Remand of Case

Where factual controversies exist and complete justice cannot be done without leading evidence, the matter should be remanded to the competent authority for a fresh decision after recording evidence.

Under O. XLI, R. 23, C.P.C., where evidence on record is sufficient for deciding appeal, the appellate Court after resetting the issue can decide the appeal instead of remand of the case

In revisional jurisdiction High Court can interfere in findings of Courts below only if findings of Courts below are based on misreading or non-reading of evidence

High Court in exercise of revisional jurisdiction cannot reappraise the evidence

High Court in exercise of revisional jurisdiction declined to interfere in concurrent findings of facts by two Courts below

Revision was dismissed, in circumstances.

Proceedings in appeal are continuation of trial and to the extent that Appellate Court is able to adjudicate matter before it in view of the record and evidence before it, there arises no occasion to remand the matter to Trial Court

Order of remand delays adjudication of case and execution of adjudicatory order

Such delay inevitably benefits party that has an interest in delaying enforcement of adjudicatory order.

Appellate Authority was empowered under provision of S.129(1)(a) of Income Tax Ordinance, 2001, (as amended by Finance Act, 2005), to undertake further inquiries and examine record for deciding case by itself without sending the case back to Assessing Officer

Appellate Tribunal Inland Revenue set aside remand order passed by Commissioner (Appeals), dismissed appeal filed by taxpayer before Appellate Authority and restored order passed by Assessing Officer

Appeal was dismissed accordingly.

Subsequently Assessing Officer on the basis of different Valuation Ruling levied duty and taxes under S.80 of Customs Act, 1969 and R.438 of Customs Rules, 2001

Appellate Authority remanded the matter to Assessing Officer for decision afresh

Validity

Appellate Authority was not empowered to pass remand order against which appeal before him was filed

By passing remand order Appellate Authority acted without lawful authority / jurisdiction

Assessment order under S.81(2) of Customs Act, 1969, was to be passed prior to expiry of stipulated period of 6 months given therein i.e. on or before 23-3-2018 from date of provisional assessment i.e. 25-9-2017

Assessment Order was passed by Assessing Officer on 27-6-2018, thus the same was barred by 96 days and was without power / jurisdiction

Such order was not enforceable under law and declared value of importer stood final under S.81(4) of Customs Act, 1969

Customs Appellate Tribunal set aside order passed by Assessing Officer as well as Appellate Authority

Appeal was allowed, in circumstances.

Dispute between parties was with regard to allotment of state land reserved for Lumardari grant to persons not entitled for the same

Petitioner was permanent Lambardar of the village and resumed land was allotted to him but subsequently matter was remanded to Commissioner for decision afresh

Validity

After remand the matter was still pending before Commissioner and petitioner was at liberty to raise all legal and factual objections before the forum which forum was under legal obligation to re-examine the case and decide the matter afresh

Aggrieved party, after decision in remand proceedings had remedies as per law

High Court in exercise of Constitutional jurisdiction declined to interfere in the matter

Constitutional petition was dismissed, in circumstances.

Remand order passed by the High Court was set aside and matter was remanded to the High Court with the direction to decide the case itself on the basis of available evidence

Appeal was allowed, accordingly.

Suit was decreed by Trial Court in favour of plaintiff but Lower Appellate Court remanded the matter to Trial Court for comparison of disputed thumb impressions

Validity

Unnecessary remand resulted in undue delay in cases and was an addition to agony of litigant besides over burdening Court dockets as well as wastage of its precious time

Constitutional imperative demanded inexpensive and speedy justice, that was why practice of frequent remand orders were time and again reprimanded by superior Courts

High Court observed that there was no occasion for Lower Appellate Court for remand of original suit, as the same was violative to the law on the subject and against the mandate of law settled by Supreme Court

High Court set aside remand order and remanded the matter to Lower Appellate Court to decide appeals against judgment and decree passed by Trial Court

High Court directed that if it was inconsequential to go for comparison of disputed thumb impressions, then Lower Appellate Court would do such exercise at its own level

Appeal was allowed accordingly.

Case cannot be remanded to Trial Court for recording statement under S. 342, Cr.P.C. afresh so that prosecution can fill in lacunas in its case.

