2014 PLP 1353 (YLR)

ABDUL LATIF KHAN, J.

This civil revision petition under section 115, C.P.C. is directed against the judgment and decree dated 5-7-2011 of the learned Additional District Judge, Paharpur D.I. Khan, whereby appeal of the respondents-plaintiffs against the judgment and decree dated 20-1-2010 of the learned Civil Judge, Paharpur D.I. Khan, was accepted and suit of the plaintiffs was remanded to the learned court.

2. Precise facts leading to the instant revision petition are that the respondents/ plaintiffs filed a suit for declaration wherein they challenged the validity of gift Mutation No.5820 dated 27-12-1992 through which husband of defendant No.1 has fraudulently entered a gift mutation in her name and the said mutation was fraudulently signed from Saleh Muhammad fully detailed in the heading of the plaint. They further averred in the plaint that alienation of 25 kanals through Mutation No.2696 dated 29-8-2000 in the name of defendant No.2 is illegal and gift Mutation No.5760 dated 9-6-1991 was written in the name of predecessor of the plaintiffs namely Pira and husband of the defendant Abdullah because Abdullah and Pira are sons of Saleh Muhammad, the original owner of the property. The said mutation was cancelled by Abdullah fraudulently. The defendants appeared before the learned trial court and filed their written statement. The learned trial court after framing issues, recorded evidence of the parties and hearing arguments of the learned counsel for the parties, dismissed the suit of the plaintiffs vide judgment and decree dated 20-10-2010. Appeal preferred by the respondents against the judgment and decree of the learned trial court, was accepted on 5-7-2011, hence the present revision petition.

3. Learned counsel for the petitioners contended that the appellate court has wrongly remanded the case to the trial court without framing any additional issue. He added that the impugned judgment of the learned appellate court is ambiguous as there is no clear direction regarding nature of issue to be framed and decided afresh by the trial court. He contended that the Mutation No.5820 was never challenged by Pira, predecessor of the respondents, as well as Abdullah in their life time and the instant suit has been filed with malice which is liable to be dismissed. He contended that the trial court has rightly appreciated the evidence in true perspective in the light of the available record and the appellate court has set aside the same without assigning any reason.

4. As against that, learned counsel for the respondents contended that the appellate court has rightly remanded the case after framing an additional issue to the effect that "whether the suit property was validly gifted vide Mutation No.5820 attested on 27-12-1992 in favour of defendant No.1 by Saleh Muhammad?", with direction to the trial Court to decide the matter afresh. He contended that the appellate court committed no illegality rather has properly remanded the matter to the trial Court for decision afresh.

5. I have heard the arguments of the learned counsel for the parties and perused the record with their valuable assistance.

6. The validity of gift Mutation No.5820 dated 17-12-1992 has been questioned by the respondents through Suit No.769/1N of 2001, which was hotly contested by the defendants and as many as eight issues were framed by the trial court, including issue No.6 as to "whether gift Mutation No.5820 dated 27-12-1992 is valid or it has been fraudulently entered, and if so its effects, upon later Mutation No.6297 dated 29-8-2000 OPP. The trial court has given findings vide judgment and decree dated 20-10-2010 declaring the said mutation as valid and dismissed the suit of the plaintiffs. The learned appellate court in appeal filed by the respondents has given no finding upon merits of the case and has confined itself in para No.8 of the judgment, to the extent, that the learned trial court, who framed proper issues and decide the matter afresh. No directions were given by the learned appellate court as to which of the issue is lacking, which is to be framed by the learned trial court, however, the main issue which has been mentioned in para No.8 about the validity of Mutation No.5820 has already been framed as issue No.6, by the learned trial court and exhaustive findings to this effect were delivered. It was the bounden duty of the learned appellate court to recast the issue if any, necessary in its opinion for the just decision of the matter and then remand the case to the learned trial court for decision in the light of the framed issues.

7. The appellate court has been empowered with same power as court of the original jurisdiction and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on courts of the original jurisdiction. Section 107 C.P.C. is reproduced as below:- "

107. Power of Appellate Court.--(1) Subject to such contains and limitations as may be prescribed, an Appellate Court shall have power-- (a) To determine a case finally; (b) To remand a case; (c) To frame issues and refer them for trial; (d) To take additional evidence or to require such evidence to be taken. (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein."

8. Clause "C" subsection '1' of section 107, C.P.C., specifically speaks about the framing of issue/issues and then to refer for trial, which shows that the learned appellate court was bound under the law to frame specific issue/issues and refer the same for trial in remand order. The remand order is alien to law as the learned appellate court has simply remanded the case by observing that the trial court should frame proper issues without any clear direction to this effect as to the nature of proper issue has to be framed in the peculiar circumstances of case. The remand order shall be in clear terms and task of re-decision has to be entrusted to trial court with clarity, so as to avoid ambiguity. In the instant case, the direction given regarding the validity of Mutation No.5820 has already been dealt with in issue No.6, by the learned trial court, therefore, the remand order was not warranted by law.

9. For the foregoing reasons, the present revision petition is accepted, set aside the impugned judgment and decree of the learned appellate court and remanded the case to the learned Additional District Judge, Paharpur D.I. Khan, with the directions to decide the matter on merit after affording opportunity to the parties of being heard strictly in accordance with law, within shortest possible time preferably within a month. The parties are directed to appear before the court of learned Additional District Judge, Paharpur D.I.Khan on 14-9-2013. AG/587/P Case remanded.