JUDGMENT SYED SAJJAD HASSAN SHAH, J.---This petition is directed against the judgment and decree dated 27-1-2006 of Additional District Judge/Izafi Qazi Dir Pian at Taimargarha, whereby, the appeal filed against the judgment and decree dated 20-1-2003 of Senior Civil Judge, Dir Pian at Taimargarha, was accepted setting aside the impugned judgment and decree and remanded the case for deciding a fresh.
2. Precisely stated facts are that Umer Jan deceased the predecessor in interest of present plaintiffs/petitioners (hereinafter called the petitioners) had instituted a suit for the declaration claiming the ownership and possession of suit land detail mentioned in the heading of the plaint, vide sale deed dated: 11-2-1971, the defendants/ respondents (hereinafter called the respondents) have no right in the suit property, more so, further claimed that if any sale regarding the suit property found to have been effected between the respondent No.1 and respondents Nos.2 and 3 and the predecessors of respondents Nos.4 and 5, same may be declared as illegal, ineffective, against the rights of the petitioners. In relief "B" sought the recovery of produce from defendant No.1 since 1994 till decision of the case and thereafter, for further occupation of suit land. In relief "jeem" recovery of Rs.1,50,000 from defendants Nos.11 to 13 regarding the property over which the school building was erected, in alternate prayed for the demolition of the said building. The suit was contested by filing separate written statement by defendant No.1, whereas, defendants Nos.2 to 6 and 8 to 10 and 4, 8, 9 admitted the claim of petitioners by filing the cognovits and defendant No.11 has also filed his written statement and contested the suit. In view of the divergent pleas of the parties, the learned trial Court framed the issues. Both the parties led their evidence as they wished to produce, the learned trial Court seized of the matter, partially passed the decree in favour of the petitioners to the extent of relief "Alif, D.1, Rey and Seen" and refused the rest of the relief. On acceptance of appeal, the judgment and decree of the trial Court was set aside by the learned appellate Court and the case remanded back to the learned trial Court with the direction that apart from the issues already framed, to frame further five issues as given in the judgment of learned appellate court and to provide opportunity to both the parties to lead their evidence, however, the application made by defendant No.1 for producing additional evidence be decided, then after hearing both the parties, decide the suit in accordance with law.
3. The learned counsel appearing on behalf of the petitioners argued that the learned appellate Court, while remanding the case grossly erred in law, as not considered the available evidence, the controversy between the parties could have been decided in view of already recorded evidence, but remand of the case would over burden the parties, besides, it would cause the delay in decision of the case. Learned counsel while addressing the argument referred to certain pieces of evidence in support of his claim and thus prayed that the matter may be decided on the present record.
4. Conversely, the learned counsel for the respondents strenuously argued that the learned trial Court failed to frame issues in accordance with the pleadings of the parties and those issues were of important nature in adjudication of the matter in dispute, more so, an application was made by defendant No. 1, still awaiting decision, therefore, the case remanded properly and justly for fair and final adjudication of controversy between the parties.
5. Arguments of the learned counsel appearing on behalf of the parties considered and the record carefully perused.
6. A perusal of the record revealed that two separate written statements filed by the respondents and the issues framed by the learned trial Court, but not in , accordance with the pleadings of the parties. The learned trial Court has failed to frame the issues as emerged from the record. The issues framed by the learned appellate Court not found any mention of those issues as were framed by the learned trial Court and these were the leftover issues framed by the learned appellate court. Moreover, a Suit No.154/1 of 1997 filed on 11-7-1997 titled Umer Jan v. Shawzay and others, was finally decided on 18-10-2002, as the appeal was also dismissed, the attested copy filed on the record. In this view of the matter the remand of the case in order to record the evidence, if desired by the parties to finally decide the existing controversy between the parties, legally permissible and no legal defect pointed out by the learned counsel for the petitioners.
7. It was also agitated before the learned appellate Court that an application was also made by the defendant No.1 seeking the leave of the Court to produce additional evidence, but same was not disposed of by the learned trial Court, though, the Court was legally bound to first decide the application and then to proceed in the case,' without deciding the same, the prejudice caused to the rights of the defendants, therefore, the remand of the case strictly made in accordance with law by the learned appellate Court. In this respect, reliance placed on a case titled Muhammad Azam v. Muhammad Abdullah through L.Rs. Reported in 2009 SCM R 326, the other case cited to support the remand of the case is Sultanat Khan v. Fatrani and 17 others, reported in 2008 CLC 500 (Peshawar).
8. In view of the above legal position, the order of learned appellate Court is maintained as not suffering from any legal defect or any jurisdictional error.
9. This revision petition is dismissed as being without any substance and legal force, with no order as to costs.