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Civil Revision No-1425 of 1978, decided on 7th July 1979.

-- Ss. 115 & 151-Remand (civil)--Powers of revisional Court Lo pass any appropriate order-Not uttered. -Court feeling circumstances of case calling for order of remand-Could competently make such order-Provisions of S. 151-Also available to revisional Court (or ' making order of remand -[Mir Muhammad Khan v. Syed Abdul Shakoor and others P L D 1962 Pesh. 28 and Mesirs Ghanisons Industries Ltd., Karachi v. Mirza Akhlaque Ahmad P L D 1974 Kar. 339 held not applicable.-[Remand of case-Revision (civil).

Mir Muhammad Khan v. Syed Abdul Shakour and others P L D 1962 Pesh. 28 and Messrs Ghanisons Industries Ltd. Karachi v. .Mica Akhlaque Ahmad P L D 1974 Kar. 339 held not applicable.

Mehr Allah Ditta and another v. Muhammad Ali and another P L D 1972 S C 59; Aziz khan v. Haider Khan 1978 S C M R 168; Khalil Ahmad Khan v. Sultan Ahmad Shami and another P L D 1978 Lah. 779 and Ghulam Din v. Lal Khan and others P L D 1965 Pesh. 127 rel. .

Ss. 115 & 151-Remand (civil)-Lower Appellate Court not deciding application for production of additional evidence but relying on docu ments sought to be produced- Application having been made for production of additional evidence but relying in documents sought to be produced-Application having been made for production of additional evidence right vested in applicant to have a decision on his application one way or other Lower appellate court alone having erred in not disposing of application blame could not be put forth on applicant Case held deserved to be remanded for proper disposal of application and fresh decision of appeal [Remand of case].

Messrs Sh. Muhammad Ikhlas and others v. Muhammad Ismail P L D 1963 S C 466: Mehr Allah Ditta and another v. Muhammad Ali and another P L D 1972 S C 59: Messrs Muhammad Siddiq Muhammad Umar and another v. The Australasia Nnd Ltd. P L D 1966 S C 684 and Manmaohjan Das and others v. Mt. Ramdei anmd another A I R 1931 P C 175 ref.

Mian Sher Alam for Appellant.

Fayyaz Ahmad for Respondent.

Date of hearing : 20^th May 1979

This civil revision has arisen out of a suit for possession of a piece of land by pre-emption.

2. The suit was brought by the respondent Bhuley Khan against the petitioner Muhammad Hussain alleging that he (respondent) was a collateral of the vendors namely Noota Fazal and Muhammad Din and was also a co-sharer in the Khatas in which the land was situate but the petitioner did not possess any of these qualification. The suit was therefore dismissed by the learned civil Judge. The respondent filed an appeal against the judgment and decree of the trial court. It was heard by Kazi Muhammad Hussain Additional District Judge Gujrat. The respondent also made an application to the learned Additional District Judge for permission to produce certain documents as additional evidence. Although the learned Additional District Judge did not decide the application yet he took the said documents into consideration for the purpose of deciding the appeal and held that the respondent had a superior right of pro-emption. Resultantly he accepted the appeal and decreed the suit on payment of Rs. 8000.

3. Feeling aggrieved by the judgment and decree of the learned appellate Court, the petitioner has come up in revision to this Court.

4. Learned counsel for the petitioner contended that the learned appellate Court committed an illegality while relying on the documents in question Inasmuchas-

(i) no formal order for recording of additional evidence was passed;

(ii) the points on which evidence was entertained were not satisfied;

(iii) no reason was given for receiving the additional evidence;

(iv) the additional evidence was received in disregard of the provision of Order XLI, rule 27 of the Code of Civil Procedure; and

(v) the petitioner was not allowed an opportunity to rebut the additional evidence.

Learned counsel for the petitioner relied on- Messrs Slr. Muhammad Ahlas and others v. Muhammad Ismaii (P L D 1963 S C 466), Mehr Allah Ditta arid another Muhammad Ali and another (P L D 1972 S C 59), Messrs Muhammad Siddiq Muhammad Unrar wal another v. The Australasia Bank Ltd. (P L D 1966 S C 684) and Manmohan Das and others . Ramdef and another (A I R 1931 P C 175), to support his arguments.

