FARRUKH LATEEF, J.- Respondent had filed a suit for specific performance of an agreement allegedly executed by Petitioner No.l in his favour on 1-2-1979. Petitioner No.l filed written statement wherein she denied execution of the said agreement and asserted that litigation regarding land in question was pending between her and Petitioners Nos.2 and 3. Later on said petitioners were impleaded in the suit as Defendants Nos.2 and 3. They claim, that they were in possession of the land in question as owners by way of exchange from Petitioner No.l and a decree regarding that land was passed - in their favour by Civil Court. They claimed to be bona fide transferees.
2. After framing necessary issues and recording evidence, finding of the trial Court was that respondent could not prove the execution of the sale agreement and payment of alleged sale consideration thereunder; it was a fabricated document and that Respondents Nos.2 and 3 were bona fide transferees of the suit land. Suit was resultantly dismissed on 17-5-1987.
3. On appeal by the respondent, the aforesaid judgment/decree was set aside by the learned appellate Court vide judgment dated 5-3-1988 and the case was remanded to the trial Court with the direction to obtain thumb impression of Petitioner No. 1, to send the same for comparison with her alleged thumb impression on the sale agreement Exh.P.l and thereafter to decide the case fresh after recording the evidence on all the issues.
4. Said judgment of the learned appellate Court is assailed in this civil revision by the petitioners (defendants in the suit) on the short ground that the respondent (plaintiff in the suit) had neither applied to the learned trial Court nor before the learned appellate Court for comparison of the thumb impressions of Petitioner No.l; no request in that regard was made before the appellate Court by any of the parties, hence, there was absolutely no justification for remanding the case on a ground which was never agitated before the appellate Court by any of the parties. It was also submitted that there was no request from any of the parties for producing further evidence on any issue nor it was held by the appellate Court that evidence on any issue was not sufficient, therefore, further evidence was required on such issue.
5. Petitioner's counsel has been heard. Civil revision and its annexures perused.
6. A perusal of the judgment of the trial Court shows that case was decided on merits. Judgment of the appellate Court reveals that although some evidence was discussed but no finding was given on any issue. Findings of the trial Court on any of the issues was neither set aside nor reversed. It was also not held that trial Court had omitted any material issue on fact or that evidence on.
Record was not sufficient for deciding the case on merits.
7. Reason which weighed with the learned appellate Court for remanding the case was that during the proceedings Petitioner No.l had moved an application for comparison of her thumb impression with that on the alleged agreement and on the register of petition writer; said application was disposed of by trial Court with the observation that she may agitate it after conclusion of the evidence but subsequently she appears to have changed her mind as was evident from her cross examination that she was not prepared to get her thumb impression compared with her alleged impression on sale agreement Exh.P.l.
8. Annexure-E was the application which was submitted by Petitioner No.l on 5-4-1981 . For comparison of her thumb impression with her alleged thumb impression on the register of petition writer. Comparison of her thumb impression with her alleged thumb impression on the sale agreement was not requested in t{iis application, as was incorrectly observed by the learned appellate Court in the impugned judgment.
9. About six years thereafter i.e. 25-1-1987, statement of petition writer was record as D.W.l wherein he said that sale agreement Exh.P.l was scribed by him; during cross examination he admitted that .He had written the same on the dictation of Muhammad, Din (respondent); that Mst. Shamim Akhtar Petitioner No.l was not present and , had not affixed her thumb impression on the said agreement in his presence and that sale agreement Exh.P.l was taken away 'by Muhammad Din respondent on the pretext that he would bring it back after showing it to his advocate but he did not turn up thereafter. He also said that entry of that agreement in his register at Sr. No. 116 does contain thumb impression of'Mst. Shamim Akhtar- Petitioner No.l.
10. Statement of Petitioner No.l Mst. Shamim Akhtar was also recorded on the same day by the trial Court wherein she had said during cross examination that she was not willing to get her thumb impression compared with her alleged thumb impression on the agreement deed'.
11. Learned appellate Court was therefore misconceived ' in observing that Petitioner' No, 1 had subsequently changed her mind inasmuch as said respondent in her application had never requested for comparison of her alleged thumb impression on the sale agreement but specifically requested for comparison with her alleged. Thumb impression on the register of petition writer only.
12. The petition writer had deposed before the trial. Court that entry regarding sale, agreement Exh.P. l at Sr. No. 116 of his register does not bear thumb impression of the Petitioner No.l, hence, aforesaid application moved by the Petitioner No.l had become infructuous on account of nonavailability of her thumb impression on the register of petition writer.
13. Decision was given by the trial Court on all the issues. The learned appellate Court without adverting to the reasons and findings recorded by the trial Court and without setting aside the findings on any issue, had- set aside the judgment and decree and had remanded the case for recording evidence on all the issues without any justification.
14. The appeal was disposed of by the learned appellate Court by ignoring the provisions or Order XLI Rules 23-A, 24 and 25 of the C.P.C. By remanding the case on a frivolous and irrelevant ground which was-not even raised in appeal by any of the parties. It had, therefore, acted in the exercise of its jurisdiction illegally and with material irregularity.
15. The impugned judgment is accordingly set aside. The appeal would be deemed as pending before- the learned Additional District Judge who shall dispose of the same in accordance with law within a period of six months from the date of receipt of this judgment after notice to the parties concerned.
16. Civil revision is accordingly disposed of.