Remand of a case can only be ordered when it becomes absolutely necessary and inevitable in view of insufficient or inclusive material on record

Remand should not be ordered when no evidence is to be recorded or where material on record is sufficient for Appellate Court to decide the matter

Cases cannot be remanded just to prolong litigation between the parties.

Remand of a case can only be ordered when it becomes absolutely necessary and inevitable in view of insufficient or inclusive material on record

Remand should not be ordered when no evidence is to be recorded or where material on record is sufficient for Appellate Court to decide the matter

Cases cannot be remanded just to prolong litigation between the parties.

Remand of a case can only be ordered when it becomes absolutely necessary and inevitable in view of insufficient or inclusive material on record

Remand should not be ordered when no evidence is to be recorded or where material on record is sufficient for Appellate Court to decide the matter

Cases cannot be remanded just to prolong litigation between the parties.

Case could only be remanded if there was no material to resolve the issues not attended by the Trial Court and it was necessary to record evidence on such issues

If sufficient material was available on record then appellate Court could decide an issue which had not been attended by the Trial Court without remand of the case to the Trial Court.

Labour Court after recording evidence disposed of grievance petition with the direction to the employee to move fresh petition before the new management and Management and Labour Appellate Tribunal were directed to consider the case of petitioner on humanitarian basis

Labour Appellate Tribunal remanded the case with the direction to the Labour Court to pass fresh order but employee was reinstated till final decision of grievance petition

Validity

Labour Court made reference to the evidence but decision was not made on complete consideration of evidence

Labour Court was to decide the grievance petition on merits

If employee had succeeded in proving his termination to be illegal then he should have been reinstated and if explanation of management was just and fair then grievance petition could be declined

Case was not to be remanded by the Tribunal simply for decision afresh

Labour Appellate Tribunal was itself competent to decide the appeal on merits

Remand of the case was only to be made if judgments of the forums below were reversed

Frequent remand of the cases was disapproved

High Court observed that parties in the present case had led evidence

If any omission in the order of Labour Court to consider entire evidence was on record then Labour Appellate Tribunal should have examined the same

Labour Appellate Tribunal should have decided the appeal on merits rather than sending it to the Labour Court

Labour Appellate Court had committed error while remanding the case to the Labour Court

Even Labour Appellate Tribunal was not denuded of its jurisdiction to record evidence if same was required for proper administration of justice or effective decision of the case

Remand of case was not permissible for decision afresh by the forum below in presence of evidence on record sufficient to decide the controversy

Even Labour Appellate Tribunal had granted the claim of reinstatement made by the employee in the present case without declaring the termination to be illegal

Order for reinstatement could not be passed without final determination either by the Labour Court or Labour Appellate Tribunal

Labour Appellate Tribunal had acted without lawful authority and in an illegal manner in issuing a self-contradictory order

Impugned order passed by the Labour Appellate Tribunal was set aside

Appeal was to be deemed to be pending before the Labour Appellate Tribunal, to be decided after considering evidence on record

Constitutional petition was allowed, in circumstances.

Suit was decreed by the Trial Court but Appellate Court remanded the matter for decision afresh on the ground that impugned decree was not executable

Validity

Defendant in his written statement had pleaded that he had no knowledge of alleged agreement but during evidence had admitted the same to the extent of some land

Defendant had adopted contradictory position during the proceedings before the Trial Court and created doubt on truthfulness of his version

Evidence beyond pleadings could not be taken into consideration

Defendant had also admitted the execution of general power of attorney in favour of his father and execution of agreement to sell by his father to the extent of some land

Defendant's brothers and sisters had transferred their respective shares in the suit land in favour of plaintiff

Plaintiff was in possession on the suit land and no suit for possession had been filed by the defendant

Appellate Court had not properly appreciated the facts of the present case

General power of attorney had been executed with regard to entire land owned by the defendant

Photocopy of a document had no evidentiary value

No particulars of alleged fraud had been given either in written statement or in the defendant's evidence

Remand of case could only be made where it was necessary and inevitable due to insufficient evidence for deciding the points in controversy

Remand of case for technical reason was not appreciated

When an evasive denial was given in written statement to a fact pleaded in the suit then same should be treated as an admission

Impugned judgment passed by the Appellate Court was set aside and that of Trial Court was restored

Revision was allowed in circumstances.

