1984 PLP 1767 (CLC)

O. XLI, r. 23 & S. 115‑Revision‑Case remanded under O. XLI, r. 23‑Civil revision. held, not competent‑High Court treating civil revision as first appeal from order. ‑‑‑ S. 149‑Appeal‑Deficiency of court‑fee‑Appeal filed with deficit court‑fee‑Court should have first determined court‑fee payable and postponed hearing of appeal to enable pare to make up deficiency within given time‑Appeal not to be beard till deficiency made up by appellant.‑[Court‑fee]. ‑‑ O. XL1, rr. 23 to 25‑Remand‑Remand of cases on one pretext or other on technical grounds‑Practice deprecated‑Additional District Judge setting aside judgment of trial Court and remanding case for framing additional issue without following provisions of O. XLI, rr. 24 & 25, C. P. C.‑Held : Law did not favour remand as a matter of course unless there was no alternative but to remand same‑Case sent back with direction that Additional District Judge should examine evidence on record and if feels sufficient evidence to enable him to pronounce judgment then after resettling issues, if necessary, finally determine suit‑Evidence if not sufficient to pronounce judgment, Addi tional District Judge to frame proposed issue and refer same for trial in accordance with O. XLI, r. 25.‑[Remand of case]. On 16‑1‑1969 Mst. Hussain Bibi, the predecessor‑in‑interest of Sardar Muhammad and others, the petitioners filed suit against Miraj Din respondent for possession of suit land measuring 100 Kanals and 2 Marlas situated in Chak No. 130/ I 5‑L, Tehsil Khanewal. The suit was resisted whereon 5 issues were framed. The trial Court decreed the suit on 20‑7‑1973. Aggrieved by the judgment and decree, Miraj Din respondent filed appeal which was entrusted to the learned Additional District Judge, Multan who vide his order dated 16‑10‑1976 while allowing appeal remanded the case to the trial Court with the direction that after framing issues relating to fraud, forgery and collusion, alleged by the petitioners/ plaintiffs, the suit may be disposed of afresh after giving opportunity to the parties to lead more evidence, if they so desired. The learned Additional District Judge directed Miraj Din respondent/appellant therein to pay the deficient court‑fee assessed in accordance with 15 times of the net profits during the year preceding the filing of the appeal. The plaintiffs/petitioners were also bound down to make up the deficiency in court‑fee in the suit, hence this revision. Since the case was remanded under Order XLI, rule 23, C. P. C., the civil revision being not competent, I propose to treat this civil revision as first appeal from order.

2. Learned counsel for the appellants has submitted that the learned Additional District Judge should have assessed the court‑fee first and should have required the respondent/appellant therein to make up the deficiency before deciding the appeal ; that there being sufficient evidence on the record to enable him to pronounce the judgment, the learned Additional District Judge after restling the issues proposed by him should have determined the suit himself. On the other hand, the learned counsel for the respondent has supported the order of the learned Additional District Judge.

3. I have considered the arguments advanced by the learned counsel for the parties with care. I feel inclined to agree with the learned counsel for the appellants. I am of the view that in the circumstances of the case, the learned Additional District Judge should have first determined the court- fee payable on the appeal and should have postponed the hearing of the appeal to enable the respondents/appellants therein to make up the deficiency within given time. He should not have decided the appeal before the deficiency was made up by the appellants therein. Since, as admitted by the learned counsel for the parties, the deficiency m court‑fee has already been made up by the respondents/appellants therein within time given by the Court, I am of the opinion that no useful purpose would be served by setting aside the direction given by the learned Additional District Judge in this behalf. As for his direction to the petitioners plaintiffs to make up the deficiency of court‑fee in the suit, I find that the trial Court had framed a specific issue i.e. Issue No. 1 on this point. The issue was frankly conceded before the trial Court by the learned counsel for the respondent/defendant, and as such there was no justification to direct the petitioners/plaintiffs to make up the deficiency in court‑fee.

4. The issues were framed in the presence of the parties. The parties have adduced evidence to prove and rebut the issues. It appears that the learned Additional District Judge has hurriedly remanded the case under Order XLI, rule 23, C. P. C. He did not care to examine the provisions of rules 24 and 25, C.P.C. I have noticed with great disapproval that the tendency has developed among the District Judges and the Additional District Judges to remand the case on one pretext or the other. The cases are remanded on trivial and technical grounds. The District Judges/Additional District Judges do not care to follow rules 24 and 25, C. P. C. The law does not favour remand as a matter of course. The District Judges/Additional District Judges shall not remand the cases unless there is no alternative but to remand the same. In the case in hand, I find that the learned Additional District Judge set aside the judgment and decree of the trial Court simply to remand the case for framing additional issue. It appears that provisions of rules 24 and 25, C. P. C. were not in his mind at that time. The order passed by him has, therefore, to be set aside. The case is sent back with the direction that the Additional District Judge should examine the evidence on the record. If he feels that there is sufficient evidence to enable him to pronounce the judgment then he, after resettling the issues necessary shall finally determine the suit and in case he finds that the evidence is not sufficient enough to pronounce the judgment, he shall frame the proposed issue and refer the same for trial in accordance with Order XLI, rule 25, C. P. C. Resultantly, the order of the learned Additional District Judge is set aside and there being no alternative, the case is sent back to the learned Additional District Judge for proceeding according to law. The parties are directed to appear before the learned Additional District Judge on 18‑12‑1983. M.B.A Case remanded.