' M. JAVED BUTTAR, J.--- The petitioners/plaintiffs, through this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, are seeking leave to appeal against the judgment, dated 7-4-2003 passed by a learned Judge in Chambers of the Lahore High Court, whereby R.S.A. No,6 of 1993 instituted by the respondents was allowed, the judgment and decree, dated 18-11-1992 passed by the First Appellate Court was set aside and the case was remanded to the First Appellate Court with a direction to it to first decide the respondents' application for the permission to lead the additional evidence in accordance with law and after decision of the aforesaid application to decide the main appeal on merits. It was held that the First Appellate Court acted illegally in deciding the respondents' application to produce the additional evidence along with main appeal and not before the decision of the appeal. Reliance in this regard was placed by the learned Judge on Muhammad Umar v. Muhammad Qasim and another 1991 SCM R 1232.
2. The relevant facts in this case are, that the suit-land was sold in favor of the defendants/vendees through the sale-deed registered on 14-5-1977, which was pre-empted by the petitioners through the suit in hand in the year 1978 claiming superior right of pre-emption on the basis of ownership in the estate. The suit was resisted. The parties adduced their evidence. The suit was decreed. The vendees' appeal was accepted by the District Judge, Sialkot and the case was remanded for re- decision holding that the Presiding Officer of the trial Court had no jurisdiction to hear the suit. The petitioners' appeal was accepted by the High Court vide judgment, dated 17-5-1989, the order of remand was set aside, the matter was remanded to the District Judge with the direction to decide the appeal on merits. Respondent No,1 challenged the said order through C.P. No,1159 of 1989, before this Court which initially stayed the announcement of the final judgment, but ultimately dismissed the said petition along with another petition on 29-9-1990 and ultimately the appeal filed by respondent No,1 was dismissed by the District Judge, Narowal vide judgment dated 18-11- 1992, which was challenged by respondent No,1 before the High Court through above-said R.S.A.
No,6 of 1993, which as mentioned above, has been allowed on 7-4-2003 and the case has been remanded to the First Appellate Court in terms mentioned above.
3. We have heard the learned counsel for the parties and has also seen the relevant record.
4. The High Court has not decided the appeal on merits and has accepted it only on the ground that the First Appellate Court acted illegally in deciding the respondents' application for the permission to produce additional evidence under Order XLI, rule, 27, C.P.C. Along with the main appeal. It has been held that this procedure adopted by the First Appellate Court was not sustainable keeping in view the law as declared by this Court in the judgment reported as Muhammad Umar v. Muhammad Qasim (supra). We are afraid that the view expressed by the learned Judge in Chambers of the Lahore High Court is incorrect. No such law has been declared by this Court that in every case the Court has to decide the application for permission to adduce additional evidence prior to the decision of the main appeal through separate orders and cannot give a composite judgment. In Muhammad Umar's case (supra) the Appellate Court had dismissed the appeal without deciding the application under Order XLI, rule 27, C.P.C. And in this background, the case was remanded by holding that the application under Order XLI, rule 27, C.P.C.
Ought to have been adjudicated upon before disposing of the appeal and the words "before disposing of the appeal" employed by this Court in the said judgment did not and do not mean that the same cannot be done by the Court seized of the matter, in the same judgment. In the case in hand the First Appellate Court in paras.5 of its judgment, had given reasons in detail for dismissing the application for producing the additional evidence and thereafter proceeded to dismiss the appeal on merits. The procedure adopted by the First Appellate Court did not suffer from any illegality and was in accordance with the procedural law and the law as settled by the superior Courts of this country. Furthermore, it is a settled law that remand is not to be lightly ordered. In the present case, the parties are in litigation since the year 1978 and in the absence of any compelling reasons the order of remand cannot be permitted to remain in the field. This Court normally is reluctant to interfere in the remand orders. However, in the present case, we are of the view, that there was no legal justification for the remand. The First Appellate Court had given its reasons for dismissing the application for permission to produce the additional evidence, and the High Court. Could have decided the appeal before it on merits and was competent to look into the reasons given by the First Appellate Court in dismissing the said application.
' In view of the above mentioned, this petition is converted into an appeal and is allowed with costs throughout, the impugned judgment is set aside and the case is remanded to the High Court for decision of the second appeal, which shall be deemed to be pending before it, preferably expeditiously.