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First Appeal Against the Original Order No. 171 of 1969, heard on 28th May, 1984.

---O.XLI, r.22--Punjab Pre-emption Act (I of 1913), S.16--Pre-emption suit--dismissal on ground of waiver--Issue relating to existence of Custom of pre-emption in concerned locality decided in favour of plaintiff--Issues regarding price etc. left undecided--Finding of waiver set aside and case remanded to trial Court for decision on other issues--Issue about existence of custom of pre-emption not discussed by appellate Court although finding of trial Court on same were objected to be vendees- Cross-objections not filed in appeal--Remand order challenged in appeal on ground that since vendees had questioned finding of trial Court on existence of custom it was obligatory for appellate Court to have attended to objection and decided the matter one way or the other before ordering remand--Held: Contention of respondent that vendees, notwithstanding their plea in trial Court, could not, in absence of cross-objections, raise the issue in appeal was not valid--Provisions of O.XLI,r. 22 C. p. C. do not operate as a general prohibition to object to a part of judgment without having preferred cross-objections--Respondent may support decree appealed from not only on grounds decided in his favour but also on grounds decided against him and for this purpose it was not necessary for :him to file cross-objections.

Qutub-ud-Din v. Muhammad Siddiq and others P L D 1969 Lah. 418; Mhand v. Mst.Amutal Hafeez P L D 1954 Lah. 278 and Itakoolie Tea Estate v. Its Workman A I R 1960 S C 1349 ref.

--O.XLI, r.24--Power of remand--Practice of unnecessary remands deprecated-- Sufficient evidence on record to decide issues framed by trial Court--Appellate Court remanding case without giving decision on material issue--Unnecessary remands by appellate Court, held, tended to defeat cause of justice instead of promoting it thereby causing loss of public time and money of litigant public--Power of remand though existing under law, held, should be very sparingly resorted to.

Sher Muhammad and another v. Jamadar Ghulam Ghaus 1983 SCMR 133 rel.

Rashid Malik for Appellants.

Muhammad Hussain Khan for Respondents.

Date of hearing: 28th May, 1984.

Suit for possession by pre-emption in respect of a. vacant plot of land measuring 11 Marlas described with boundaries in the plaint situated in Kunjah sold by Karam Elahi and Haji Muhammad Ramzan, through sale-deed, dated 29-12-1964 was filed by one Muhammad Khan against Ali Muhammad, Wali Muhammad and Ghulam Haider sons of Piran Ditta vendees in the Court of Civil Judge, Gujrat. Muhammad Din son of Fazal and Ramzan son of Allah Din subsequent vendees were also impleaded in the suit. Right of pre-emption was claimed under section 16 of Punjab Pre-emption Act, 1913 on the ground of contiguity of property sold. Vendees resisted the suit. Pleadings of the parties gave rise to the following issues:---

(1) Whether the plaintiff has a better right of pre-emotion O.P.P.

(2) Whether Rs.3,000 was paid or bona fide fixed O.P.D.

(3) What is the market value O.P. Parties.

(4) Whether plaintiff has waived his right of pre-emption O.P.D.

(5) What is the effect of resale in favour of defendants Nos.4 and 5 O.P.D.

(6) Whether suit is not properly valued for the purposes of court-fee and jurisdiction O.P.D.

(6-A) Whether there exists a custom of pre-emption in Kunjah town and the ward in question O.P.P.

(7) Relief.

After recording evidence of the parties and hearing them learned Civil Judge vide his judgment and decree, dated 31-3-1969 dismissed the suit. Issue No.1 relating to right of pre-emption was conceded by the defendants. Findings on issues Nos. 2, 3, 5 and 6 were not recorded by learned Civil Judge. Issue No. 4 was decided against the plaintiff while issue No.6-A was decided in favour of the plaintiff holding that custom for pre-emption existed in the town of Kunjah Aggrieved by the dismissal order plaintiff /pre-emptor filed an appeal in the Court of District Judge, Gujrat. Vide . judgment, dated 24-7-1969 learned Additional District Judge, Gujrat accepted appeal, set aside the judgment and decree of the trial Court and remanded suit to trial Judge for recording findings on the remaining issues and for disposal of the suit in accordance with law. Finding recorded on issue No.4 recorded by the trial Court was reversed and it was held that estoppel/waiver was not proved against the plaintiff. However issue No.6-A was neither discussed nor was any finding recorded thereon. Remand order has been assailed by Muhammad Din and Muhammad Ramzan subsequent vendees through-this appeal. Appellants died during the pendency of this appeal and their legal representatives have been substituted in their place.