Remand of the case was to be ordered in exceptional circumstances.

Registered person claimed input tax adjustment on the basis of supplies, which had not been reconciled with the sales tax returns filed by the suppliers

Adjudicating authority passed order-in-original for recovery of sales tax along with default surcharge and penalty

Registered person, being aggrieved and dissatisfied with the treatment of Adjudicating authority, filed appeal before CIR(A), who vide his impugned order remanded the case

Validity

In view of S.45-B(3) of the Sales Tax Act, 1990, Commissioner Inland Revenue had no jurisdiction to remand the case for de novo consideration

Main object of S.45-B(3) of the Sales Tax Act, 1990, was that the taxpayer, ought not to be tormented twice on the same subject matter, firstly in the hands of Adjudicating authority and secondly in the hands of appellate authority

Appellate authority, was directed by the Tribunal to preferably decide the appeal himself, instead of remanding case for vexing taxpayer twice for the same cause

No justification existed to prolong, protract litigation at the cost and inconvenience of the taxpayer and Revenue/Adjudicating Officer; particularly when the statutory provision S.45-B(3) of the Sales Tax Act, 1990, had expressly prohibited such remand

Appellate authority, had acted illegally in remanding the case

Appellate authority had failed to consider the arguments submitted by the representative of the registered person

Taking a lenient view and in the interest of justice Tribunal deemed it appropriate to vacate the impugned order-in-appeal passed by the appellate authority and remand the case to the appellate authority to pass speaking, elaborate and well reasoned order conducting necessary verification/enquiry and affording full and fair opportunity of hearing to both the parties.

Defendant put up a barrier on the said passage and plaintiff filed suit for permanent injunction wherein defendant was proceeded against ex parte

Defendant appeared in the Trial Court and got recorded his statement that he had no objection if passage in question is used by the plaintiff and his employees

Trial Court disposed of the suit with the observation that defendant should abide by the undertaking/statement

Appellate Court, however, decreed the suit in term of relief sought in the suit

Validity

Appellate Court had same jurisdiction that vested in the Trial Court and entire lis would reopen without any restriction placed by the order or decree pleaded against

Appeal was continuation of original suit and Appellate Court had power to thrash out and evaluate the entire evidence and scrutinize the available record

Appellate Court had power to uphold, modify or reverse the decree or order appealed against

Judgment of Trial Court would merge into the judgment of Appellate Court

Proceedings before the Trial Court had reached the stage of final arguments after recording ex parte evidence of plaintiff

Trial Court recorded the statement of defendant

Defendant could not complain that he was not heard on merits of the case

Defendant could not insist for the Appellate Court to remand the case to the Trial Court for arguments

If Appellate Court found the impugned decree or order of lower Court, to be erroneous or against the law or facts, then it was required to correct the same in appellate proceedings

Remand order should be avoided unless exceptional circumstances called for the same

Even though defendant had been proceeded against ex parte he nonetheless had a right to participate in the proceedings at a subsequent stage

Where an ex parte order had been passed against the defendant he could not ask for the reopening of proceedings unless sufficient cause was shown

Defendant could join proceedings at any stage

Defendant had at no material stage applied for the setting aside of the ex parte proceedings

Trial Court instead of simply deciding the case on the basis of statement of defendant ought to have decided the same on merits i.e. on the basis of material available on record

Agreement was executed between the parties with regard to construction of road for common use

Road constructed pursuant to said agreement was to be joint property of the parties to the said agreement

Said agreement did not provide for the restriction qua the use of road in question

Defendant could not arrogate to himself the right to approve the list of persons authorized by the plaintiff to use the passage in question

Trial Court had not exercised jurisdiction vested in it by not deciding the case on its merits

No infirmity factual or legal had been pointed out in the findings recorded by the Appellate Court

Revision was dismissed in circumstances.

When there was no need for recording of additional evidence, case be decided and should not be remanded to the lower court for framing of issue

Revision was dismissed in circumstances.

Cases not to be remanded in routine but in extraordinary circumstances and if the material was available and sufficient to decide the appeal on merits, the appeal etc. should finally be decided on merits, instead of remanding the matter on technicalities.

