1990CLC1142 (PLP)

S. Zafar Abbas Zaidi for Respondents. Date of hearing: 17th October, 1989. Sheikh Ghulam Mustafa, the respondent herein, pre‑empted the sale of a house situated in village Musa Zai, Tehsil Kulachi, District D.I. Khan, made by its owner Muhammad Ram7an, vendor‑respondent to Sheikh Mustafa, in lieu of Rs.1,500 by virtue of an oral transaction. The respondent based his superior right of pre‑emption on the ground:‑ (i) that he was participator in appendages and immunities of the suit house; (ii) that he owned property in contiguity as provided by section 12, secondly and thirdly of the N.‑W.F.P. Pre‑emption Act (XIV of 1950). 2. The vendee‑petitioner, in his written statement, denied that any transaction of sale of the house had taken place. 1t was averred that the vendee -petitioner was in possession of the suit house for the last over 10/12 years. Nonetheless the claim of the respondent qua his superiority of pre‑emption rights was controverted. 1t was also pleaded that the respondent was devoid of any cause of action; that the suit was time‑barred; that the respondent had waived his right of pre‑emption; that form of the suit was defective; and that it has not been correctly valued. On these pleadings as many as nine issues were settled which need not be reproduced at this stage. Both the parties adduced evidence pro and contra. 3. On 20‑7‑1987, the plaintiff moved an application for summoning Muhammad Ramzan defendant‑vendor as defendant's/Court witness, on the ground that he had reserved his right to summon the defendants as his witnesses in case, they do not appear in the witness‑box. This application was strenuously resisted by the defendant‑vendee on the assertion that parties having closed their evidence, the plaintiff cannot be legally allowed to summon the vendor particularly when the pre‑emptor had miserably failed to substantiate his plea of sale of the house. In the meantime, Muhammad Ramzan vendor‑defendant also filed an application for setting aside ex parte proceeding against him because, according to him, he had neither been served nor he had any knowledge of the institution of the suit. The learned trial Judge in the judgment dated 27‑9‑1987 dismissed the suit on his view that sale of the suit house had not been proved. Queerly enough the learned trial Judge not only allowed the application filed on behalf of the vendor and set aside ex parte proceedings against him but also dismissed the application of the vendee for summoning Muhammad Ramzan on the premise that parties having closed evidence could not be allowed to summon the defendant‑vendor 2. Against this judgment and decree of the trial Court plaintiff‑pre‑emptor filed an appeal which was allowed by Malik Muhammad Jehangir Khan, Additional District Judge, Dera Ismail Khan, who while setting aside the judgment and decree of the trial Court remanded the case to the trial Court with the direction "to decide the case afresh by giving his findings on all the issues and after giving opportunity to the plaintiff/appellant to examine defendant‑respondent‑2 as well as considering the right of defendant‑respondent 2 as party to the case as per his observations. The impugned order of remand passed by the learned Appellate Court substantially proceeds on the following three ground:‑‑ (i) That the plaintiff‑appellant after allowing the opportunity to bring his evidence and examining his evidence reserved his right to examine the defendants as his witnesses if they did not appear as their witnesses; that the defendant on contest never objected to the reservation of his right to examine defendants nor the Court had disallowed to do so and, therefore, in such a situation the plaintiff had a right to examine defendants as his own witnesses; (ii) that the learned lower Courts while disposing of the application of Defendant No.2 not only set aside the proceedings against him but at the same time observed that he was not a necessary party and in such a situation the learned trial Judge should have either struck out the name of Defendant No.2 or to have afforded him an opportunity to file written statement or else to have allowed the Defendant No.2 to join in the proceedings from the stage he had made appearance in the Court; and (iii) that the learned trial Judge has disposed of the suit on his findings on Issues Nos.1 and 6 alone by holding that the remaining issues did not require findings which was in violation of the provisions of Order XX rule 5, C.P.C. requiring the Court to state its finding or decision with reasons therefore, upon each separate issue. 4. With the order of remand, defendant was not satisfied, who seeks to have it revived through this petition. 