasing of land--

 PLJ 2021 Lahore 517

Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Specific Relief Act, (I of 1877), S. 9--Suit for possession--Decreed--Appeal--Dismissed--Purchasing of land--Non-producing of document by petitioner in rebuttal of ownership of respondent--Concurrent findings--Challenge to--Revenue record (Ex.Pl) shows ownership of respondent over suit property but in rebuttal no document is produced by petitioner--Petitioner did not challenge title of respondent before any forum till to-date--When as per revenue record as well as admission of petitioner that R respondent is owner of suit property as such possession of petitioner would be that of permissive in nature and mere assertion that he constructed house from his own sources as far as 25 years back is not sustainable claim to declare him as owner of suit property--As such, Courts below rightly passed impugned judgments & decrees and no illegality has been committed--Counsel for petitioner has not been able to point out any illegality or material irregularity in impugned judgments & decrees passed by Courts below and has also not identified any jurisdictional defect--Concurrent findings of fact are against petitioner which do not call for any interference by this Court in exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction--Revision petition dismissed. [Pp. 518 & 519] A, B & C
2014 SCMR 1469 ref.
Mr. Sajjad Hussain Tarar, Advocate for Petitioner.
Mr. Mehboob Rasool Awan, Advocate for Respondent.
Date of hearing: 29.9.2020.

 PLJ 2021 Lahore 517
Present: Ch. Muhammad Iqbal, J.
MUHAMMAD YOUSAF--Petitioner
versus
ALLAH DITTA--Respondent
C.R. No. 26126 of 2017, decided on 29.9.2020.


Order
Through this civil revision, the petitioner has challenged the legality of judgment & decree dated 22.06.2016 passed by the learned Civil Judge, Malakwal whereby suit for recovery of possession through ejectment filed by the respondent was decreed and judgment & decree dated 10.04.2017 passed by the learned Additional District Judge, Malakwal who dismissed the appeal of the petitioner.
2. Brief facts of the case as contained in the plaint are that the respondent/plaintiff purchased land measuring 12-Marlas from Allah Ditta situated at Mouza Rukkan and raised construction on the said plot. Muhammad Yousaf, petitioner/defendant who is his real brother being homeless requested for lending M him house for living. The respondent/plaintiff gave him house measuring 6 Marlas comprising of Khewat No. 889 Khatooni No. 2614 situated at Mouza Rukkan for temporary residence. He requires the petitioner to vacate the house and deliver the possession to him. On petitioner/defendant gainsayal, hence the suit under Section 8 of the Specific Relief Act, 1877. Petitioner filed contesting written statement. Issues were framed and evidence was recorded. The learned trial Court vide judgment & decree dated 16.10.2015 decreed the suit filed by the respondent. The petitioner filed appeal which was accepted by the learned Additional District Judge, Malakwal vide judgment & decree dated 16.01.2016 and remanded the matter to the learned trial Court to frame the additional issue and decide the case afresh. In post remand proceedings, the learned trial Court again decreed the suit of the respondent vide judgment & decree dated 22.06.2016. The appeal of the petitioner was dismissed by the learned appellate Court vide judgment & decree dated 10.04.2017. Hence, this civil revision.
3. I have heard the arguments advanced by the learned counsel for the petitioner and gone through the record with his able assistance.
4. Admittedly, the petitioner/defendant and respondent/ plaintiff are real brothers. The Revenue record (Ex.Pl) shows the ownership of the respondent over the suit property but in rebuttal no document is produced by the petitioner. When question confronted to the learned counsel whether any title of the suit property exists in the name of the petitioner he admitted non-existence of any title in the name pf the petitioner rather unequivocally admitted the ownership of the respondent over the suit property. Petitioner did not challenge the title of the respondent before any forum till to-date. When as per the revenue record as well as the admission of the petitioner that the respondent is owner of the suit property as such possession of the petitioner would be that of permissive in nature and mere assertion
that he constructed the house from his own sources as far as 25 years back is not sustainable claim to declare him as owner of the suit property. As such, the learned Courts below rightly passed the impugned judgments & decrees and no illegality has been committed.
5. Learned counsel for the petitioner has not been able to point out any illegality or material irregularity in the impugned judgments & decrees passed by the learned Courts below and has also not identified any jurisdictional defect. The concurrent findings of fact are against the petitioner which do not call for any interference by this Court in exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction. Reliance is placed on the case titled as Mst. Zaitoon Begum vs. Nazar Hitssain & Another (2014 SCMR 1469).
6. In view of above, this civil revision is dismissed being devoid of any force with no order as to costs.
(Y.A.) Petition dismissed
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Second review petition before the Supreme Court

