1988 PLP 1611 (CLC)

Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue or to determine any question of fact which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issue and refer the same for trial to the Court from whose decree the appeal is preferred and in such case shall direct such. Court to take the additional evidence required and the Court shall then proceed to try such issue and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor. (b) Civil Procedure Code (V of 1908)‑‑ ‑‑‑O. XLI, R. 25‑‑.appellate Court directed fresh issue to be framed on bar of limitation and directed Trial Court to record evidence on such issue and to return a fresh verdict on all issues‑‑Such order of Appellate Court being in derogation of provisions of O.XLI, R.25, was set aside‑‑Case was sent back to Trial Court for framing of fresh issue on bar of limitation, allowing parties to lead evidence on that issue, recording finding thereon and then returning record to Appellate Court to give finding on that appeal. Mirza Manzoor Ahmad for Petitioners. Ch. M. Abdul Latif Amritsari for Respondents. Date of hearing: 23rd June, 1987. This was a suit for possession by pre‑emption; it was decreed in favour of Hassan Muhammad and Nazar Hussain plaintiffs, petitioners, herein, by the judgment of the learned Civil Judge 1st Class, Kabirwala, dated 16‑2‑1985. On appeal, Mr. Zulfiqar Ali Malik, Additional District Judge, Khanewal, found that in the written statement the bar of limitation had been expressly pleaded but no issue on the question of limitation was framed. He, therefore, set aside the decree and remanded the suit to the learned Civil Judge 'for framing the issue on bar of limitation and deciding the same after the parties are allowed reasonable opportunity to produce evidence and returning a fresh verdict on all the issues'. The order in question is, and learned counsel for the respondents concedes, in violation of the provisions of Order

41. Rule 25 of the Code of Civil Procedure and is, therefore, illegal. Rule 25 of Order 41 was enacted to meet precisely the situation as has arisen in this case. It provides that 'where the Court from whose decree the appeal is preferred has omitted to frame or try any issue or to determine any question of fact which appears to the appellate Court essential to the right decision of the suit upon the merits, the appellate Court may, if necessary, frame issue and refer the same for trial to the Court from whose decree the appeal is preferred and in such case shall direct such Court to take the additional evidence required and the Court shall then proceed to try such issue and shall return the evidence to the appellate Court together with its findings thereon and the reasons therefor. It is plain that in view of these provisions the learned Additional District Judge was not competent to direct the learned trial Judge to return 'a fresh verdict on all the issues'.

2. The revision petition is, therefore, accepted and the order of the learned Additional District Judge is modified as follows:‑ The learned Civil Judge shall frame an issue to give effect to the bar of limitation pleaded in para. 6 of the written statement,' allow the parties to lead evidence on it, record his findings thereon with reasons therefor and shall then return the file to the learned Additional District Judge. It follows that the appeal shall be deemed to be still pending in the Court of the learned Additional District Judge. The parties are left to bear their own costs. A.A./H‑78/L Case remanded.