P L D 1990 Lahore 37 (PLP)

This is plaintiff's first appeal, against the order dated 30th of July, 1988 passed by Additional District Judge, Lahore, whereby he set aside the decree of the trial Court dated 3rd July, 1985 and remanded the suit of the appellant, to the trial Court.

2. On 26th April, 1980 Malik Rahim Bakhsh, the appellant herein, had filed a suit for specific performance of an agreement dated 8th June, 1977 whereby Ch. Mushtaq Ahmad, respondent No.3, herein, had purportedly agreed to sell property bearing No. SW‑V‑15‑S‑11 Sadaqat Park, Feroze Din Road, Qila Hakiman, Sanda Khurd, Lahore, for Rs. 80,

000. It was alleged that the appellant had paid a sum of Rs. 10,000 to respondent No.3, who instead of executing the sale‑deed in his favour, had transferred the house to respondents Nos.1 and 2 through a sale deed dated the 28th August, 1977. In the suit, the appellant had impleaded all the three respondents as defendants. In the written statement filed by him respondent No. 3 denied having entered into any agreement with the appellant for the sale of the land in dispute. The respondents 1 and 2 filed a separate written statement in which, the execution of any agreement between the appellant and respondent No.3 was denied.

3. On the pleadings of the parties, the learned trial Court had framed the following eight issues:‑‑ (1)??????? Whether the suit is fictitious and as such the defendants are entitled to special costs under section 35(a) CPC? OPD. (2)??????? Whether plaintiff has no cause of action to file the present suit? OPD. (3)??????? Whether the alleged agreement to sell and the receipt are forged and the plaintiff is guilty of fraud and misrepresentation? OPD. (4) Whether the plaintiff is estoppwd by his conduct to file the present suit? OPD. (5)??????? Whether the suit has not been properly valued ? If so, what is the proper valuation? OPD. (6)??????? Whether the plaintiff has entered into an agreement to sell with defendant No. 1 and paid Rs. 10,000 as an earnest money? OPD. (7) If issue No. 6 above is proved, whether the plaintiff is entitled to the decree for specific performance of contract? If so, on what terms and conditions? OPP. (8)??????? Relief.

4. After recording the evidence of the parties, the suit was decreed by the trial Court, on 3rd of July, 1985. Aggrieved by this decision, the respondent had filed appeal which was heard by Mr. Muhammad Nawaz, Additional District Judge, Lahore. It appears that during the pendency of that appeal, an application under Order 41 rule 27 CPC for permission to produce additional evidence was also filed by the respondents which was contested by the appellant.

5. By means of his order dated 30th July, 1988, which has been impugned by the appellant in the present appeal, the learned Additional District Judge proceeded to accept the appeal and remanded the case to the trial Court. The reasons which prevailed with the learned Additional District Judge for passing the impugned order were that no issue with regard the question as to whether the respondents Nos.l and 2 were bona fide purchasers, for value, had been framed and onus of issue No.3 had been wrongly placed upon the respondents as it was for the appellant/plaintiff to prove the execution of the agreement in his favour.

6. It was contended by Mr. Muhammad Rafiq Khan Chauhan, the learned counsel appearing on behalf of the appellant, that there was no justification for the Additional District Judge to have set aside the decree of the trial Court, and to have remanded the case with a direction to re‑frame the issues, allow the parties further opportunity to produce evidence and to decide the suit afresh. It was pointed out by the learned counsel that at no stage any objection was raised as to the non‑framing of any particular issue nor was any effort made to have the issues already framed amended. In the alternative, it was contended, that the Additional District Judge should have proceeded under Order 41 rule 24 of the Code of Civil Procedure, and should have himself framed the necessary issue and referred it to the trial Court for its decision rather than remanding the entire case.

7. Syed Najam‑ul‑Hasan Kazmi, the learned counsel for the respondents, however, contended that it was the duty of the trial Court to have framed proper issues, which it had failed to do and, therefore, the trial of the suit stood vitiated and there was justification for the Additional District Judge to have remanded the suit on merits.

8. As already noticed, the first ground which prevailed with the Additional District Judge was that the trial Court committed an illegality in not framing an issue as to whether the defendants Nos.l and 2 were bona fide purchaser for value of the suit property without knowledge of the agreement to sell dated 8th June, 1977. It is, however, to be noticed that in the written statement tiled by the respondents, no such plea was ever raised. It was not asserted by defendants Nos.l and 2 themselves that they were bona fide purchaser for value and had no notice of any agreement in favour of the appellant. In these circumstances, the question of framing of any such issue did not arise. The Additional District Judge was clearly in error, in holding that by failing to frame such an issue, the trial Court had committed an illegality.

