Muhammad Ameen and others V. Munawar Ali and others,

2024 C L C 2094 [Balochistan (Sibi Bench)] Before Gul Hassan Tareen, J MUHAMMAD AMEEN and others ---Petitioners Versus MUNAWAR ALI and others ---Respondents Civil Revision Petition No.(s) 20 of 2023, decided on 30th April, 2024. (a) Civil Procedure Code (V of 1908) --- ----O. XLI, Rr. 23, 24 & 25--- Remand of the case by the Appellate Court ---Powers --- Petitioner filed revision to assail judgment passed by the District/ Appellate Court, whereby appeal preferred by the respondents was partly allowed and case was remanded to the Civil Court for adjudication afresh and to render finding on an additional issue (on mortgage relating to suit -property) ---Argument of the petitioners was that since evidence on record was sufficient, therefore, Appellate Court should have itself decided the case, including the additional issue (of mortgage) instead of remanding the whole case to the Trial Court --- Validity ---Under R. 25 of the O.XLI of the Civil Procedure Code, 1908, (C.P.C), where the Court from whose decree the appeal is preferred omits to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court to be 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 Trial Court, and in such case shall direct the Trial 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 ---Whereas under R.23 of the O. XLI, C.P.C, the Appellate Court sends back the whole case for trial to the Trial Court but upon remand under R. 25 of the O. XLI, C.P.C., the case is sent back to the Trial Court, only for the purpose of recording evidence and the appeal remains pending before the Appellate Court ---During post -remand proceeding before the Trial Court, the appeal continues to remain pending before the Appellate Court --- Thus, R.25 of the O. XLI, C.P.C., would apply where the evidence on the record is not sufficient to enable the Appellate Court to pronounce the judgment ---Where the entire evidence is available, remand under R. 25 of the O. XLI, C.P.C. shall not be ordered rather the Appellate Court shall itself determine the case finally under R. 24 of the O. XLI, C.P.C., instead of remanding the case to the Trial Court for mere re- writing of judgment on the issue or on an additional issue so referred---In the present case, both the parties (petitioners and respondents) had produced their respective evidence in support of what they had claimed and defended and evidence was sufficient to enable the Appellate Court to pronounce judgment, after resettling the issues if found necessary ---Thus, remand of the whole case by the Appellate Court for the purpose of mere rewriting of judgment on a particular or additional issue was violation of R. 24 of the O. XLI, C.P.C.--- Record revealed that the Trial Court had rendered finding on the question of mortgage in relevant paras of the its judgment ---High Court set -aside the impugned appellate judgment and decree and remanded the case to the Appellate / District Court to decide the appeal and pronounce the judgment itself ---Revision was allowed accordingly. Shahida Zareen v. Iqrar Ahmed Siddiqui 2010 SCMR 1119 ref. (b) Civil Procedure Code (V of 1908) --- ----Ss. 115(1)(a), 115(1)(b) & O. XLI, Rr.23, 24, 25---Remand of the case by the Appellate / District Court---Revisional jurisdiction of the High Court ---Powers ---Petitioner filed revision to assail judgment passed by the District/ Appellate Court, whereby appeal preferred by the respondents was partly allowed and case was remanded to the Civil Court for adjudication afresh and to render finding on an additional issue (of mortgage relating suit -property) --- Argument of the petitioners was that since evidence on record was sufficient, therefore, Appellate Court should have itself decided the case, including the additional issue (of mortgage) instead of remanding the whole case to the Trial Court ---Validity ---Record revealed that the Trial Court had rendered finding on the question of mortgage in relevant paras of the its judgment ---Thus, the Appellate Court had committed material illegality by remanding the case to the Trial Court vide impugned judgment and decree ---Appellate Court should have itself decided the case including the additional issue under R.24 of the O. XLI, C.P.C. had committed error of jurisdiction as R.25 of the O. XLI, C.P.C., had been misinterpreted ---Such error of jurisdiction attracted the provision of Ss. 115(1)(a) & 115(1)(b) of the C.P.C ---Appellate Court had exercised a jurisdiction not vested in it by R. 25 of O. XLI, C.P.C. and had failed to exercise jurisdiction vested in it by R. 24 of O. XLI, C.P.C. ---High Court set -aside the impugned appellate judgment and decree and remanded the case to the Appellate / District Court to decide the appeal and pronounce the judgment itself - --Revision was allowed accordingly. Anwar -ul-Haq Chaudhry for Petitioners. Faisal Mengal, Assistant Advocate General (A.A.G.) for Respondents Nos.1 to 3. Ghulam Hussain Lashari for Respondents Nos.4 and 5. Date of hearing: 25th April, 2024. JUDGMENT GUL HASSAN TAREEN, J. ----Instant civil revision petition assails judgment and decree dated 27 January 2023 ("impugned judgment") passed by the learned District Judge, Jaffarabad at Dera Allah Yar ("Appellate Court"), whereby appeal preferred by the respondents Nos. 1 to 3 ("respondents") was partly allowed and case was remanded back to the learned Judicial Magistrate -I/ Civil Judge, Dera Allah Yar for adjudication afresh and to render finding on the following additional issue: - "Whether the plaintiff Muhammad Amin had earlier mortgaged the suit land with National Bank of Pakistan, Dera Allah Yar Branch?"

