2010 PLP 227 (MLD)

ARSHAD MAHMOOD, J.--This civil revision has been preferred against the judgment and decree, dated 15-11-2001 of learned District Judge Multan whereby while accepting appeal of the respondents, case was remanded to the learned trial Court for its decision afresh.

2. Tersely facts of the case are that Mst. Shamim Mai petitioner filed a suit against Altaf Hussain and Muhammad Akhtar along with three others challenging the vires of Mutation. No. 5971, dated 31-12-1992 on the ground that the same was illegal, fraudulent and based upon collusion and thus ineffective as against her rights. The respondents resisted the suit. After affording an opportunity of production of evidence, oral as well as documentary, to both the parties, learned trial Court decreed the suit. Aggrieved thereof respondents filed an appeal, which was allowed through the impugned judgment and decree and the case was remanded back to the learned trial for decision afresh after considering the documents available on record.

3. Learned counsel for the petitioner submits that a well reasoned judgment and decree was impugned before the learned appellate Court. Adds that even if the learned appellate Court had come to the conclusion that the judgment and decree impugned before it was based on non-reading of evidence, the learned lower appellate Court in exercise of appellant jurisdiction could decide the matter itself after evaluating the evidence available on record.

4. Respondents are real brothers. Respondent No.2 appeared in person on several dates. On 30-3-2005, Mr. M. Nawaz Malik, Advocate also tendered power of attorney on their behalf. On preceding date i.e. 1-6-2006 respondent No.2 appeared in person and sought time to engage counsel for himself as well as on behalf of respondent No.1 and the case was adjourned as fixed by Court for today. None has entered appearance on behalf of the respondents, therefore, they are proceeded against ex paste.

5. I have heard learned counsel for the petitioner at length and examined the record.

6. Order XLI C.P.C. provides procedure of appeal Rules 23 to 26 whereas deal with remand of case by appellate Court. Rule 23 covers a situation where the trial Court decides the case on a preliminary point and the decree is reversed in appeal. Rule 24 empowers the Court to decide the matter itself where evidence on record is sufficient. Rule 25 applies where the trial Court omits to frame or try issue and enables the appellate Court to frame issue and refer the same for trial to the Court from whose decree the appeal is preferred. Rule 26 stipulates the procedure to handle with the proceedings recorded on the fresh issues framed under Rule 25.

7. Perusal of the impugned judgment and decree reveals that the learned District Judge proceeded to remand the case in the absence of any of the above situations. Above provisions of law do not permit the appellate court to remand case on failure of the trial Court to decide the case on the basis of available record. Therefore, the learned appellate Court in not deciding the case itself failed to exercise the jurisdiction vested in whereas while remanding in to the learned trial Court exercised the jurisdiction not so vesting. Thus the judgment passed by the learned District Judge remanding case to the learned trial Court is illegal, therefore, the same is set aside. The learned District Judge is directed to decide the case himself after hearing the parties on the basis of material available on record. H.B.T./S-260/L Case remanded.