2020 SCMR 497

Art. 188---Second review petition before the Supreme Court --- Not maintainable.
2018 SCMR 1218
2018 PLC(CS) 1144
Art. 188---Review before the Supreme Court---'Second review '---Second review was barred by law and no party could approach the Supreme Court for a Second review .
PLD 2015 SUPREME-COURT 50
Art. 188---Supreme Court Rules, 1980, O. XXVI, R. 9---Second review petition filed before the Supreme Court---Maintainability--- O.XXVI, R.9 of the Supreme Court Rules, 1980 barred a Second review petition---Supreme Court had already recorded findings against the convict by dismissing his appeal and (first) review petition--- Convict through a Second review petition could not re-agitate the matter---Second review petition was dismissed accordingly.
2010 SCMR 312
Art.188---Supreme Court Rules, 1980, O.XXVI---Review of Supreme Court judgment---Second review petition-Maintainability-Contention of the applicant was that since he had not filed previously any review petition, the one filed by him now, could not be treated a Second review petition---Validity---Previous review petition having been dismissed by 14 Members Bench, short order/judgment sought to be reviewed had attained finality, therefore no Second review petition was permissible.
2001 SCMR 1135
Constitution of Pakistan 1973 ----Arts. 184 & 188---Supreme Court Rules, 1980, O.XXVI, R.1---Penal Code (XLV of 1860), Ss. 302 & 120-B---Explosive Substances Act (XI of 1908), S.3---Review before Supreme Court--=Second review petition--Repetitious review petitions---Legality---Review petitions under Islamic administration of justice---Limits on number of reviews---Applicability of Islamic precepts of administration of justice in present times---Principles of Islamic administration of justice were referred on behalf of the accused in support of the contention that under the Islamic dispensation of justice any number of review petitions were maintainable provided they satisfied two conditions: (i) on reconsideration of a given case the Court could infer that certain injustice was apparent on the face of the record and (ii) that the social conditions of the society must be such as existed during the days when the above-referred direction was made---Applicability---Existing conditions were that serious vicious moral crises prevailed in the society and in this view of the matter if the last-mentioned condition was conceded, havoc would be played with the judicial system which was already tottering on the brink of demolition---Unless the present society came to the moral standards of those days, the aforementioned exposition of Islamic Injunctions would not hold water---Impugned orders were not shown to have been based on erroneous assumption of material facts or to have been recorded without adverting to a provision of law---No departure in passing the, said orders was even pointed out to have been made from established norms of law and precepts provided in Constitution and no error could be shown apparent on the face of the record---Contentions raised on behalf of accused essentially related to the reappraisal of evidence which could not generally furnish a ground for review and certainly not for the Second review petition even in the garb of a Constitutional petition---All the evidence had collectively pointed to the guilt of the accused and such conclusion was not materially affected by the alleged discrepancies in the statements of the witnesses---Constitutional petition/Second review petition was dismissed by Supreme Court in circumstances.

Declaration of ownership, possession of property in suit with rights of recovery of payment . of produce and injunction against defendants, restraining defendants not to claim ownership etc.

2006 CLC 297 PESHAWAR-HIGH-COURT

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

----Ss. 8 & 42---Civil Procedure Code (V of 1908), O.XIV, R.I & O.XLI, R.31---Suit for declaration and possession- of property---Document relied upon by plaintiffs to establish their claim, had been satisfactorily proved through statements of witnesses produced by them---All said witnesses were subjected to' lengthy and searching cross-examination, but they faced test of cross-examination successfully---Both Courts below had rightly clinched the factual controversy, had dealt with the matter in a threadbare manner and came to concurrent conclusion after due application of independent mind, which could not be disturbed in revisional ,jurisdiction---No misreading and non-reading of evidence by Courts below had been pointed out---Trial Court as well as Appellate Court had elaborately discussed every aspect of case and had dealt with same in detail, leaving no room for further consideration---Appellate Court below had dealt with and decided issue involved in the case, in a careful manner giving its findings on all points of controversy and no prejudice seemed to have been caused to the defendants---Issues had been framed in view of pleadings of parties' and no important or vital issue appeared to have escaped notice of Trial Court---Giving issue-wise findings by Appellate Court was not the requirement of law under O.XLI, R.31, C.P.C. as Appellate Court was to state the points for determination, give its decision thereon and reasons for said decision be also mentioned---Issues framed by Trial Court fully reflected the pleadings of parties and no important issue appeared to have escaped notice of Trial Court, causing prejudice to defendants---Parties were fully alive to the controversy involved and sufficient material was brought on the file in support of their respective contentions---Both Trial Court as well as Appellate Court below had taken a rightful decision which was in consonance with evidence on file---Reasonings recorded by Courts below in decreeing suit were in consonance with evidence on record and no prejudice seemed to have been caused to petitioners---No misreading and non-reading of evidence was proved and judgments of the Courts below were not shown to have been tainted with any illegality or irregularity in absence of which no interference was permissible in revisional jurisdiction of High Court.

