2003 PLP 1918 (MLD)

Masoodur Rehman Awan and Mrs. Sajida Masood for Petitioners. Date of hearing: 11th March, 2003. This is a revision petition under section 115, C.P.C. filed by Sabir Sultan, etc., against the order/judgment/decree of Additional District Judge, Abbottabad dated 18-3-2002 vide which the said Court while accepting the Appeal No.55/13, dated 22-5-2001 of the petitioners, remanded the case back for rewriting the judgment.

2. Short facts of the case are that one Abdur Rehman now dead and represented by his legal heirs filed a suit against Ali Gohar etc., in the Court of Civil Judge, Abbottabad for a decree of possession by pre emption of certain land mentioned in detail in the headings of the plaint in village Kokal Barseen, Tehsil and District Abbottabad vide registered Sale-deed No. 1904, dated 26-11-1989 as well as Mutation No. 5447 attested on 29-5-1991 at a price of Rs.2,

000. It is further alleged in the plaint that Muhammad Ishaq son of Muhammad Sharif sold the suit-land to defendant No. 1 and later on sold some part of the land to defendant No.2 and also exchanged some area from defendant No.2. That defendant No. 1 has purchased the suit-land vide registered Sale-deed No. 1904, dated 26-1-1989 and later on, on the strength of the said-deed the entered Mutation No.5447 and got it attested on 29-5-1991 and later on sold some of the land to defendant No.2; that the plaintiff when informed of the sale there and then made the respective Talabs before the witnesses with regard to his intention of pre-emption and has issued notices to the respondents but they refused the notices; that the plaintiff has got superior right of pre-emption on all the three grounds and no notice has been served upon the plaintiff; that the sale consideration is Rs.2,000 only and as the defendants are not accepting the plaintiff's pre emptive right so the present suit. The defendants contested the suit vehemently and on the divergent pleas of the respective parties the trial Court framed also 23 issues apart from relief. Evidence pro and contra was recorded and after hearing the learned counsel for the parties and going through the record the trial Court vide its judgment and decree dated 20-3-2001 dismissed the suit of the plaintiff with no order as to costs. It is to be noted that the case has got a chequered history and has been remanded twice.

3. Dissatisfied with the said judgment and decree dated 20-3-2001 Sabir Sultan, etc., preferred appeal in the Court of Additional District Judge, Abbottabad and the learned Appellate Court after going through the record and hearing the arguments of the learned counsel for the parties accepted the appeal, set aside the judgment and decree of the trial Court and remanded the case back to the trial Court for rewriting proper judgment and giving its finding on each and every issue separately in accordance with Order 20, rule 5, C.P.C. on the basis of evidence already recorded.

4. Aggrieved from this order Sabir Sultan, etc., have preferred the instant revision petition on the ground that the judgment/decree of the lower Appellate Court is contrary to law and cannot be termed as judgment both factually and legally, hence not sustainable in the eyes of law; that the learned lower Appellate Court while remanding the case has forgotten the principle of equity and justice; that decision of whole case is only possible on merits after completion of the evidence in view of the application submitted by the petitioner dated 26-6-2000, hence this petition.

5. I have heard the learned counsel at length and with his help have scrutinized the available record. The stance of the learned counsel for the petitioners is that the remand order is not covered by Order 41, rule 23 and rule 25 and that his application for further evidence dated 26-6-2000 be allowed. As far as rule 23 is concerned this rule can be invoked when the trial Court has disposed of the suit upon a preliminary point and the decree is reversed in appeal. The Appellate Court may if it thinks fit by order remanded the case and may further direct what issue or issues shall be tried in the case so remanded. So as for as preliminary point has been discussed in the instant case this rule is not applicable upon the matter in hand. With regard to rule 25 it is applicable where Appellate Court may frame issues and refer them for trial to Court below whose decree appealed from. So the instant rule is also not applicable but leading aside these rules the Appellate Court has got its inherent powers under section 151, C.P.C. and in the instant case those powers have been used as the judgment of the trial Court is not in accordance with Order 20, rule 5, C.P.C. because the trial Court has decided 14 issues jointly as well as it has also decided further 8 issues jointly, so in this background of the case the order of remand suffers from no defect, illegality or irregularity. As far as application dated 22-6-2000 is concerned it is crystal clear that no new evidence or facts have been brought on record, therefore, there was no need for recording further evidence and if any lacuna has been left that cannot be filed up by means of the said application. So the findings of the trial Court are also correct on his point and in this background of the case the revision petition in hand is hereby dismissed in limine alongwith C.M. H.B.T./913/P Revision petition dismissed,