2020 PLP 1773 (MLD)

CH. MUHAMMAD MASOOD JAHANGIR, J.

This as well as connected FAOs Nos. 28 and 115 of 2015 have arisen out of consolidated remand order passed by the learned lower Appellate Court in the rival lis instituted by the parties against each other and there being common questions of fact/law involved, hence appropriate to decide all the appeals jointly, however, for reference, source will be instant file.

2. Inessential detail apart, on 27.12.2007, the present appellant instituted suit for possession as well as cancellation of mutation No.4467 dated 25.05.2000 claiming it to be result of fraud, impersonation and misrepresentation against Muhammad Amin, respondent No.1, which was not only contested by the latter, rather he also brought independent rival suit for permanent injunction to maintain his alleged possession over the subject property, whereas Muhammad Azam, respondent No.2 and nine others filed cross suit for specific performance of contract as well against the appellant, pleading that the latter sold out subject property to their late father. It is pertinent that during the pendency of the lis, the respondents made application for comparison of purported thumb-impressions of the appellant available on the disputed mutation and agreement to sell, subject of their suits, which was declined by the learned Trial Court on 15.05.2014 and finally after joint trial, the suit of appellant decreed and those of respondents dismissed through consolidated judgment dated 11.06.2014. Being dejected, three appeals were preferred by the respondents and during its pendency they again requested for comparison of thumb-impressions of the appellant through a fresh application before the learned lower Appellate Court, who without touching merits of the case while observing that the said exercise of comparison was essential for the just decision of the lis remanded it to the learned Court of first instance for decision afresh after making such drill work through impugned single order dated 28.11.2014, which is subject of appeals in hand.

3. These appeals are lingering on for the last many years and despite issuance of process repeatedly, the respondents did not bother to make their representation either in person or through counsel, who were finally summoned by publication of citation in the newspaper for 07.04.2020, which was duly published, but as per record none turned up on their behalf till today, who are proceeded against ex parte.

4. Heard and record scanned.

5. To me, the remand was not a proper solution as the whole evidence of the parties was already available on the file and it was not adviseable to throw them in another round of litigation just for the exercise, which could even be carried out by the learned Appellate Court, if essential. Under the law Regular First Appeal is continuation of original lis where the whole case is reopened and as per mandate of section 107 of the Code, 1908, the powers of the Appellate Court are akin with that of the Trial Court, as such the former endavours to read the entire evidence in the light of submissions made by the parties and then try to reach the truth of the matter. The jurisdiction to remand the case by the learned Appellate Court is provided under Order XLI, Rule 23 of the Code ibid, which reads as under:- "Remand of case by Appellate Court.-Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case; and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under the original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand." Whereas the following rule 24, reproduced hereinbelow:- "

24. Where evidence on record sufficient, Appellate Court may determine case finally. --Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds. (sic) is, in fact, alternative to the remand and makes obligatory for the Appellate Court to decide the lis even while resettling issues, if not framed properly, on the basis of evidence, so available on record. However, the next rule 25 given below:- "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." provides mechanism for the Appellate Court to collect further evidence, if needed through remittance of suit record to the Trial Court, which after compliance shall return the same to the former and in the meanwhile, the file of appeal shall remain within his custody. The analogy behind the said provision would be that unnecessary remand results in undue delay in cases and addition to the agony of the litigant besides over burdening the Court dockets as well as wastage of its precious time, whereas constitutional imperative demands inexpensive and speedy justice, that is why practice of frequent remand orders has time and again reprimanded by the superior Courts. See Robeena Shaheen v. Muhammad Munir Ahmad (PLD 2013 Lahore 106), Arshad Ameen v. Messrs Swiss Bakery and others (1993 SCMR 216) and Mst. Shahida Zareen v. Iqrar Ahmed Siddiqui (2010 SCMR 1119). In this case, there was no occasion for the learned Appellate Curt for the remand of original suits, hence being violative to the law on the subject and against the mande of the above referred judgments of the Superior Courts cannot be supported.

6. The upshot of the above discussion is that all these appeals are allowed, the impugned consolidated remand order dated 28.11.2014 is set aside, as a result whereof the Appeals preferrered by the respondents will deem to be pending before the learned Appellate Court below, who will redecide those as well as application for comparison preferred/made on their behalf in accordance with law after initiation of process to the other side as well. It is made clear that if learned Appellate Court below feels it inconsequential to go for the comparison of disputed thumb-impressions for the just and fair conclusion of the lis, then the said exercise should be carried out at his own level. The appellants will appear before the learned District Judge, Sheikhupura on 29-6-2020, who may hear the cases himself or entrust the same to any Court of competent jurisdiction for further proceedings. MH/G-10/L Case remanded.