(b) Civil Procedure Code (V of 1908)---

----S. 115---Revisional jurisdiction of High Court---Scope---Findings on question of fact or law recorded by competent Court of law/jurisdiction, could not be interfered with in revisional jurisdiction, unless those findings suffered 'from jurisdictional defect, illegality or material irregularity---Jurisdiction of High Court to interfere with concurrent findings of fact in revisional jurisdiction under S.115, C.P.C. was very limited---High Court in exercise of said jurisdiction could only interfere with orders of subordinate Courts on the grounds that Courts below have assumed jurisdiction which did not vest in them or had failed to exercise jurisdiction vested in them by law or they had acted with material irregularity affecting its jurisdiction in the case---Process of examination of evidence for upsetting a concurrent finding of fact in exercise of power under S.115, C.P.C., was neither permissible nor warranted by law-- Interference with a finding of fact of Courts below by High Court in exercise of its revisional jurisdiction under S.115, C.P.C. could only be justified if such finding was result of perverse appreciation of evidence on record---Wrong or erroneous conclusion on a question of fact by the Courts below, was not open to interference by High Court in exercise of its jurisdiction under S.115, C.P.C.---High Court, while examining a concurrent finding of fact recorded by Courts below, in exercise of its revisional jurisdiction under S.115, C.P.C., had to attend to reasons given by Courts below in support of such finding and misreading, non-reading or perverse appreciation of evidence, had to be discovered in the reasoning of the Courts below to justify interference in exercise of its revisional jurisdiction.

Sudhangshu Bimal Biswas v. MD. Mustafa Chowhary 1968 SCMR 213; Niaz Din v. S.M. Azhar and another 1968 SCMR 221; Jehandar and another v. Bazir Khan and others 1990 MLD 83; Mst. Sughran Bibi and others v. Land Acquisition Collector, Narowal and another 1988 CLC 936; Sardar Gurbakhsh Singh v. Gurdial Singh and another AIR 1927 PC 230; K.S. Agha Mir Ahmad Shah and others v. Agha Mir Yaqub Shah and others PLD 1957 (W.P.) Kar. 258 and Mst. Nur Jehan Begum through Legal representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300 ref.

(c) Civil Procedure Code (V of 1908)---

----O. XLI, R.31---Specific Relief Act (I of 1877), Ss.8 & 42---Suit for declaration and possession---Judgment of Appellate Court---Contents of judgment---Appellate Court was alive to the situation and issue involved had been dealt with and decided in a careful manner---Appellate Court had given its findings on all points of controversy and no prejudice seemed to have been caused to defendants---Issues had been framed in view of pleadings of parties and no important or vital issue appeared to have escaped notice of Trial Court---Giving issue-wise findings by Appellate Court, was not the requirement of law under O.XLI, R.31, C.P.C.---Appellate Court was to state points for determination, give decision thereon and along with reasons for said decision---If Appellate Court chalked out a point of controversy and gave its findings thereon, which were duly supported by reasoning, then Appellate Court would be said to have given its judgment in accordance with provisions of O.XLI, R.31, C.P.C.

Umer Din v. Ghazanfar Ali and 2 others 1991 SCMR 1868 and Mst. Husna Bano v. Faiz Muhammad and another 2000 CLC 709 ref.

