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Civil Revision No.1868-D of 1983 and Civil Miscellaneous No.6241-C of 1983, decided on 24th December, 1983.

---S.115 and O.XLI,r.23-A--Remand of case by Appellate Court--Exercise of revisional powers--Omissions of trial Court--Issues framed by trial Court not reflecting true contention contained in pleadings--Failure to examine plaintiff a lady and her husband who allegedly entered into agreement to sell--Failure of trial Court to determine valuation for court-fee and jurisdiction--Effect--Trial Court's judgment found to be slipshod--Appellate Court's order to remand case, held, was justified- Exercise of revisional powers refused in circumstances.

This Civil Revision is directed against an order of remand, dated 15-10-1983 of Malik Abdul Majid Tiwana, District Judge, Toba Tek Singh.

2. It was a simple suit brought by petitioner Mst. Zahida Perveen for recovery of possession on the basis of title. She alleged that she ordinarily resided at Faisalabad and due to her absence, the defendants/ respondents trespassed into her plot by raising construction.

3. The defendants/ respondents contested the suit claiming that they had purchased the plot from the plaintiff /petitioner's husband acting as her attorney by means of an agreement, dated 20-6-1974 against a cash payment of Rs.1,000; that they raised construction without any objection on behalf of the plaintiff /petitioner and that because of escalation in prices she had gone back upon her commitment to execute a sale-deed. They raised a number of other objections in regard to limitation, want of cause of action, estoppel, deficiency in court-fee and claimed compensation for the improvements effected on the site.

4. The learned Civil Judge framed seven issues but none of them included if the plot had been purchased by the defendants/ respondents as bona fide purchasers for value or that the petitioner's husband was in fact appointed by her as her attorney to transact the sale.

5. In the course of evidence, too, neither the petitioner-lady herself appeared nor was her husband examined. Nonetheless the trial Court decreed the suit.

6. The learned District Judge in his detailed discussions noted that certain issues were not framed and he adding the same remanded the case for a fresh decision after examining the plaintiff/petitioner and her husband. Of course, he also directed to implead Suleman and Boots, appoint a local Commissioner to determine the valuation for purposes of court-fee and jurisdiction and try issues Nos. 5-A and 5-B in regard to the mala fides of the suit and the title of the plaintiff/ petitioner.

7. I do not think the learned District Judge was wrong in passing the impugned order of remand. The issues framed by the trial Court did not reflect the true contentions as contained in the pleadings. Failure to examine the plaintiff /petitioner as also her husband who allegedly entered into an agreement to sell, was quite material. It was a question of fact in regard to which their testimony seems essential. Equally, failure on the part of the Court of first instance to determine valuation for court-fee and jurisdiction was quite serious. It involved, besides, the question of payment of compensation for improvements. Leaving out all these matters on the part of the trial Court really showed that its judgment was slipshod. The learned District Judge was right in pointing out these omissions. Order XLI, rule 23-A, C.P.C. allowed it.

8. No case for interference in the revisional exercise of powers is made out. The revision petition is accordingly dismissed in limine.

H.B.T. Petition dismissed.

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