Appellate Court accepted appeal of plaintiff and remanded the case to Trial Court with the direction to appoint local commission for demarcation of land in dispute

Trial Court, in post remand proceedings had held that suit was barred by time

Plaintiff contended that during first round of litigation, issue of limitation was decided in his favour and Appellate Court, while remanding the case, issued specific direction to Trial Court to appoint local commission for the demarcation of land and maintained finding on issue of limitation

Validity

Trial Court was under obligation to act in accordance with terms of remand order instead having gone beyond the scope of remand order

Court, in post remand proceedings, would only be confined to the terms of remand order

Matter was remanded to appellate court to decide the appeal afresh

Revision was allowed accordingly.

Case was remanded to the Appellate Court for referring thumb impressions of defendant-vendor to the hand writing expert for his opinion

Defendant-vendor expired during the proceedings and Appellate Court decreed the suit without impleading her legal heirs

Contention of applicants was that impugned judgment and decree were obtained by fraud and misrepresentation

Application for setting aside decree was dismissed by the Appellate Court

Validity

Nothing was on record as to whether any attempt was made to implead legal heirs of defendant-vendor in the proceedings before passing impugned judgment

Appellate Court did not advert to the claim of applicants that no attempt was made to serve them in the proceedings after death of vendor-defendant

Evidence of the parties was to be recorded to decide the disputed facts among them and to arrive at a just conclusion

Remand of the case for decision afresh did not bar the court to decide such application on its own merits

Applicants being legal heirs of the vendor-defendant had right of representation in the proceedings initiated against her in her life time

Appellate Court had not carefully and attentively dealt with the matter and had not considered available record properly

Impugned order had not been passed on appreciation of any material available on record which was set aside

Matter was remanded to the Appellate Court for decision afresh by considering the entire material available on record

Revision was allowed in circumstances.

Appellant impugned order of High Court whereby High Court disposed of the Regular First Appeal by remanding the case to Trial Court

Contention of appellant was that the case had been remanded twice before and was now being remanded to Trial Court for a third round of litigation

Held, that it was evident from the record that both parties were aware of their respective stance as set out in their pleadings and moreover evidence was also led in light thereof; and therefore, there was no justification for remanding the case to Trial Court for a third round of litigation

Supreme Court observed that the High Court had all material before it to decide the Regular First Appeal, set aside the impugned order of High Court and sent the matter to High Court with direction to decide the Regular First Appeal by itself

Appeal was allowed, accordingly.

Unnecessary remand resulted in undue delay in cases and consequent prolonging of agony of litigants as well as clogging the court dockets and wastage of precious court time

Supreme Court observed that courts were to bear in the mind the constitutional imperative requiring the State to "ensure inexpensive and expeditious justice".

Assessing Officer charged tax under head 'Laboratory charges', which action was not approved by Appellate Authority, but instead of deciding the matter, remanded the case to Assessing Officer for de novo decision

Validity

Record had shown that payments made under said head, were petty in nature, and same were made to Government Institutions

No justification existed in circumstances, to remand the case

Order of Appellate Authority, was vacated and tax charged under said head, was deleted, in circumstances.

Issue related to non-payment of sales tax on FAS season charges on the ground that the taxpayer had failed to prove the withdrawal of that levy

Counsel for the taxpayer had explained that FAS season charges were determined in 2007, while the subject case related to the audit period April 2009-April 2010; that said issue cropped up due to use of electricity bill forms which were printed in bulk before the said withdrawal; and those forms contained the Column FAS season charges and that documentary evidence produced before the Adjudicating Authority and Appellate Authority had not been examined in the operative parts of their orders

Validity

Four components i.e. fixed charges; energy charges; FAS and additional surcharges had been merged in the revised tariff in 2007 and the revised tariff thereafter consisted of two parts i.e. fixed charges and variable charges

Sales tax having been charged on the revised tariff, allegation as to non-payment of sales tax on a discontinued levy was not tenable

Tribunal observed that documentary evidence relating to the issue having not been examined and analyzed at the Assessment/Appellate stage, it was, therefore, considered appropriate to remand the issue to Adjudicating Authority with the direction to examine the relevant record to decide the issue after hearing the parties

Order accordingly.

