1989 PLP 1081 (CLC)

‑‑‑O.XL1, Rr.23 a 25‑‑Lower Appellate Court remanded case for fresh decision after framing and determining an issue in regard to limitation‑‑Held, that there was no justification for brushing aside the settled issues without reasons‑‑Findings on the issues should not have been so lightly brushed aside, though it was open to Lower Appellate Court :o do so but reasons had to be recorded, therefore Remand order construed to the pint of limitation over which Trial Court was directed to record evidence and decide case afresh. Bhikam Chand and another v. Tara Chand and another A I R 1978 Raj. 14; A I R 1942 Lah. 201; Sahibzada Muhammad Masoom Khan and another v. Mst. Bagi and another P L D 1961 A J &K 73; Ghulam Masih v. Habib 1988 M L D 2744 a id Muhammad Haroon v. Chottay Khan 1988 M L D 1891 rel. M.M. Saeed Baig for Appellant. Bashir Hussain Khalid for Respondent. Date of hearing: 17th October, 1988. This F. A . 0. is against the order dated the 27th of September, 1979, whereby the learned Additional District Judge, Faisalabad remanded the case for fresh decision after framing and determining an issue in regard to the limitation. Earlier, the trial Court failed to frame an issue though an objection to that effect was taken in the written statement. The findings on the other issues were set aside and retrial of the case was ordered.

2. In support of the present F.A.0. Mr. M.M. Saeed Baig for the appellant relied upon Bhikam Chand and another v. Tara Chand and another A I R 1978 Rajasthan 14 wherein it was enunciated that if "remand was necessary in regard to an omitted issue, it should have been rather under Rule 25 of Order XLI, C .P. C . directing the trial Court to frame it, record evidence thereon and send back the file to the appellate Court for decision of the appeal. It was contended that in having failed to observe this procedure, the learned Additional District Judge committed a serious error in passing a sweeping order whereby findings even on other issues were set aside without properly discussing their merits or demerits. He further referred to AIR 1942 Lah. 201 where too such an order was not approved holding that it was improper. Still further his argument was that such a remand was tantamount to helping a failing party. to fill in the gaps and in support of the argument he relied upon Sahibzada Muhammad Masoom Khan another v. Mst. Bagi and another P L D 1961 A.J. & K

73. Lastly, he referred to Ghulam Masih v. Habib 1988 M L D 2744 and Muhammad Haroon v. Chottay Khan 1988 M L D 1891 as well in order to press that in case of omission to frame a particular issue, it was rule 25 rather than rule 23‑A of Order XLI, C.P.C. which applied and that there was no justification for brushing aside even settled issues unless, of course, there were reasons recorded for doing so.

3. On the other hand Mr. Bashir Hussain Khalid for the respondent agreed that the findings on other issues might not be disturbed, but he adhered to his main contention that the issue of limitation must be tried after allowing him an opportunity of producing evidence.

4. Keeping in view the rule laid down in Bhikam Chand's case II agree that findings on other issues should not have been so lightly brushed aside. Of course, it was open to the lower appellate Court to do so bust reasons had to be recorded, therefore. This course was not adopted and the impugned order cannot be sustained in its A entirety for this reason. The result would be that those findings would stay on as those were. The remand shall be construed to the point of limitation over which alone the trial Court shall record findings after giving the parties due opportunity to produce evidence for and against. It shall then re-decide the whole case afresh. Thus the F.A.0. is partly accepted as indicated above. No order as to costs. M.Z.S./M‑1025/L Order accordingly