' MUHAMMAD FARRUKH MAHMUD, J.--- Appeals Nos.1587 of 2007 and 1588 of 2007 are directed against the judgment, dated 29-6-2007 handed down by the learned Judge in Chambers of Lahore High Court, Lahore in R.S.A. No,62 of 2005 filed by the respondents/ plaintiffs whereby, the case was remanded back to the learned trial Court for re-writing the judgment. Both these appeals are being disposed of 'through this consolidated judgment.
2. Relevant facts are that the dispute is related to about 85 acres and 10 Kanals of suit-land out of the agricultural land owned by Colonel L.H.G. Conville grandfather of the appellant-defendant in District Sahiwal. Two Mutations No,47 for the land measuring 65 acres, 8 Marlas and Mutation No,163 for the land measuring 20 acres and 2 Kanals were attested on 25-3-1982 whereby the suit-land was transferred in favour of the respondents/plaintiffs. Respondents/plaintiffs claimed that the suit-land was rightly transferred to them on the strength of agreement to sell dated 11-11-1976 executed by Conville grandfather of the appellant-defendant in favour of respondents-plaintiffs after receipt of due consideration. On the other hand, the appellant claimed to be owner of the suit-land on the basis of gift deed executed in her favour by her grandfather Conville. Appellant- defendant challenged the mutations before the Revenue Authorities. The matter went up to the Member, Board of Revenue whereby the order relating to cancellation of mutations was upheld.
Thereafter, two civil suits were filed by the appellants against the cancellation of mutations.
However, the respondents were allowed to withdraw their suits vide order dated 6-6-1986 with permission to file fresh suits. Thereafter two suits titled Muhammad Sabbar Idrees v. Mst. Clare Benedicta Conville and others and Mst. Sabahat Idrees and others v. Mst. Clare Benedicta and others were instituted on 28-3-1987. Initially, the suits were filed for declaring the orders passed by the revenue authority whereby the mutations were cancelled, were void and illegal. However, with the permission of the Court, an alternate prayer for specific performance of contract dated 11-11- 1976 mentioned above was added. These two suits, which are subject matter of this appeal, were consolidated by the learned trial Court. The suits were hotly contested by the parties and as much as 47 issues were framed. The suits were dismissed by the learned trial Court vide judgment and decree dated 4-4-1996. Appeal was also dismissed by the learned Additional District Judge vide its judgment and decree dated 21-5-2005. Whereafter the respondents/plaintiffs filed regular second appeals which culminated into the impugned judgment.
3. Learned counsel for the appellants/defendant has argued that the learned Judge after hearing the case for about a month, instead of deciding the appeal, remanded the case back to the learned trial Court merely for the reason that the learned trial Court had re-capitulated the written arguments submitted on behalf of appellant/defendant in his judgment. The learned counsel has further argued that the learned Judge did not consider the fact that the learned Additional Sessions Judge while deciding the first appeal had touched all the merits of the case and had applied its independent mind while deciding all the issues. The learned counsel has further argued that the appeal was considered to be continuation of the trial and even if the judgment passed by the learned trial Court was defective, the learned Judge should have decided the second appeal on merits as there was no defect in the judgment passed by the learned Additional Sessions Judge.
The learned counsel brought our attention to para.16 of the impugned judgment and submitted that it was wrongly observed by the learned Judge that the judgments of both the Courts below were nothing but re-capitulization of arguments of counsel for the respondents-defendants. The learned counsel argued that certain paras of the written arguments were incorporated in the judgment passed by the learned trial Court but the same could not be said about the judgment passed by the first Appellate Court which was passed on sound reasoning. The learned counsel added that in paras.13 and 14, the learned Judge has observed and narrated the paras which were nothing but recapitulization of the written arguments of the counsel of the defendants-appellants but nowhere in the impugned judgment, it has been mentioned that the judgment passed by the first appellate Court was also passed on the written arguments. The main thrust of the argument of the learned counsel was against the order of remand in the circumstances of the case. While referring to the provisions of Order XLI rules 23, and 24, the learned counsel argued that it was not a case where evidence was deficient or not complete or where framing of some issues was disputed, so the remand of the case was uncalled for The learned counsel relied on the following judgments:---
(i) Pramatha Nath Chowdhury and 17 others v. Kamir Mondal and others PLD 1965 SC 434 wherein it was observed that a remand should not be rightly ordered if the evidence on the record was sufficient for the Appellate Court to decide the question itself.
(ii) Fateh Ali v. Pir Muhammad and another 1975 SCM R 221 wherein it was observed that the learned Judge of the High Court was under no obligation to make an order of remand and was fully competent to dispose of the issues left un-determined by the first appellate Court.
(iii) Ashiq Ali and others v. Mst. Zamir Fatima and others PLD 2004 SC 10 wherein it was observed that only those cases should he remanded which could not be decided on the basis of available record as it would be in the interest of justice. It was further observed that if controversy could be resolved on the basis of available evidence, then the question of its remand did not arise.