(d) Civil Procedure Code (V of 1908)---

----O. XIV, R.1, O.XX, R.5 & O.XVIII, R.1---Framing of issues---Duty and obligation of Courts was to frame issues on the basis of divergent pleadings of parties---Each material proposition should be reflected in distinct issue and point raised in one issue should not be stretched in other issue---Basic and fundamental duty of the Trial Court was to settle proper issues for decision---In case of omission on its part, litigant party was equally responsible to invite attention of Courts for supplying such deficiency---Every material proposition affirmed by one party and denied by other, was to be put to issue so that parties should lead evidence and to avoid prejudice being caused to either side due to absence of material issues---Mandate of O.XIV, R.I, C.P.C. revealed that it was incumbent upon the Court to frame issues, in the light of controversies raised in the pleadings of the parties---Issues of law and facts were to be illustrated clearly, to enable the parties to understand the points at issue to support their respective claims by relevant evidence on all material points---Object of framing issues was to ascertain real issue between the parties by narrowing down the area of conflict and determine between parties where parties differed coupled with the fact that framing of issues was one of the most important stages of the trial in view of O.XIV, R.2 read with O.XX, R.5 and O.XVIII, R.1, C.P.C.

Major (Rtd.) Mazhar Mahmood Khan v. Khushal Khan Jadoon 1995 MLD 316 ref.

Shaikh Wazir Muhammad for Petitioners.

Mian Saadullah Khan Jandoli for Respondent.

Date of hearing: 7th November, 2005.

AQEEL HUSSAIN VS Mst. ALIA BIBI
2006 C L C 297
[Peshawar]
Before Ijaz-ul-Hassan Khan, J
AQEEL HUSSAIN and others----Petitioners
Versus
Mst. ALIA BIBI and others---- Respondents
s
Civil Revision No.1491 of 2004, decided 28th November, 2005.

JUDGMENT

IJAZ-UL-HASSAN KHAN, J.---Sahib Jan (since dead and represented by his legal heirs) and other plaintiffs, instituted suit against Aqeel and his mother Mst. Lal Baha, defendants, in the Court of Illaqa Qazi/Civil Judge, Jandol, District Dir, for declaration of ownership, possession of property in suit with rights of recovery of payment . of produce and injunction against defendants, restraining defendants not to claim ownership etc. The suit property was claimed to have been acquired by the plaintiffs by virtue of inheritance.

2. The defendants appeared in Court and resisted the suit on all grounds, legal as well as factual. The parties were put to trial on as many as eleven issues. After recording such evidence as the parties wished to adduce, learned trial Judge, accepted claim of the plaintiffs and allowed suit, vide judgment and decree, dated 21-11-2003, maintained in appeal by District Judge/Zilla Qazi Dir, vide judgment, dated 13-10-2004. Feeling aggrieved, the petitioners have filed instant revision petition, which is before me for adjudication.

3. Representing the petitioners, Sheikh Wazir Muhammad, Advocate contended with vehemence that the impugned judgments and decree of the Courts below are lacunic and suffer from the vice of misreading and non-reading of evidence on record; that trial Court has net properly framed the issues which are in the nature of omnibus and this fact was also not noted by the First Appellate Court and in fact the First Appellate Court has countersigned the judgment of the trial Court without adverting to Order XIV, rule 1, C.P.C., therefore, impugned judgment of First Appellate Court is in violation of Order XIV, rule 1, C.P.C.; that the provisions of Order XLI, rule 31, C.P.C. have been seriously violated in this case and the Courts below have decided the case in violation of the parameters prescribed by the superior Courts, therefore, this Court has ample jurisdiction to interfere in the concurrent finding of fact arrived by both the Courts below while exercising powers under section 115, C.P.C. To substantiate the contentions, reliance was placed on Sudhangshu Bimal Biswas v. MD. Mustafa Chowhary 1968 SCMR 213; Niaz Din v. S.M. Azhar and another 1968 SCMR 221; Jehandar and another v. Nazir Khan and others 1990 MLD 83; Mst. Sughran Bibi and others v. Land Acquisition Collector, Narowal and another 1988 CLC 936; Sardar Gurbakhsh Singh v. Gurdial Singh and another AIR 1927 PC 230 K.S. Agha Mir Ahmad Shah and others v. Agha Mir Yaqub Shah and others PLD 1:57 (W.P.) Kar. 258 and Mst. Nur Jehan Begum through Legal representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300.

4. Appearing on behalf of the respondents, Mr. Saadullah Khan Jandoli, Advocate, on the contrary, supported the impugned judgments and decrees of the Courts below and stated that the same are unexceptionable and do not suffer from any legal and factual infirmity warranting interference of this Court in its revisional jurisdiction.

