2005 PLP 55 (MLD)

The pre-emption suit was filed by the appellants in this case on 31-7-1977. The parties are duly represented and have been heard at length. Therefore, this appeal is being disposed of as "Pucca" matter.

2. The appellants have assailed the judgment dated 27-11-2001, whereby the appeal of the respondents was allowed and the case was remanded to the learned trial Court to decide it afresh after rendering decision on Issues Nos.3 and 8-A, which are reproduced as under:-- ISSUES: (3) Whether the plaint does not bear the verification in accordance with law, if so, its effect? (8A) Whether the plaintiffs and their next friend except the plaintiff No. 1 have not signed or thumb-marked the plaint and the Wakalatnanma, if so, its effect?

3. The suit filed by appellants was decreed on 10-2-1982. The respondents vendees filed an appeal which was allowed vide judgment and decree dated 13-12-1982 and the suit filed by the appellants was dismissed on the ground of non-payment of the due court-fee leviable on the plaint. In the judgment dated 13-12-1982 it was observed that "arguments on no other issue were addressed to me". The appellants approached this Court in RSA No.55 of 1983 which was allowed vide judgment dated 25-1-2000 and the case was remanded to the learned District Court. On remand it was decided by the learned First Appellate Court vide the impugned judgment which has been assailed in this appeal.

4. The learned counsel for the appellants contends that in the judgment dated 10-2-1982 of the learned trial Court Issues Nos.3 and 8-A were decided in favour of the appellants. Although findings on these issues was assailed in the appeal but at the time of hearing of the first appeal (decided on 13-12-1982) the aforesaid issues had been given up and, therefore, the learned First Appellate Court was not justified to remand the case for determination of Issues Nos.3 and 8-A. It is next contended that the parties are litigating for the last about 26 years, the evidence on record was sufficient and, therefore, instead of remanding the case, the learned First Appellate Court should have finally decided the controversy.

5. On the other hand the learned counsel for the respondents -vendees submits that with the judgment dated 25-1-2000 rendered in RSA No.55 of 1983 all issues raised by the vendees in the first appeal were open to consideration and, therefore, the learned First Appellate Court was fully justified in remanding the case with the observations as recorded in para. 12 of the impugned judgment.

6. The submissions made by the learned counsel for the parties have been duly considered. The case could not be remanded for decision of Issues Nos.3 and 8-A without first determining whether Issues Nos.3 and 8-A had been given up in the first round of litigation. It appears that the judgment dated 13-12-1982 of the learned First Appellate Court escaped attention of the Additional District Judge while rendering the impugned judgment. Although remand of a case was within the discretion of learned Appellate Court yet in this case not only the parties had led complete evidence but also that the litigation is 26 years old. Therefore, the learned First Appellate Court should have finally decided the controversy instead of remanding the case and thus involving the parties in another round of litigation. If at all some inquiry was required to be made as observed by the learned District Judge in para. 12 of the judgment, it could have been done by him, subject to the determination whether Issues Nos.3 and 8-A could be agitated by the respondents- vendees.

7. For what has' been stated above, the impugned judgment is set aside and the case is remanded to the learned First Appellate Court for rehearing the appeal of respondents -vendees and to decide it himself afresh. The respondents will be at liberty to raise all the issues while the appellants would also be at liberty to raise all pleas in defence. The question whether Issues Nos.3 and 8-A could not be re-opened in the second round of litigation is left to be decided by the learned First Appellate Court. No order as to costs. H.B.T./M-742/L Case remanded.