ASIF ALI vs Mst — 2024 PLD 108 KARACHI-HIGH-COURT-SINDH

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ASIF ALI VS Mst. ZOHRA Ss. 42, 39, 12 & 8---Issue framed by Trial Court---Scope---Consequential relief by way of possession not claimed---Suit for declaration, specific performance, possession, mesne profit, compensation was filed which was decreed by the Trial Court and the decree was maintained by the First Appellate Court---Scope---Record showed that while framing the issues, the pleadings of the parties were considered and perhaps the Trial Court was then of the view that the plaintiff was also entitled for the relief of possession of the suit property and consequently, such issue was framed---Before the trial Court, the appellants never objected to the framing of such issues and consequently, the evidence was recorded on these framed issues---Suit of the respondent was then decreed not as prayed but in the terms as incorporated in the decree dated 22.4.2019---In terms of clause (iii) of the decree, the appellants were directed to hand over vacant physical possession of the property to the plaintiff within a period of two months since sale deed had already been executed---Appellants did not challenge the wisdom of the Trial Court which framed the issue of handing over possession---None of the grounds was raised in that regard by the appellants before the First Appellate Court that such issue should not have been framed, hence, it was neither challenged before the Trial Court nor before the First Appellate Court that the issue of possession was unnecessarily framed---Same was not challenged by the appellants in present appeal and only oral submissions were made to that extent that since it was a legal issue, he might be permitted to argue--- Relief was not only the one which was raised in the prayer clauses but at times relief that flowed from the pleading of the parties might also be taken into consideration in order to discharge complete justice---In substance as the title of the suit suggested, it was for performance of the agreement and if it was a necessity that possession was supposed to be handed over in performance of the agreement, then the two Courts below had applied their judicious minds and discharged complete justice---Since cognizance was taken by the Trial Court at the relevant time and issue was framed therefore, the concurrent findings of two Courts below on facts and procedural law could not be disturbed---Appeal was accordingly dismissed.

ASIF ALI vs Mst — 2024 PLD 108 KARACHI-HIGH-COURT-SINDH

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