5. I have heard in detail the arguments of learned counsel for the parties in the light of the material on the file.

6. Although this Court is not called upon to reappraise the evidence on record in exercise of its revisional jurisdiction, yet, in the interest of justice, I have gone through the evidence and find that the reasoning recorded by the. Courts below are in consonance with the evidence on record and no prejudice seems to have been caused to the petitioners. The document in question (Exh. P. W .1 / 1) dated 13-10-1979 heavily relied upon by the respondents to substantiate their claim, has been satisfactory proved through the statements of Bacha Mir Waris and Mushtaq. All these witnesses were subjected to lengthy and searching A cross-examination but they .faced the test of cross-examination successfully. Both the Courts below have rightly clinched the factual controversy, have dealt with the matter in a thread bare manner and came to the concurrent conclusion after due application of independent mind, which cannot be disturbed in revisional jurisdiction. The learned counsel has failed to point any illegality by way of misreading and non-reading of the evidence by the Courts below. The trial Court as well as the Appellate Court have elaborately discussed every aspect of the case and have dealt with the same in detail, leaving no room for further consideration. It is settled law that findings on question of fact or law recorded by competent Court of law/jurisdiction cannot be interfered in revisional jurisdiction unless those findings suffer from jurisdictional defect, illegality or material irregularity. The jurisdiction of the High Court to interfere with the concurrent finding of fact in revisional jurisdiction under section 115, C.P.C. is, very limited. The High Court in exercise of its jurisdiction under section 115, C.P.C. can only interfere with the orders of the subordinate Courts on the grounds, that the Courts below assumed jurisdiction which did not vest in it, or has failed to exercise the jurisdiction vested in it by law or that the Court below has acted with material irregularity affecting its jurisdiction in the case.

7. The process of examination of evidence for upsetting a concurrent finding of fact in exercise of powers under section 115, C.P.C. in my view is neither permissible nor warranted by law. As earlier pointed out by me, interference with a finding of fact of the Courts below by the High Court in exercise of its revisional jurisdiction under section 115, C.P.C. could only be justified if such finding is the result of perverse appreciation of evidence on record. A wrong or erroneous conclusion on a question of fact by the Courts below is not open to interference by the High Court in exercise of its jurisdiction under section 115, C.P.C. I may also mention here that the High Court while examining a concurrent finding of fact recorded by the Courts B below in exercise of its revisional jurisdiction under section 115, C.P.C. has to attend to the reasons given by the Courts below in support of such finding and misreading, non-reading or perverse appreciation of evidence has to be discovered in the reasonings of the Courts below to justify interference in exercise of its revisional jurisdiction.

8. The next objection raised on behalf of the petitioners regarding non-compliance of the provisions of Order XLI, rule 31, C.P.C. is equally without force. Learned Appellate Court was alive to the situation and the issue involved has been dealt with and decided in a careful manner. The Appellate Court has given its findings on all the points of controversy and no prejudice seems to have been caused to the petitioners. The issues have been framed in view of the pleadings of the parties and no important or vital issue appears to have escaped notice of the trial Court. So far as the question of giving issue-wise findings by the Appellate Court is concerned, the same is not the requirement of law as under Order XLI, ruled 31, C.P.C., the Appellate Court is to state the points for determination, give its decision thereon and reasons for the said decision be also mentioned. If the Appellate Court chalked out a point of controversy and gave its findings thereon which are duly supported by reasoning, then the Appellate Court would be said to have given its judgment in accordance with the provisions of Order XLI, rule 31, C.P.C. Umer Din v. Ghazanfar Ali and 2 others 1991 SCMR 1868 and Mst. Husna Bano v. Faiz Muhammad and another 2000 CLC 709.