Plea of the taxpayer was that relevant record was provided to Adjudicating Authority and also to Appellate Authority, but that record had not been examined

Authenticity of relevant record had not been rebutted by the department, which had revealed that sales tax in question had been charged and deposited in the State Exchequer on the sale of scrap

Subject record previously produced at the appellate stage, having not been examined, it would be just and fair to remand that issue to the Adjudicating Authority for examination of record and to decide the issue after hearing both the parties

Order accordingly.

Plaintiff/respondent filed first appeal, whereby first appellate court found that the trial court while dictating the judgment mistakenly mentioned the wrong names of defence witnesses, therefore the wrong cases was remanded back to the trial court on the ground that it had not decided the suit after applying its mind

Contention of the petitioner/defendant was that first appellate court fell in error by remanding the case on the basis of technicalities

Validity

Trial court while dictating the judgment inadvertently/ wrongly mentioned the name of defense witnesses but the said names had been corrected by himself which were apparent in judgment

Inadvertent mistake committed in the judgment had been correctly made by the learned trial court

First appellate court had failed to advert to such points while remanding the case

Judgment of first appellate court was not tenable in the eye of law, as it was the duty of the first appellate court to decide the matter itself instead of remanding the case to the trial court inasmuch as mere wrong mentioning the names of defence witnesses had not rendered the judgment illegal or based on misreading and non-reading of evidence

Trial court after considering all the material available on the record had decided the matter in accordance with law

First appellate court ought to have decided the appeal after hearing the parties and going through the record of the case but while remanding the case, first appellate court had travelled beyond its jurisdiction

Appellate court had committed material illegality and irregularity while remanding the case to the trial court for its decision afresh

Order passed by the first appellate court was set aside

First appellate court was directed to decide the appeal in accordance with law

Revision petition was allowed.

Contention of applicants was that no subordinate functionary in the revenue hierarchy other than Board of Revenue was competent to remand a case

Validity

Revenue Courts while exercising powers under Ss. 161 & 164 of West Pakistan Land Revenue Act, 1967 could either "modify or reverse a previous order"

Said provisions did not preclude a court while reversing or modifying an order from remanding the case

Rider placed through R.6-A of West Pakistan Land Revenue Rules, 1968 was excessive as parent provisions did not restrict the exercise of a power whereas through the said rule an embargo had been placed on the powers of Appellate or Revisional Court

West Pakistan Land Revenue Rules, 1968 were made under S.182 of West Pakistan Land Revenue Act, 1967 in order to carry out the purpose of said Act and not to curtail the powers vested through the same

Rules should yield towards the Statute and latter should prevail in case of inconsistency between Statute and Rules framed there-under

No provision existed in West Pakistan Land Revenue Act, 1967 against the order of remand of a case by a court

Embargo placed through R.6-A of West Pakistan Land Revenue Rules, 1968 by restricting the powers of remand while reversing or modifying an order only in the Board of Revenue was an inconsistency and same could not be reconciled

West Pakistan Land Revenue Rules, 1968 would be given primacy when same were made way for West Pakistan Land Revenue Act, 1967

Decision erroneous on a point of law could be quashed under constitutional jurisdiction on the ground that same was in excess of jurisdiction

No bar existed with regard to exercise of constitutional jurisdiction by the High Court against an order passed in revisional jurisdiction

High Court had discretion to interfere where same was warranted

Impugned order was not passed on merits rather on technical ground of non-compliance of R.6-A of West Pakistan Land Revenue Rules, 1968 which was without jurisdiction and High Court could exercise discretion

Legal objection could have been raised at a subsequent stage

Constitutional petition was accepted and impugned order was set aside and case was remanded to Board of Revenue for decision afresh on merits.

