1988 PLP 931 (MLD)

This judgment will dispose of First Appeal against Order No. 234 of 1980 and First Appeal Order No.284 of 1980 having been brought by MA.Khokhar and Sh. Manzoor Ahmad respectively, from an order dated 29‑7‑1980 passed by the learned Addl. District Judge Lahore, remanding the case to the trial Court in appeal after raising new issues, which appeal was brought from a judgment and decree of the learned Civil Judge Lahore dated 26‑2‑1974 decreeing the suit instituted by Sh. Manzoor Ahmad appellant in First Appeal Order No.284 of 1980 against M.A.Khokhar appellant in First Appeal against Order No.234 of 1960 and the defunct‑Improvement Trust Lahore for a declarati6n that a plot bearing a particular number was allotted to the plaintiff/appellant Sh. Manzoor Ahmad. In the appeal having been filed by M.A.Khokhar the learned Addl. District Judge was of the view that to resolve the dispute it was necessary to try the suit on new issues since it was alleged that the number of the plot had been changed, so he raised the following issues:‑ (1) Whether originally, the plaintiff is the allottee of plot No. 196 and defendant No. 2, M.A.Khokhar was the allottee of plot No. 203 respectively? If so with what effects? O.P.P. (2) Whether subsequently plot No. 196 was renumbered as plot No. 193 and plot No. 203 was re‑numbered as plot No. 196? If so, with what effects? O.P.D. (3) What is the correct location of the said plots? O.P.Parties. (4) Relief. The parties were directed to produce if they thought fit evidence in support of the issues otherwise.

2. The learned counsel for the appellants in both the appeals while taking an exception to this order have contended that the case ought not to have been remanded on the issues framed by the learned Addl. District Judge since the entire evidence bearing out the change of the numbers and the circumstances was already on the record and if the learned Addl. District Judge was minded to raise the issues he could decide himself the issues without referring those to the learned trial Court. In gist the learned counsel have maintained that the order impugned as it stands is in violation of Order XLI, rule 24, C.P.C. which says:‑ "Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellant Court may after resetting the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than on which the Appellate Court proceeds."

3. As it has been submitted by all the counsel whether on behalf of the, appellants or the respondents that the case requires, no further adducing of evidence and the case can be straightaway decided as to the issues raised by the learned Addl. District Judge on the evidence already recorded, both the appeals are accepted and the order passed by the learned Addl. District Judge remanding the case is set aside with a direction to dispose of the appeal as that will have to; be in this event within a period of two months because the case is an old one. Since the respondent L.DA. has not resisted the appeal, therefore, the parties are left to bear their own costs. The parties are to appear before the learned lower Appellate Court for .the disposal of the appeal filed by M.A.Khokhar on 30‑11 1983. M.Y.H. Appeal accepted