CH. MUHAMMAD TARIQ, J. -- This petition is directed against the judgment dated 26.6.2000 passed by learned Additional District Judge, Ferozewala whereby the judgment and decree dated 7.1.1998 passed by the learned Trial Court was set aside and the case was remanded back to the learned Trial Court for decision afresh.
2. Learned counsel for the petitioner/plaintiff submits that the petitioner/plaintiff filed a suit for declaration that he is legal heir of Mst. Sultan Bibi, Kalu and Arora (deceased) who are predecessors of the petitioner/plaintiff. Mst. Sultan Bibi was real daughter of Qadir Bukhsh who had been gifted 1/6 shares from the estate of their predecessor Qadir Bukhsh. Late Mst. Sultan Bibi died issueless and as such her share has to be reverted back to other legal heirs of Qadir Bukhsh and the plaintiff is entitled to receive 1/6 share from the estate of late Mst. Sultan Bibi.
3. Learned counsel for the petitioner/plaintiff further submits that predecessors of the petitioner/plaintiff, Kalu and Arura died leaving behind them the petitioner/plaintiff and others as their legal heir and therefore, the petitioner/plaintiff is also entitled to the extent of his legal share.
Further submits that the suit was filed in year 1967 which was contested by both the parties and the learned Trial Court after hearing the arguments of both the parties decreed the suit of the petitioner/plaintiff in his favour against the defendant on 7.1.1998. Further submits that the respondent No. 1 and others filed an appeal against the judgment and decree of the Trial Court dated 7.1.1998 which was accepted by the learned Additional District Judge, Ferozewala vide judgment dated 26.6.2000 setting aside the judgment and decree of the learned Trial Court and remanded the case to the learned Trial Court for decision afresh. Hence, this petition.
4. The operative para of the impugned judgment is reproduced as under:-- "In this way, findings recorded and the way of reading the conclusion with regard to afore- mentioned issues is not approved by the law and prevalent procedure i.e. Civil Procedure Code.
Therefore, before fmdings with regard to status of Sultan Bibi whether she was daughter of Qadir Bakhsh or not, are recorded, all the issues demand to have clear findings based upon sound reasons relevant law and facts of the case as well as available material on record. In these circumstances, the impugned judgment could not be sustained, the same is accordingly set aside with the direction to the learned Trial Court to correct the language of these issues wherever so required and then to rewrite the judgment in a clear and candid manner. Consequently, the appeal stands accepted. The parties are directed to appear before the successor of the learned Civil Judge who passed the impugned judgment, on 28th instant for further proceedings."
5. Learned counsel for the petitioner/plaintiff inter alia contends that the judgment and decree passed by the learned Additional District Judge, Ferozewala is against the law and facts of the case because the petitioner/plaintiff himself appeared as PW-1 and categorically stated that 1/6 share of the estate of Qadir Bukhsh was gifted to Mst. Sultan Bibi, daughter of Qadir Bukhsh. Further contends that the defendant/respondent side has not cross-examined this fact and no suggestion was put to the witnesses that 1/6 share was not gifted to Mst. Sultan Bibi, so this portion of statement remained unchallenged.
6. Learned counsel for the petitioner/plaintiff further contends that learned Additional District Judge/Appellate Court while passing the impugned judgment dated 26.6.2000 has noted certain technical defects and has remanded the case after setting aside the decree passed by the Trial Court while it is settled law that technicalities should be ignored. Further contends that the remand could not be ordered lightly particularly where case can be decided by the Appellate Court itself.
Therefore, this civil revision be accepted.
7. On the other hand, learned counsel for the respondents has supported the impugned judgment and has contended that it was duty of the plaintiff/petitioner under Article 117 of Qanun-e- Shahadat Order to prove that he is legal heir of deceased. Sultan Bibi and is entitled to inherit from the estate of deceased Sultan Bibi. Learned counsel further contends that plaintiff /petitioner himself appeared as PW-1 as his own witness and his statement is not corroborated by any cogent evidence.
8. Learned counsel for the respondents further contends that the learned Trial Court has not decided the matter issue-wise particularly issues Nos. 8, 9 and 10 were wrongly decided jointly which should have been decided by the learned Trial Court separately and independently, therefore, the impugned judgment does not suffer from any illegality or irregularity; thus this civil revision be dismissed, the impugned judgment be confirmed and the case be remanded to the Trial Court for deciding the matter afresh as per judgment of the learned Appellate Court. In support of his contentions, learned counsel for respondents has relied upon 2008 YLR 206, PLD 1996 Peshawar 6, 2005 SCM R 1217 and 2008 YLR 881.
9. I have heard the arguments advanced by the parties and have also gone through the record available on file.
10. The record reveals that the suit was filed in the year 1967 which was dismissed on 15.6.1972 on the question of limitation by the learned Trial Court. The petitioner/plaintiff filed First Regular Appeal but it met the same fate. Again the petitioner/plaintiff filed a Regular Second Appeal against the judgment and decree passed by both the learned lower Courts. The RSA was allowed on 17.11.1993 by this Court and case was remanded to the. Learned Trial Court for decision afresh. The respondent assailed the judgment and decree dated 17.11.1993 passed by this High Court before the Hon'ble Supreme Court of Pakistan which was dismissed on 21.3.1994. Thereafter, the parties produced their oral as well as documentary evidence and on 7.1.1998, the learned Trial Court decreed the suit of petitioner/plaintiff. This judgment and decree was challenged by the respondent/defendant and the learned Additional District Judge, Ferozewala vide his judgment dated 26.6.2000 accepted the appeal and remanded the case again to the learned Trial Court for deciding it afresh on the sole question that issues Nos. 8, 9 and 10 were required to be decided separately while the learned Trial Court has decided these issues jointly. The perusal of record shows that the instant suit was filed on 19.4.1967. A period of more than 40 years has lapsed and it will be unfortunate if the matter is again remanded to the learned Trial Court for initiating it afresh from zero point. This Court sees no illegality in the judgment and decree passed by the learned Trial Court because issues Nos. 8,- 9 and 10 are interlinked and interconnected issues pertaining to the same matter which does not affect the merit of the case. Non-framing of issues or decision of the matter on interconnected issues could not be a reason for remand of the case. The learned Additional District Judge, if felt necessary, could himself decide the matter issue-wise on the evidence available on record. It was the duty of the Appellate Court to re-examine the evidence and decide the matter in accordance with law. In case the learned Appellate Court finds that evidence was not sufficient, the Appellate Court could reframe issues and could decide these on existing evidence or by receiving further evidence but in any case, suit could not be remanded simply because the issues Nos. 8, 9 and 10 were decided jointly.
Frequent remands were deprecated by High Court as the same resulted in wastage of time and create frustration amongst the litigants.
11. In the light of the law laid down by the Hon'ble Supreme Court of Pakistan, that matters should be decided on merit and the technicalities should be ignored, this civil revision is allowed. The impugned judgment dated 26.6.2000 passed by learned Additional District Judge, Ferozewala is set aside and the case is remanded back to the learned District Judge, Sheikhupura who is directed to decide the case on the basis of evidence available on record expeditiously preferably within a period of two months from the date of receipt of this order after hearing all the parties. However, till the final decision of the case by the learned District Judge, Sheikhupura, the status quo in respect of possession shall be maintained by the parties. No order as to costs.
Civil revision .