1991CLC417 (PLP)

3. On the assessment of evidence available on record, both oral as well as documentary, the learned Senior Civil Judge, Sukkur, decided almost all the material issues against the respondent and dismissed the suit vide judgment dated 3-11-1983. The respondent challenged this judgment and decree in I-Civil Appeal No.121 of 1983 before District Judge, Sukkur, which was heard by II-Additional District Judge, Sukkur, who set aside the judgment recorded by Senior Civil Judge, Sukkur and remanded the case vide judgment dated 23-6-1987. His decision may be stated in his own words:

"From the side of respondents various authorities have been referred on the point of onus of proof, the conduct of earlier transferee not to sleep over his right, the effect of bona fide purchase and the obligation of party to contract. The authorities will be pertinent subject to proof of signature of the execution on sale agreement. This Court 'has refrained from giving any findings on the issues depending on the oral evidence for the reason that the Court has formed opinion that this is a case fit to be remanded to the lower Court for lie; reasons that the opinion of the Court after making naked comparison, has declared the signature of deceased seller to be forged on the agreement of sale executed between plaintiff of the suit and defendant No. 1, which is not safest course. No doubt under section 73 of Evidence Act corresponding proviso Article 84 of Qanoon e-Shahadat, Court has power to compare alleged genuine signatures with admitted genuine signatures but Court must be extremely cautious. Court has to be careful whether his opinion based on naked comparison is desirable and whether before making such comparison the parties litigating were taken into confidence. The practice of Judge declaring whether a disputed signature tallies with the other signature of a person without the assistance of any expert evidence that merely on his own inspection, has been disapproved by experienced Judges. It is un satisfactory and dangerous to make a decision, in case where there is direct conflict of testimony between parties as to general character of a signature, on the correct determination of the genuineness by mere comparison, with the admitted signatures, specially without the aid of microscopic enlargements or expert evidence. In the instant appeal it is the case of plaintiff that agreement of sale in his possession bears genuine signature of deceased defendant No.l. On the other hand respondents have challenged the signature to be forged. The only safest course is to get the document examined by expert and obtain expert opinion under section 45 of Evidence Act corresponding proviso Article 59 of Qanoon-e-Shahadat. For these reasons findings on issues Nos.l, 2, 4, 5 and 10 and 12 are set aside and case is remanded to the lower Court for fresh decision after taking evidence on additional issue No.2-A framed as under:

Additional Issues No.2-A. Whether signature of deceased defendant No.l on agreement of sale in favour of plaintiff is genuine? ' Learned trial Court is directed to give chance to the parties to lead evidence on the additional issue after getting the document compared with handwriting expert and give fresh decision. Framing of this additional issue will narrow down controversy-and ultimate decision of case as held in 1983 S C M R 1137, the authority relied by appellant counsel. For above reasons appeal is allowed and judgment of the lower Court is set aside. Parties to bear their cost." This order of remand is the subject-matter 'of this revision application.

4. I have heard Mr. Abdul Fateh Malik, learned counsel for applicants and Mr. S. Ali Aslam Jafferi, learned counsel for respondent.

5. The most important point that the learned counsel for the applicants has been able to bring out is that when the circumstances are such that the appellate Court can itself dispose of the case no remand should be ordered. Admittedly the entire evidence was available on record. None of the contesting parties had also moved the trial Court for referring the disputed document to handwriting expert and, therefore, the remand of the case to the trial Court for the said purpose was apparently not legal. No doubt the appellate Court has got inherent powers to remand a case under Order 41, rule 23 or Order 41, rule 25, C.P.C., but such powers should not be exercised except when it is clearly necessary for the ends of justice to do so. The case of Bishun Dutt v. Ramji Prasad and another, reported in A I R 1920 Pat.56 is clear on this point, wherein it was held:

"The power of the lower appellate Court in remanding in cases other than those specified in 0.41, R.23, is undoubted, but it is a power which can only be exercised for the ends of justice. It has been said that 5.151 of the Code confers no new power upon the Court. It merely recognizes and saves all the powers which a Court had for doing justice irrespective of any provision of the Code of Civil Procedure and, I may add, in spite of the provisions of the Code of Civil Procedure. We might take S.151 of the Code then as the legislative recognition of what the Courts below always do for the ends of justice. Just because the Courts have wide powers when acting within their jurisdiction to make such orders as may be necessary for the ends of justice, it is necessary that the limits of the jurisdiction should be clearly recognized and carefully guarded. Now, what are the limits of the powers of the Court to act in the exercise of its inherent power? It seems to me that the Code itself which, as it has been said, recognizes and preserves that power gives a sufficiently clear answer to the question. The Court' may pass such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. In these words you have the limits on the jurisdiction of the Court to act in the exercise of its inherent power. In my view the order passed by the Court must show, on the face of it, that such an order was necessary for the ends of justice or to prevent abuse of the process of the Court. It is not urged before me that the order complained of was passed to prevent the abuse of the process of the Court. It is remarkable that the learned Judge does not say anywhere in his order that the order was necessary for the ends of justice, but he, does say that there was no proper trial of the case. But I do not think that the mere fact that there was no proper trial of the case in the first Court is sufficient by itself, without further facts, to vest the lower appellate Court with power to remand a case in the exercise of its inherent jurisdiction."

6. In Jatindra Mohan Chakravarti and others v. Bijoy Chand Mahatab, reported in A I R 1924 Cal. 396, a Division Bench held that where the plaintiff does not produce the evidence that is necessary to establish his right in the trial Court, he cannot ask for a remand in order to prove this fact by new evidence at appellate stage of the proceedings.

