1982 PLP 183 (SCMR)

Sh. Muhammad Naseem, Advocate Supreme Court with S. Inayat Hussain, Advocate‑on‑Record for Petitioners. Malik Maqbool Ilahi, Advocate Supreme Court with Sh. Abdul Karim, Advocate‑on‑Record for Respondent. Date of hearing: 13th April, 1981. SHAFT‑UR‑REHMAN, J.‑‑The petitioners, who were the defendants in a civil suit, seek leave to appeal against the judgment of the Lahore High Court dated 29‑9‑80 whereby the first appeal filed by the respondent against a remand order was partially allowed.

2. The respondent Mst. Badshah Begum instituted a civil suit seeking a declaration that she continued to be owner of the property and the registered deed of gift said to have been executed by her was obtained by her deceased husband by practising fraud and was liable to cancellation. In the alternative it was pleaded that the gifted property had in any case a charge of Rs. 10,000, her dower debt. Her case was that on the pretext of getting a power of attorney registered, her husband got a registered deed of gift executed and completed. The petitioners, heirs of her deceased husband contested the suit and raised two preliminary objections. One was with regard to the form of the suit and the other with regard to the compliance of the terms of withdrawal. Both the issues were decided by the trial Court in favour of the plaintiff-respondent. On appeal the learned Additional District Judge reversed the finding with regard to the form of the suit without holding as to what was the defect in the form, and directed the trial Court to decide the suit on merits. The trial Court once again decided the suit on these issues and the issue on merits on which the learned District Judge hearing the appeal again remanded the case saying that with the reversal of the finding of Issue No. 1 by the Additional District Judge the trial Court could not have returned a finding afresh on that issue so as to nullify the finding of the Additional District Judge. In the second round of litigation before the Ist Appellate Authority an additional issue on limitation was framed and the entire case remanded for decision afresh. It was against the second remand order that an appeal was filed in the High Court. With regard to the Additional issue on limitation the proceedings were allowed to continue on remand but the question sought to be examined was whether the District Judge had acted in accordance with law in remand ing the case for fresh decision on all the issues except No. 1.

3. The learned Judge in the High Court came to the conclusion that the first remand order of the Additional District Judge suffered from manifest omission inasmuch as it did not indicate why the form of the suit was improper and also how, after holding so he had directed the decision of the case on merits by the trial Court. Rejecting the contention of the petitioner that the decision had attained finality, the learned Judge in the High Court converted the second remand order into one under Order XLI, rule 25, C. P. C. and directed that the finding on the additional issue of limitation be returned to the District Judge whereupon the District Judge as a first appellate Court was to decide the appeal on merits including Issue No. 1.

4. The learned counsel for the petitioner has objected to the decision under appeal on the ground that it re‑opens a decision which had become conclusive, final, and binding on the parties and had been delivered as early as 1973. As that decision was not challenged the finding could not be reopened. Additionally, it is contended that the learned Judge in the High Court was not justified in converting a remand order under rule 23‑A, Order XLI, to cane under Order XLI, rule 25, C. P. C. In this manner, according to the learned counsel for the petitioners, a right of appeal has been denied to the petitioners.

5. We have heard the learned counsel for the petitioners at length and find that his objections may have some technical merit but the decision of the High Court has substantial merit. The learned District Judge while passing the first remand order was faced with two objections with regard to the form of the suit. The first was that the plaintiff being out of possession mere declaration could not be sought and granted. The other was that as a registered instrument was involved there should have been a prayer for its production and cancellation. The order of the District Judge does not disclose which of the grounds prevailed and if at all anyone or both prevailed and the finding recorded had to be reversed why the trial Court was directed to decide the case on merits without correcting the form. The impression which one gets after reading the first remand order of the District Judge is that he only wanted to note the different objections to allow yet another opportunity to the trial Court to re-decide the matter, and that is how the trial Court understood that judgment. In the second remand order the District Judge upheld the finding of defective form of suit but like the earlier order sought a fresh decision on merits. The order w subject‑matter of appeal in the High Court and the High Court was amply justified in converting that remand order to one under rule 25, C. P.C to enable the District Judge on receipt of the finding on the question' of limitation to himself decide the appeal on all the issues involved in the case. The right of appeal to any of the parties is not affected by such a remand because under rules 26 and 27, C. P. C. the affected party will have an opportunity of filing objections and getting them disposed of as in appeal.

6. We find no merit in they petition and the leave to appeal is refused.