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First Appeal from Original Order No. 51 of 1982, decided on 5th November, 1985.

---0. XLI, R. 25--Remand of suit--Appellate Court below on one hand decreed suit and simultaneously remanded suit for decision on certain issues without applying course laid down for order of remand under O.XLI, R. 25, Civil Procedure Code, 1908--Contradictory remand order, wrong in form and unjustified in substance, was set aside with observation that superior Court would deprecate unnecessary remands resulting in prolonging litigation and wastage of valuable public time and money.

P L D 1979 S C 821 rel.

---0. XLIII, R. 1(u)--Appeal from remand order--Remand order by First Appellate Court being contradictory in nature and against requirements of O.XL1, R. 25, C.P.C. was set aside by High Court in exercise of appellate jurisdiction with direction that appeal be heard by First Appellate Court on merits.

Haji Mushtaq Ahmad Aqi1 for Appellants,

Nemo for Respondents.

Date of hearing: 5th November, 1985.

This appeal by the defendants is against order of remand, dated 12-1-1982 of learned Additional District Judge I, Muzaffargrah passed in Civil Appeal No. 93/13 of 1981 and has arisen from the following facts:

Defendants purchased suit property measuring 5.K.-6.M. situated in Revenue Estate Bait Nabi Shah, Tehsil Alipur from its previous owner, for sale price of Rs.16,000, vide sale-deed registered on 11-5-1976. Rasul Bakhsh and two others pre-empted the sale and brought a civil suit on 10-5-1977 against the vendees in the Court of Civil Judge, Alipur. In defence, it was pleaded that requisite amount of court-fee had not been paid within the period of limitation and the suit, therefore, was barred by time, that the plaintiffs had associated in the bargain of sale and had waived their right of pre-emption. On merits, it was pleaded that the suit property was purchased for Rs.16,000. In replication, the points taken in the plaint were reiterated.

On the pleadings of the parties the Court framed following issues:

(1) Whether the suit was not properly valued at the time of its institution and has been rendered barred by time O.P.D.

(2) Whether the plaintiffs have waived their rights O.P.D.

(3) Whether the plaintiffs have superior right of pre-emption O.P.D.

(4) Whether a sum of Rs.16,000 was bona fide, fixed or actually paid as the sale price for the suit land O.P.D.

(5) What was the market value of the suit land at the time of its sale O.P. Parties.

(6) Relief.

The Court, after the issues had been settled, postponed the suit for parties evidence and also appointed a Local Commissioner to determine the market value of the suit property. Both the parties led evidence in support of the issue framed. Report of the Local Commissioner was received on 10-4-1978. Defendants filed objections and questioned the correctness of the report. On 20-9-1978, Court framed the following additional issue. It reads:-

(1) Whether report of Commission is liable to be set aside O.P.D.

2. Learned Judge of the trial Court dismissed the suit on 2-2-1981. The Court found that the plaint, in the first instance was not adequately stamped and the deficiency was made good beyond the period of limitation. Therefore, the suit was held barred by time as held in P L D 1979 SC 821. However, plaintiffs were found to have superior right and decision on issue No. 3 went in their favour. Issue No. 2, as regards waiver, was decided against the defendants. It was further held that suit property was purchased for Rs.16,000. In the result of finding on Issue No. 4, the Court did not record its decision on market value of the suit property. Dismissal order was assailed before the learned District Judge, Muaaffargarh, in appeal, by the plaintiffs. This appeal came to be heard and decided by learned Additional District Judge. It resulted in remand. Before the Court of appeal, findings on Issues Nos. 1, 4 and 5 alone were disputed. Decision on Issue No. 1 was reversed and was found in favour of the plaintiffs. It was further observed that additional issue was neither disposed of nor touched by the trial Court. Therefore, findings on Issues 4 and 5 were found not sustainable and were set aside and the appeal resulted in remit. Learned Additional District Judge while ordering remand observed:-

"As the result of my findings on Issues Nos. 1 and 2, the impugned decree and judgment are set aside. Resultantly, the suit stands decreed in favour of the plaintiffs/appellants. However, the case is remanded to the learned trial Court for giving the fresh decision on Issues Nos. 4 and 5 only in the light of our discussion."

3. Appellants were represented by Haji Mushtaq Alrmad Aqii, Advocate, who has been heard. Respondents though served have not appeared to contest and have been placed ex parte.

4. Remand order was subjected to severe criticism by the appellants. It was contended that there was adequate material available on record to give determinative findings on Issues Nos. 4 and 5. Learned counsel submitted that the order passed by the Court of appeal was contradictory. It was argued that on the one hand the suit was being decreed and simultaneously it was being remanded also for decision on Issues Nos. 4 and 5. Course applied was not permissible under law. On close scrutiny, order of remand against which present appeal has been referred is wrong in form and unjustified in substance. It is correct that additional issue was riot touched. If the learned appellate Judge took the view that issues which had been framed had not beet. properly tried or the Court failed to determine any question of fact which appeared essential to right decision of the suit upon merits, only course to adopt would be to make an order of remand under Order XLI, rule 25, C.P.C. This course, the learned Judge has no: applied. Order of remand, on the face of it appears incongruous. Learn Judge of the trial Court had found that suit property was sold for Rs.16,000. This decision rendered finding on market value unnecessary. Superior Courts have deprecated unnecessary remands which result in prolonging the litigation and also consume much valuable public time as also parties expense. I would, therefore, set aside the order of remand and direct that lower appellate Court should deal with the appeal on merits according to law confining himself to the evidence led by the parties at the trial.

For the reasons given above, appeal is allowed, order under appeal is set aside and the appeal is sent down to the District Courts for disposal in accordance with law in the light of this judgment. I make no order as to costs.

H. B. T. Appeal allowed.

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