5. It was also submitted by the learned counsel for the petitioner that if the additional evidence was not taken into consideration, the evidence produced before the trial Court would not justify the conclusion that the respondent was a collateral of the vendors and had, therefore right of pre emption against the petitioner.

6. It was conceded by the learned counsel for the respondent that the learned Additional District Judge relied on the document in question without passing a formal order permitting the respondent to produce them as additional evidence or giving any reason for so doing. He also could not defend the action of the learned Additional District Judge in not allowing the petitioner to produce evidence in rebuttal of the said documents. Thus, he, virtually, agreed with the learned counsel for the petitioner that the learned Additional District Judge had erred in law in taking into consideration the disputed documents. In view of the aforesaid shortcomings on the part of the appellate Court, it was however, suggested by the learned counsel for the respondent that the case may be remanded to the said Court with the direction that it should allow an opportunity to the petitioner to lead evidence in rebuttal of the documents in question and then decide the appeal afresh. According to the learned counsel for the respondent, this Court is competent to make an order of remand while exercising its revisional jurisdiction. The authorities cited by him in support of his proposal for the remand of the case are Mehr Allah Dina and another v. Muhammad Ali and another (P L D1972 S C 59), Aziz Khan v. Haider Khan (1978 S C M R 168), Khalil Ahmad Khan v. Sultan Ahmad Shami and another (P L D 1978 Lah. 799) and Ghulam Din v. Lal Khan and others (P L D 1965 Pesh. 127 ').

7. While dealing with the plea of the learned counsel for the respondent that the case may be remanded to the learned Additional District Judge, learned counsel for the petitioner urged that this Court could not, in exercise of its revisional jurisdiction, remand the case as proposed by the learned counsel for the respondent. He was of the view that it is only an appellate Court which can remand the case. and that too for one of the reasons enumerated in rules 23 and 25 of Order XLI of tae Code of Civil Procedure. He relied on Mir Muhammad Khan v. Syed Abdul Shakoor rend others (P L D 1 .462 Pesh. 28) and Messrs Ghanisnns Industries Ltd., Karachi v. Mirza Akhlague Ahmad (P L D 1 .462 Pesh. 28) to support his contention.

8. Before deciding the question as to whether it is a fit case for remand 1 would like to resolve the controversy relating to the competency of the revisional Court to remand a case to a subordinate Court. As indicated earlier learned counsel for the petitioner relied on the cases of Messrs Ghani sons Ltd., Karachi and Mehr Muhammad Khan to contend that the revisional Court cannot make the order of remand. These cases, however, do not advance his plea. In the case of Messrs Ghanisons Industries Ltd. it was not ruled that a revisional Court cannot remand the case. What was, in fact, held in that case was that there was no provision in the Code of Civil Procedure for restoration of a revision petition which is dismissed in default. Similarly, it. the case of Mehr Muhammad Khan no indication was given in regard to the incompetence of a revisianal Court to make an order of remand. The view expressed therein was that if an appellate Court feels that recording of additional evidence is necessary it should, without remanding the case for de novo trial, either record the evidence itself yr have it recorded by a Subordinate Court and then decide the appeal before it. Thus, the authorities cited by the learned counsel for the petitioner do not support the proposition put forth by him.

9. The provision of section 115 of the Code of Civil Procedure authorise the revisional Court of make such order in the case as it thinks fit". Thus, there is no matter on the powers of the revisional Court to pass any appropriate order; and if the Court feels that the circumstances of any case call for an order of remand, it will be competent to make such an order. To hold otherwise dill amount to reading something in section 115 which has not actually been enacted by the Legislature Besides section 115 of the Code of Civil Procedure, the. provisions of section 151 thereof are also available to the revisional Court for making an order of remand.