2. Mr. Anwar -ul-Haq Chaudhry, learned counsel representing petitioners states, since evidence on record was sufficient, therefore, Appellate Court should have itself decided the case including the additional issue instead of remanding back the whole case to the Trial Court and, refers to Order XLI, Rule 24, the Civil Procedure Code, 1908 ("C.P.C.").

3. Mr. Ghulam Hussain Lashari, learned counsel representing respondents supported the impugned judgment of the Appellate Court.

4. Heard and have gone through the record and the relevant provision in the C.P.C. relating to remand of case.

5. Minor rules of procedure with regard to the civil appeals from original decrees of the Court of first instance have been codified in Order XLI, The First Schedule, the C.P.C. A case may be remanded back by an Appellate Court to the Trial Court/Court of first instance under Order XLI, Rules 23 and 25, the C.P.C; however, Order XLI, Rule 24 is an exception of the Rules 23 and 25. Under rule 23, where the Court from whose decree on appeal is preferred has disposed of the suit upon a preliminary point such as, limitation, jurisdiction, resjudicata etcetera, and the decree is reversed in appeal, the Appellate Court may by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded. In the instant case, the Trial Court had tried all the issues with reference to the evidence produced by both the parties and suit was not disposed of upon a preliminary point, consequently, the rule 23 is not relevant in the instant case. Under rule 25, where the Court from whose decree the appeal is preferred has omitted to frame or try any 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 Trial Court, and in such case shall direct the Trial Court to take the additional evidence required and such Court shall proceed to try such issues, and shall return the evide nce to the Appellate Court together with its findings thereon and the reasons therefor. Under rule 23, the Appellate Court sent back the whole case for trial to the Trial Court but upon remand under rule 25, the case is sent back to the Trial Court, only for the purpose of recording evidence and the appeal remains pending before the Appellate Court. During post -remand proceeding before the Trial Court, the appeal continues to remain pending before the Appellate Court. Rule 25 would apply where the evidence on the record is not sufficient to enable the Appellate Court to pronounce the judgment. Where the entire evidence is available, remand under rule 25 shall not be ordered rather, the Appellate Court shall itself determine the case finally instead of remanding back the case to the Trial Court for mere rewriting of judgment on the issue or on an additional issue so referred. In this regard, rule 24 is relevant which reads as under: - "24. Where evidence on record sufficient, Appellate Court may determine the case finally. Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling 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." In the instant case, petitioners and respondents Nos. 1 to 3 had produced their respective evidence in support of what they had claimed and defended and evidence was sufficient to enable the Appellate Court to pronounce judgment, after resettling the issues if found necessary. Thus, remand of the whole case by the Appellate Court for the purpose of mere rewriting of judgment on a particular or additional issue was violation of rule 24, the C.P.C. Reliance is placed on the case reported as Shahida Zareen v. Iqrar Ahmed Siddiqui (2010 SCMR 1119). The relevant therein is reproduced hereunder: "12. Remand of the case should be ordered in exceptional circumstances when it is found necessary by the Appellate Court to determine the question of fact which appears to the Appellate Court to be essential for a right decision of the suit upon the merits. However, where evidence on record is sufficient for the Appellate Court to decide the question involved, then order of remand ought not to be passed."

6. In the instant case, the Trial Court had rendered finding on the question of mortgage in paras Nos. 11 and 16 of its judgment. Thus, the learned Appellate Judge has committed material illegality by remanding back the case to the Trial Court vide impugned judgment and decree. Appellate Court should have itself decided the case including the additional issue under Order XLI, Rule 24, the C.P.C. Vide impugned judgment, the Appellate Court has committed error of jurisdiction as rule 25 has been misinterpreted. Consequently, such error of jurisdiction attracts the provision of section 115(1) (a) and (b), the C.P.C. which reads as under: - "115. Revision (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears - - (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) ……" The Appellate Court has exercised a jurisdiction not vested in it by the law of Order XLI, Rule 25 and have failed to exercise jurisdiction vested in it by the law of Order XLI, Rule 24, the C.P.C. Thus, I allow the instant civil revision petition, set -aside the impugned judgment and decree and remand back the case to the Appellate Court to decide the appeal and pronounce the judgment itself. Parties shall appear before the Appellate Court on 13 May 2024. There shall be no order as to costs. MQ/46/Bal. Revision allowed.