1983 PLP 557 (CLC)

(i) that concurrently concluded finding of fact recorded by the Sub-Judge and District Judge to the effect that Mst. Beguman was the fulfledged owner could not be disturbed by the High Court ; (ii) that the additional issue, reflected above, framed by the High Court, never arises from the pleadings and in fact it is nobody's case, and. even otherwise this issue is not necessary for the correct adjudication of the case ; and (iii) that the remand is only meant to 611 in the lacuna in the case -of the respondents which is not permissible."

5. Before dealing with the criticism levelled by Mr. Taj, it is necessary to point out that leave was only granted to consider as to whether the,, additional issue could legally arid justifiably be framed by the High Court and the case remanded. The question, therefore, in the first instance natural arises as to whether other points raised can be allowed to be agitated.

6. It is correct that this Court would ordinarily be reluctant to enlarge the scope of controversy by permitting new points to be raised yet we would not allow interest of justice to be jeopardised on the altar of technicalities Once leave is granted to examine a particular point the entire case, if the circumstances so require, may be reoponed "for doing complete justice." Each case falls within the discretionary jurisdiction of the court, which it would not hesitate to invoke to avoid the failure of justice. In which case and to what extent this power of the court should be invoked will however depend on the circumstances of each case.

7. Let us now see whether in this case circumstances warrant reopening of the whole case. In this case the learned Single Judge of the High Court has vacated the concurrently concluded finding of fact recorded by the Sub-Judge and affirmed is appeal by the District Judge. What was that finding ? The finding was to the effect that Mst. Beguman, being a full fledged owner, ways competent to gift away the land to her daughters. In these circumstances though leave was granted on a specific point yet in the interest of justice the learned counsel appearing on behalf of the appellants was.' Wowed to argue the case as a whole especially as to whether the learned Judge in the High Court has correctly vacated the finding of the fact concurrently concluded by the lower Courts.

8. This now brings us to determine the points. On Point No. (i) it has been submitted by Ch. Muhammad Taj, Advocate, that both the subordinate courts after discussing oral and the documentary evidence have recorded a well analysed and reasoned out finding that Mst. Beguman being a full fledged owner was competent to -alienate the land to her daughters. 'To support him reference was made to the testimony of Bashir Ahmed Patwari, Karim Haider and Ali Dad witnesses, all examined by Allah Ditta, respondent (plaintiff). The evidence of Allah Ditta respondent (plaintiff) who has also examined himself as his own witness was also referred.

9. What these witnesses state ? Bashir Ahmed, Patwari, proves copy of the record-of-rights pertaining to the year 1967 A. D. wherein Mst. Beguman is entered as a full fledged owner. The witness, however, showed his ignorance as to whether Mst. Beguman was a limited owner or not ? Karim Haider P. W. 3 (in his cross-examination) states that after the death of Noor Din Mst. Beguman, his widow, had occupied the land as an owner. Ali Dad P.. W. 4 is also in line with Karim Haider. He states that .!1st. Beguman, occupied the land as an owner. Likewise, Allah Ditta, respondent (plaintiff), appearing as his own witness (in cross-examination) states that Mst. Beguman retained the possession of the suit land as a full fledged owner. It is pertinent that he disowns para. 2 of the plaint which enters that .'list. Beguman was a limited owner. He further says that Mst. Beguman was a full fledged owner. It would thus appear that the plaintiff and his witnesses prima facie disown the case as set out in the plaint.

