Abdur Razaq- and four others respondents/plaintiffs filed suit against the petitioners/defendants in the Court of learned Civil Judge/Illaqa Qazi Malakand at Dargai seeking declaration to the effect that they were owners of land mentioned in the heading of the plaint and the petitioners/defendants have no right to deny their ownership. Perpetual injunction restraining the petitioners/defendants to claim to be the owners and to interfere into the property in dispute was also sought. In the alternative decree for possession if their possession over the suit property or any part thereof was not proved; was also prayed for. The petitioners/defendants resisted the suit by filing written statement. The learned trial Court after framing issues, recording pro and contra evidence of the parties dismissed the suit vide judgment and decree dated 20-10-1999. Feeling aggrieved with the judgment and decree of the learned trial Court the respondents/plaintiffs filed Appeal No,11/13 of 1999 in the Court of learned Additional District Judge/Izafi Zilla Qazi Malakand at Dargai, which was allowed and the case was remanded back to the learned trial Court vide judgment and decree dated 5-3-2002. Being not contented with the judgment and decree passed by the learned Appellate Court, the petitioners have filed the revision petition in hand.
2. Mr. Saeed Baig, Advocate the learned counsel representing the petitioners/defendants argued that the learned Appellate Court instead of deciding the appeal itself remanded the case back to the learned trial Court which order is not proper. There was sufficient material available on record which could be made basis for the decision of the appeal. Said record was not appreciated by the learned Appellate Court itself.
3. On the other hand Mr.Muhammad Ashraf Khan, Advocate the learned counsel representing the respondents argued that the remand order was proper because the learned trial Court had neither framed any issue over mutation No,1298 Exh.P.W.2/1 nor the documents which though exhibited did not contain initials/signatures of the then Presiding Officer. The learned trial Court in the interest of justice would record further evidence of the parties and decide the issues afresh in the light of the remand order, therefore, the ends of justice would be met.
4. I have heard the learned counsel for the parties and perused the record of the case.
5. No doubt under Order 41, Rule 23, C.P.C., the Appellate Court has the power to remand a case back to the trial Court but the said power is to be exercised when the available record was not sufficient for deciding the points in controversy. Where sufficient evidence was available on record and if controversy can be resolved on the basis of available evidence, then the Appellate Court under Order 41 Rule 24, C.P.0 after re-settling the issue, if necessary, finally determines die suit and the question of its remand would not arise. The question of remand of a case came up for hearing before the august Supreme Court of Pakistan in Ashiq Ali and others v. Mst.Zamir Fatima and others PLD 2004 SC 10 in which it was held:-- "It is well-settled by now that where the evidence on record is sufficient for the Court concerned to decide the matter itself, remand should not be ordered and moreso, a Court will not remand a case where the defect is due to the negligence and the fault of the party desiring remand."
6. Remand of the case on technical reasons, keeping in view the increasing tendency cannot be appreciated. Where the Appellate Court could itself dispose of case, it should refrain from remanding the case, unless it feels that the evidence on record was not sufficient. But this too is to be avoided particularly when the parties have had full opportunities of presenting their evidence.
7. When I examined the impugned judgment passed by the learned Appellate Court on the touchstone of the above cited judgment of august Supreme Court of Pakistan I found that there was sufficient material available on record which stands exhibited on file and on the basis of said material the learned Appellate Court could itself decide the controversy between the parties but the same was not done.
8. I have not able to find myself in agreement with the learned Appellate Court remanding the case. I, therefore, allow the revision petition in hand, set aside the impugned judgment and decree passed by the learned 'Appellate Court and remand the case back to it for deciding the appeal afresh in the light of available record. If, however, the learned Court feels that recording of additional evidence on a particular point is must, it can always exercise its power under Order 41, Rule 27, C.P.C. Since the parties have been locked up in civil litigation for the last many years, therefore, the learned Appellate Court is directed to decide the appeal within a period of four months positively. Parties are directed to appear before the learned Additional District Judge Malakand at Dargai on 13-4-2004. Office is directed to remit the record back before the said Court.