C.M. NQ.1643/C/2006 ' SYED HAMID ALI SHAH, J.~- ..Through the instant petition the petitioner seeKs restoration of the main revision petition, dismissed*for non-prosecution on 2-4-2007.
2. For the reasons stated in the application, which are supported by the affidavits of the learned counsel as well as petitioner, the same is allowed and the revision petition is restored to its original number.
3. C.M. Stands disposed of.
Main Case ' The suit for specific performance and for possession on the basis of , agreement to sell dated 27- 6-1990 was instituted by the respondent. Written statement was filed by the predecessor-ininterest of the petitioner, who resisted the suit and raised various preliminary objections including the objection of levy of insufficient court-fee and of limitation. Learned trial Court framed six issues and recorded respective.Evidence of the parties. Learned trial Court dismissed the suit, on conclusion of the trial vide judgment and decree dated 1-11-2000. The respondent assailed the judgment/decree in appeal and the learned Appellate Court accepted the .Appeal vide judgment and decree dated 11-12-2001, set aside judgment and decree of the learned trial Court and remanded the case to the learned trial Court for decision on the following newly framed issues:-
(1) Whether 'the plaintiffs have no cause of action and locus standi to file this suit?'OPD
(2) Whether the suit is not maintainable in its present form? OPD
(3) Whether the suit is not correctly valued for the purposes of court- fee and jurisdiction? OPD
(4) Whether the suit is false, frivolous, and the defendants are entitled to get special costs under section 35-A,C.P.C.? OPD
(5) Whether the plaintiffs are entitled to . Get a decree for possession of the suit-land through specific performance of an agreement to sell dated 27-9-1990? OPP (5 A) Whether the suit is barred by time? OPD
(6) Relief.
2. It is contended by the learned counsel for the petitioners that the impugned judgment and decree of the Appellate Court suffers from the defect of misreading and non-reading of evidence; that the witnesses are at variance as to the place where the agreement was executed; that there are material contradictions with regard to the persons in whose presence the agreement was arrived at and lastly that how the thumb impression was put on the agreement to sell. Learned counsel has submitted that there was sufficient evidence available on record, which could have been made the basis of the decision. Learned Appellate Court has erred in not deciding the matter according to the newly framed issues on the basis of evidence, which was available on record.
Learned counsel then submitted that if at all the evidence was needed the Court was to opt the procedure of sending the file back to the learned trial Court for recording of additional evidence on the newly framed issues and keeping the appeal alive with itself. It was then contended that the evidence available on record was not discussed and as such the order of the learned appellate Court is not sustainable.
3. Learned counsel for the respondents, on the other hand, has fully supported the impugned judgment and decree. He has contended that the parties recorded their evidence according to the issues. Once the new issues were framed, it was required under law that an opportunity be provided to the parties to adduce evidence in support of newly framed issues or show their willingness with regard to the evidence already recorded. Learned counsel then submitted tl\at the scope of the revision is limited and the grounds urged before this Court do not justify interference' in the revisional jurisdiction.
4. Heard learned counsel for the parties and record perused.
5. The learned Appellate Court while passing the impugned judgment and decree has taken into consideration the fact that the trial Court has not given its finding in detail, with regard to Issue No.5. The Court further observed that valuable rights of the parties were not determined keeping in view whole evidence of the parties and in this exercise the learned trial Court picked and chose the evidence in piecemeal. There is no illegality or legal infirmity in the findings of the learned lower Appellate Court. The issues were also not framed in accordance with law by the learned trial Court and learned Appellate Court after framing of new issues correctly remanded the case to the.
Learned trial Court. The order of remand does not suffer from any defect of misreading and non- reading of evidence or wrong assumption of law. The instant revision petition is pending since February, 2002 and had the proceedings been continued after remand from the learned Appellate Court', the trial might have concluded with the passage of time proceeding over years. The argument of the learned counsel for the petitioners that the case could have been kept alive by the learned Appellate Court after framing of newly issues,, speaks of the fact* that the petitioner has himself admitted necessity of framing of issues in a manner as these were framed by the learned appellate Court. Once issues were framed, the learned appellate'Court has adopted right course of remanding the case to the learned, trial Court to enable the parties to adduce their evidence if they so wish on the basis of newly framed issues.
5- A. For the foregoing, this petition has no force and is accordingly dismissed.
6. Since the matter is an old one, it will be appropriate to direct the learned trial Court to conclude the trial in terms of the remand order expeditiously within a period of six months from today. In case the trial is not concluded within the stipulated period, learned trial Court shall intimate to the Additional Registrar (Judl.) of this Court about the reasons of such delay.