1999 PLP 1368 (CLC)

Raja Muhammad Siddique Khan, Advocate for Appellants. Ch. Muhammad Riaz Alam, Advocate for Respondents. Date of hearing: 28th October, 1997.. SARDAR SAID MUHAMMAD KHAN, C.J.‑ As the above entitled appeals arise out of the single judgment of the High Court, we propose to decide the same by this single judgment

2. The brief facts of the case are that Abdul Rashid, appellant, brought, a declaratory suit with the consequential relief of possession alleging that he alongwith his brother, Abdul Aziz, pro forma defendant, was owner of the suit land but the defendants, Nek Alam and others, with the connivance of the Revenue Authorities got fictitious entries of possession of the suit land in their favour. Thus, he sought declaration to the effect that the same entries are null and void against their interests and also sought possession of the suit land on the basis of title. The suit was resisted by the defendants on the ground that their possession has ripened into ownership and that in any case the suit was time barred. The trial Court decreed the suit of the plaintiff and pro forma defendant and appeal filed by the defendants also failed. However; on second appeal to the High Court, the judgments and decrees of the Courts below were set aside and the case was remanded back to the trial Court to decide the same afresh after hearing the arguments. Both the contesting parties have filed above entitled cross appeals contending that instead of remanding the case, the High Court should have decided the appeal on merits.

3. Raja Muhammad Siddique Khan, Advocate, the learned counsel for Abdul Rashid, has argued that the High Court has committed an error in remanding the case, especially so when there was sufficient material on the record to decide the matter on merits. The learned counsel has argued that there is no provision in the Code of Civil Procedure to remand the case merely because in the estimation of the High Court the judgments and decrees of the Courts below are violative of any procedural law or the same offend against the substantive law on a particular point. The learned counsel has submitted that assuming for the sake of argument that the judgments and decrees of the Courts below were given without applying mind to the important aspects of the case, it was in the fitness of things that the High Court should have rectified the legal defects, if any, instead of putting the parties at inconvenience by remanding the case to the trial Court. The learned counsel has argued that the remand order is tantamount to subject the parties to further inconvenience and hardships; the order would result in undue expenses of protracted litigation.

4. The arguments advanced by the learned counsel for Abdul Rashid were endorsed by the counsel for Nek Alam who has also filed a cross appeal against the remand order.

5. We have given our due consideration to the matter. A civil appeal etc. can be remanded under Order 41, rules 23 and 25, C.P.C. There is marked distinction in the provisions contained in Rules 23 to

25. Rule 23 would be attracted only when the suit is disposed of on preliminary issue. In the instant case, this rule is not applicable because the suit was decided not on preliminary issue but on all the issues framed; so far as rule 25 is concerned, it would be attracted only when the Courts below have omitted to frame issues necessary for resolving the controversy between the parties. In such an event, the appellate Court shall keep the appeal pending before it and frame the issues itself and transmit the same to the trial Court to try the issues and return the same with its finding on the same to the appellate Court, which would dispose of the appeal according to law. In the present case, the question of non‑framing of an issue was also not involved. It is evident from the above provisions that the Code of Civil Procedure envisages a remand only in aforesaid two eventualities. However, in the extraordinary circumstances, the Court has the powers to remand a case in exercise of its inherent powers under section 151, C.P.C., to the interest of justice. But such powers should only be exercised sparingly and in unavoidable circumstances. Obviously, there were no such circumstances in the instant case for the High Court to invoke its inherent jurisdiction. There is ample authority in support of the aforesaid proposition; a reference may be made to the cases reported as Abdul Karim Abu Ahmed Khan Ghaznavi v. Allahabad Bank Ltd. AIR 1917 Cal. 44, Anandrao Baliram v. Parvatibai AIR 1941 Nag. 308, Tikaram Kashiram v. Ganeshmal Jagumal AIR 1944 Sind 71 and Hafiz Muhammad Ramzan v. Muhammad Khalique 1991 CLC 417, in which it has been held that the power of remand under inherent powers should be exercised sparingly and only when it is in the intere4t of justice. It may be observed that in presence of powers of remand under Rules 23 and 25 of Order 41, C.P.C., the inherent powers should be resorted to only in unavoidable circumstances.

6. In the light of what has been stated above, we accept the above entitled appeals, set aside the judgment and decree of the High Court and remand the case to it for rehearing arguments of the parties and decide the appeal according to law. The parties are directed to appear before the High Court on 15‑11‑1997. H.B.T./346/SC(AJK) Appeal accepted