1989 PLP 4602 (MLD)

‑‑‑O.XLI, Rr. 23 & 27‑‑‑Remand‑‑‑Where the Appellate Court was of the opinion that additional evidence was necessary to be recorded, that by itself would not be sufficient ground for the remand of the case. A. Karim Malik for Petitioners. Irshad Ahmad Qureshi for Respondents. Date of hearing: 5th July, 1989. This revision petition is directed against the order of 2nd May, 1989 passed by an Additional District Judge, Bhakkar, whereby he set aside the judgment and decree dated 19‑1‑1982 of the trial Court and remanded the case for its retrial to it.

2. The dispute between the parties relates to 120 Kanals of agricultural land, situate in Chak No. 61/ML Tehsil and District, Bhakkar which was purchased by the respondents through mutation of sale bearing No. 7 attested on 21st of April, 1974. This sale was pre‑empted by the petitioners by filing a suit or. 19th of April, 1975 in which they claim superior right to acquire the property as being owners in the estate: The price for which the land had been sold was also disputed. The suit was contested by the respondents by raising various pleas which led to the framing of 8 issues. On the bass of the evidence led before it, the trial Court decreed the suit in favour of the petitioners on 19‑1‑1982. Aggrieved by this decision the respondents filed an appeal which was accepted and the case remanded by the learned Additional District Judge vide his order dated 2‑5‑1989 which has been impugned by the petitioners/ pre‑emptors by filing this petition under section 115 C.P.C.

3. Mr .A.Karim Malik , learned counsel for the petitioner has contended that there was no justification for the Additional District Judge to have remanded the case to the trial Court for its retrial and the order passed by the Addl. District Judge is arbitrary in nature. Mr. Irshad Ahmad Qureshi, Advocate appearing on behalf of the respondents, however, supported the order of the lower appellate Court by contending that it was within its power to have remanded the case.

4. After hearing the learned counsel for the parties, I have reached the conclusion that the impugned order of the Additional District Judge is not sustainable. Although in the earlier part of the judgment he has dealt with the various contentions raised by the parties but while remanding the case no reason whatsoever has been given as to why retrial of the case was ordered. What was stated in this respect was that the Addl. District Judge was of the view that for complete and final adjudication of the parties' right retrial was necessary. To say the least, this laconic observation can hardly furnish basis for setting aside the decree of the trial Court and remanding the case that too for retrial. It is well settled that the remand of a case is not to be ordered lightly. The perusal of the memorandum of appeal filed by the respondents before the Additional District Judge shows that remand was neither prayed for nor any objection necessitating remand was raised. In these circumstances, the Additional District Judge was clearly in error in directing the remand of the case. The learned counsel for the respondents, however, submitted that since both the parties had filed applications for production of additional evidence, the Additional District Judge was justified in remanding the case which according to them was with a view to allow both the parties to lead evidence. I regret my inability to agree with the learned counsel. According to Order 41 rule 27 C.P.C, the parties arc not entitled as of right to produce any additional evidence but the appellate Court may allow them to do so. Sub rule (2) of rule 27, however ordains that if the additional evidence is allowed to be produced by the Court, it shall record reasons for doing so. The procedure for recording additional evidence is provided by order 41 rule 28 C.P.C. which does not visualises the remand of a case for this purpose. Consequently, even if the learned Additional District Judge was of the view that additional evidence was necessary, this by itself was not a ground sufficient for remanding the case. In view of what has been stated above, this revision petition is accepted, the order of the Additional District Judge is set aside, with the result that the appeal filed by the respondents shall be deemed to be still pending before him. He shall decide the appeal as also the applications for additional evidence on their own merits. As the learned Additional District Judge has expressed his view on merits of the claims of the parties, it appears appropriate that the appeal is heard by some other Court. The learned District Judge, Bhakkar may either himself hear the case or entrust the same to some other Additional District Judge. No order as to costs. H.B.T./A‑795/L Revision accepted.