P L D 2013 Sindh 217 (PLP)

FAROOQUE ALI CHANNA, J.

This Civil Revision under section 115, C.P.C. is directed against the judgment and decree dated 22-3-2011 passed in Civil Appeal No.67 of 2010 remanding the case to the trial court for passing a fresh judgment in accordance with law. The petitioners have prayed as under:-- "That the petitioners therefore pray that this Honourable Court shall be pleased to set aside the impugned judgment and decree dated 22-3-2011 passed by the learned District Judge Ghotki and remand him the case to decide the same meritfully considering all the exhibits etc and evidence the parties on record." Learned counsel for the petitioner has contended that the respondent No.1 had filed the Suit No.46 of 1996 Re: Ahmed and another v. Rehmat Ali and others for Declaration and permanent injunction in the court of Senior Civil Judge Ghotki wherefrom the suit was transferred to the court of Senior Civil Judge Mirpur Mathelo, where the suit was decreed by judgment and decree dated 26-6-2003. Said judgment and decree were challenged in Appeal No.63 of 2003, the same was allowed and the case was remanded to the trial court with a direction to re-cast issues and decide the matter afresh. The trial court in pursuance of direction of court of 1st appeal decided the case afresh by the judgment and decree dated 21-9-2010. The respondents again filed Civil Appeal No.67 of 2010 against the judgment and decree dated 21-9-2010 which was allowed second time by the Court of 1st 6ppeal through the impugned judgment remanding the case again to the trial court with directions to decide evidentiary value of the secondary evidence and reasons for non-production of primary evidence as well as summoning the original entries from the concerned authorities examine their representatives as court witnesses and pass a fresh judgment in accordance with law. Learned counsel for the petitioners has argued that a short controversy was involved in the matter but the parties to the case have been put to long litigation by the court of 1st. appeal although both the parties after availing full opportunity led the required evidence of fraud existing in the subject matter of their case, but yet their case has not been decided finally and they are roaming pillor to post. Learned counsel for the respondents while confronted could not controvert the submissions of counsel for the petitioner mentioned hereinabove, however, after arguing the matter at some length, the learned counsel for both the parties have proposed to dispose of the instant revision petition with the direction to the District Judge concerned to decide the Civil Appeal No.67 of 2010 on the basis of evidence and documents brought on record by both the parties in favour of their case and if the court of first appeal in its opinion, think any evidence necessary for just and proper decision of any issue involved and dispensation of substantial justice to the parties, may record the additional evidence or to decide the appeal so also the evidentiary value of secondary evidence on the basis of the evidence and documents relied upon by both the parties. I have considered the arguments and perused the relevant paragraph of impugned judgment, remanding the case to the trial court Order 41 Rule 23, C.P.C. confers powers upon the disposed court of 1st, appeal to remand the case to trial court if suit has not been of upon the preliminary point and has omitted to try any material issue of fact, such decree can be reversed in appeal. However, Order 41 Rule 24 C.P.C. provides that where the evidence brought on record is sufficient to enable the appellate court to pronounce judgment the appellate court may after re-settling the issues, if necessary, finally determine the suit and need not to remand the case to the trial court merely for the purpose of obtaining a finding on such issues, which the appellate court limy determine itself. Such practice of remanding cases on the grounds not recognized by the law, must be discouraged by the appellate court. The perusal of impugned Judgment reveals that the appellate court framed eight (8) points for determination and decided the same after a detailed discussion/findings on each point, however, while concluding, remanded the case to the trial court such observation in detail on each point which may cause prejudice to any party and may influence the trial court should have avoided. In view of above proposition of law impugned judgment and decree dated 22-3-2011 are not sustainable under law, therefore by consent of both the parties, same are set aside and the matter is remitted to learned Court of 1st appeal with direction to decide the appeal a fresh and if needed, may record additional evidence or pronounce the judgment on the basis of oral as well as documentary evidence after hearing both the parties in accordance with law. This Revision Petition is disposed of in the above terms. MH/A-10/K Case remanded.