' A suit for declaration and injunction instituted by the respondents-plaintiffs was dismissed by the learned trial Court on 23-2-1994. An appeal was then preferred thereagainst by them, whereas the petitioners-defendants filed cross-objections (qua the findings on Issue No,5). Vide judgment dated 26-11-1996, the learned Additional District Judge, Wazirabad, proceeded to dispose of the appeal and the cross-objections together by setting aside the judgment and decree of the trial Court and remanding the matter for decision afresh in accordance with law. The defendants' side has assailed that judgment through this revision petition.
2., It is contended by the learned counsel that the reasons which prevailed with the learned Appellate Court to remand the matter to trial Court are not tenable in law inasmuch as according to the learned counsel Issue No,1 covered the whole range of controversy and the parties being fully conscious about the same had led the evidence to their satisfaction; and that though the evidence was taken down by the Reader of the Court the certificate appended by the trial Judge that it was dictated by him would suffice the requirement of law. It is contended that it was a voluntary act of the parties who were represented through their respective counsel who suggested and followed that course from which they could not retract. It is suggested by the learned counsel that in view of the controversy and the evidence being on the record this Court should in its revisional jurisdiction decide the matter by itself. Reference has been made to Pramatha Nath Chowdhary and 17 others v. Kamir Mondal and others PLD 1965 SC 434.
' On the other hand, the learned counsel for the respondents in his endeavour to support the judgment of the Appellate Court contends that the remand was rightly ordered by the Appellate Court inasmuch as necessary issues had not been framed by the trial Court and the evidence was not taken down by the trial Judge himself. It is contended that in revisional jurisdiction this Court is to act within the parameters of section 115, C.P.C. And can neither interfere with the jurisdiction lawfully exercised by the Appellate Court nor take upon itself to decide the matter. Reference has been made to North-West Frontier Province Government, Peshawar through Collector, Abbottabad and another v. Abdul Ghafoor Khan through Legal Heirs and 2 others PLD 1993 SC 418 and Haji Mohammad Amin Mian v. Jamir Ahmed and another 1968 SCM R 274.
3. The perusal of the material on the record shows that issues in the suit were framed on 28-1-1991 in presence of the learned counsel for the parties. It is significant to note that despite the fact that the suit remained pending for number of years before the trial Court (after the framing of issues) it was not realized by the plaintiffs-respondents that proper issues had not been framed by the Court. Rule 5 of Order 14, C.P.C. Could be availed by them in case there was any issue left to be framed but no steps were taken by them throughout this long period which shows that the parties were satisfied with the form, content and scope of issues framed by the Court on 28-1-1991. Not only that, they even produced evidence of their choice, to their satisfaction before the trial Court and freely cross-examined the witnesses produced by the other side. It cannot be assumed that the parties were not conscious of the real controversy involved in the lis. It, therefore, was idle for respondents-plaintiffs to have complained before the Appellate Court about this aspect.
4. The depositions of the witnesses produced by the plaintiffs including that of Naseem Ahmad plaintiff P.W.1. Were recorded on 11-5-1992. The order sheet was signed by the counsel and there is a note recorded by the trial Judge that the statements scribed by the Reader were dictated by him.
The same is the position in regard to the statements of other witnesses. The recording of the evidence concluded on 17-7-1993 on that date also similar note was recorded by the Court. It were the parties and their learned counsel, who had produced their respective witnesses, examined them and got their statements recorded. Even the counsel for the parties had been putting their signature on the order sheet of the Court in approval of the course being followed and adopted by the Court. They could not later turn round and object to the mode of recording of evidence. The conduct of the parties and their learned counsel is quite evident and conspicuous in this regard.
There had even no prejudice caused to either of the parties. Had it been so, they could not have participated and agreed to such a course of proceedings by the trial Court. On either ground the view taken by the learned Appellate Court for remanding the matter to the trial Court was unwarranted.
5. The contention of the learned counsel for the petitioners that this Court should in exercise of its revisional jurisdiction decide the matter itself cannot be countenanced inasmuch as it is the domain of the first Appellate Court, in the first instance to decide the appeal which jurisdiction such Court exercises on question of facts as also of law. The jurisdiction of the Appellate Court cannot be bypassed merely to overcome the delay that has occurred in decision of the matter. Reliance of the learned counsel upon Pramatha Nath Chowdhary and 17 others v. Kamir Mondal and others PLD 1965 SC 434 (supra) is inapt inasmuch as observations made in that case were in regard to the powers of the Appellate Court. There is no cavil that as far as possible the Appellate Court should decide the matter on merits, if there be sufficient evidence on record before it instead of remanding the matter. In the present case the Appellate Court has instead of deciding the matter by itself remanded the same to the trial Court for the view that was taken by it. His approach having been found incorrect, the judgment has been set aside. That appeal Thus has to be decided by the Appellate Court on merits and not by this Court in revisional jurisdiction, rather this Court should exercise a restraint in making observation which may prejudice the case of either of the parties. The same will be the position in regard to cross-objections.
'As a result of the above, this revision petition is accepted to the extent that the remand was not called for and the Appellate Court ought to have decided the appeal/cross-objections by itself. Let, therefore, the parties cause their presence before the learned District Judge, Gujranwala on 20-10- 2003 who will take steps to decide the appeal preferably by himself in accordance with law within a period of five months. No order as to costs. accordingly.