' Shorn of unnecessary details, facts relevant for the disposal of instant civil revision are that Muhammad Jan and another, plaintiffs instituted suit on 2-12-1985 against Mst. Kanboray and others, defendants, for declaration to the effect that the plaintiffs were owner in possession of suit- land by virtue of inhertance and defendants were not justified to deny title of the plaintiff and assert their own. The plaintiffs also prayed for rectification of entries in the Revenue Record. The plaintiffs further prayed for grant of permanent injunction restraining the defendants to alienate or transfer the suit property in any manner.
2. The defendants resisted the claim of the plaintiffs and claimed to have acquired the property in suit on the basis of `sanad-e-malikana' No.21757 dated 8-8-1969 issued by Ruler of Swat in favour of predecessor-in-interest of the defendants. The parties were put to trail on the following issues:--
(1) Whether plaintiffs have got any cause of action?
(2) Whether suit is time-barred?
(3) Whether the plaintiffs have got any locus standi to file the suit?
(4) Whether the suit is incompetent in its present and as such liable to dismissal?
(5) Whether the suit is bad for non-joinder of necessary parties?
(6) Whether court-fee has been properly affixed?
(7) Whether the Court has got jurisdiction to entertain the suit?
(8) Whether the plaintiffs are entitled for the decree prayed for?
(9) Relief.
3. The parties produced evidence in support of their respective contentions. After hearing arguments of the learned counsel for the parties and considering the material on record, learned Civil Judge/Illaqa Qazi, Swat, seized of the matter, proceeded to hold that plaintiffs have not been able to prove their claim in respect of suit property. Resultantly, he dismissed suit by judgment and decree dated 27-7-2002. An appeal was preferred thereagainst, which was accepted by learned Additional Judge/Izafi Zilla Qazi, Swat by his judgment dated 26-2-2004. The judgment and decree of the trial Judge was set aside and the case was remanded back to the trial Court for decision afresh after providing an opportunity to the parties to adduce further evidence.
4. Feeling aggrieved, Yar Muhammad and others, petitioners have filed instant civil revision under section 115 of the Code of Civil Procedure (Act V of 1908), which is before me for consideration.
5. I have heard at length the arguments of Mr. Saeed Baig, Advocate, for the petitioners and Mian Iqbal Hussain, Advocate for the respondents. I have also gone through the entire record of the case with their assistance.
6. The appellate and the revisional Court is always empowered to remand the case in terms of Order 41, rule 25, C.P.C., but this discretionary power is used only in exceptional situation and if the parties have led evidence with regard to the particular point and the Court of first instance by giving specific finding on the said point decided the same in the light of evidence available on record, the remand of the case in appeal or revision is not proper exercise of jurisdiction. Remand order has been subjected to severe criticism by the learned counsel for the petitioners on the ground that there was adequate material available on the record to resolve the controversy involved and as such learned trial Judge had no justifiable reasons to accept the appeal, set aside the judgment of lower Court and remand the case for fresh decision after providing an opportunity to the parties to produce further evidence. The submission of the learned counsel carries weight.
The lower Court in its judgment had rightly examined the pleadings of the parties and evidence adduced by them and dismissed the suit of the plaintiff but in contrast to it the Appellate Court while setting aside the judgment and decree of the trial Court, completely misread the evidence, which resulted in complete failure of justice. Needless to emphasize that power under Order 41, rule 27 C.P.C., are to be exercised only if the Court considers that it would not be able to pronounce judgment without further evidence, and this provision, cannot be used for the benefit of a party which has not been vigilant enough to see that no weaknesses are left in its case. The power to order remand is no doubt wide, but it should be exercised only in those cases wherein omission of a party was accidental. A party cannot be allowed to adduce evidence to do away with the weakness that exists in its case. It is well-settled that additional evidence cannot be received to fill in the lacuna or provide for deficiency in the case of a party. It is also settled that the additional evidence is permitted if the Court needs the same for purpose of disposal of the case. Where important evidence having a material bearing on the merits of the suit, is subsequently discovered, there are three courses open to such party: (i) it may apply for admission' of fresh evidence before the judgment; (ii) it may apply for review of judgment after it has been pronounced; or (iii) it may appeal from the judgment and apply for admission of additional evidence before the Appellate Court. It is noticeable that neither any party prayed for the production of the additional evidence nor any further evidence was required for the purpose of disposal of appeal. There being sufficient evidence available on the record for decision of appeal, the Appellate Court instead of remanding the case to the trial Court should have pronounced the judgment itself. The august Supreme Court of Pakistan in case titled Ashiq Ali v. Zameer Fatima reported in PLD 2004 SC 10 has observed as under:-- "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 mores, a Court will not remand a case where the` defect is due to the negligence and the default of the party desiring remand."
7. The Court of appeal without considering finding of the trial Court had not only acted illegally but also against the mandatory provisions of Order 41, rule 31, C.P.C. The litigation between the parties is going on since 1985 for more than twenty years, but remand of the case by the Court of appeal will only prolong the agony of the petitioners. The evidence on the record is more than sufficient for decision of the appeal. In any case, Court of appeal can record the evidence under Order 41, rule 27, C.P.C., if need be. The Court of appeal can under Order 41, rule 10 C.P.C. Add the parties. The application of respondents for amendment of the plaint was also misconceived and was an attempt to prolong the proceedings. The Court of appeal was competent to decide this application and there was no legal justification in remanding the case on this score. Where Appellate Court could itself dispose of a case, it should refrain from remanding the case unless it would feel that evidence on record was not sufficient but that too was to be avoided particularly when parties have had full opportunity of presenting their evidence. If any authority is needed on the point, reference can profitably be made to Mansoor Hassain v. Mst. Siftan and others (2002 CLC 456 Lahore), Ghulam Ahmad Chaudhry v. Iqbal Hussain through L.Rs. And another (PLD 2002 SC 615), Muhammad Shafi v. Abdul Ghani through L.Rs. And others (2000 SCM R 1124).
In the result and for the foregoing reasons, I accept the civil revision, set aside the impugned judgment and decree of the First Appellate Court and restore that of the trial Court. I make no order as to costs.