7. The case of Kamla Prasad Sahu v. Nawal Kishore Prasad Sahu, reported in A I R 1933 Pat. 706, is again relevant in a situation like the one under consideration, in which it was observed that the appellate Courts should not rashly and without sufficient cause set aside a decree of the first Court and order the re-trial in any case, in which this can possibly be avoided.

8. In the case of A.P.L. Palaniappa Chettiar v. A.K.R.M.S. Firm, reported in A I R 1935 Rang. 19, this question was examined and it was remarked:

"It was not for the Court to insist that the plaintiff should produce evidence. The plaintiff has only himself to blame if it now turns out that this was a fatal course to pursue. The pleadings and the issues were clear and in my opinion the parties could not have failed to appreciate what the real issues were that fell for determination in the suit."

9. The case of Municipal Committee, Abohar v. Megh Raj and others, reported in A I R 1935 Lah. 161, is again clear on this point, wherein a distinction was drawn between different rules of Order 41 relating to order of remand.

10. The case of Rampat Sahu v. Bhajju Sahu and another, reported in A I R 1936 Pat. 160, decided by a Division Bench certainly appears to lend more support to the contention raised on behalf of applicants. At page 161 it was observed:- "Now it is true that appellate Courts have inherent power of remand as well as specific power of remand given them by the Code, but the Courts, as has been pointed out more than once, should be slow to exercise that jurisdiction and should only use it in appropriate cases. The power of remand is not intended to allow an unsuccessful plaintiff, who had failed to prove his cause of action to have another attempt and call witnesses whom he might have called on the first occasion."

11. In the case of Mst. Motai w/o Fazal Shah and another v. Lt. Col. Sir Muhammad Akbar Khan, Chief of Hoti, and others, reported in A I R 1941 Pesh. 28, it was remarked that unsuccessful litigant in lower Court cannot be allowed to patch up weak parts of the case and fill up omissions by recourse to section 107 and Order 41, rule 23, C.P.C. in appeal.

12. The case of Hira Lai v. Ratan Lai, reported in A I R 1944 All. 293, also supports the above view, wherein it was held that there is no law which can justify an appellate Court in remanding the case to the trial Court in order that a party, who in the opinion of the appellate Court, right or wrong, has failed to discharge the burden that lay on him, may be enabled to have another opportunity of producing evidence.

13. In Sonabai w/o Sawlaram v. Gotiram Nathu and others, reported in A I R 1956 Bom.160, it was held that the appellate Court cannot remand suit to the trial Court to give second opportunity to prove the disputed document.

14. The cases reported as Mir Muhammad Khan v. Syed Abdul Shakoor and others (P L D 1962 Pesh. 28), Syed Modaris Ali v. Syed Md. Ilias Ali and others (P L D 1971 Dacca 309), and Pramatha Nath Chowdhry and 17 others v. Kamir Mondal and others (P L D 1965 SC 434), are also attracted to the facts of the present case. In the last cited authority the Supreme Court observed as follows:

"A remand should not be lightly ordered if the evidence on the record is sufficient for the appellate Court to decide the question itself."

15. Article 84 of the Qanoon-e-Shahadat Order, 1984, lays down an additional mode of proving signature and the Court can compare the disputed signature with the admitted signatures. The following observations made in the case of Faizul Haque and others v. Noor Meah and another, reported in P L D 1960 Dacca 835, are self explanatory:

"In the present case also since the Evidence Act permits such examination by the Court itself, it cannot be said that by launching upon such an examination the Court had committed an error in the procedure of law or that it had made any material mistaken assumption in so launching upon a comparison of the signatures and thumb-impressions on Exh.3. There is no doubt that such inexpert comparison has repeatedly been discouraged by this Court. But nevertheless it cannot be said that it is an illegality in procedure whatever might be the value of such examination."

16. In some what similar circumstances Saleem Akhtar J, observed in the case of The Australasia Bank Ltd. v. Messrs H.S. Mahmood Hassan Akbar and 2 others, reported in P L D 1983 Kar. 431, as follows:

"The defendant No.3 has not appeared to deny these facts and documents. It is the defendant No.2 who has denied his signatures on this document. He has stated that these signatures are forged and have not been made by him. A visual comparison of this signature with the other signatures on documents 5/1 to 5/6 makes it clear that they have been signed by one and the same person. The question then arises whether this signature has been made by the defendant No.2 or not. The defendant No.2 has only denied his signature on Exh.5/11 but has never asked for sending this document to any handwriting expert to ascertain the correctness of his statement. The plaintiffs have also not adopted this course which was available to them. So the only course open to the Court in such circumstances is to compare this signature with the admitted signatures of the defendant No.2 and then draw its own conclusion. This procedure is permissible under section 73 of the Evidence Act. It is a risky but 'in the circumstances of the case there is no other option left but to adopt it."

17. In this view of the matter, I am clear in my mind that the appellate Court has wrongly remanded the case to the trial Court when the entire evidence was available on record and it could itself pass a judgment, without referring the matter for the further additional issue which was not necessary, as the other issues already framed covered this issue also.

18. In the result the revision application is allowed and the order of appellate Court is set aside and the case is sent back to that Court with the direction that it shall reinstate the appeal before it to its original position in the file of pending cases and will proceed to hear and dispose of it according to law. Since the matter has already become old, it will be appreciated if the appeal is disposed of within three months. The parties are, however, left to bear their own costs. A.A./M-1294/K Revision allowed.