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Civil Revision No. 599 of 1982, decided on 6th March, 1986.

--Ss. 107, 115 & 0. XLI, Rr. 24 & 25--Additional issues framed by Appellate Court--Remand of case to Trial Court--Evidence on record produced by parties before Trial Court was sufficient to decide appeal on merits by Appellate Court--No .evidence was required for deciding additional issues framed by Appellate Court--Appellate Court in circumstance could have decided matter finally instead of remanding case to trial Court--Remand order of Appellate Court, held, was wholly untenable--Appeal before first Appellate Court would stand revived to be decided on material on record.

Ch. Abdul Ghani for Petitioner.

Haji Mushtaq Ahmad Aqil for Respondent.

Date of hearing: 6th March, 1985.

Civil revision arises out of a civil suit instituted by Noor Din seeking specific performance of agreement to sell against Muhammad Shafqat in the Court of Civil Judge, Vehari. Suit was resisted. In written statement, allegation made in the plaint were denied. Following issues framed:-

(1) Whether the defendant agreed to sell the suit land to the plaintiff O. P. P.

(2) Whether the suit is not maintainable in its present form O.P.P.

(3) Whether this Court has no jurisdiction to try the suit O.P.P.

(4) Whether the suit is barred by principle of res judicata O.P.D.

(5) Whether the suit has not been properly valued for the purposes of Court fee O.P.D.

(6) Whether the suit is barred by time

(7) Whether the plaintiff is estopped by conduct to file the suit O. P. D.

(8) Relief.

In support of the aforenoted issues the parties were afforded opportunity to produce evidence and availing of this opportunity, they did produce evidence. Learned trial Judge vide his order, dated 7-11-1979, decreed the suit in favour of plaintiff Noor Din. Defendant, Muhammad Shafqat feeling dissatisfied with the correctness of the determination made by the trial Judge preferred an appeal in the Court of District Judge, Vehari, Civil Appeal was entrusted for decision to the file of Additional District Judge of the same District. Mr. Nazir Ahmad Ansari, Additional District Judge, Vehari vide order dated 17-11-1982 accepted the appeal and remanded the case to the trial Judge with direction to get its decision on the following three additional issues framed by him:-

(7-A) Whether the agreement to sell cannot be enforced in law O. P. D.

(7-B) Whether the plaintiff is entitled in law to seek specific performance of agreement to sell

(8-C) To what relief the plaintiff is entitled in case specific performance is not possible

After framing the aforesaid issues, learned Additional District Judge, in his order of remand, observed:-

"The trial Court shall listen to the parties and their counsel on these issues, decide and return the record to this Court together with the findings and reasons, by 10th December, 1982. It is believed that no evidence is required on these issues since matter of law is involved ...."

Remand order has been assailed in revisional jurisdiction by the plaintiff, Civil Revision was admitted to regular hearing on 4-12-1982, and has come up for hearing before me today in presence of learned counsel for the parties. Counsel have been heard and with their assistance, the available record has been examined.

2. Ch. Abdul Ghani, Advocate, learned coubsel for petitioner, has vehemently opposed the order of remand and contended that the evidence on record, was sufficient to decide the appeal on merits. Even in the words of learned Additional District Judge, no more evidence was needed. In this view of the matter, learned counsel submitted that the impugned order, runs contrary to the plain provisions of the Code of Civil Procedure regulating the remand of the cases. Mr. Mushtaq Ahmed Aqil, learned counsel appearing for the respondent, however, defended the impugned order and stated that the order was presumably passed under the provisions of Rule 25 of Order XLI of the Code. This fact, however, was conceded that no evidence at all was required for decision of these additional issues even if they are assumed to have been correctly framed.

3. I have given due consideration to the contentions raised at the Bar by the learned counsel. The order of remand is wholly untenable. Parties had gone to trial with eyes open and led the entire evidence they wanted to produce in support of the issues framed by the trial Judge. At no stage during the trial, the parties or, any one of them invited the attention of the Court that any additional issue was necessary' P for decision of the civil suit. In this behalf when the matter came to the Court of appeal, even if the Court felt that additional issues were necessary, as it has done when no evidence was required it could have decided the matter finally under section 107 of the Code of Civil Procedure read with Order XLI, Rule 24 of the Code. Superior Courts on more than one occasions, have cautioned against unnecessary remands, for the same involve the parties in unnecessary litigation besides burdening with heavy expenses. This course also involves wastage of public time. If the learned additional district judge had taken a little care, he would have found no difficulty in deciding the civil appeal one way or the other and two years time that has been consumed could have been avoided. In this view of the matter, the impugned order cannot be sustained and is set aside. Appeal, accordingly stands revived to be decided on the available material in accordance with law by learned Additional District judge, Vehari on its own merits. Parties are directed to appear before the learned additional District Judge on 10-3-1985. No order as to costs.

H.B.T Revision Allowed

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