Law: Civil Procedure Code (V of 1908)

Section: 12 ,2

Civil Procedure Code (V of 1908)--- ----O.XLI, Rr. 12 & 2---Specific Relief Act (I of 1877), S.12---Suit for specific performance of contract and rendition of accounts---As many as six issues were framed in suit including issue `whether suit was not maintainable under law'--- Trial Court after recording evidence of parties and hearing them granted preliminary decree to plaintiff for rendition of accounts---Defendant challenged findings of Trial Court in appeal and Appellate Court dismissed suit after recording findings on sole issue that suit was not maintainable under law,  but  did  not  record  any  finding  on  other issues---Defendant had challenged findings of Trial Court on other issues except issue with regard to non maintainability of suit in his memorandum of appeal, but Appellate Court below took up issue of non-maintainability of suit on his own accord and proceeded to decide case against plaintiff and in favour of defendant/appellant---In memorandum of appeal findings of Trial Court on issue of non-maintainability having not been challenged, same could not be agitated before Appellate Court---Judgment and decree of Appellate Court below were set aside and case remanded for decision afresh in accordance with w. Jahangir Ash1af Vaince for Petitioner. Muhammad Suleman Qureshi for Respondent. Date of hearing: 31st January, 1993. JUDGMENT This civil revision is directed against the judgment and decree, dated 8-4-1991, by which the learned Additional District Judge, Lahore, accepting the appeal of defendant-respondent, set aside the judgment and preliminary decree, dated 16-12-1989, of the trial Court and dismissed the suit of the plaintiff-petitioner for the specific. performance and rendition of accounts. '2. As per averments in the plaint, the defendant-respondent had employed the plaintiff-petitioner as contractor for the construction of the second storey of his house at the rate of Rs.120 per square feet inclusive of material and the latter during the course of construction had received Rs.1,21,000 from the former in that connection. However, on the completion of the contract, the…