2025 PLP 177 (CLC)

SAFDAR SALEEM SHAHID, J.

This revision petition has been directed against the judgment and decree dated 02.02.2016, whereby the learned Additional District Judge, Ferozewala, accepted the application for additional evidence as well as appeal filed by the respondent and remanded the case to the trial Court for recording additional evidence and its rebuttal (if any) and decide the same afresh after considering the additional evidence.

2. Brief facts necessary for decision of the instant petition are that respondent filed a suit for specific performance of contract alleging that predecessor-in-interest of petitioners namely Mehmood Ahmad being owner in possession of the land in dispute measuring one kanal, described in the plaint, sold out the same to the respondent through agreement dated 12.06.2005 in lieu of Rs.10,00,000/- by receiving an amount of Rs.100,000/- as earnest money and subsequently a sum of Rs.4,39,250/- paid to Punjab Small Industries on behalf of Mehmood Ahmad was adjusted as sale consideration vide endorsement dated 12.09.2005. The agreement was to be completed by 12.09.2005, but sale deed could not be executed due to ailment of Mehmood Ahmad, who died later on. Thereafter on refusal of the petitioners to execute sale deed in completion of the agreement of their predecessor-in-interest dated 12.06.2005, the respondent filed the suit. The suit was contested by the petitioners. The learned trial Court framed issues, recorded evidence of the parties and having gone through the same dismissed the suit vide judgment and decree dated 22.03.2013.

3. Feeling aggrieved, the respondent filed an appeal and during the pendency thereof he filed an application under Order XLI, Rule 27, C.P.C for production of additional evidence, which was contested by the petitioners. However, the learned appellate Court without deciding the said application, decided the main appeal vide judgment dated 15.06.2015. The respondent filed second appeal before this Court, which was allowed and the case was remanded to the first appellate Court with the direction to first decide the application under Order XLI, Rule 27, C.P.C., and thereafter decide the appeal as expeditiously as possible preferably within a period of four months. The learned appellate Court thereafter, vide judgment and decree impugned herein, allowed the application under Order XLI, Rule 27, C.P.C. as well as the appeal and remanded the case to the trial Court with a direction to record additional evidence and rebuttal thereof and then decide the matter after considering the said evidence.

4. Arguments heard. Record perused.

5. It is contended on behalf of the petitioners that since plaint in the suit as well as the grounds of appeal before the first appellate Court were silent about issuance of legal notices, the application for additional evidence filed at a belated stage was only to linger on the matter and an attempt to fill in lacuna in the evidence, as such the impugned judgment is liable to be set aside. Reliance in this regard is placed on the cases of Muhammad Yousaf v. Mst. Maqsooda Anjum and others (2004 SCMR 1049), Ejaz Muhammad Khan and others v. Mst. Sahib Bibi through Shazad Khan and others (1996 SCMR 598) and Munir Ahmad and 9 others v. Province of Punjab through District Collector/Deputy Commissioner, Gujrat and 2 others (2000 MLD 1314).

6. A perusal of record depicts that legal notices sought to be brought on record through additional evidence were duly mentioned in the list of reliance filed under Order VII, Rule 14, C.P.C. and the said notices had a specific reference to the agreement to sell arrived at between him and the predecessor-in-interest of the petitioners, as such the same were helpful for the Court to reach at a fair and just decision. Furthermore, it is in the evidence of P.W.2 that a legal notice was issued by the respondent through Mushtaq Ahmad Mughal, Advocate and this fact was not specifically denied by the petitioners. As such the learned appellate Court feeling the required documents to be helpful for just decision of the case rightly allowed the application moved by the respondent.

7. As regards remand of the case by the first appellate Court under Rule 23 of Order XLI, C.P.C., it appears to be the result of some misconception in relation to the very applicability of Rule 23 as also of the Lahore High Court Amendment therein adding Rule 23-A on 04.08.1936. These Rules are couched in the following words:-- "

23. 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 that 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 readmit the suit under its 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. 23-A. Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point and the decree is reversed in appeal, and a re-trial is considered necessary the Appellate Court shall have the same powers as it has under Rule 23. " When the afore-referred Rules are read in conjunction with Rule 1 of Order XLII, C.P.C, which provides for application of the rules of Order XLI, C.P.C to appeals from appellate decrees, it becomes abundantly clear that one of the preconditions for remand is that "the decree is reversed in appeal and a re-trial is considered necessary". Since in the instant case decree of the trial Court was not reversed, remand of the case by the first appellate Court was not justified only for recording of additional evidence. Reliance in this regard can be placed on the case of Abdul Majid v. Syed Muhammad Ali Shamim and 10 others (2000 SCMR 1391).

8. In addition to the above, it is noticed that provision of Order XLI, Rule 28, C.P.C. prescribes the mode of taking additional evidence and lays down that where the additional evidence is allowed to be produced, the appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred or any other subordinate court, to take such evidence and to send it when taken to the appellate Court, meaning thereby, that the effect of the additional evidence is to be considered by the appellate court and not by the Court whose decree is under appeal. It leaves no doubt that the appellate Court is required to decide the application for adducing additional evidence itself and has to give the reasons for allowing such application and that too within the parameters of Rule

27. In case the application is allowed then the appellate court may record the additional evidence itself or direct the trial court to record such evidence and to remit the same to the appellate Court. However, under no circumstances the appellate Court could set aside the judgment and decree of the trial Court while remanding the case to the Court whose decree was under appeal for having the additional evidence recorded. The order of the appellate Court in the circumstances could not be sustained and, therefore, is liable to be set aside on this score alone. Reliance in this regard can also be placed on the cases of Muhammad Siddique v. Gul Nawaz and others (2021 SCMR 1480) and Khalid Ibrahim through L.Rs. and others v. Chaudhry Mazhar Hussain and others (2015 CLC 761).

8. For what has been discussed above, the instant petition is partially allowed and judgment of the appellate Court is set aside to the extent of remand of the case to the trial Court for decision afresh after considering the additional evidence, whereas the appellate judgment to the extent of allowing the application for additional evidence is upheld. However, the learned first appellate Court is directed to keep the appeal pending till the additional evidence to be recorded by the trial Court is received and thereafter decide the same in accordance with law. There shall be no order as to costs. FM/S-65/L Order accordingly.