10. It is settled law that an appellate Court is expected to evaluate the whole evidence oral as well as documentary having importance on an issue or on the case as a whole. Failure to do so would render the judgment defective. In the case before us whether the statement of plaintiff-respondent and his witnesses should be ignored and on what grounds, is a question which is of vital importance and ought to have been properly attended by the High Court. But it appears that this aspect of the case remained unnoticed and, therefore, unattended. The learned Judge of the High Court, it seems, having been impressed by the fact that Noor Din husband of Mst. Beguman died sonless and was survived by his widow and three daughters and a full brother, held that the presumption would be that mutation of the land left by Noor Din to the exclusion of the daughters and brother was made under some custom and needs no evidence to prove that it was a customary estate. But nothing has been said as to why the statements of plaintiff and his witnesses have been ignored. 11.. No doubt in Jammu & Kashmir State even during Dogra Regime among Muslims, Muslim Law of Inheritance was the rule and custom an exception. 1n presence of daughters -and brothers the whole land ordinarily would not devolve on a widow. But on the face of oral evidence in this case the possibility cannot be excluded that during the lifetime of Noor Din the land may have been alienated by him to Mst. Beguman, his widow, or it may have devolved on her under some other recognized method or custom. Even leaving this aspect of the case apart, it is well-recognized law that custom must be pleaded in specific terms and proved as such.

12. This aspect of the case also needs attention. In view of the above we are constrained to hold that the oral evidence which has been examined by the respondent himself and which, prima facie, goes to demolish his case has not been evaluated at all by the learned Judge in the High Court and failure to do so, in our view, is fatal to the decision.

13. The learned counsel for the parties also conceded that the judgment of the High Court is faulty. They made a joint request that the case may be sent back to the High Court to decide it afresh -4t`ter applying its mind to the documentary as well as oral evidence.

14. So far Point No. (ii), which pertains to the framing additional issue, we may state and the parties are also in agreement that it does not arise out of the pleadings of the parties. The materials mentioned under Order XIV, rule 3 of the Code of Civil Procedure are only intended to enable the Court to ascertain the contentions of the parties with precision, I.e., to elucidate points which are ambiguous or obscure. It cannot be mean to enlarge the scope of the pleadings so as to enable the Court to raise an issue on the point not at all raised in the pleadings. This appears to be the spirit of Order XIV, rule 3 of the Code of Civil Procedure, which deals with framing of issues. Therefore, the additional issue, we are afraid, cannot be pry, framed under Order XIV, rule 3 of the Code of Civil Procedure.

15. However, Order XLI, rule 25, which reads (This rule unfortunately '`` has not been referred by any of the learned counsel) :- "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 therefore." empowers the appellate Court to frame issues and refer them for trial to the court from whose decree the appeal is preferred. This rule gives power to the appellate Court to frame issue and refer the same for trial to the court if need be by taking additional evidence. But the rule permits this course only if (i) the trial Court omitted to frame an issue, (ti) try an issue or (iii) to determine any question of fact which appears to the appellate Court essential to the right decision of the suit upon the merits. It follows that an appellate Court may remit issues to the lower Court for findings where the trial Court failed to try an issue or determine any question of fact essential to the right decision of the suit on merits. It would thus appear that provisions of Order XLI, rule 25 enlarge the scope of remand after framing issue which is essential to the right decision of the suit upon merits. Therefore, under this provision the issue may not necessarily arise out of the pleadings of the parties. A case, however, cannot be remanded to enable a party to produce evidence which ought to have been given in the lower Court and where the lower Court has not omitted to decide any issue or any question of fact. This view prevailed in A I R 1942 Lah. 1, A I R 1928 Cal. 545 and A T R 1917 Pat. 139.` ,

16. For the view we have taken in the matter the learned counsel for the parties also agree that the additional issue was not necessary for they correct adjudication of the case because identification of the land was no disputed by any of the parties. 1n view of the decision on Point No. (ii) Point No. (iii) loses all importance and needs no decision. We, therefore, accept the appeal, set aside the judgment of the High Court and remand the case back to the High Court with the direction that the High Court while keeping is view the observations made above decide the case afresh. No order as to costs. We would have decided the case ourselves but we subscribe to the view of the learned counsel that it would be but just and equitable to remand the case with a view to have the wisdom of the High Court regarding the worth of oral evidence. K, M, A, Appeal accepted,