MUHAMMAD MOOSA K. LEGHARI, J.--- This IInd appeal is directed against the judgment dated 27- 10-2005 passed by 3rd Additional Sessions Judge, Malir Karachi whereby Civil Appeal No,23 of 2005 was allowed and the judgment dated 29-9-2004 and decree, dated 19-10-2004 and order, dated 23-2-2005 passed by Senior Civil Judge, Malir in Civil Suit No,19 of 2003 were set aside.
2. The facts of the case, relevant for the purpose of disposal of this appeal, in brief are, that the appellant filed a suit for cancellation of documents, possession and permanent injunction against respondents Nos,1 to 4, in the Court of Senior Civil Judge, Malir. The respondents/ defendants filed written statement. On the pleadings of the parties the trial Court framed as many as 14 issues. The parties to the suit, led their evidence. On the basis of evidence adduced before it, the trial Court decreed the suit of the plaintiff/appellant.
3. An application under Order IX, rule 13, C.P.C. was moved before the trial Court by respondent/defendant No,1 praying therein for setting aside the judgment and decree on the ground that she was not served with a Court motion notice on transfer of suit, as the suit was initially instituted in the High Court and the entire proceedings were conducted in the High Court and that subsequently suit was transferred to the Court of Senior Civil Judge, Malir Karachi, as such she was entitled to a Court motion notice, which was not served upon her, therefore, the judgment and decree passed against her were liable to be set aside. The trial Court after hearing the parties dismissed the application observing that the suit was disposed of on merits and was not decided as ex parte.
4. The order was assailed in Civil Appeal No,23 of 2005 by respondent/defendant No,
1. The Appellate Court after hearing the parties set aside the judgment and decree passed by the trial Court and remanded the case to the trial Court with the direction "to proceed with the matter from the stage of final arguments and after hearing final arguments of the counsel for the parties decide the suit afresh".
5. Since a short point was involved, therefore, on 16-2-2006 the arguments of learned counsel for the appellant were partly heard and the matter was adjourned for further arguments. Today both the learned counsel have advanced their arguments.
6. Learned counsel for the appellant relying upon the dictum laid down by the apex Court in different reported cases, has contended that order of remand was absolutely illegal, and that the First Appellate Court acted contumaciously and contemptuously by violating the statutory provisions and the pronouncements of the superior Courts. It was stressed that the remand order was a nullity as absolute requirement of statute was defied.
7. Whereas learned counsel appearing on behalf of the respondent/ defendant supported the impugned judgment contending that the respondent/defendant was condemned unheard, and that the remand order was just and proper.
8. Contentions put forward by the parties have been considered, the judgments passed by the Courts below have been examined, in light of the law laid down by the superior Courts, including the citations referred by counsel for the appellant/plaintiff.
9. The perusal of the judgment passed by the trial Court adequately reveals that the trial Court has decided the case on merits, after discussing the entire evidence available on record. Each issue was discussed and findings were recorded thereon. Though the application was moved by respondent/defendant before the trial Court under Order IX, rule 13, C.P.C. for setting aside the ex parte judgment yet the only grievance which respondent/defendant No,1 has expressed in the application was that since she was not served upon, Court motion notice she was deprived of tier right of advancing arguments. The First Appellate Court, while dilating upon the requirement of due service arrived at a conclusion that the Court motion notice was not duly served upon the appellant/defendant. It will be appropriate to reproduce the relevant concluding paragraph from the impugned judgment:-- "In the case in hand the bailiff has affixed the Court motion notice without observing legal requirements as he has not associated two persons of locality who have witnessed the affixation proceedings nor the bailiff has verified the proceedings of mode of service on oath except simple endorsement without affidavit, thus, until and unless two witnesses of the locality have not witnessed affixation, the service could not be held valid, as such I am of the opinion that in these circumstances this is a fit case to be remanded to the trial Court."
10. It will thus be observed that the First Appellate Court being dissatisfied with due service of Court Motion Notice thought it fit to remand the case to the trial Court for the purpose of "hearing the final arguments of the counsel for the parties and decide the suit afresh".
11. On the fact of it, the order of remand is against the provision of Order XLI, rule 23, C.P.C., it militates against the stipulation contained in rule 24, and has been passed in flagrant violation of the principles of law settled by the superior Court.
12. It is now well-settled proposition of law that remand of case is not a routine matter, it should be adopted only when compelling circumstances exist, as it results in unnecessary procrastination of proceedings.
The apex Court ruled in 2005 SCM R 152 that remand of a case can only be ordered when it becomes absolutely necessary and inevitable in view of insufficient or inconclusive evidence on record.
13. In Ashiq Ali and others v. Mst. Zamir Fatima and others PLD 2004 SC 10 it was held as under:--- "We are of the firm view that if a controversy can be resolved on the basis of available evidence, then the question of its remand does not arise. 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 moreso, a Court will not remand a case where the defect is due to the negligence and the default of the party desiring remand."
14. Admittedly it was not the case of either party that the evidence recorded in the case was insufficient or inclusive to justify or necessitate remand of case.
15. Tested on the touchstone of the principles of laws elucidated by the apex Court, it will be seen that the order of remand passed by the appellate Court was perfunctory and perverse and was unwarranted in the circumstances of the case.
Since the entire evidence on record was available, which was sufficient for the Appellate Court to pronounce judgment, the First Appellate Court was required to decide the appeal on merits, the order of remand was manifestly contrary to law.
16. Since the sole grievance, raised by the respondent/defendant No,1 before the 1st Appellate Court was that she was deprived of the opportunity of the hearing, the 1st Appellate Court could have disposed off the appeal on merits after affording opportunity of hearing to the parties.
17. Needless to observe that in view of the position that First Appellate Court has not assessed or evaluated the evidence at all, it will be inappropriate, if not wholly illegal to decide the controversy in Second Appeal, as it will essentially require, reappraisal, re-appreciation and re-evaluation of evidence, which, in the circumstances, would be beyond the scope of section 100, C.P.C.
18. The order of remand passed by 1st Appellate Court being illegal and violative of law is set aside.
Consequently, Civil Appeal No,23 of 2005 shall be deemed to be pending before the 3rd Additional Sessions Judge, Malir, Karachi. He is directed to hear the parties and dispose off the appeal on merits, strictly in accordance with law. Appeal shall be disposed off as expeditiously as possible, preferably within a period of 90 days from the date of receipt of this order.
II-A No,42 of 2005 is disposed of along with listed application.