Applicant/Investigating Officer requested for grant of further remand of accused in Police custody, but Judge Anti-Terrorism Court, instead of granting remand of accused in Police Custody, had granted remand in judicial custody for 7 days

Applicant had filed revision against said order contending that impugned order would affect the process of investigation of the case for the reason that more evidence was to be collected with the cooperation and disclosure of accused and statement of his daughter

Allegation was that court had shown special generosity to accused mainly on the reason that accused being a Sessions Judge, court had paid accused due respect, though he had not complained bodily or mental torture from the hands of Police

Impugned order, though neither could be challenged invoking revisional jurisdiction, nor jurisdiction under S.561-A, Cr.P.C., but it was an appropriate case where extraordinary jurisdiction could be invoked under Art. 199 of Constitution

High Court converted revision application as constitutional petition and held that remand could be extended, if the court was satisfied that no bodily harm had been or would be caused to accused; provided that total period of such remand would not exceed ninety days

Trial Court had failed to appreciate the request made by applicant/Investigating Officer for grant of further Police remand

Impugned remand order, granting remand of accused in judicial custody, instead of Police custody was illegal, arbitrary and against law; which would affect the smooth investigation of crime

Impugned order was set aside, with the direction to the Trial Court to decide afresh the request of applicant on merits and in accordance with law after affording fair opportunity of hearing to both sides.

If there is any prejudice caused to any party, then framing of issue and remanding of case may be necessary for administration of justice.

High Court declined to remand the matter to Lower Appellate Court on the ground that it did not dilate upon entire evidence of parties, especially when the same could be decided on the basis of material available on record.

Powers have been conferred upon the court of first appeal to remand case to Trial Court, if suit has not been disposed of upon preliminary point and has omitted to try any material issue of fact.

Judgment and decree passé by Trial Court was twice set aside by Lower Appellate Court and matter was remanded to Trial Court for decision afresh

Validity

Lower Appellate Court framed eight points for determination and decided the same after detailed discussion/finding on each point, however, while concluding remanded the case to Trail Court

Such observation in detail on each point could cause prejudice to any party and might influence Trial Court and the same should have been avoided

High Court set aside judgment passed by Lower Appellate Court and with consent of parties remanded the matter to Lower Appellate Court for decision afresh on appeal

Revision was allowed accordingly.

Period of limitation of one year after the end of the financial year in which the appellate order served on the Commissioner had been prescribed in the Income Tax Ordinance, 1979, also as per S.124 of the Income Tax Ordinance, 2001 same period of limitation had been prescribed in case of remand to reframe the assessment

Taxation Officer had passed the order on 16-5-2011,whereas the appellate order had been served on department on 10-2-2009

Under the provision of S.66(1) of the Income Tax Ordinance, 1979 period of limitation expired on 30-6-2010, while the order by the Taxation Officer had been passed on 21-5-2011, which was barred by limitation

Further, appellate order dated 10-1-2009 served on 10-2-2009, no appeal had been filed by the department before Appellate Tribunal ;and order attained finality in the circumstances where the order passed by the Taxation Officer dated 16-5-2011 was barred by limitation, while no appeal had been filed by the department in such like situation and what had been declared by the assessee was to be accepted which had been directed by the First Appellate Authority

Departmental appeal failed and stood rejected by the Appellate Tribunal.

Case was remanded back by the First Appellate Authority for allowing adjustment of payment made by the taxpayer in accordance with Sales tax law

Taxpayer contended that by doing so First Appellate Authority had given discretion to Taxation Officer to allow adjustment or not

Revenue authorities contended that payment of tax needed to be verified before credit might be allowed or not and the office of Deputy Commissioner of Inland Revenue was in the best position to perform such function

Validity

Grounds taken in appeal before Commissioner Inland Revenue were silent on the issue of giving tax credit

Contention that First Appellate Authority remanded the case beck to Taxation Officer for allowing adjustment of payment was mis-founded.

Claim of the applicant/employee, in the first round of litigation, was rejected and employee filed appeal under S.17 of Payment of Wages Act, 1936 before the Labour Court, which remanded the matter to the Authority for decision after recording evidence on merits

Authority, on remand, after framing issues and recording evidence, decided the matter again in favour of the employee

Whenever a court framed issues and recorded the evidence according to the issues when no amendment had been sought on behalf of the parties, then no party could agitate against the same before any forum, except by adopting the proper way provided under the Code of Civil Procedure

Once it was found by the Authority that written statement not being admissible, there could be no defence on behalf of the Board of Directors of the Company in absence of any such evidence/written statement, the claim of the applicant had gone unrebutted and the same should be admitted

Findings of the Labour Court being not based on proper appreciation of facts and law, same were set aside and order of Authority was restored to its original position

Authorities were directed to release the amount to the applicant/employee, with in thirty days.

