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First Appeal from Original Order No. 145 of 1982, decided on 24th January, 1983.

----O. XLI, r. 23‑A read with Ss. 105 & 151‑Remand of case- District Judge remanding case for re‑writing judgment on all. issues notwithstanding fact that a separate finding recorded against certain issues‑District Judge, held, acted in material irregularity- Such order, heldfurther, has effect of setting aside finding on said issues without assigning any reasons‑Conversion of appeal into revision ordered.‑[Revision (civil)].

Mst. Nooran and others v. Shah Muhammad alias Shahu P L D 1968 Lah. 433 ref.

O. XLI, r. 3.3‑Passing of decree‑‑Appellate Court has full powers to pass any decree or order on basis of record available which trial Court ought to have passed.

Ch. Muhammad Arif for Appellant.

Syed Munir Hussain for Respondent.

Date of hearing : 24th January, 1983.

This first appeal arises out of the judgment, dated 20th April, 1982 of the learned Additional District Judge‑V, Sahiwal.

2. The facts relevant for the disposal of this appeal are that the appellants/plaintiffs instituted a suit for declaration against the respon dents) defendants to the effect that they were the owners in .possession of the suit land on account of adverse possession with consequential relief by way of permanent injunction, restraining the respondents/defendants from interfering with the possession of the appellants/plaintiffs. The suit was resisted by the respondents/defendants. In view of the pleadings of the parties, the following issues were framed by the trial Court :‑

(1) Whether this Court lacks jurisdiction to try the suit O. P. D.

(2) Whether the suit is barred by the principle of res judicata in view of the order, dated 1st February, 1973 by the Custodian of Evacuee Property 7 O. P. D.

(3) Whether the suit is not maintainable.

(4) Whether the plaintiffs are owners in possession of the suit pro perty O. P. D.

(5) Relief.

It is not disputed by the learned counsel for the parties that prelimi nary issue No. 1 was decided by the trial Court, on 15th July, 1975 where in it was held that the trial Court had the jurisdiction to try the suit. A revision petition was filed against the aforesaid order which was dismissed. Thereafter, after appreciating the evidence adduced by the parties and hearing the arguments of their learned counsel, the trial Court, vide judgment and decree, dated 10th February, 1980 decreed the suit of the appellants/plaintiffs. All the issues were decided in favour of the appellants. Issues Nos. 2 and 3 relating to res judicata and maintainability of the suit were decided in favour of the appellants and a joint finding was given on these issues by the learned trial Court instead of dealing it separately. Issue No. 4 to the effect that the plaintiffs are owners in possession of the suit land was also decided in favour of the appellants/plaintiffs. On appeal, the learned Additional District Judge‑V, Sabiwal, remanded the case on the ground that joint finding instead of separate was recorded against issues Nos. 2 and 3 and, therefore, the trial Court acted with material irregularity and illegality by contravening the provisions of Order XX, rule 5, C.P.C. Notwithstanding this observation, the findings on other issues separately dealt with were also set aside, and the case was remanded to the trial Court with the direction to re‑write the judgment after giving its finding on each issue in accordance with law.

3. Learned counsel for .the appellant vehemently argued that the impugned order of the learned Additional District Judge is wholly without jurisdiction, in that, assuming but not conceding that joint finding on issues Nos. 2 and 3 was irregular, there was no justification to remand the case for re‑writing the judgment against other issues which were separately dealt with. Learned counsel further argued that the technical violation, if any, of the provisions of Order V, rule 20, C.P.C. stood cured by virtue of section 99, C. P. C. which provides that a decision which is correct on merits and within the jurisdiction of the trial Court should not be upset by the appellate Court merely on the ground of technicalities. The precise submission is that the issues relating to res judicata and maintainability are inter‑linked and, therefore, the mere fact that both these issues were decided together and not separately was an immaterial defect within the ambit of the aforesaid provisions of law. Finally, it is contended that in view of the consistent practice of the superior Courts, the appellate Court ought not to have lightly remanded the case in the facts and circumstances of the present case, in that, there was sufficient evidence on record for the appellate Court to decide the controversial issue itself.

4. Syed Munir Hussain Shah, learned counsel for the respondents, submitted that the appeal is not maintainable because the impugned order passed by the appellate Court is neither under Order XL1, rule 23 nor is covered by rule 23‑A as incorporated by the Lahore High Court Amend ment, 1938, but is an order passed by the appellate Court in the exercise of its inherent powers. Learned counsel‑for the respondents further sub mits that assuming that the impugned order/judgment was passed under rule 23‑A of Order XLI, the same is not open to appeal, in that, in terms of Order XLIII, rule (1) (u), an order under rule 23 of Order XLI remand ing a case alone is appealable and not an order passed under rule 23‑A, ibid.

5. Ch. Muhammad Arif, learned counsel for the appellants,, placed reliance in rebuttal on the dictum laid down in Mst. Nooran and hers v. Shah Muhammad alias Shahu (P L. D 1968 Lah. 433) that "if an order of remand is not made in an appeal under Order XLI, rule 23‑A read with section 105 (1) (2) and section 151, C. P. C., and an appeal is not preferred. against the order, it becomes final and conclusive and is ‑not impeachable in any further proceedings." He respectfully submitted that an inference could possibly be drawn from the aforesaid dictum that an order of remand passed under rule 23‑A is appealable. The precedent case is not a direct authority do the scope of Order XLIII, rule (1) (u), C.P.C. Be that as it may, this question, of law shall be dealt with in some appropriate proceedings. In the' instant case, I have come to the conclusion that the learned Additional District Judge has acted with material irregularity in remanding the case for re‑writing the judgment on all the issues notwithstanding the, fact that a separate finding was recorded against issues Nos. 1 to 4. The impugned order. has the effect of setting aside the finding on the said issues as well without assigning any reason whatsoever. It is, therefore, difficult to uphold the impugned order. This being so, even if the present appeal is not competent, it would be appropriate in the interest of justice to allow the conversion of appeal into revision petition and even. in the exercise of suo motu revisional powers, it is a fit case for interference. When faced with this situation, learned counsel for the respondents vehemently argued that the learned Additional District Judge has remanded the case not only on account of failure to give separate finding on each issue but because in his view the entire judgment was faulty for various reasons assigned in the impugned judgment, I am afraid, the plea advanced by the learned counsel for the respondents is not sustainable, in that, a bare perusal of the operative part of the judgment contained in para. 4, ibid would show that the only reason for remanding the case was that no specific finding was given on issues Nos. 2 and 3 separately. 1n terms of Order XLI rule 33, C.P.C., the appellate Court has full power to do complete justice and can pass on the basis of material available on record any decree o order which the trial Court ought to have passed. The appellate Court has not acted in accordance with sound judicial principles in remanding the case for mere technical irregularity of procedural nature.;

6. In view of the above, the impugned order, dated 20th April, 1982 of the learned Additional District Judge. Sahiwal, is hereby set aside. The result is that the appeal preferred by the respondent's is deemed to be pending and the same shall be disposed of on merits and in accordance with law either by the learned District Judge, Okara, personally or any other Additional District Judge to whom the appeal may be entrusted.

7. The parties are directed to appear before ‑ the learned District Judge, Okara, on 23rd February, 1983 for further proceedings before which date the record must be sent back to the appellate Court. The appellate Court shall also issue notices to the parties for said date and decide the matter as expeditiously as possible.

8. 1n the circumstances of the case, there shall be no order as to costs.

H. Y. M. Appeal allowed.

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