2. I have heard learned counsel for the parties and examined the record. Learned counsel appearing for the appellants has contended that finding recorded on issue No.6-A whereby learned trial Court had found existence of custom proved in Kunjah was objected to by the vendees/respondents in appeal before learned appellate Judge. Separate appeal or cross-objections could not have been filed as the plaintiff's suit had been dismissed by the learned trial Judge. Though finding under issue No.6-A was recorded against the defendants, in an appeal preferred against judgment dismissing the plaintiff's suit, they could support the decision on an issue decided against them under Order XLI, rule 22, C.P.C. Learned counsel has contended that since the vendees/respondents had questioned the finding recorded under issue No.6-A it was obligatory for the learned appellate Court to have attended to this objection and decided the matter one way or the other before ordering remand. Order of remand without attending to finding on issue No.6-A, which was seriously objected to by the respondents before learned District Judge could not have been made. Remand order, therefore, it was contended is not sustainable in law under Order XLI, rules 23, 23-A, 24 and 25 of Code of Civil Procedure. Learned counsel appearing for the respondents however, has contended that in the absence of a cross-appeal or cross-objections by the defendants adverse finding recorded on issue No.6-A by the trial Court could not have been validly objected to by the respondent. It was an appeal filed by pre-emptor in which finding on issue No.4 alone was under question and the finding which went in favour of the plaintiff pre-emptor could not be touched unless the aggrieved party namely vendees had challenged it in cross-appeal or cross-objections. However, it was admitted by learned counsel for both the parties that evidence on record was sufficient to record a definite and satisfactory finding on issue No.6-A by learned appellate Court.

3. Finding on issue No.6-A was recorded in favour of the plaintiff but the suit was dismissed on account of waiver. In an appeal filed by pre-emptor assailing the finding of waiver alone vendees against whom the suit had been dismissed, under Order XLI, rule 22, C.P.C. could support the decision of the trial Court on any issue decided against them in the absence of separate appeal or cross-objections. Right of appeal was not available to the vendees to assail an adverse finding on one issue when the judgment was substantially in their favour. It has been observed by this Court in the case of Qutub-ud-Din v . Muhammad Siddiq and others P L D 1969 Lah. 418 that:----

"Rule 22 of the O.XLI, C.P.C. for the material purpose reads: "

(1) Any respondent, though tie may not have appealed from any part of the decree, may riot only support the decree on any of the ground decided against him in the Court below, but take any cross-objection to the decree which lie could have taken by way of appeal, provided he has filed such objection in the appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further tune as the appellate Court may see fit to allow...

On a plain reading of the above provision, it becomes abundantly clear that it is wrong to read into this rule a general prohibition against the respondent to object to a part of the judgment of the lower Court, unless he has preferred cross-objection as prescribed in the later part of the above rule. The rule makes two distinct provisions. This becomes clear, if we omit the parenthetical words "not only". Firstly, the rule in its opening part makes it permissible to a respondent to support the decree even on the ground decided against him by the Court below. This part of the rule is in unqualified terms and will, therefore, avail to the respondent in every case in which the decree is wholly in his favour. It is obvious that an appeal can be preferred only by a party to a suit adversely affected by the decree. If the suit was wholly dismissed against a defendant, there hardly remains any occasion for him to prefer appeal even if some of the issues are decided against him. So, also about the plaintiff whose suit has been decreed in its entirety.

The second part of the rule which provides for the filing of cross-objection begins with the conjunction "but" which because of the parenthesis "not only" in earlier part of the rules, must be read in the sense of "and". This part of the rule contemplates taking of "cross-objection to the decree (which) .could have been taken by way of appeal "Thus, taking of cross-objection co-related with the competency of appeal by the respondent. In other words, unless remedy by way of appeal is available to a respondent he need not file cross objection to agitate against the point decided against him by the lower Court. This will happen in a case, where a suit is wholly dismissed against or decreed in favour of a respondent, as in this case, or wholly decreed in favour of the plaintiff, as the case may be, and therefore, he could not possibly file appeal against any issue decided against him by the lower Court.