Respondents (plaintiffs) had filed suit for declaration against the petitioners (defendants) and during trial respondents produced their evidence but when case was fixed for petitioner's evidence, they filed application under 0. VII, R. 11 C.P.C., for rejection of plaint, contending that the suit was barred by principle of res judicata

Petitioner's application for rejection of plaint was allowed by Trial Court but on respondent's appeal, Appellate Court below set aside order of Trial Court

Petitioner's contention was that Appellate Court below, by setting aside order of Trial Court, had remanded the case to the Trial Court, which was against para.10(8) of Shariah Nizam-e-Adl Regulation, 2009

Validity

Appellate Court's order could not be held as an order for remand in legal parlance, as respondent's appeal against rejection of plaint was allowed by setting aside order of rejection of plaint passed by Trial Court and the only option available with the Appellate Court was to ,ask for the conclusion of the trial which was pending before the Trial Court

Petitioner's objection having no force, constitutional petition was dismissed accordingly.

Appellate Court under R.25, O.XLI, C.P.C., was fully empowered to remand the case after framing of issues; where it appeared to the Appellate Court that the Trial Court had omitted to frame proper issues; or determine any question of fact essential to the right decision of the case

Order XLI, R.25 at the same time had provided that the Trial Court, on remand, would try such issues, return the evidence to the Appellate Court along with its findings

Appellate Court was not justified to direct the Trial Court to decide the matter afresh on all issues

Remand should not be ordered in routine and where evidence on record was sufficient for Appellate Court to pronounce judgment and deal with the matter, remand of case for fresh decision to lower court was not necessary

Appellate Court was not justified to frame additional issue, which was beyond the pleadings of the parties and the controversy between the parties already covered by the issues framed in the suit by the Trial Court

High Court remanded the case with observation that appeal by the defendants/respondents would be deemed pending before the Appellate Court below, which would decide the same expeditiously.

Where a suit had been disposed of upon a preliminary point and the decree was reversed in appeal, then the Appellate Court could remand the case with further direction of framing issue and trial of the case

Appellate Court had ample powers to set aside the impugned judgment and decree while exercising its inherent powers to direct the Trial Court to amend the plaint, frame issues, record evidence of both the -parties; and then decide the matter

Appellate Court, even otherwise could exercise such power as vested in it under S.107, C.P.C.

Appellate Court enjoyed all the powers vested in the Trial Court

In order to meet some eventualities which could not be catered with by any existing provisions of law, it could exercise powers under S.107, C.P.C., read with S.151 and O.XLI, R.33 of C.P.C. as those were enabling provisions which covered those situations causing insurmountable difficulties in dispensation of justice

Appellate Court could act as ex debito justitiae to supply the omission in the procedure and could adopt the methodology to effectively carry out the purpose in view and enjoyed plenary powers to proceed in the matter

Provisions of O.XLI, Rr.23, 33, Ss.107 & 151, C.P.C., had been introduced in the Code of Civil Procedure to fill in the gaps wherever found in the procedure

Said provisions did not abridge or in any manner override the other provisions of law relating to disposal of appeals

Appellate Court, in the present case, had exercised the powers vested in it to meet the ends of justice

In absence of any illegality or material irregularity in the impugned order of Appellate Court, High Court declined interference in exercise of its revisional jurisdiction.

In a case, of remand, a court was bound to ensure that some substantial material justifying the remand was available, else no one whether his name appeared in the F.I.R. or not, was not open to be subjected to confinement by remand.

Re-assessment completed by the Assessing authority in pursuance of order of First Appellate Authority whereby the case was remanded was nullity in the eye of law for the reason that the assessee had already approached the Appellate Tribunal in further appeal and the same was pending for adjudication before the Appellate Tribunal

Propriety demanded that the Assessing Officer should have waited till any findings were given on the issue by the Appellate Tribunal

Re-assessment being void ab initio, all the proceedings conducted thereafter were also not sustainable in the eye of law.