5. Mr. Sanaullah Khan Gandapur, the learned counsel for the vendee -petitioner, has serious objection to the order of remand of the case after allowing the plaintiff‑respondent to examine vendor‑defendant as plaintiff‑petitioner's witness particularly when he had closed his evidence. According to the learned counsel, the closing statement of the plaintiff could only be interpreted to mean that he had reserved his right to examine the contesting defendant and not the vendor who was just a pro forma defendant. Tic further submitted that in the instant case remand order under Order XLI rule 23, C.P.C. was not warranted and that the learned appellate Court ought to have passed the order under Order XLI rule 25, C.P.C. 6. On the other hand, S. Zafar Abbas Zaidi the learned counsel for the pre emptors‑respondents maintained that the respondent could examine defendant- respondent No.2 only if he had not been arraigned as a party to the suit, particularly when the respondent had cited in the list the defendants as his witnesses. According to Mr. Zaidi it was within the discretion of the trial Court either to strike out the vendor from the list of the defendants or to have allowed him to be arraigned as a defendant, in the former case the plaintiff was obliged to summon him as his witness but in the latter case if he did not appear he could have been legally summoned by the plaintiff. 7. After perusal of the record, I am in complete agreement with the reasoning of the learned appellate Court in support of the remand order and I find every force in the contentions of the learned counsel for the pre‑emptors -respondents. It is now a settled proposition that in a pre‑emption suit the vendor is not a necessary party. Nonetheless looking to the pleadings of the parties in the instant case, wherein the pre‑emptor asserted an oral and surreptitious sale transaction between the vendee and the vendor while the vendee categorically denied such a transaction, the vendor becomes a proper party if not a necessary party. Be that as it may, as the learned appellate Court had rightly observed that either the name of the vendor should have been struck out or he should have been allowed to be examined as the plaintiffs witness or else if his application for setting aside the ex parte proceedings had been accepted he ought to have been P allowed to either rile the written statement or should have been allowed to join the proceedings. Since the pre‑emptor‑plaintiff had cited the defendants as his witnesses in his list and had also reserved his right to examine them if they did not appear as their witnesses, the statement of the pre‑emptor‑respondent on closing his evidence cannot be interpreted to include even the evidence of the defendants particularly in the context of the statement on closing his evidence. No exception can, therefore, possibly be taken to the findings of the learned appellate Court on this score. 8. There is no substance either in the contention of the learned counsel for the petitioner that the order of remand was passed under Order XLI rule 25 ibid. In order that a case be remanded in terms of rule 23, it is necessary that; (1) the entire suit must have been disposed of by the trial Court; (2) the disposal should C have been on a preliminary point; and (3) the decree should have been reversed by the appellate Court. The superior Courts have drawn a line of distinction between rule 23 and 25 in their judicial pronouncements. This distinction has been very ably reproduced by Mr. Aamer Raza A. Khan, in his commentary on the Civil Procedure Code. It is as under:‑ (a) Upon remand under rule 23 the whole case goes back for trial for disposal to the lower Court, but upon remand under rule 25 the matter is sent back to the lower Court, only for purpose of recording evidence or a finding on an issue, and the appeal remains pending before the appellate Court. (b) Upon remand under rule 23 the order of the appellate Court is final, but upon remand under rule 25 the order of the appellate Court is interlocutory and the appeal is finally disposed of in terms of rule 26. (c) A remand is ordered under rule 23 where the decision is on a preliminary point, whilst it is made under rule 25 when the entire case has been decided. 9. Looking to the difference between the two rules it is clear that the remand order was not passed under rule 25 but had been passed under rule 23 ibid read with section 151, C.P.C. 10. In the light of what has been observed above, in my opinion, both on plane of legality as also on propriety, the learned Additional District Judge was right in remanding the case for its decision afresh with an opportunity to the plaintiff to examine the vendor‑defendant No.2 as his witness. Accordingly this petition in revision having no merits is dismissed with costs. A.A./999/P Revision dismissed.