MUHAMMAD JEHANGIR ARSHAD, J.--- This is one of the cases decided by an Additional District Judge, Bahawalpur (not named intentionally) whereby the said learned Additional District Judge while deciding about fifty appeals remanded 29 cases to the learned Trial Court for deciding the matters afresh after framing of issues and recording, of evidence, after a lapse of ten to twenty years since the institution of the suit. In almost every case the learned Additional District Judge remanded the matter by making the following stereotype observations in support of the remand order:--- "On the observations as quoted above, I am constrained to remand the case to the learned Trial Court. In this context, learned Trial Court is directed to frame the issues afresh after considering the pleadings of the parties in a complete manner. The valuation for the purpose of Court-fee and jurisdiction should also not be ignored while framing issues afresh. After framing the issues afresh by the learned Trial Court, the parties are, however, at liberty to place the evidence on record afresh, in case of need."
2. In the instant case the suit was filed on 16.7.1995, written statement was filed on 18.10.1995, issues were framed in the presence of learned counsel for the parties on 25.9.1996 without any objection by either party or their counsel regarding incomplete or defective framing of issues and the suit was decided by the learned Trial Court after recording of evidence on 12.1.2002 and by remanding the case through the impugned judgment dated 20.10.2003 the learned Additional District Judge has in fact relegated the parties to the position as they were at the time of institution of the suit i.e. 16.7.1995 whereas the said judgment neither justifies the remand nor directions recorded in para-8 reproduced above. It has been held by the Hon'ble Supreme Court of Pakistan in the case "Ashiq Ali and others versus Mst. Zamir Fatima and others" (P.L.D 2004 S.0 10) and "Anwar Ahmad versus Mst.
Naffs Bano through Legal Heirs" (2005 S.C.M.R 152) that unless inevitable the appellate/revisional Court must avoid remand of the case especially when the evidence or other material available on record is sufficient to decide the case on merits and in case there is any deficiency and recording of evidence is inevitable the appellate/revisional Court instead of remanding the case as a whole after setting-aside the entire judgment, should proceed with the matter by following the procedure laid down under Order 41, Rules 24, 25 and 26, C.P.C.
3. Sardar Mehmood lqbal Khakwani, Advocate appearing on behalf of the respondents has tried to justify/support the remand order by arguing that neither the issues were properly framed nor any evidence was recorded with regard to some subsequent Mutation No. 365, dated 21.4.1984, although validity of the same was also questioned in the plaint.
4. A perusal of the impugned order of remand reveals that what necessitated the learned Additional District Judge for remand of the case is want of issue regarding valuation of property in question for the purposes of Court-fee and jurisdiction but the said plea had not been seriously raised by the respondents in their written statement, which is further proved by the fact that despite framing of issues by the learned Trial Court in the presence of the parties and their counsels, till the decision of the suit by the Trial Court no objection to this effect was raised, giving an impression that respondents were not seriously aggrieved of non-framing of issues to this effect. Even the question of valuation of suit for the purposes of Court-fee is always considered as a matter involving fiscal provisions and no suit can be thrown away for improper valuation and in the absence of evidence, the valuation as determined by the plaint is always deemed to be correct, hence, the reasons given by the learned Additional District Judge in support of the impugned order cannot be considered as valid. Similarly, non-mentioning of Mutation No. 365 in Issue No. 1 is of no consequence as it is an established principle of law that mutation is neither a document of title nor creates or confers any- right and the title is to be determined on the preponderance of evidence independent of mutation proceedings and the decree passed by Civil Court determining the title is not only binding on the revenue authorities but its incorporation in the revenue record is mandatory provision of law. Except these two insignificant flaws pointed out by the learned Additional District Judge for justifying the remand order no other material irregularity or illegality has been pointed out by the learned Additional District Judge while remanding the case. It is also noticed that even in the memo. Of appeal filed by the respondents both these points were not raised at all which also shows that they were not prejudiced by the said alleged inaction on the part of the learned Trial Court and the same were taken up by the learned Additional District Judge on his own to justify the remand. It appears that the learned Additional District Judged passed the impugned judgment either to get rid of decision of the matter on merits or to extend undue benefit to the respondents by remanding the case without any legal justification and such attitude of the Court under no provision of law can either be ignored, condoned or approved by the superior Courts. Though not the only reasons yet unnecessary remand by the appellate/revisional Courts to the Trial Court is one of the important reason entailing protracted litigation between the parties and bring a bad name to the judicial system of our Country for not deciding the cases in the life- time of the parties.
5. In view of the above discussion, I am satisfied that not only the order of remand by the learned Additional District Judge was highly unjustified but also violative of the guidelines set by the Hon'ble Supreme Court of Pakistan in the cited judgments. The same is also not covered either by C.L.R.
Order 41, Rule 23, C.P.C. Or Order 41, Rule 23-A, C.P.C. As amended by Lahore High Court amendment dated 4.8.1938. This Civil Revision therefore, is allowed, the impugned judgment of remand passed by learned Additional District Judge, Bahawalpur is set aside being without lawful authority and the appeal (Mst. Asghari Begum, etc. Versus Allah. Rakha, etc.) filed by the respondents against the judgment and decree of the learned Trial Court dated 12.1.2002, shall be deemed to be pending before the Appellate Court who will decide the same on merits and in case the Appellate Court finds some legal or jurisdictional deficiency in the record of the Trial Court or in the evidence, the same can only be got rectified by adopting the procedure provided by Order 41, Rules 24, 25 and 26, C.P.C. The parties shall appear before the learned District Judge, Bahawalpur on 3.4.2006 on which date the learned District Judge would either decide to keep the appeal on his own file or may entrust the same to the Court of some Additional District Judge, as the case may be. The learned District Judge, Bahawalpur shall also send copies of this order to all the learned Additional District Judges within the Sessions Division, Bahawalpur for further guidelines and compliance.
Civil Revision .