(iv) Anwar Ahmad v. Mst. Nafis Bano through LRs 2005 SCM R 152 wherein it was observed that the remand of a case could only be ordered when it was absolutely necessary and inevitable in view of insufficient or inconclusive evidence on record.
(v) Muhammad Dervaish Al-Gilani and 14 others v. Muhammad Sharif and others 1997 SCM R 524 wherein it was observed that the power of remand should not be exercised lightly and that the Court should examine the evidence and if it came to the conclusion that it was not sufficient to pronounce the judgment or decide the issues between the parties then it could remand the case or may itself record the evidence and decide it. If on record, there was adequate and sufficient evidence on which decision could be made, the remand would not be justified.
4. In anticipation, that the opposing counsel may raise objection that the appeal in the circumstances, was not competent and only leave to appeal could be filed, the learned counsel while relying on the case of Chairman, N.-W.F.P., Forest Development Corporation and others v.
Khurshid Anwar Khan and others 1992 SCM R 1202 submitted that the appeal could always be treated as petition for leave to appeal.
5. Conversely, the learned counsel for the respondents has submitted that the judgment passed by the learned trial Court was nullity in the eyes of law as it was based only on the written arguments submitted by the appellant-defendant before the learned trial Court; that paras No,13 and 14 of the impugned judgment fully expose the fact that the judgment passed by the learned trial Court was nothing but recapitulization of the written arguments submitted. According to the learned counsel, the appeal and the regular second appeal would not be valid in the absence of any judgment by the learned trial Court. The learned counsel has relied on the following judgments:--
(i) Balwant Singh v. Baldev Singh and others AIR 1921 Lah. 119 wherein it was observed that the judgment before us is practically nothing but a recapitulation of the arguments of counsel with a brief indication of the learned District Judge's opinion with regard to the said argument. We cannot but regard this judgment as unsatisfactory in this case, the case was remanded for re-hearing and re-decision.
(ii) Ghulam Mohi-ud-Din v. Chief Settlement Commissioner Pakistan, Lahore and others PLD 1964 SC 829, wherein it was observed that by merely countersigning on the note of settlement Commissioner, we are clearly of the view the Chief Settlement commissioner had not exercised the jurisdiction vested in him in accordance with law and that there was no proper dismissal of the revision petitions filed before him.
(iii) Sher Muhammad v. Abdul Rashid and others 1980 SCM R 928, wherein it was observed that making an adjudication entirely dependent on the finding of a 3rd authority without applying its own mind, without determining the matter in issue himself, then it will be case of abdication of jurisdiction, surrender of discretion and a failure to exercise jurisdiction.
(iv) Muhammad Akhtar v. The State PLD 1957 SC (Pak.) 297, wherein it was observed as follows:--- "The arguments referred to were presented before the trial Court and it surprises us to find them being represented as having been placed before the Sessions Court, in the very words used by the trial Court. The contribution made by the Sessions Judge to ascertainment of facts upon appreciation of the evidence appears to be negligible. A judgment of this kind delivered by an appellate Court cannot be regarded as proper and is of doubtful validity. It does not represent an honest discharge of its duty by the Appellate Court."
6. The learned counsel has lastly argued that the impugned order was interim in nature and could not be termed as decision or final order. Hence, only petition seeking leave to appeal was competent and appeal was not maintainable.
7. ' We have heard the learned counsel for the parties at length and have gone through the impugned judgments with their able assistance. As far as judgment passed by the learned trial Court is concerned, it is almost admitted that the learned Judge re-capitulated the points narrated in the written arguments submitted before him by the learned counsel for the appellant- defendant. The judgment is not based on the independent application of mind, hence, is not valid.
It is true that the learned First Appellate Court passed a detailed judgment and has discussed and applied its mind to almost all the issues yet this fact cannot be ignored that the learned first Appellate Court did not have a valid judgment before it while sitting in appeal. It is true that when the evidence was sufficient for deciding the issues, then ordinarily the learned Courts sitting in appeal should decide the case on merits but the facts of the instant case are distinguishable as no valid judgment passed by the, learned trial Court was available on record of the case. Undeniably, the learned Judge was not barred by law from remanding the case. The case-law cited by the learned counsel for the appellants relates to the rule of propriety. The learned counsel remained unable to show that the remand order passed by the learned Judge was against any provisions of law. The arguments of learned counsel that lot of time would be consumed in another round of litigation, is devoid of any force, firstly, the learned Judge has given time frame to the learned trial Court for re-writing the judgment and secondly, the appellant is in possession of suit-land, hence, he is not likely to suffer by the remand order in any manner. It would be un-necessary to enter, into the debate as to whether petitioner for leave to appeal or appeal should have been filed. These appeals are dismissed with no order as to costs.