10. The view taken by me just above is supported by the case of Aziz Khan relied upon by the learned counsel for the respondent. In that case, while accepting a revision petition, the High Court remanded the case for fresh trial as the evidence on the record was "extremely sketchy and not sufficient for arriving at any positive finding'". This order of the High, Court was challenged before the Supreme Court but their Lordships of' the Supreme Court observed that the order made by the High Court was "eminently just and proper". The case of Mehr Allah Dirla also, in a way, supports the plea advanced by the learned counsel for the respondent. In that case, the appellate Court entertained additional evidence to disregard of the relevant provisions of law. When the matter went before the Supreme Court, the learned counsel for the party who had produced the said evidence prayed that the case may be remanded to the appellate Court (Additional District Judge) for the purpose of redeciding the question of allowing additional evidence. On this their Lordships' of the Supreme Court observed :-

"It is, therefore, quite clear that the jamabandi of 1953-54 was illegally relied upon by the Additional District Judge. Malik Shaukat Ali, learned counsel for the respondents has referred to a decision in the case of Sathuluru Seelharamanujacharyulu v. Narra Venkatasubbamma and another and has contended that in such circumstances in the interest of justice the case may be remanded to the Additional District Judge to consider the question whether the Janiabandi of 1953-54 should be admitted as additional evidence under Order XLI, rule 27, C. P. C. The contention of the learned counsel is not well founded. It is too late in the day to ask this Court to remand this case back to the Additional District Judge for considering the above mentioned question. If any such request was necessary it should have been made in the High Court. I am not inclined to remand this case for this purpose to the Additional District Judge."

These observations of their Lordships' clearly imply that if the request for remand had been made before the High Court, that could possibly be acceded to by the High Court. In the case of Khalil Ahmad Khan the trial Court allowed the defendant to produce additional evidence but did not permit the plaintiff to lead evidence in rebuttal. When the case came up before this Court. it was remanded to the trial Court with the direction that the plaintiff shall be "allowed to lead rebuttal evidence'". In Ghulam Din's case while disposing of a revision petition, the High Court of Peshawar remanded the case to the trial Court, under section 151 of the Code of Civil Procedure for rehearing.

11. 1 am, therefore, of the considered opinion that the revisional Court has the jurisdiction to make an order of remand.

12. Now, I proceed to determine if in the-circumstances of the present case it should be remanded to the Appellate Court; and if so, for what purpose Learned counsel for the petitioner had no objection to the case being remanded to the learned Additional District Judge with the direction that he shall decide the appeal again by excluding from consideration the documents in question. As against this, learned counsel for the respondent maintained that since the learned Additional District Judge had disposed of the appeal without deciding the respondent's application for permission to produce additional evidence, the case may be remanded to the learned Additional District Judge, for proper disposal of the application and fresh decision of the appeal in the light 6f the order to be made by him on the application.

13. What the learned appellate Court actually did in the instant case was that when the application for production of additional evidence was made by the respondent on 16th May 1977, it was noted by the official concerned. Manzoor Ahmad that it shall come before the District Judge, Gujrat, on 17th May 1977. On that date, the learned District Judge made an order regarding the admission of the appeal to a regular hearing and the stay of the execution proceedings but did not advert to the application for additional evidence. It was on 19th October 1977, that he directed the petitioner to file reply to the said application on 27th November 1977. On that date, the reply was filed and the application was adjourned to 29th January 1978, for arguments :hereon. On the last mentioned date, the case was transferred to Mr. Muhammad Hussain Kazi, Additional District Judge, Gujrat. The learned Additional District Judge did not make any order on the application and accepted the appeal on the 18th November 1978, by means of the impugned judgment and decree. In that judgment he took into account the documents which were appended to the said application and were desired to be produced by the respondent by way of additional guidance. It is, therefore, evident that the learned Additional District Judge did not decide the application for additional evidence before disposing of the appeal but relied on the documents which, though sought to be produced by the respondent were not actually allowed to be produced o formerly produced by him. Since the respondent had made the application for additional evidence it was his right to have a decision thereon, one way' or the other. If the learned Additional District Judge failed to dispose of the application, it is he who is to blame and not the respondent. The case. therefore, deserves to be remanded for proper disposal of the application and: fresh decision of the appeal.

14. In this view of the mater, I accept this revision, set aside the judgment and decree assess herein and remand the case to the learned Additional District Judge with the direction that he shall first of all decide the respondent's application for additional evidence. If he allow, the respondent to produce additional evidence also receives the same, he shall afford a reasonable opportunity to the petitioner to adduce evidence in rebuttal thereof. He shall then decide the appeal afresh in the light of the evidence produced before him and the trial Court. If, however, he does not allow the respondent to lead additional evidence, he shall re-decide the appeal on the basis of evidence received by the trial Court without reference to the evidence sought to be produced by the respondent as additional evidence. There shall be no order as to costs.

S. A. H. Petition allowed. Cast remanded.

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