' Respondents-plaintiffs filed suit against the petitioners in the Court of learned Civil Judge. Swat seeking declaration and perpetual injunction with regard to the property mentioned in the plaint.
The said suit was resisted by petitioners/defendants by filing written statement. Learned trial Court after reducing the controversies into issues, recording pro and contra evidence of the parties dismissed the suit vide judgment and decree dated 22-11-2002. Feeling aggrieved with the said judgment and decree, the respondents-plaintiffs filed appeal in the Court of learned Additional District Judge/Izafi Zilla Qazi, Swat which was accepted and the case was remanded to the learned trial Court vide judgment and decree dated 17-10-2003. Being not contended with the judgment and decree of the Courts below, petitioners have filed the Revision Petition in hand.
2. Mr. Mazullah Barkandi, Advocate the learned counsel representing the petitioners argued that there was sufficient evidence available on record on the basis of which the learned Appellate Court could decide appeal. In addition to oral evidence of the parties, decree passed on 25-5-1980 in favour of Ghafoor Khan was placed on record as Exh. D.W.-1/2 and another decree in favour of Ghafoor Khan was also placed on record as Exh. D.W.1/6. The said evidence was not properly appreciated.
3. It was also argued that there was no need for the learned Appellate Court to direct the learned trial Court for appointment of local commission as the evidence available on record was sufficient to solve the controversy.
4. On the other hand, Mian Iqbal Hussain, Advocate, the learned counsel representing the respondents argued that he would have no objection if the case is sent back to the learned Appellate Court for deciding the same on the basis of available record and with the direction that in case of need, the learned Appellate Court may itself appoint local commission and then decide the appeal.
5. I have heard learned counsel for the parties at some length and perused the record.
6. No doubt under Order XLI, rule 23 C.P.C. The appellate Court has the power to remand the 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 appellant Court under Order XLI, rule 24 C.P.C. after re-settling the issue, if necessary, finally determine the 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 maller 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."
7. In a very recent judgment of the august Supreme Court of Pakistan in Anwar Ahmed v. Mst. Nafis Bano through legal heirs (2005 SCM R 152) has observed: "Remand of case can only be ordered when it becomes absolutely necessary and inevitable in view of insufficient or inconclusive evidence on record (P.156)."
8. Remand of the case on technical reasons, keeping in view the increasing pendency cannot be appreciated. Where the Appellate Court could itself dispose of a 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.
9. 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.
10. Keeping in view the dictum laid down by the august Supreme Court of Pakistan, quoted above, I am of the view that remand of the case to the learned trial Court by learned Appellate Court was uncalled for. I therefore, allow the Revision Petition in hand, set aside the impugned judgment and decree passed by the learned Appellate Court dated 17-10-2004 and remand the case back to the learned Appellate Court with the direction to decide appeal on the basis of available record and in case it feels necessary to appoint local commission, it can do so itself and on receipt of report of the local commission, the appeal be decided. Since it is an old case, therefore, learned Appellate Court is directed to decide appeal within six months positively. Parties are directed to appear before the learned Additional District Judge/Izafi Zilla Qazi. Swat on 15-3-2005. Office is directed to remit the record to the Court concerned well before the date fixed. There shall, however, be no order as to costs.