There is abundant authority in support of the view that a respondent may support the decree appealed from, not only on the grounds decided in his favour but also on other grounds decided against him and for this purpose it is not necessary for him to file any cross objection. See, for instance, Henry Stampley Ramster v. S.M.Fazail & Co. P L D 1964 Kar. 290. That was a suit for the recovery of damages in the sum of Rs.4,029/6/4 arising out of breach of contract and assessed on the basis of difference between the contract price and the market price prevailing on the date of the breach, of the contract. The suit was tried by a learned Single Judge of the Karachi Bench on the original side who found that the defendant-firm, though in breach of the contract and, therefore, liable to pay damages to the plaintiffs, but nevertheless dismissed the suit on the ground that there was no proof for the damages suffered by the plaintiffs in consequence of the breach of contract by the defendant-firm, On appeal to a Division Bench, after examination of Additional evidence on the question of damages, the judgment of the learned Single Judge was reversed and the plaintiff's suit was decreed. Learned counsel for the defendant-firm in that case addressed the Division Bench upon all the defences urged before the learned trial Judge besides the question of damages although no cross-objection was filed on behalf of the defendant-firm against any of the issues found by the learned trial Judge against the firm. It was obvious that suit having been dismissed by the learned trial Judge as a whole against the defendant-firm. It could not have possibly filed appeal against the decree in its favour. This authority, in my opinion, clearly covers the instant case. The question also came up for consideration before a Full Bench of the Lahore High Court in Mhand v.Mst.Amutal Hafeez PLD 1954 Lah.278,: in which it was held that it is open to a plaintiff who has neither appealed from the decree of the trial Judge nor has taken any cross-objection to a partial decree as against him to urge in opposition to the appeal of the defendant a contention which, if accepted, by the trial Court would have necessitated a total decree in the suit. The main judgment was delivered by Kaikaus, J. The matter was, however, succinctly stated in the concurring judgment of Rahman, J. (as he then was) in the following words:-----

" ..It is obvious that the construction of Order XLI, rule 22, C.P.C. should be such as would cover the ease of a full decree as well as of a partial decree. In terms, this rule applies to first appeal but by virtue of Order XLII, rule 1, C.P.C., the same provision would govern second appeals so far as may be. The right of the respondent to agitate a ground decided against him by the Court or Courts below, under this rule, is subject only to the qualification that the ground would be available to 'support the decree' i.e. only as a weapon of defence and not to offence, in order to maintain the status quo ante. To use a familiar expression, it can be used as a shield and not as a sword so that the burden of liability on the respondent, is not increased beyond what is imposed by the lower Court decree "

The same view was taken recently in the Indian Jurisdiction in the Management of Itakhoolie Tea Estate V. Its Workman A I R 1960 SC 1349.

"I, therefore, overrule the preliminary objection raised by Rufiq Ahmad the learned counsel for the appellant and hold that it is permissible to the respondents to support the judgment and decree of the lower appellate Court even on issue No.1, relating to the want of jurisdiction of civil Court even though decided against the respondents".

4. In view of the above, the contentions raised by learned counsel for the respondent, Muhammad Khan loses force as it has open to the vendees to question the finding recorded against them under issue No.6-A. Learned Additional District Judge, therefore, was bound to attend to the finding recorded under issue No.6-A when the same was objected to by the respondent in appeal before him. The case could not have been remanded without decision of issue No.6-A. Both the learned counsel have admitted that evidence on all the issues have been recorded by the trial Court and in view of sufficiency of evidence on the issues framed by the trial Court, learned Additional District Judge should have decided the entire matter instead of remanding it to the trial Judge. This course was permissible under Order XLI, rule 24, C. P. C. Unnecessary remands by the appellate Courts instead promoting cause of justice tend to defeat it, which involve loss of valuable public time and hard-earned money of litigant public. When evidence was there on which appeal could have been finally decided and findings recorded even on those issues which were left undetermined by the trial court, learned Additional District Judge should have decided the entire matter instead of making a remand order. Power of remand though existing under law should be very sparingly resorted to, Reliance is placed upon the case of Sher Muhammad and another v. Jamadar, Ghulam Ghaus 1983 S C M R 133.

5. In view of the above appeal is accepted remand order passed by the learned Additional District Judge is set aside and the case is remitted to learned District Judge, Gujrat for decision afresh on all the issues. Parties are left to bear their own costs.

6. Since the case is very old it is entitled to preference. Learned District Judge is, therefore, directed to decide the appeal preferably within four months from the receipt of record.

7. Office is directed to send the records to District Judge, Gujrat immediately for further proceedings.

M. B. A. Case remanded.

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