' MIAN SAQIB NISAR, J.---The petitioner filed a suit for the declaration, against the respondents and as many as eight issues were framed; parties were put to trial and the learned Civil Judge, decreed the suit, vide judgment and decree dated 8-2-2003; the respondents filed an appeal and the appellate court came to the conclusion that the issue of limitation i.e. Whether the suit is within time, should have been framed and decided by the trial court. The relevant portion of the judgment is reproduced as below:-- "Since the above issue requires reexamination and fresh decision in accordance with law, I hereby accept this appeal, set aside the impugned judgment and decree and remand the case to the learned trial court to decide the case afresh including issue No.2 on the basis of evidence already available on record in accordance with law after hearing learned counsel for the parties."
2. Learned counsel for the petitioner has lot challenged the impugned decision regarding the framing of the issue of limitation, rather he contends that for the decision of all the other issues, there was sufficient evidence on the record, and it is not even the case of the respondents that they wanted to adduce some further evidence, resultantly the 'court while keeping the appeal pending, should have directed the learned trial court, to record the evidence on the re-casted issue of limitation and to return the finding on the same, 'which finding/decision could also become part and the subject of the pending appeal.. If the findings were against the respondents, they could be permitted to add more grounds to the memo. Of appeal, and in the case of finding/decision against the petitioner, they could' be permitted to orally attack the finding, or to file - cross objections, etc.
3. I have heard learned counsel for the parties and find that for all the other issues, there was no justification to remand the matter; the just and proper course should have been to follow the provisions of Order XLI, Rule 25 CPC, that after framing of issue No.2, i.e. Limitation, the case" should have been referred to the trial court to proceed in terms of the law ibid. In the light of above, this petition is partly accepted, the impugned judgment and decree to the extent of remanding of the entire case to the trial court, by the court of appeal, is set aside with the further observation that the appeal of the respondents, should be deemed pending before the Appellate Court, awaiting the finding of the trial court on the issue of limitation. Parties are directed to appear before the trial court on 19-4-2005.