P L D 1952 Baghdad﷓ul﷓Jadid 17 (PLP)

ABDUL HAMID MALIK, J.‑This is a petition for revision of the order of the Senior Sub‑Judge, Rahimyarkhan, dated 31st May 1951, remanding on appeal a suit for fresh disposal by the Sub‑Judge at Khanpur. The facts may be briefly stated as follows :‑ Defendant‑respondent No. 2 mortgaged the property in suit in favour of defendant‑respondent No. 1 for Rs. 99 on the 2nd of August 1942. Later on defendant‑respondent No. 2 sold his interests in the mortgaged property to the petitioner. The petitioner then brought a suit for redemption against the defendant respondent alleging that a decree for redemption for the property on condition of payment of Rs. 99 or any amount which may be found by the Court to be due to the mortgagee may be passed. A written statement was filled by the defendant‑respondent No. 1 who pleaded that the mortgage money was Rs. 406 and not Rs. 99 and that there was stipulation that the property would not be redeemable for eight years, which period had not still expired. His further defence was that the mortgagor had bound himself, in the event of sale, to sell the mortgaged pro perty to him. The following issues were framed by the trial Court :‑

1. Whether the property was mortgaged for Rs. 406......... on defendant‑respondent No. 1.

2. Whether the mortgage money was Rs. 92 on plaintiff‑petitioner.

3. Whether the mortgagor had agreed, in the event of sale, to sell the property to the mortgagee .on defen dant‑respondent No. 1.

4. In case issue No. 3 was proved, then what would be its effect on the present suit for redemption on defendant‑respondent No.

1. The trial Court, on the strength of the document Exh. P‑A, decided that the mortgage money was Rs. 406 and not Rs. 99 and accordingly decided both the issues No. 1 and No. 2 in favour of the defendant‑respondent No.

1. The rest two issues (3 and 4) were decided in favour of the petitioner. In the end the trial Court held that as the petitioner had failed to prove that mortgage money was Rs. 99 therefore the suit was liable to be dismissed, accordingly it was dismissed with costs. The petitioner then preferred an appeal to the Court of Senior Sub‑Judge, Rahimyarkhan, and two grounds of appeal were taken. First that the trial Court was wrong in dismissing the suit simply because it could not be proved that the mortgage money was Rs.

99. The suit of redemption should have been decreed on condition of payment of Rs.

406. Secondly, that the trial Court was wrong in taking into consideration document Exh. P‑A, which being unregistered, was inadmissible in evidence. The appellate Court found force in the two points referred to above and was constrained to hold in its judgment that the suit was wrongly dismissed by the trial Court and that the suit for redemption should have been decreed on condition of payment of Rs.

406. As regards the second point it remarked that the objection to the admissibility of Exh. P‑A had consider able force and that the trial Court had not properly appreciated the law point involved. The appellate Court then thought it worthwhile to vacate the judgment and decree of the trial Court and to remand the suit for fresh disposal. It is clear that the trial Court decided the suit finally and all issues involved were adjudicated upon. The evidence was complete, nevertheless the Senior Sub‑Judge in appeal has remanded the suit without giving adequate reasons for adopting that course: It is no doubt open to the appellate Court to remand the suit for fresh disposal under the inherent powers but the inherent powers should not be exercised in an arbitrary and capricious manner. There is nothing on the record to show that the evidence on the record was insufficient to enable the appellate Court to decide all the issues itself. The counsel for the petitioner is correct in stating that the appellate Court could decide the appeal itself and there is no sense in remanding the suit. This remand order necessarily involves inconvenience and hardship to the parties. Mr. Mustafa Khan, the counsel for the defendant‑respondent No. 1, was frank enough to concede and added that he could not support the remand order. Hence I set aside the judgment of the appellate Court so far as it purports to remand the suit to the trial Court for fresh disposal and direct it to restore the appeal to its file and dispose it afresh according to law. The costs of the parties in this Court will abide the result. Announced. A. H