' MUHAMMAD MUZAMMAL KHAN, J.---This civil revision assails judgment/order dated 18-2-2003 passed by the learned Additional District Judge, Daska, District Sialkot, whereby appeal of respondent No,1 was accepted, judgment and decree of the trial Court dated 16-3-1998 was set aside and after framing three additional issues, case was remanded for fresh trial to the trial Court.
2. Precisely, relevant facts are that respondent No,1 filed a suit for declaration with permanent injunction on the basis of gift dated 15-10-1994 made by her real brother Hidayat Ullah who was owner of land measuring 22 Kanals, 8 Marlas detailed in the plaint. Late Hidayat Ullah was issueless, who died somewhere in 1983 and was succeeded by two real sisters and two collaterals, who were his real paternal cousins. Amongst sisters of the deceased, one is respondent No,1 and the other is petitioner. Respondent No,1 claimed in her suit that Hidayat Ullah had been living with her and besides rendering service, she had been feeding him. It is her claim in the plaint that in lieu of services rendered by her, Hidayat Ullah deceased gifted his entire land in her favour through a gift deed dated 15-10-1995, possession whereunder was also handed over to her. After acceptance of offer of gift by the deceased, petitioner and the collaterals of the deceased, who were to inherit the property in question, denied title of respondent No,1, hence she filed the suit in hand.
3. Petitioner and respondents 2 and 3 (collaterals of Hidayat Ullah) being defendants in the suit contested it denying the assertions in the plaint, by filing their written statement wherein certain Preliminary objections to the maintainability of the suit were raised. The learned trial Judge, who seized of the matter, after doing the needful, dismissed the suit of respondent No,1 vide his judgment and decree dated 16-3-1998 adjudging gift in favour of respondent but keeping her Shari share in the estate of deceased Hidayat Ullah, intact to the extent of 1/3rd share.
4. Respondent No,1 aggrieved of the decision of the trial Court dated 16-3-1998 filed an appeal before the learned Additional District Judge, Daska, District Sialkot, which was accepted, in the terms, noted above. Petitioner aggrieved of the remand order by the appellate Court, has filed instant revision petition, which was admitted to regular hearing and has now been laid for final determination.
5. Learned counsel for the petitioner submits that appellate Court has unnecessarily remanded the case by framing additional issues, whereas the issues already framed cover the entire controversy between the parties and there was no necessity of framing any additional issues. It has further been contended that suit by respondent No,1 was filed in the year 1994, which remained pending for about six years before the trial Court where none of the parties ever objected to incorrect framing of issues, even matter of non-framing of issues has not been raised before any of the two Courts below. He further elaborates his submissions by saying that all the parties were aware of the dispute between them and knowing well the controversy, led their respective evidence of their choice, as such, remand order impugned is not justified under law. It is also contended that entire evidence touching gift in favour of respondent No,1, on which his suit was based, was produced including the scribe of the gift deed and its marginal witnesses and now there remains no evidence of any kind which shall be produced by any of the parties. It has also been submitted on behalf of the petitioner that law does not favour unnecessary remand of cases because parties had already exerted hard by spending half of their lives in getting decision from the trial Court.
6: Learned counsel appearing on behalf of respondent No,1 refuted the assertions of the petitioner, supported the remand order and urged that real controversy regarding valid execution of a gift in favour of respondent No,1 remained thirsty of decision on account of non-framing of issues on the subject by the trial Court. According to him, the assertions made in the plaint and denied in the written statement were necessary to be put to the issues in view of provisions of Order XIV, C.P.C.
And thus appellate Court has rightly framed three additional issues arising out of pleadings of the parties and had correctly remanded the case for fresh trial.
7. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Issues framed by the trial Court read as under:--
(1) Whether the suit is not proceedable in its present form? OPD
(2) Whether the suit is collusive with defendants Nos.2 and 3? OPD
(3) Whether the plaintiff has no locus standi and cause of action? OPD
(4) Whether the suit is false, frivolous, vexations, based on fraud and forgery and the plaintiff has not come to the Court with clean hands? If so, are the defendants entitled to recover special costs under section 35-A, C.P.C.? OPD
(5) Whether the plaintiff is owner in possession of the suit-land and thus entitled to the decree prayed for? OPP
(6) Relief.
' On appeal, learned Additional District Judge framed the following three issues:-- (5-A) Whether the 'Hiba Nama' dated 15-10-1994 was validly executed by Hidayat Ullah (deceased) in favour of the plaintiff? OPP (5-B) Whether the suit is bad for non-joinder of necessary parties to the suit? OPD1 (5-C) Whether the suit is incorrectly valued for the purpose of court-fee? OPD ' A comparison of the issues already framed and those framed in appeal, contained in the remand order and reproduced above, show that Issue No,5 already framed covers the entire controversy between the parties, where-under respondent No,1 could only succeed by proving a lawful gift, exclusive ownership and her right to the decree, prayed. Additional issues regarding validity of the gift and non-joinder of parties to the suit, including valuation of the suit for the purposes of court- fee and jurisdiction, can be determined under Issue No,5 already framed and in this view of the matter, I am of the considered view that there was no necessity of framing any additional issue.
8. Respondent No,1 filed the suit on 22-12-1994, which was decided by the trial Court on 16-3-1998 and it shows that parties remained in litigation before the trial Court for about four years, where they filed their pleadings, produced evidence of their choice and were represented through their counsel. Tenor of judgment of the trial Court and evidence on the file shows that parties were alive to the controversy between them. Respondent No,1/plaintiff has already produced scribe of the gift deed and its marginal witnesses. Above all, none of the parties ever moved to the trial Court for framing of any issue. Matter of framing or non-framing of any issue after a hard contest by the parties becomes immaterial, especially, when they knew that what is to be proved and what is not to be proved. Honourable Supreme Court of Pakistan in siniilar circumstances mandated that parties having contested the suit with awareness of the points of contest between them, matter regarding framing or non-framing of issues becomes immaterial, in the case of Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others (1993 SCM R 2018).
9. For what has been discussed above, it is obvious that, on the one hand, issues already framed cover the entire controversy and there was no necessity of framing any additional issue and on the other hand, parties were alive to dispute involved in the suit and having led entire available evidence of their choice, non-framing of issue on any assertion in the pleadings, loses importance.
It is settled principle of administration of justice that unnecessary remands be discouraged. During the course of hearing, I had called upon the learned counsel for the respondents to show what evidence they will lead in the post-remand proceedings, but he could not name any. As a matter of fact, evidence on the file is complete and no other evidence is needed for a just decision of the case. My feeling is that appellate Court has avoided exercise of deciding the case on merits and instead opted to remand it through a slipshod manner. Such an order cannot be allowed to be maintained, which is accordingly set aside. This revision petition is accordingly accepted and judgment/order dated 18-2-2003 is set aside, with the result that appeal filed by respondent No,1 shall be deemed to be pending before the appellate Court, which shall be decided by him on the basis of evidence available on the file. Parties are directed to appear before the learned Additional District Judge, Daska on 5-3-2004. There will be no order as to costs.