2012 PLP 1607 (YLR)

MEHMOOD MAQBOOL BAJWA, J.

Suit for possession through pre-emption was instituted by the respondent in order to pre-empt the sale witnessed through registered sale-deed dated 18-1-2000. The suit was contested by the present appellants on legal as well as factual premises. After conclusion of trial, the learned Trial Court vide judgment and decree dated 19-7-2006 dismissed the suit of respondent, which judgment and decree was called in question by the respondent by filing an appeal, which was accepted vide judgment dated 21-5-2009 and the learned Additional District Judge, Sargodha while re-casting certain issues remanded the case to the learned trial Court. Feeling aggrieved by said judgment, the appellants have approached this Court.

2. Heard.

3. Learned counsel for the appellants while assailing the vires of the judgment dated 21-5-2009 maintained that neither there was any occasion nor justification to remand lis after re-casting the issues. Making comparison of issues already cast and re-framed by the learned Additional District Judge referred in para-5 and 6 of the impugned judgment, it was contended that there was no occasion for re-casting issues referred to in para-5 of the impugned judgment, as the issues already framed sufficiently covered the controversy between the parties. Further submitted that the issues re-framed and mentioned in para-6 of the judgment were also not required to be caste, as the controversy with reference to the objections made at the instance of the appellants being defendants was already covered. Contended that the issues referred to in para-6 of the impugned judgment were framed keeping in view the objections raised in the written statement at the instance of the appellants, but no such objection was raised at the instance of the appellants. Referring to para-5 of the judgment, it was maintained that the learned First Appellate Court set aside the decree of the learned trial Court, formulating the opinion that the suit was decided by the Civil Judge, having the powers of 2nd Class, having no pecuniary jurisdiction. Making reference to the provisions of Order XLI Rule 24 and 25 of The Code of Civil Procedure, 1908, it was maintained that sufficient evidence was available on record to decide the fate of the appeal and as such the judgment remanding the matter to the learned Trial Court is legally not sustainable. Referring to the provisions of Rule 25 of the same Order, it was maintained that if the learned Appellate Court after casting the issues was of the opinion that evidence has to be recorded, even then the matter should have been remitted to the learned trial Court for recording additional evidence and to return the evidence to his Court together with its findings and the reasons therefor. Learned counsel for the respondent though admitted that the learned Civil Court, who decided the suit had the pecuniary jurisdiction, but defending the impugned judgment maintained that the issues framed by the learned trial Court did not reflect the real controversy between the parties and as such the issues were re-framed, as it is the duty of the Court to frame proper issues arising out of the pleading of the parties. Further submitted that in the circumstances there was no option with the learned appellate Court, but to remand the suit.

4. Perusal of the impugned judgment suggests that the learned appellate Court remanded the matter to the learned trial Court on two fold grounds. Firstly that the civil Court, which decided the matter had no pecuniary jurisdiction, as valuation of the suit for the purpose of jurisdiction was Rs.16,00,

000. The learned counsel for the parties keeping in view the valuation of the suit for the purpose of jurisdiction fixed in the plaint admitted that the learned Civil Judge, who decided the suit had pecuniary jurisdiction to decide the matter.

5. I have gone through the issues framed by the learned trial Court and re-framed issues referred in para-5 and 6 of the impugned judgment. Though one can say that the issues already caste were not happily worded, but undeniably both the parties were aware of the grounds of attack and defence, enabling them to produce evidence during the trial and it was not the case of any of the parties before the learned appellate Court that due to defective framing of issues their rights were prejudiced. Even if it is presumed that the issues were required to be re-framed, that by itself was not sufficient to remand the matter to the learned trial Court, particularly keeping in view the factum of pendency of litigation since long. While remanding the matter the First Appellate Court should keep in mind the provisions of Order XLI Rules 23, 24 and 25 of The Code of Civil Procedure, 1908. Under Rule 23 of the said Order, if the suit has been disposed of by the trial Court upon a preliminary point and the decree is reversed in appeal, the matter has to be remanded by the Appellate Court with direction to try some or all the issues. According to Rule 24 of The Code of Civil Procedure, 1908, whereby evidence on record is available, the Appellate Court may determine the case finally. In view of the evidence, prima-facie sufficient evidence was available on record to decide the issues even re-framed. Even if it is presumed that evidence was required to be taken then instead of proceeding under Order XLI Rule 23 of The Code of Civil Procedure, 1908 the learned First Appellate Court should have acted under the provisions of Rule 25, which is reproduced for ready reference:-- (25) Where Appellate Court may frame Issues and refer them for trial to Court whose decree appealed from.

Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor. The proposition of law agitated at the instance of the appellants was not questioned by the learned counsel for the respondent. In view of the matter, while accepting the appeal and modifying the impugned judgment, the matter is referred to the learned trial Court to record evidence of the parties on the issues cast by the learned First Appellate Court referred to in paras 5 and 6 of the impugned judgment and after recording the evidence, shall return the evidence to the learned appellate Court together with its finding thereon and the reasons therefore within two months and the appeal preferred by the present respondent shall be deemed to be pending before the learned First Appellate Court, which shall be decided after the receipt of evidence recorded by the learned trial court and the conclusion drawn by the said court on the issues re-framed. K.M.Z./K-9/L Appeal allowed.