When re-assessment proceedings were taken up by the Assessing Officer the assessee had not filed any appeal before Appellate Tribunal against First Appellate Authority's order dated 3-10-2000 and no such appeal had been filed before Appellate Tribunal till the date that re-assessment was finalized i.e. 1-12-2000

Appeal before Appellate Tribunal against order of First Appellate Authority dated 3-10-2000 was filed by the assessee on 7-12-2000 whereas re-assessment under S.63/132 of the Income Tax Ordinance, 1979 had been finalized on 2-12-2000

Re-assessment framed under S.63/132 of the Income Tax Ordinance, 1979 dated 2-12-2000 could not be knocked down on this score

Assessee failed to produce books of accounts and supporting documentation when its case was fixed for hearing both at the time of original assessment as well as when re-assessment was taken up

Such persistent default on assessee's part made an ex parte assessment in the best judgment of the Assessing Officer inevitable

Assessment made under S.63/132 of the Income Tax Ordinance, 1979 was fair and reasonable and consistent with operative facts.

Suit cannot be remanded just to allow a party to fill in gaps left by him.

Parties agreed to the proposition of law that rights of parties should not be defeated on technical grounds and had consented for framing of material issues and remand of case to Trial Court for determination of bone of contention between the parties to the petition

Effect

Supreme Appellate Court framed additional issues and remanded the case to Trial Court for determination of questions in accordance with law

Supreme Appellate Court directed the Trial Court to provide proper opportunity to parties to bring on record evidence in support of their respective claim and to decide the issues in the light thereof

Findings of remaining points were not in contest

Appeal was allowed.

Criterion for remanding a case on account of any irregularity committed by Trial Court during trial is two fold; firstly if the irregularity has prejudiced the accused in any manner and secondly if the objection qua the said irregularity or illegality had been raised at the earliest stage.

Assessee contended that while exercising the powers under 5.138 of the Income Tax Ordinance, 2001, the Commissioner had no jurisdiction to remand the case to Assessing Officer for re-assessment; and revisional powers of Commissioner were not judicial in nature

Validity

Held, Commissioner was empowered to set aside the assessment while disposing of the revision petition under S.138 of the Income Tax Ordinance, 1979

Only restriction upon the Commissioner while passing an order under S.138 of the Income Tax Ordinance 1979 was that no order prejudicial to the assessee was to be passed by him

Order of remanding back of the case by the Commissioner to the Assessing Officer could not be called prejudicial to the assessee unless the liability of the assessee was increased because of enhancement made in the income or refund was reduced as a result of such order

No addition was made as against the addition made under S.13(1)(aa) of the Income Tax Ordinance, 1979 in the original order

Business income was adopted at the same figures as originally assessed which meant that no enhancement had been made in the income assessed as per original order

Assessment framed under Ss.62/138 of the Income Tax Ordinance, 1979 in accordance with the directions of the Commissioner as per order passed under S.138 of the Income Tax Ordinance, 1979 could not be considered as an order prejudicial to the assessee.

Court should examine evidence and if it came to conclusion that it was not sufficient to pronounce judgment or decide issues between parties, court should remand the case or record the evidence itself and decide the case

Petitioner failed to point out any misreading or non-reading of evidence on record

Supreme Court did not find any infirmity legal or factual in the judgment calling for interference

Leave to appeal was refused.

Contention of petitioner was that as Lower Appellate Court remanded the case to Trial Court for decision afresh after recording the evidence, therefore, court-fee affixed by him should be returned

Validity

Condition imposed by S.13 of Court Fees Act, 1870, was that matter envisaged under O.XLI, R.23 C.P.C. should be disposed of upon a preliminary point and decree was reversed in appeal by appellate Court

In case, where appellate Court thought fit, while passing order of remand, it could further direct decision on issue involved in the suit

Condition precedent by virtue of O.XLI, R.23 C.P.C. was decision of suit on preliminary point

Since judgment and decree were not passed by Trial Court on any preliminary point but the same was passed after considering each and every issue in the light of evidence available on record, therefore, provision of O.XLI, R.23 C.P.C. was not attracted

Lower Appellate Court had rightly refused to issue certificate in favour of petitioner, directing Collector to refund court-fee to petitioner

Revision was dismissed in circumstances.