2014 PLP 1534 (YLR)

MUHAMMAD AMEER BHATTI, J.

I propose to decide these petitions No.C.R.No.163 of 2012 and C.R. No.164 of 2012 through this single order.

2. These petitions are directed against the judgment dated 8-12-2011 passed by the learned first Appellate Court whereby the learned first Appellate Court while setting aside the judgment and decree passed by the learned trial Court, remanded the case back to the learned trial Court for its decision afresh in accordance with law.

3. The suit for declaration filed by the respondent was dismissed by the learned trial Court vide judgment dated 25-11-2009 and in appeal, the learned first Appellate Court remanded the case back to the learned trial Court on the ground that it has not decided the suit after applying its mind by pointing out some narration in the judgment of the learned trial Court which according to the learned First Appellate Court, is misreading and non-reading of evidence, thus necessitating the remand of the case back for decision afresh.

4. The learned counsel for the petitioners contends that the learned first Appellate Court fell in legal error by remanding the case on the basis of the technicalities which has not been permitted by this Court as well as the Hon'ble Supreme Court. He has placed reliance on Abdul Wahab and others v. Ghulam Muhammad (2004 MLD 293), Province of Punjab through Secretary to Government of the Punjab, Irrigation and Power Department, Lahore and another v. Raoof Corporation (Pvt.) Ltd. (2004 CLC 1438), Anwar Ahmad v. Mst. Nafiz Bano through Legal Heirs (2005 SCMR 152), Ashiq Ali and others v. Mst. Zamir Fatima and others (PLD 2004 SC 10), Rozi Khan and others v. Nasir and others (1997 SCMR 1849), Chairman, WAPDA, Lahore and another v. Gulbat Khan (1996 SCMR 230), Arshad Ameen v. Messers Swiss Bakery and others (1993 SCMR 216), Sher Muhammad and another v. Jamadar Ghulam Ghaus (Represented by heirs) (1983 SCMR, 133), Nasir Ahmad and another v. Khuda Bakhsh and another (1976 SCMR 388), Fateh Ali v. Pir Muhammad and another (1975 SCMR 221), Muhammad Qasim and 6 others v. Muhammad Huyssain and 8 others (PLD 2001 Lahore 9), Mst. Hamida Begum v. Mst. Murad Begum and others (PLD 1975 S.C. 624), Bashiruddin Qureshi v. Major (Rtd.) Aminullah Khawaja (1985 CLC 316), therefore, the order impugned passed by the learned Additional District Judge is not tenable at law.

5. On the other hand, the learned counsel for the respondent in support of the judgment contends that the order of the learned first Appellate Court is in accordance with law and since the learned trial Court has not applied its judicial mind while passing the judgment, the learned first Appellate Court had no option except to remand the case for decision afresh.

6. I have considered the arguments of the learned counsel for the parties and gone through the record of the case as well as the citations referred by the learned counsel for the petitioners.

7. It is true that the learned trial Court while dictating the judgment inadvertently mentioned the name of D.W.1 as D.W.2 and some other D.Ws' names have been wrongly mentioned in the judgment. On the other hand, it is also found that the same names have been corrected by himself by leading the judgment which are apparent in the judgment, therefore, this inadvertent mistake committed in the judgment has been correctly made by the learned trial Court, which has not been adverted to by the learned first Appellate Court.

8. I do not want to comment on the observations .made by the learned trial Court, as the matter is still to go back to the learned First Appellate Court, as the judgment of the learned first Appellate Court is not tenable in the eye of Jaw and dicta laid down by this Court as well as the Hon'ble Supreme Court. It was the duty of the learned first Appellate Court to decide the matter itself instead of remanding the case to the learned trial Court inasmuch as mere wrong mentioning of the names of the D.Ws does not render the judgment of the learned trial Court as illegal or based on misreading and non-reading of evidence. The learned trial Court after considering all the material available on the record, decided the matter in accordance with law, therefore, the learned first Appellate Court had ought to have decided the appeal after hearing the parties and going through the record of the case but while remanding this case, the learned first Appellate Court travelled beyond its jurisdiction. Consequently, this Court while exercising the jurisdiction provided under section 115, C.P.C., comes to this conclusion that the learned first Appellate Court committed material illegality and irregularity while remanding the case to the learned trial Court for its decision afresh, whereas, the learned trial Court had already decided the matter after considering the entire evidence available on the record in true perspective.

9. For what has been discussed above, the order passed by the learned first Appellate Court dated 8-12-2011 is hereby set aside. Resultantly, the appeals shall be deemed to be pending before the learned first Appellate Court, which shall adjudicate the same strictly in accordance with law after providing the opportunity to the parties without being influenced from any observation made by this Court. Parties are directed to appear before the learned District Judge on 15-10-2012, who shall take on this matter either himself or entrust it to any learned Additional District Judge for adjudication.

10. With this direction, these petitions stand accepted. JJK/N-7/L Petitions accepted.