P L D 1962 (W (PLP)

(1) Whether the suit is within time ? (2) Whether the plaintiff has a cause of action ? (3) Whether the plaintiff is the owner of the suit land, and the entries in the revenue papers are wrong ? (4) Whether defendant 1 is a bona fide purchaser without notice from the ostensible owner in good faith, if so, to what effect ? (5) Relief ?

2. In support of his right of ownership over the suit property, Abdul Ghaffar respondent placed reliance on the sale deeds (Exhs. P. E. to P. H.), which purported to have been executed by Amir, Abdul Hakim, Zarif, Akbar Shah and Bazmir respectively. These sale-deeds, however, did not mention the khasra numbers of the lands sold by these persons, and the boundaries of the lands were also not given. The trial Court, therefore, decided issue No. 3 in the negative, and dismissed the plaintiff's suit with costs. Abdul Ghaffar respondent went up in appeal to the Additional District Judge, Peshawar, who, by his order dated the 15th of April 1957, accepted his appeal and remanded the case under section 151, Civil Procedure Code, to the lower Court for trial de novo. Mir Muhammad Khan, one of the defendants, filed this revision against the order of the learned Additional District Judge. During the pendency of this case before this Court, he died, and his legal representatives, Taj Muhammad, Sher All, Mst. Faqirai, Mst. Hussan Bano and Mst. Sher Bano, have been brought on the record.

3. Learned counsel for the petitioners has urged that the learned Additional District Judge had no jurisdiction to remand the case to the lower Court for trial de novo. The learned Additional District Judge, while dealing with issue No. 3, referred to the five sale-deeds (Exhs. P. E. to P. H.) and observed that Abdul Qahar had purchased some land situated in village Qasami from the persons who had executed those sale-deeds. He went on to say as follows :- "It is true that the khasra numbers of the land sold and its boundaries have not been given in the sale-deeds, but in my opinion, the trial Judge was ill-advised in dismissing the plaintiff's suit on this ground. He ought to have summoned the Saddar Kanungo to find out as to what was the land owned by Amir son of Hastam, Abdul Hakim son of Ali Khan, Zarif son of Amir Khan, Akbar Shah son of Ahmad Shah and Baz Mir son of Muhammad Mir, and what were their khasra numbers, and what fresh khasra numbers were given to them in the settlement of 1895-96, and in the last settlement of 1925-26, and then he should have found out as to whether the land in dispute bearing Khasra No. 2342/405-406 corresponding to the old khasra numbers which were sold by the vendors or not. It, therefore, follows that the case was not properly conducted in the Court below, and so I accept the appeal, set aside the judgment and decree of the lower Court and remand the case under section 151, C. P. C. to it for trial de novo in the light of the above remarks."

4. Learned counsel for the petitioners has drawn my attention to Order XLI, rule 27, C. P. C. which empowers the Appellate Court for the reasons specified therein to allow additional evidence. Rule 28 provides that wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it, when taken, to the Appellate Court. These rules have been interpreted by the Privy Council as long ago as 1931, and their Lordships of the Privy Council have laid down in Parsotim Thakur and others v. Lal Mohar Thakur and others (A I R 1931 P C 143), that the provisions of section 107 as elucidated by Order XLI, rule 27, are clearly not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak parts of his case and fill up omissions 1n the Court of Appeal. It has been further held by their Lordships that under Rule 27, clause (1) (b), it is only where the Appellate Court `requires' it, that additional evidence can be admitted. The word `requires' has been further explained `that it may be required to enable the Court to pronounce judgment, or for any other substantial cause, but in either case, it must be the Court that `requires' it.' The learned Additional District Judge has not utilised this provision of law for the purpose. He somehow thought that he had very wide powers in remanding the case to the trial Court for trial of -the case de novo. It may be that the learned Additional District Judge was thinking of the provisions of the Code of Criminal Procedure. I have not been able to find in the Code of Civil Procedure or any other civil law by which Civil Courts are governed any provision of the nature under which the Appellate Court can remand the case for trial de novo. The obvious purpose of the order of remand seems to be that the Court wanted to give the plaintiff fresh opportunity to produce evidence in support of his title. The learned Additional District Judge further thought that there was some law which cast on the trial Court the duty to call for certain documents through the Sadar Kanungo in order that the plaintiff's title might be established. I am afraid there is no such lave under which such an order could have been passed by the learned Additional District Judge. In support of this proposition, the learned counsel for the petitioners has cited before me the following cases:- (1) Hira Lal v. Rattan Lal A I R 1944 All. 293, (2) Rampat Sahu v. Bhajju Sahu A I R 1936 Patna 160, and (3) A. P. L. Palantappa Chettiar v. A. K. R. M. S. Firm A I R 1935 Rang.

19. I agree with the principle laid down in these rulings that a case cannot be remanded to the trial Court in order that it might be re-heard or the plaintiff might be given another opportunity to prove his case by calling fresh witnesses which he might have called on the first hearing.

5. Learned counsel for Abdul Ghaffar respondent has contended that the order having been passed in the exercise of jurisdiction under section 151, C. P. C. the learned Additional District Judge could have remanded the case for trial de novo. In support of this proposition he has not been able to cite any authority. I am conscious of the fact that if the issues are not properly framed by the trial Court, or when the Appellate Court frames additional issues, then the case can certainly be remanded to the trial Court for recording fresh evidence on the issues, but this does not mean that when the plaintiff has failed to establish his case then in that case also the Court is empowered under section 151, Civil Procedure Code, to remand the case to the trial Court, and to give the plaintiff another opportunity to prove his case.

6. After a careful consideration of this aspect of the matter, I am clearly of the opinion that the learned Additional District Judge had acted in excess of his jurisdiction in remanding the case to the trial Court for trial of the case de novo. I, accordingly, accept this revision petition with costs, and setting aside the order of the learned Additional District Judge, dated the 15th of April 1957, direct the lower Appellate Court to re-hear the appeal and dispose it of on the material already on the record.

7. The connected revision petition is the off-shoot of the order of remand. After the ease had been remanded to the trial Court, the Court recorded such evidence for the parties as they wished to adduce, and again dismissed the suit of Abdul Ghaffar. His appeal has also been dismissed by the Additional District Judge. In view of the order passed by me in Civil Revision No. 192 of 1957, the proceedings taken by the trial Court after the order of remand were null and void. This revision petition has therefore become infructuous, and I, accordingly, dismiss it with costs. K. B. A. Order accordingly.