2008 PLP 79 (YLR)

MUHAMMAD SAIR ALI, J.

By this impugned judgment and decree dated 9-10-2004, the first appellate Court of the learned Additional District Judge, Jhang accepting the petitioners' appeal, set aside the judgment and decree of the learned trial Judge and remanded the case to the learned trial Court to record the terms of the decree in accordance with the provisions of law.

2. The learned counsel for the. petitioners contended that the impugned judgment dated 9-10-2004 of the learned Additional District Judge was contrary to the law and suffered incurable contradictions as on acceptance of the petitioner's appeal, the judgment and decree of the learned trial Court was to be totally set aside when the case was remanded whereas as per the terms of remand, the learned Additional District Judge directed the learned trial Court only "to record the terms of the decree in accordance with provisions of Order . XX Rule 14 of C.P.C." This restricted term of remand also made the impugned judgment incoherent. Further contended that the learned first appellate Court did not attend to any of the grounds raised by the petitioner in appeal. And that the learned appellate Court was obligated to meet each and every grounds of the judgment of the learned trial Court.

3. Mr. Hussain Ahmad, Advocate appearing for the respondents conceded to the above proposition raised by the learned counsel for the petitioners and stated that as the case has already been remanded to the learned trial court through the impugned judgment the respondents have no objection to the re-decision of the suit by the learned trial Judge in accordance with the law. And that the impugned judgment and decree dated 9-10-2004 of the learned Additional District Judge may be modified accordingly.

4. Heard.

5. The contention raised by the learned counsel for the petitioners has substance. On acceptance of the petitioner's appeal, the learned trial Court's' judgment was set aside in toto by the learned first appellate Court. However while specifying the terms of remand, the learned Additional District Judge restricted the same only to the recording of the terms of the decree in accordance with the provisions of law. The decree follows the judgment which has to be strictly in accordance with law and the judgment passed by a trial Court in a suit. It also required restating the judgment in order to frame an appropriate decree under the provision of Rule 14 of Order XX C.P.C. It is also noteworthy that the learned first appellate Court failed to address itself to the grounds raised by the petitioners. The Court accepted the petitioner's appeal on the sole ground that the decree was inappropriately framed.

6. Ordinarily in the absence of decision on the grounds raised in an appeal, the case should be remanded to the appellate Court for re-decision of the appeal. Yet examination of the impugned judgment of the learned Additional District Judge does show that the same does not contain the terms mandatorily provided in Rule 14 of Order XX C.P.C. in a suit for possession through pre-emption. Wherefore in order to save the parties from further inconvenience and wastage of labour and time before the appellate Court, this Court upholds the order of remand as made through the impugned judgment and decree dated 9-10-2004 by the learned first appellate Court. However the said judgment and decree is modified as to the terms of remand. It is directed that the learned trial Court shall rehear the parties and re-decide the suit in accordance with the law. The judgment and decree of the learned trial court shall conform with the mandatory provisions of law. The parties shall have the right to make their submissions on the law and facts before the learned trial Court.

7. It goes without saying that the learned counsel for the respondents very wisely conceded to the proposition of the learned counsel for the petitioners. ???????????

8. This civil revision is accepted in above terms with no order as to the costs. H.B.T./G-76/L???????????????????????????????????????????????????????????????????????????????????? Revision accepted.