' MUHAMMAD AMEER BHATTI, J.---This appeal is directed against the remand order passed by the learned Additional District Judge dated 15-12-1998.
2. The brief facts of the case are that vide sale-deed dated 24-4-1947, the predecessor in interest of the present appellants purchased land measuring 96-K, 13-Marlas from the predecessor in interest of the respondents who was original .Owner of the land for a consideration of Rs,9,000. In the consolidation proceedings land measuring 70-K, 19-M had been slashed from the ownership, hence the appellants filed a suit on 4-4-1967 which was decreed on 19-11-1968. The present respondent Shamsher Ali filed an appeal which too was dismissed on 6-1-1970. Thereafter on 5-12- 1987, the said Shamsher Ali filed a declaratory suit to the effect that the whole land of the predecessor in interest of the plaintiff, including the land of the present appellants, had been gifted to him by his father in the year 1944, hence he alone was owner of the land. In the alternative he also claimed adverse possession being in possession of the land for more than 12 years, as such this land could not be claimed by any -of the defendants. Appellants and defendants Nos.7, 8, 14, 16 and 19 were proceeded against ex parte, however, defendants Nos.9 to 15 and 19 filed their joint written statement and from the divergent pleadings of the parties, seven issues were framed and parties led, their oral as well as documentary evidence. It is added that appellants also joined the proceedings but his application for tendering the documents was dismissed vide order dated 23- 12-1991 by the learned trial Court after obtaining the reply from the plaintiffs/respondents. However, the suit was dismissed on 23-2-1992 but the appeal was accepted on 1-10-1995 and case was remanded back to the learned Trial Court. C.R.No,2312 of 1995 was filed which, was dismissed and C.P.S.L.A. No,1432-L of 1996 was also dismissed. However, in post-remand litigation, the suit was again dismissed by the learned Trial Court on 27-2-1997, but in appeal, the learned' First Appellate Court vide its order impugned dated 15-12-1998 set aside the judgment and decree of the learned Trial Court and yet again remanded the case to the learned Trial Court with the direction to re- frame issues according to the pleadings of the parties and then decide the case after providing opportunity to lead the evidence to the parties. This is order dated 15-12-1998 has been impugned through this appeal.
3. The learned counsel for the appellants contends that it is settled law that if the sufficient evidence is available on record, the Court should have decided the case itself (even if the issues have not been framed) instead of remanding the case for re-framing of additional issues. He has referred to the findings of the learned Trial Court, which had dealt with all the points pointed out by the learned First Appellate Court for framing the issues. The contention of the learned counsel for the appellants is that in the presence of the evidence already discussed by the learned Trial Court, there was no occasion for the learned First Appellate Court to remand the case on the basis of non-framing of proper issues. He has relied on (2009 SCM R 462) Rehman Shah and others v. Sher Afzal and others, (2009 SCM R 589) Gul Rehman v. Gul Nawaz Khan, (2007 SCM R 1867) Muhammad Mukhtar and others v. Muhammad Sharif and others, (PLD 2007 SC 217) Muhammad Younis and others v. Ashiq Hussain and others, (PLD 1965, SC 434) Pramatha Nath Chowdhury v. Kamir Mondal, (1997 SCM R 524) Muhammad Dervaish AlGilani and 14 others v. Muhammad Sharif and others, (1997 SCM R 1849) Roazi Khan and others v. Nasir and others and (1983 SCM R 133) Sher Muhammad and another v. Jamadar Ghulam Ghaus. The contention of the learned counsel for the appellants is that in the light of, above referred law laid down by the Hon'ble Supreme Court, the learned First Appellate Court was duty bound to determine this fact before passing any order of remand about the non-availability of sufficient evidence on the record and there is no findings in this regard in the order of the learned First Appellate Court, hence the order suffers from legal infirmity and the same is liable to be set aside.
4. On the other hand learned counsel for the respondents contends that the order is in accordance with law and unless the issues have not been framed correctly, the evidence even if brought on record, cannot be taken into consideration and on the basis of the same evidence, proposed issues could not be settled. Reliance has been placed on (2004 SCM R 1219) Malik Safdar Ali Khan and another v. Public-at-Large and others, (2001 SCM R 772) Mst. Sughran Bibi and others v. Mst.
Jameela Begum and others, (PLD 1988 SC 642) Haji Shah Nawaz through his Legal Heirs and others v. Badruddin and others.
5. The learned counsel on behalf of another set of respondents argued the case in line with the appellants and has placed reliance on (2007 SCM R 1867) Muhammad Mukhtar and others v.
Muhammad Sharif and others.
6. I have considered the arguments of the learned counsel for the parties and gone through the record of the case.
7. Although issues as pointed out by the learned First Appellate Court have not been framed by the learned Trial Court, yet it has been found the suit of the respondent No,1 had been dismissed by the learned Trial Court after considering the pleadings and whole evidence available on the record.
The scrutiny of the record reflects that the present appellants had not been allowed to file their written statement, as they had been proceeded against ex parte. The other respondents who have been allowed to file the written statement are the brothers and sisters inter se of the plaintiff/respondent No,1. It was the case of the plaintiff/respondent No,1 that the land including the land of the present appellants had been gifted by his father much before the sale-deed in favour of the present appellants and this fact had to be proved by the plaintiff/respondent No,1, as he had to stand on his own legs and for that matter the issue No,6 was framed and the plaintiff had led his full evidence whatever available with him to prove his gift. Apart from this, the decree obtained by the present appellants had also been brought on the record which had been considered by the learned Trial Court and then the suit was dismissed. The ratio decidendi of judgment of the Hon'ble Supreme Court of Pakistan in all the judgments referred by both the parties that the controversy ought to have been reflected through the issues and the parties must have been aware about their rights and obligations. In this case, the respondent No,1 had filed the suit and took the' stand about the gift, unless he does not prove it, he could not succeed and for that purpose, he had to lead the evidence and this is what he has done by leading a full-fledged evidence. So the controversy was in the knowledge of the parties and the evidence brought on record showed the intention of the parties as they were aware about their controversy. Thus in such-like cases, the law of the Hon'ble Supreme Court is that if sufficient evidence is available on the record and the proposed issues could have been decided on the basis of the material available on the record, then the matter ordinarily should not be remanded to the lower Court for its decision after framing the issues and for recording the evidence.
8. As regards this particular case, I have gone through the record of the case with the assistance of the parties and also examined the judgment of the learned Trial Court, which indubitably established that the evidence on all the proposed issues was sufficient to settle on all the issues, therefore, the judgment of the learned First Appellate court suffers from legal infirmity and hampered the cause of justice.
9. In the light of foregoing discussion, it is held that the learned Appellate Court committed illegality and perversity while passing the impugned order and the same is set aside. Consequently, the appeal of the respondents shall be deemed to be pending before the learned First Appellate Court, who shall A decide the same strictly in accordance with law even after framing the proposed issues. Parties are directed to appear before thy.. Learned District Judge on 25-1-2012; who take up this matter either himself or entrust it to any Additional District Judge for its decision afresh within the period of four months from the entrustment of this case.