MUHAMMAD JEHANGIR ARSHAD, J. --- This FAO is directed against the order dated 14.12.2004 passed by Addl. District Judge, Ferozewala whereby the learned Addl. District Judge while deciding Civil Appeal No 34/04 titled as "Siraj Din Vs. Muhammad Afzaf' against the judgment of the learned Trial Court dated 28.5.2004 remanded the case to the Trial Court in the following terms:--- "Therefore, the impugned judgment and decree is illegal and set aside. Appeal is allowed. Following fresh issue in respect of Mutation No. 3749 is framed:--- "whether Mutation No. 3749 dated 24.4.1996 is illegal, void and ineffective on the rights of plaintiffs being based on,fraud, mis-representation? OPP.
Case is remanded to the learned Trial Court. File of the Trial Court be sent' to if. Parties are directed to appear before the Trial Court on 23.12.2004. Parties can produce the evidence before the Trial Court as desired and Trial Court shall decide the case afresh."
2. The facts in brief are the appellants Muhammad Afzal and others filed suit for declaration with permanent injunction before the learned Trial Court challenging Mutations Nos. 4441, dated 10.4.1996, 3749, dated 24.4.1996, 3797, dated 23.4.1997, as well as the registered sale-deeds dated 16.9.1996 and 3.7.1997 respectively by terming the same as against law and facts, mala fide, based on fraud, collusion and without consideration, hence ineffective qua their rights. The suit was contested by the respondents and the same led to the framing of following issues:---
(1) Whether the suit is maintainable in its present form ? OPP.
(2) Whether the jurisdiction of this Court is barred under the Consolidation Ordinance? OPD.
(3) Whether the description of the suit land is incorrect , if so, its effect? OPD
(4) Whether the suit is bad for non-joinder of necessary parties? OPD
(5) Whether the -plaintiffs lacks locus standi and cause of action? OPD
(6) Whether the plaintiffs are estopped by their words and conduct to institute the suit? OPD
(7) Whether mutation of exchange No. 4441, dated 10.4.1996 is illegal, void and ineffective on the rights of the plaintiffs being based on fraud and misrepresentation on the basis of the grounds mentioned in para No. 2 of the plaint? OPD
(8) Whether the Mutation No. 4452, dated 20.5.1996 is based upon illegal and fake document? OPP (8-A) Whether the Mutation No. 4455, dated 20.5.1996 is against law facts, based on fraud, infructuous upon the rights of plaintiffs void and liable to be rectified? OPP (8-B) Whether the defendant No. 5 is bona fide purchaser for value without notice? OPD-5.
(8-C) Whether the plaintiff filed the instant suit within time? OPP
(9) Relief.
On the conclusion of the trial the learned Trial Court/ Civil Judge 1st Class, Ferozewala decreed the suit in favour of petitioner declaring Mutations Nos, 4441, 3749, 4452, 3797 as illegal, hence ineffective qua the rights of the petitioner. Feeling aggrieved of the judgment and decree of the learned Trial Court dated 28.9.2004 the respondents filed appeal before the learned Addl. District Judge, Ferozewala which was allowed by the learned. Addl: District Judge on 14.12.2001 whereby the judgment and decree of the learned Trial Court was set aside and the case was remanded .To the learned Trial Court in the terms mentioned above, hence this FAO.
3. It has been contended by the learned counsel for the appellant that there existed no justification for the remand of case to the Trial Court on the short ground of non-mentioning of Mutation No. 3749, dated 24.4.1996 in the issue whereas the said mutation had been specifically challenged in the plaint and that the parties had produced evidence on the same, therefore, the learned Trial Court-rightly decreed the suit and that the appeal filed by the respondent could be legally decided about the-validity of said mutation on the basis of material available on the record and without framing of the said issue. Further argued that as the parties were fully aware of the controversy and had led the evidence, hence the framing or non-framing of issue had no effect: Learned counsel for the appellant in support of his contention has placed reliance on the case of "Muhammad and 9 others Vs. Hashim Ali" (PLD 2003 SC 271).
4. On the other hand, learned counsel for the respondents has supported the impugned order of the learned Addl. District Judge by arguing that due to absence of mentioning of Mutation No. 3749 in the' issue serious prejudice was caused to the appellant and thus the learned Addl. District Judge rightly remanded the case to the learned Trial Court after framing of issue in order to avoid any complication as well as further litigation between the parties.
5. I have considered the above-mentioned arguments of the learned counsel for the parties and has also perused the record with the assistance of the learned counsel.
6. The perusal of plaint shows that in para-2 of the same, Mutation No. 3749, dated 24.4.1996 has been specifically challenged. Similarly the parties have led oral as well as documentary evidence on the point in controversy viz. Whether there was any exchange between the father of the petitioners and Siraj Din respondent. Further Mutation 3749, dated 24.4.1996 was also produced in evidence by respondent as Exh. D-4 and that .Both the parties of said mutation, namely, Siraj Din and Saeed Ahmad were also parties before the learned Trial Court as defendants and that in written statement para-2(b) on merits, the said mutation was specifically defended by the respondents having been duly incorporated in the revenue record. This fact clearly indicates that at least respondents were fully aware of the controversy in question and that they were also aware of the fact that alongwith other mutations; Mutation No. 3797, dated 23.4.1997 was also under challenge in the suit, hence there was no question that by non-mentioning of the Mutation No. 3797, dated 23.4.1997 in any issue either the respondents were mis-led or put to surprise by the learned Trial Court while passing decree against them by declaring the same as illegal, void etc. Similarly as held by the learned Trial Court that with the annulment of Mutation No. 4441, dated 10.4.1996 all the subsequent mutations including Mutation No. 3749, dated 24.4.1996 were of no legal effect. Therefore, to say that as the said mutation was not incorporated in any issue, hence the learned Trial Court had no jurisdiction to record such findings, hence, framing of additional issue by incorporating in Mutation No. 3794 were essential is not legally correct. As held by Hon'ble Supreme Court of Pakistan in 2003 SC -271 cited above the non-framing of issue was inconsequential when the parties were fully aware of the- controversial question of fact and they led evidence in support of their respective stance and the decision on such question could be rendered in the light of evidence available on record. The framing, of separate issue and recording of fresh evidence in the matter was not essentially required by law for rendering decision. The apex C.L.R.
Court in the same judgment also held that where the dispute leading to character of transaction and the material available on the record was sufficient to decide the case, the remand of the case by the Appellate Court was not proper as the same would amount to involving the parties in unnecessary agony of litigation.
7. I am, therefore, satisfied that the learned Addl. District Judge through the impugned order while remanding the case to the learned Trial Court after framing of additional issue acted illegally and with material irregularity, hence the same is not sustainable in law.
8. Resultantly this FAO is allowed, the order of the learned Addl. District, Judge is set aside and the learned Addl. District Judge is directed to decide the appeal filed by, the respondent against the judgment and decree of the learned Trial Court dated 28.5.2004 afresh on the available evidence and there was no necessity of framing additional issue at all.
9. Parties are directed to appear before the learned District Judge, Sheikhupura on 12.6.2006, who will either retain the case at his own file 'or entrust the same to any Additional District Judge. Parties to bear their own costs.
F.A.O. Allowed.