2007 PLP 1788 (YLR)

IJAZ-UL-HASSAN KHAN, J.

In brief, factual background of the case is that Abdul Qayyum and others, plaintiffs had instituted suit against Bacha Khan and others, defendants for declaration and possession along with other reliefs, in respect of certain landed property, detailed in the head note of the plaint.

2. Defendants Nos.1 to 4, 6 and 7 appeared in Court, and contested the suit on all grounds, legal as well as factual. Following issues were framed for trial.

3. At the conclusion of the trial, learned Civil Judge/Illaqa Qazi, Tehsil Matta District Swat, who tried the suit decided Issues Nos. 1 to 4, 6 and 7 together and proceeded to hold that evidence produced by the plaintiffs was discrepant and not confidence-inspiring and plaintiffs have miserably failed to substantiate their claim. On the contrary, sufficient material in shape of document dated 21-3-1970 and agreement deeds dated 22-8-1963, 28-6-1957 and 21-2-1958 respectively has been brought on the record to rebut the claim of the plaintiffs. Issues Nos.2 and 3 pertaining to limitation and res judicata, were also decided against the plaintiffs and suit was found barred by time in terms of Article 120 of the Limitation Act. Resultantly, suit was dismissed by judgment and decree dated 4-3-2005. An appeal was preferred thereagainst before learned District Judge, Swat which was assigned to learned Additional District Judge, Swat for disposal. By judgment dated 10-11-2005, the appeal was accepted, judgment and decree dated 4-3-2005 was set aside and case was remanded back to the trial Court for re-decision with the direction to appoint a local commission to decide the lis. Bacha Khan and other petitioners, feeling aggrieved thereby, have filed instant Civil Revision under section 115, C.P.C., which is before me for consideration.

4. M/s Mazullah Barkandi and Shahabuddin Burq, Advocates, for the petitioners, bitterly criticised the impugned judgment and attempted to argue that the appellate Court has illegally exercised its jurisdiction by remanding the case without giving findings on all the issues in flagrant disregard to mandatory provisions of Order XLI, rule 31, C.P.C.; that the evidence on record was sufficient for the appellate Court to decide the matter itself instead of remanding the case and the appellate Court has not properly understood .the law and the facts of the case which has resulted in complete failure of justice.

5. Opposing the arguments of learned counsel for the petitioners, Mr. Abdul Samad Khan, Advocate for respondents Nos.1 to 5 and Mr. Masoodur Rehman, Advocate for respondents Nos.6 to 10 maintained that there is no infirmity in the impugned judgment, which could justify interference by this Court while exercising revisional jurisdiction and the civil revision deserves outright dismissal. To substantiate the contentions, reliance was placed on Mst. Saleem Akhtar v. Nur Muhammad Khan and 4 others (1994 CLC 1828).

6. I have considered the submissions of learned counsel for the parties at some length in the light of the material on the file.

7. The appellate and the revisional Court is always empowered to remand the case in terms of Order XLT, rule 23 C.P.C., but this discretionary power is used only in exceptional situation and if the parties have led evidence with regard to the particular point and the Court of first instance by giving specific finding on the said point decided the same in the light of evidence available on record, the remand of the case in appeal or revision is not proper exercise of jurisdiction. Needless to emphasize that power under Order XLI, rule 27, C.P.C. are to be exercised only if the Court considers that it would not be able to pronounce judgment without further evidence, and this provisions cannot be used for the benefit of a party which has not been vigilant enough to see that no weaknesses are left in its case.

8. Under Order XLI, rules 23 and 24, C.P.C. only those cases should have been remanded which could not be decided on the basis of available material/record as it would be in the interest of justice that if a controversy can be resolved on the basis of available evidence then the question of remand does not arise. This power should not be exercised lightly but sufficient care should be taken in remanding the case. The Court should examine the evidence and if it comes to the conclusion that it is not sufficient to pronounce the judgment or decide the issues between the parties, it can remand the case or may itself record the evidence and decide it. But if on record there is adequate and sufficient evidence on which decision can be made, the remand would not be justified. In this regard reference can profitably be made to Nasir Ahmad and another v. Khuda Bakhsh and another (1976 SCMR 388), Fateh Ali v. Pir Muhammad and another (1975 SCMR 221) and Ashiq Ali v. Zameer Fatima (PLD 2004 SC 10).

9. A perusal of the record would reveal that petitioners have become owners of suit property not only on the basis of sale-deed dated 21-3-1970 but have also placed on record certain other deeds in support of their claim. It needs no reiteration that it is always for the plaintiff to prove his case and he cannot take benefit 'of the weaknesses, if any, of the defendant's case. The appointment of commission, in the instant case, will not give any strength to the plea of the respondents about their ownership, as rightly contended by learned counsel for the petitioners. The appointment of commission seems to be an exercise in futility in the circumstances of the case. The learned trial Court has delivered a detailed and exhaustive judgment considering all the aspects of the case, leaving no room for further deliberation. The authority cited on behalf of the respondents, is distinguishable and proceeds on different facts.

10. In view of above discussion, on acceptance of this civil revision, the impugned judgment/decree of learned appellate Court is set aside and that of learned trial Court is restored, with no order as to costs. H. B. T. /74/P Revision accepted.