9. Adverting to the last objection, regarding omission on the part of the trial Court to formulate necessary issues, it is duty and obligation of the Courts to frame issues on the basis of the divergent pleadings of the parties. It is also settled principle of law that each material proposition should be reflected in distinct issue, point raised in one issue should not be stretched in other issue as per law laid down in Major (Rtd.) Mazhar Mahmood Khan v. Khushal Khan Jadoon 1995 MLD 316. It is basic and fundamental duty of the trial Court to settle proper issues for decision, nonetheless, in case of omission on its part litigant party 'was equally responsible to invite the attention, of Court for supplying such deficiency. Every material proposition affirmed by one party denied by the other to be put to issues so that the parties to lead evidence and to avoid prejudice being caused to either side due to absence of material issues. The mandate of Order XIV, rule 1, C.P.C. reveals that it is incumbent upon the Court to frame issues, in the light of the controversies raised in the pleadings of the parties. Issues of law and facts are to be illustrated clearly, to enable the parties to understand the point at issue to support their respective claims by relevant evidence on all material points. In the instant case, I find that the issues framed by the trial Court fully reflect the pleadings of the parties and no important issue appears to have escaped notice of the trial Court, causing prejudice E to the petitioners. The parties were fully alive to the controversy involved and sufficient material was brought on the file in support of their respective contentions. The object of framing issues is to ascertain real issue between the parties by narrowing down the area of conflict and determine between the parties where the parties differ coupled with the fact that the framing of issues is one of the most important stage of the F trial in view of Order XIV, rule 2, C.P.C. read with Order XX, rule 5 and Order XVIII, rule 1, C.P.C. The case-law cited on behalf of the petitioners is distinguishable and has no bearing on the controversy involved.

In view of what has gone above, it follows that the learned trial Judge as well as the learned Appellate Court have taken a rightful decision which is in consonance with the evidence on the file. No misreading or non-reading of evidence is proved and at the same time, the judgments of the Courts below are not shown to have been tainted with any illegality or irregularity in absence of which, no interference is permissible in revisional jurisdiction of this Court. There is no merit in this revision which is accordingly dismissed with no order as to costs.

H.B.T./587/P?????????????????????????????????????????????????????????????????????????????????????? Revision dismissed.

Suffice it to say that on the authority/power of this court to do complete justice and allowing additional evidence there cannot be any cudgel, however, such power should not be exercised as a matter of course to favour a delinquent litigant, rather in genuine cases and obviously those where the foundation of the plea is already there-

 2021 Law Notes 277

---Order XLI rule 27---The judgment reported as Muhammad Tariq and others vs. Mst. Shamsa Tanveer and others (PLD 2011 SC 151) relied upon by the learned counsel for the petitioners underlines the ratio reproduced as follows: “Suffice it to say that on the authority/power of this court to do complete justice and allowing additional evidence there cannot be any cudgel, however, such power should not be exercised as a matter of course to favour a delinquent litigant, rather in genuine cases and obviously those where the foundation of the plea is already there---But we are not convinced, if these precedents can provide any support to the petitioners in the instant case, because the principles laid therein are relevant to the facts of those cases and not to the one in hand, especially when at the very outset the noted plea was not a part of the defence; no effort at any stage was made to seek amendment of the written statement, rather to the contrary the issue of superior right of the respondent was conceded before the appellate Court and it was not agitated in revisional jurisdiction of the High Court---It may also be stated that additional evidence can only be allowed by the Court when it is in consonance with, and within the scope of the pleading of the parties and not otherwise, but as mentioned earlier the plea till date is not part of the defence of the petitioner in written statement”---Ratio of the judgment is that there is no absolute prohibition in granting permission for additional evidence but parameters have been enunciated in terms that there must be link and reference of that plea in the pleadings to vindicate/ substantiate thereof examining of missed documents is necessary.

Power of trial court to entertain and decide an interlocutory application filed by the plaintiff before deciding the petition for leave to appear and defend filed by a defendant in suit under Order XXXVII, CPC.

Insofar as the power of the trial court in the summary suit under Order XXXVII, CPC to summon any person for production of document is concerned, it is pertinent to note that for grant of leave to appear and defend the suit under Order XXXVII, CPC, the court is to satisfy itself that the defendant has taken defence to claim on merits raising triable issue indicating that he has fair, bona fide and reasonable defence and if the defendant has no defence or the defence is sham or illusory, the defendant is not entitled to such leave by the court. During this process, it is the satisfaction of the court which is important. In order to satisfy itself to the contents of leave to appear and defend, the court is required not to act in a mechanical manner. Instead the trial court has to apply its judicial mind to the contents of the application for leave to appear and defend. The trial court is not debarred to probe and conduct such an inquiry so as to satisfy itself as to the genuineness and plausibility of the defence of the defendant. For this purpose, as discussed hereinabove, the plaintiff in such suits is not debarred to move an application for summoning a document in custody of any person, which prima facie establishes before the court that the defence taken in the application for leave to appear in the summary suit is sham and illusory, which is precisely the case in the matter in hand.

Civil Revision=31217/21
Muhammad Javed Azmi Vs Javed Arshad etc Mr. Justice Anwaar Hussain
19-05-2021
2021 LHC 1101














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