P L D 1984 Lahore 342 (PLP)

(3) Whether the predecessor of the plaintiffs viz. Hayat deceased was the owner of the disputed property ? (4) Whether the plaintiffs are owners in possession of the suit land ? (5) Relief. On issue No. 1, the trial Court held that the plaint was properly stamped. Issue No. 2 was decided in favour of the plaintiffs‑petitioners. The trial Court was of the opinion that in view of its finding on issue No. 2, issues No. 3 & 4 had become redundant and that these issues were framed un necessarily. Resultantly, the award was made the rule of the Court. The suit of the plaintiffs‑petitioners was decreed accordingly. Feeling aggrieved, the respondent filed appeal which was entrusted to the learned Additional District Judge who sent back the file to the trial Court to record findings on issues Nos. 3 & 4 and then to forward file to him for the hearing of the appeal, hence this revision.

2. The learned counsel for the petitioners submitted that although there) was evidence on record sufficient enough to pronounce the judgment but. the learned appellate Court referred back the file without any legal justification. The learned counsel for the ‑ respondent has however, supported the judgment of the learned appellate Court.

3. Having considered the arguments advanced by the learned counsel for the parties with care, I feel inclined to agree with the learned counsel for the petitioners. The operative part of order of the learned Additional District Judge is as under :‑ "Without touching the merits of the case between the parties I deem iti proper and necessary to direct the learned trial Court to record its finding on issues Nos. 3 and 4 as well and then to send the file to this Court for its hearing so that the dispute between the parties is finally decided and the parties are saved from further protracted litigation". On careful examination of the judgment as a whole, I find that the learned Additional District Judge has passed the impugned order arbitrarily, inasmuch as, he did not care to attend to the reasons given by the trial Court for leaving issues Nos. 3 & 4 undecided. Since it was a case wherein the parties had referred the matter to the arbitrators who had filed award in the Court and that on issue No. 2 relating to the award and its making as a rule of the Court, the trial Court had made the award the rule of the Court therefore, I am of the view that unless the learned Additional District Judge was of the view that despite finding on issues No. 2. the issues Nos. 3 & 4 bad not become redundant, be could not have sent back the file to the trial Court for recording its findings on issues Nos. 3 &

4. From the trend of judgment, it is very much obvious that the learned Additional District Judge sent back the file to the trial Court as a matter of course without taking the trouble to examine the evidence and the relevant provisions of law which are O. XLI, r. 24.‑"Where the evidence upon the 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, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the appellate Court proceeds". Rule 25.‑ "Where the Court from whose decree the appeal is preferred has omitted to frame or try and 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 issues, 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 such Court shall proceed to try such issues, and shall return the evidence to the appellate Court together with its findings thereon and the reasons therefor". It appears that while passing the impugned order these provisions `were not in his mind. The order does not show that the learned Additional District Judge had looked into the evidence to find out whether the evidence on record was sufficient to enable him to pronounce judgment on issues Nos. 3 &

4. Further, the issues having been framed and tried, there was no justification to refer back the case to the trial Court for giving finding on issues Nos. 3 &

4. To my mind, the learned Additional District Judge by sending back the file to the trial Court has himself prolonged the litigation. In the instant case, the learned Additional District Judge did not care to attend to the reasons of the trial Court and did not follow the provisions of rule 24 of Order XLI, C. P. C. and sent back the file to the trial Court in a hasty manner. The order passed by him therefore, has to be set aside. The case is sent back to him with the direction that he should attend to the reasons given by the trial Court for not giving decision on issues Nos. s & 4 and that too, keeping in mind the finding of the trial Court on issue No.

2. He should form his independent opinion whether in view of findings on issue No. 2 and circumstances of the case, the issues Nos. 3 and 4 had become redundant or not. If he decides to disagree with the reasons given by the trial Court for not deciding issues Nos. 3 & 4, he should then examine the evidence on record and if he feels that there is sufficient evidence to enable him to pronounce the judgment then, he should after resettling the issues, if necessary finally determine the suit. In case he finds that the evidence on record is not sufficient to enable him to pronounce the judgment, he may, then, remand the case out of necessity. Resultantly, the revision is accepted. The order of the learned Additional District Judge is set aside and the matter is sent back to him for decision according to law in the light of the directions given above.

4. Before parting with this judgment I would like to add that I have noticed with great disapproval that a tendency has developed among the District Judges/Additional District Judges to remand the case or refer back the rile to the trial Court on one pretext or the other. The cases are often remanded back on trivial and technical grounds. To avoid writing judgment on merits, the learned District Judges Additional District Judges some time try to search defects and infirmities with microscope in order to remand the case. They do not care to read the relevant provisions of rules 24 & 25 Order XLI, C. P. C. This practice cannot be approved as it causes un necessary delay in the disposal of cases and great inconvenience to the litigants. The District Judges Additional District Judges are expected to be careful in future. Copy of this judgment be sent to all the District Judges/ Additional District Judges working in Punjab for guidance and compliance. In future, if it comes to the notice of this Court that the case was remanded in routine or in disregard of guidance given hereinbefore then serious view of the matter may be taken. Petition dismissed.