' SYED ASGHAR HAIDER, J.---This judgment will dispose off C.R. No,1136 of 2003, titled "Shameer etc. v.
Rai Sandal etc." (ii) C.R. No,1137 of 2003, titled "Shameer v. Raisat Ali etc." and C.R. No,1138 of 2003, titled "Shameer v. Raiasat Ali etc." as they involve common question of law.
2. In C.R.No,1136 of 2003, Mutation No,7, was challenged by the respondents by filing a suit for declaration and permanent injunction. The suit was dismissed by the trial Court on 27-11-1999. An appeal was filed which was accepted by the learned Additional District Judge, Nankana Sahib, and the proceedings were remanded to the trial Court.
3. In C.R. No,1137 of 2003, Mutation No,16 was challenged by the respondents by filing a suit for declaration and permanent injunction. The suit was dismissed on 27-11-1999 by the trial Court. An appeal was filed which was accepted by the learned Additional District Judge, Nankana Sahib and the proceedings were remanded to the trial Court.
4. In C.R. No,1138 of 2003, the respondents filed a suit for declaration and permanent injunction challenging Mutation No,6. The suit was dismissed by the trial Court vide judgment dated 27-11- 1999, against which an appeal was filed which was accepted by the learned Additional District Judge, Nankana Sahib, and the proceedings were remanded to the trial Court.
5. The petitioners are aggrieved of the aforesaid judgments and have filed these petitions.
6. The learned counsel for the petitioners contended that the orders of remand are not legally tenable as the provisions of Order XLI, Rules 23 and 25, C.P.C. Have not been complied with, there has been gross misreading of evidence and lower appellate Court has committed a glaring illegality as it assumed that Mutations Nos.6 and 7 were not available on record, while, actually they were available on record and were duly exhibited. He also contended that the evidence was recorded in the suit titled "Shameer v. Riasat Ali etc." (C.R. No,1137 of 2003) with the consent of both the parties and this procedure is permitted under section 99, C.P.C. There was no illegality and on this count, also the remand order was bad in law. He has relied on Altaf Hussain v. Mehr Bakhsh 1989 CLC 1651, in this context.
7. The learned counsel for the respondents defended the impugned judgments but conceded that the evidence was recorded in the case titled "Shameer v. Riasat Ali etc." with the consent of the parties. He also admitted that all the three mutations i.e, 6, 7 and 16, were duly exhibited and are available on record.
8. I have heard the learned counsel for the parties. The powers of remand are contained in rules 23 and 25 of Order XLI, C.P.C. The conditions of remand are clear and unambiguous, the powers available to the appellate Court are prescribed in these provisions. The appellate Court no doubt is bestowed with the powers of remand but this power has to be exercised judiciously and in consonance with the parameters laid down therein. Under rule 23, C.P.C. Remand can be resorted to if the suit has been disposed of on a preliminary issue and the decree is reversed, while the powers contained in rule 25, C.P.C. Are more wide. Remand can be ordered if the trial Court has omitted to frame any issue or to determine any question of fact which appears essential to the appellate Court for decision on merits. But then issues have to be framed and additional evidence has to be recorded, in the present matter both these conditions are lacking, the orders of remand are result of misreading of the record, the Revenue Record is available on the file, the mutations were duly exhibited, the trial Court was cognizant of this fact and has adverted to it in its judgment.
The procedure for recording evidence in one case and using it in other case is also not alien to C.P.C. And can be resorted to. Further this procedure has not caused prejudice to any of the parties, in fact, this procedure was adopted with the consent of the parties and it has not been objected to by the parties to date, even if it is termed as irregularity (which it is not) it has not vitiated any proceedings or caused prejudice to the parties.
9. The learned lower appellate Court has also not stated in the impugned judgments that as to what material hampered it to pronounce judgment and what material it desired to be brought on record. In these circumstances it is absolutely clear that the provisions of Order XLI, Rules 23 and 25, C.P.C. Have not been complied by the learned lower appellate Court. There was absolutely no B justification to remand the case as ample material was available on record for adjudication of the cases on merits. Therefore, these revision petitions are allowed, impugned- judgments dated 30- 4-2003 are set aside, the proceedings are remanded to the lower appellate Court with a direction to hear the parties and decide the cases afresh, from the evidence available on record.