AMIN-UD-DIN KHAN, J. - Through this appeal, remand order dated 19.12.2003, passed by the learned!
Additional District Judge, Bahawalpur has been challenged.
2. Brief facts of the case are that the appellant filed a suit for preemption. The same was decreed by the Trial Court, vide judgment and decree dated 9.4.2002. The vendee/defendant filed an appeal before the first Appellate Court. The first Appellate Court, vide order dated 19.12.2003, remanded the case to the learned Trial Court with a direction to frame fresh issues and record evidence and also directed to record fresh findings on the existing issues rather the learned first Appellate Court ordered a de novo trial of the suit.
3. The learned counsel for the appellant states that changing the language of issue No. 2 while deciding it by the Trial Court does not make any difference, which has been declared by the first Appellate Court to be a major change. Further states that framing of issue with regard to power- of-attorney on behalf of respondent No. 1 in favour of respondent No. 2 and filing of written statement by Muhammad Arshad, brother of the vendee/defendant was not claimed by any of the parties. Learned counsel for the vendee/respondent while supporting the findings recorded by the first Appellate Court and also the remand order has prayed for the dismissal of the appeal.
4. I have heard the learned counsel for the parties at full length and have also gone through the record.
5. There are certain principles for remand of a case, which are provided under Order XLI, Rule 23-A of the C.P.C. So far as deciding issue No. 2 by the Trial Court is concerned, the change of language of issue No. 2 does not make any difference. So far as the other point with regard to the framing of issue on the point that respondent No. 2 was the attorney of the vendee/defendant No. 1 and further that the person who filed the written statement and appeared as a witness was a properly constituted attorney of the vendee or not, there was no need to frame any issue as no party had claused framing of issue on this point. It is a settled principle of law that the parties must aware of their pleadings and if they do not claim framing of issue at proper stage, it is not duty of the Court only to frame the proper issues at proper time but it is also the duty of the parties to claim framing of proper issues. If any party relinquishes its right of claiming the framing of a specific issue, at latter stage it cannot claim and argue the reversing of the judgment and decree on the basis of the alleged defect in framing of issues.
6. In this case, even it is not the matter in issue. Even no party claimed framing of fresh issue during the appeal. As full trial of the case was concluded and the parties had produced evidence of their choice, therefore, its remand would mean affording an opportunity to a party to fill up the lacunas in their pleadings, which is not permissible under the law as a Court cannot be a party to favour any party. As the existing record before the first Appellate Court was sufficient to decide the appeal, on merits, therefore, there was no need to remand the case. As the matter has to be decided by the first Appellate Court, therefore, I am intentionally not going into the merits of the case and the interpretation of the documents so that the case of any of the parties may not be prejudiced. In this view of the matter, the remand order passed by the learned first Appellate Court is held to be absolutely against the law and the principle enunciated by the superior Courts, therefore, the same is set aside and the case is remanded to the learned District Judge, Bahawalpur. The parties me directed to appear before the learned District Judge, Bahawalpur on 10.10.2012, who will hear the appeal himself or may entrust the same to any other Cowl of competent jurisdiction. As the matter pertains to the year 1995, therefore, the first Appellate Court is directed to decide die appeal preferably before the e&d of this year. Resultancy, this appeal stands allowed and disposed of.