' MUHAMMAD FARRUKH IRFAN KHAN, J.---This matter was originally filed as F.A.O. No, 40 of 1986 and on an application of the appellant/petitioner which was not opposed by the respondents Nos.2 to 8 it was allowed to be converted into a Civil Revision vide order dated 10-12-1996. This civil revision is against the judgment and decree dated 29-5-1986 passed by the learned Additional District Judge, Multan, whereby the learned Judge while accepting the appeal of the respondents against the judgment and decree dated 29-6-1985 passed by the learned Civil Judge, Multan remanded the matter to the learned trial court with direction to decide the same afresh after recording evidence on additional issue.
2. Learned counsel for the petitioners submits that judgment and decree of the learned appellate court is based on surmises and conjectures; that sufficient evidence was available with the learned appellate court to decide the matter itself; that the issue framed by the learned appellate court is beyond the pleadings of the parties; that even otherwise, if the learned appellate court was of the view that additional issue is necessary it could have remanded the matter to the learned trial court to record its findings on that specific issue and should not have set at ide the entire, judgment; that the impugned judgment and decree rendered by the learned appellate court is in violation of mandatory provisions of rules 24 and 25 of Order XLI of the C.P.C. Relies on 2007 YLR 2870, 2004 CLC 1331 and 1993 M LD 1333.
3. Conversely, learned counsel for the respondents vociferously defended the impugned judgment and decree passed by the learned appellate court while arguing that the learned appellate court was fully empowered to remand the matter to the learned trial court for its decision afresh; that it is the duty of the court to minutely go through the leadings and frame proper issues; that the learned trial court has not framed the issues in accordance with the pleadings of the parties as such the learned appellate court was fully justified to remand the matter to the learned trial court with direction to decide the same afresh after recording evidence on additional issues; that the learned appellate court while passing the impugned judgment has used its discretionary powers vested in it under the law. Relies on 2008 SCM R 1384, 1999 SCM R 786, 1998 SCMR 724, PLD 1995 (sic) Page 629.
4. I have heard the arguments advanced by the learned counsel for the parties and perused the relevant record.
5. It is an admitted proposition of law that under rule 25, Order XLI of the Code of Civil Procedure, the learned appellate court is fully empowered to remand the case after framing of issues where it appears to the appellate court that the trial court has omitted to frame proper issues or determine any question of fact essential to the right decision of the case. However, at the same time the said rule provides that the trial court shall- try such issues, return the evidence to the appellate Court along with its findings. For convenience Rule 25 of Order XLI of the C.P.C. Is reproduced as follows:-- 25."Where Appellate Court may frame issues and refer them for trial Court whose decree appealed from.---Where the Court from whose decree the appeal is preferred has omitted to frame or try an issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits; the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor".---
6. Plain reading of above said provisions of law makes it clear that the learned appellate court was not justified to direct the learned trial Judge to decide the matter afresh on all issues. Reliance is placed on case reported as United Bank Ltd. v. Mrs.Bilquees Begum and 3 others (1988 CLC 1613).
7. In the present case, while going through the pleadings of the parties and the entire evidence it is noticeable that the written statement does not reveal any plea whatsoever about the respondents/defendants being the bona fide purchaser for value as such they cannot be allowed to raise an issue qua the fact which was not claimed in the written statement. On the contrary, the respondents/defendants were actually claiming that they had matured their title to the property on the basis of adverse possession. Having taken such plea, the defendants even otherwise were precluded from seeking protection of section 41 of the Transfer of Property Act.
8. A perusal of the grounds of appeal also does not spell out a specific ground, urging that the non- framing of an issue vis-a-vis the factum of their being bona fide purchaser had caused any prejudice to them. An application under Order XLI, rule 25, C.P.C. Was moved by the present respondents/appellants before the lower appellate Court alleging that the plaintiff/petitioner had alleged the sale to be fictitious which was denied by them and hence no issue was framed on that material proposition. The prayer of the application is to the effect that an additional issue be framed to the effect that the appellants (now respondents) were in possession of the property as owners having purchased the same for a consideration. It is unfortunate that the learned appellate Court in the operative part of the impugned judgment endeavoured to hold that an issue was required to determine as to whether the defendants had paid any consideration for the alleged purchase by them. The additional issue framed was as follows:-- "Issue No,5-B: Whether the defendants Nos.2 to 8 are the bona fide purchasers of the suit land without notice and with consideration? If so, with what effect? OPD"
' Ex-facie the appellate Court not only ignored the pleadings of the parties but also read something in the record which did not exist. It also miserably failed to take cognizance of the fact that the respondents herein were not claiming title on the basis of their alleged purchase as also on account of being bona fide purchasers for value.
9. In this view of the matter, the learned appellate court erred in law while framing additional issue, which is beyond the pleadings of the parties and the controversy between the parties already covered by issues framed in suit by the learned trial court. Reliance is placed on case reported as Badarul Hassan Nizami and 4 others Muhammad. Sultan Khan through legal heirs (1994 SCM R 669).
10. Moreover, it has been held by the apex Court time and again that remand should not be made in routine and where evidence on record is sufficient for appellate court to pronounce judgment and decide the issue, remand of case for fresh decision to lower Court was not necessary. Reliance is placed on case Arshad Ameen v. Messrs Swiss Bakery and others (1993 SCM R 216).
10(sic) For what has been discussed above, this civil revision stands accepted as a result whereof impugned judgment and decree of the learned lower appellate court dated 29-5-1986 is set aside.
11. Although I was minded to decide the case on merits instead of putting the parties to another round of litigation but since no arguments on merits were addressed before me, I am left with no other option but to remand the case with the observation that the appeal filed by the respondents shall be deemed pending before the learned District Judge, Lodhran who shall decide the same expeditiously and preferably within a period of three months from the date of receipt of certified copy of this order.