9. As regards the question as to whether the onus of issue No.3 had been correctly placed upon the respondent, the objection had lost its significance and had become immaterial after the parties had led evidence. It is well‑settled that once both the parties have led evidence in support of their respective contentions? the question of onus loses importance and, therefore, it was hardly a ground on which the Additional District Judge could have interfered with the decree of the trial Court, in the absence of any prejudice. Both the parties have already led evidence in this respect, the appellant to prove that the agreement EX.P.1 was executed by Mushtaq Ahmad, respondent No.3, and the respondents to show that the agreement was forged. The learned Additional District Judge should have decided these questions, after appraising the evidence on the record and there was no justification for directing remand, even if, he was of the view that onus had not been correctly placed. In Pramatha Nath Chowdhury and 17 others v. Kamir Mondal and others PLD 1965 SC 434 it was observed by the Supreme Court that where evidence on record was sufficient for Appellate Court to decide question itself, remand was not to be ordered.

10. It is conceded by the learned counsel for the respondent that at no stage before the trial Court, any effort was made for having the issues recast by having the onus correctly placed and no application under Order 14 rule 5 of the Code of Civil Procedure was ever filed. Even in, the memorandum of appeal before the lower appellate Court, no such ground was raised and it was not asserted that on account of error in placing the onus any prejudice has been caused to the appellant. The parties were well‑aware of the controversy and led full evidence in support of their respective cases. In these circumstances, there was hardly any justification for the lower Appellate Court to set aside the decree of the Additional District Judge on such a technical ground. The Supreme Court of Pakistan' in the case of Mehr Din v. Dr. Bashir Ahmad Khan and 2 others 1985 SCMR 1 was pleased to observe:‑ Nonetheless, we rind that throughout the trial the parties were fully cognisant of this issue which really arose out of the pleadings of the parties and they had also adduced their evidence in respect thereof. So, that in our considered opinion no prejudice was done to any of the parties in the failure of the Court to‑ frame a proper issue in the suit arising out of the pleadings of the parties". Reference may also be made to Faqir Muhammad and 5 others v. Sheikh Nasim Ahmad PLD 1979 Lahore 356 wherein it was observed by Mahboob Ahmad J that if no application for having the issues amended or for having an additional issue framed, is riled by the affected party before the trial Court, nor any ground raised in the memorandum of appeal before the lower Court, the framing of an issue in a particular form or non‑framing of an issue loses all significance, specially when the parties knew the controversy and have also led evidence on the subject. Similar view was taken in Najma Begum and 4 others v. Abdul Rehman PLD 1980 Lah. 324.

11. There is another aspect of the matter which deserves attention. Even if the appellate Court was of the view that an issue had been omitted to be framed by the trial Court or that the issues already framed were defective, it could only proceed under Order 41 rule 25 of the Code of Civil Procedure, which enables and appellate Court to amend the issues an decide the same, itself. In such circumstances, there is no justification for the Court to set aside the findings on C the remaining issues already framed and direct re‑trial by the trial Court. As observed by the Supreme Court of Azad Jammu and Kashmir in Muhammad Younis and 5 others v. Abdullah and 3 others PLD 1987 SC (AJ&K) 133, if case falls within the purview of Order 41 rule 25 of the Code of Civil Procedure, the appellate Court is not legally justified to remand the whole case to the trial Court for deciding the case afresh.

12. Another ground noticed by the Additional District Judge which, according to him, justified the remand was that, an application for additional evidence has been filed by the respondents under Order 41 rule 27 of the Code of Civil Procedure. Both the parties had availed of the full opportunity allowed to them and, had produced such evidence as they desired in support of their contentions. Under Order 41 rule 27 of the Code of Civil Procedure, the appellate Court is required to decide the application for permission to produce additional evidence itself and record reasons for doing so. If it allows the n application, it may record the evidence itself or direct the trial Court to record the evidence and remit the memorandum thereof to the appellate Court. However, under no law can an appellate Court set aside the judgment and decree of the trial Court and remand the case only for having the additional evidence recorded. In Prerepa Bhagavat Sastrulu and another v. Saridey Lakshmikantam AIR 1940 Madras 511 it was held:‑‑ "As a general rule it is undesirable to remand a case merely in order to give an opportunity to both parties to adduce evidence which might and ought to have been put before the trial Court; and there is a clear danger that such a remand order may in effect be an invitation to perjury." The Allahabad High Court in the case of Kalika Pande v. Ram Autar Pande and another AIR 1938 Allahabad 621 observed that where the trial Court had decided the questions involved in the dispute on the evidence placed before it by the parties, the appellate Court cannot remand the case to allow the plaintiff to produce additional evidence on the ground that the evidence of the plaintiff was not sufficient to establish his case. The observations of the Lahore High Court in Nihal Chand and another v. Dal Singh AIR 193? Lahore 135 are instructive.

13. Viewed from any angle, the impugned order of the learned Additional District Judge is not sustainable.

14. In view of what has been stated above, this appeal is accepted, order of the Additional District Judge dated 30‑7‑1988 is set aside and the appeal filed by the respondent, is remanded to him for its decision afresh in accordance with law. The learned Additional District Judge shall also decide the application for additional evidence filed by the respondent. There shall be no orders as to costs. A.A./R‑181/L??????????????????????????????????????????????????????????????????? Case remanded.