MUHAMMAD FARRUKH IRFAN KHAN, J. - Through this civil revision u/S. 115 of the CPC the petitioner calls in question the validity of impugned judgment and decree dated 8.3.2004 passed by the learned lower Appellate Court, whereby, the said Court while accepting the appeal of respondent against the judgment and decree of the learned Trial Court 15.4.2003, set aside the judgment and decree of the learned Trial Court and remanded the matter to the Trial Court for its decision afresh.
2. Facts of the case in brief are that petitioner/plaintiff filed a suit for declaration along with mandatory injunction alleging therein that her marriage was solemnized with the respondent/defendant on 19.4.1992 and as per entries in columns No. 15 to 17 of Nikahnama property fully described in the head note of plaint and ten tolas of gold ornaments were given to the petitioner/plaintiff in lieu of dower. According to the averments of the plaint the possession of said property was also handed over to the petitioner/plaintiff. In order to get it transferred in the name of the petitioner/plaintiff an Iqramama dated 19.4.1992 was also executed in the presence of the witnesses. Now the respondent/defendant is not honouring the entries of Nikahnama as well as Iqramama resulting into filing of suit for declaration along with mandatory injunction.
3. Respondent/defendant contested the said suit by filing written statement raising certain preliminary as well as factual objections alleging therein that the petitioner/plaintiff waived her right on the land mentioned in the Nikahnama through document dated 7.11.1993. Out of the divergent pleadings of the parties, learned Trial Court framed as many as seven issues including relief. Learned Trial Court after recording the evidence in respect OF their respective claims decreed the suit of the plaintiff/petitioner vide judgment and decree dated 15.4.2003. Being aggrieved the respondent/defendant filed appeal which was accepted by the learned lower Appellate Court vide impugned judgment and decree dated 8.4.2004 and remanded the matter to the learned Trial Court for its decision afresh.
4. Learned counsel for the petitioner submits that judgment and decree of the learned, lower Appellate Court is based on surmises and conjectures; that sufficient evidence was available with the learned Appellate Court to decide the matter itself; that neither the respondent has taken any objection as to the maintainability of the suit before the learned Civil Court in his written statement nor in the memorandum of appeal and the learned lower Appellate Court itself remanded the case to the learned Trial Court to decide the issue of jurisdiction; that even otherwise question of jurisdiction is purely a question of law and the same can be decided by the learned Appellate Court itself; that the petitioner has proved her case through cogent and reliable evidence and the learned Trial Court after due appreciation of the evidence decreed the suit of the petitioner which has illegally been set aside by the learned lower Appellate Court; that the judgment and decree of the learned lower Appellate Court is result of mis-reading and non-reading of the evidence and not sustainable in the eyes of law.
5. Conversely, learned counsel for the respondent vociferously defended the impugned judgment and decree passed by the learned lower Appellate Court while arguing that the learned Appellate Court was fully empowered to remand the matter to the Samed Trial Court for its decision afresh; that the matter falls within the jurisdiction of the Family Court and the Civil Court has no jurisdiction to adjudicate upon the matter that respondent has raised an objection as to the maintainability of suit in his written statement but the learned Trial Court has not recorded its findings on this point as such the learned Appellate Court was fully justified to remand the motier to the learned Trial Court with direction to decide the same afresh; that the learned Appellate Court while passing the impugned judgment has used its discretionary powers vested in it under the law.
6. I have heard the arguments advanced by the learned counsels for the parties and perused the relevant record.
7. Learned lower Appellate Court vide its impugned judgment and decree dated 8.3.2004 remanded the matter to the learned Trial Court for its decision afresh. The relevant extracts of the impugned judgment and decree of the learned lower Appellate Courts are reproduced as under:- "9. On the face of it, it is evident that the learned Trial Court despite recording findings on the basis of available evidence, extracted the result which is presumptive in nature. The learned Trial Court was bound to analyze the testimony of each and every witness from both the sides to find out truth or falsehood behind version of both the parties. Since this important base of the judgment has been ignored. Therefore, the findings on issue No. 5 recorded by the learned Trial Court are not sustainable in nature, hence set aside and the decision on issue No. 5 is to be recorded in accordance with settled norms and traditions for the purpose of writing judgment.
10. Likewise the statement of learned counsel for the appellant/defendant is before me at the moment where it is agitated that no statement was made before the learned Trial Court that the issue No. 3 was not going to be pressed hence decision on this issue by learned Trial Court is set aside and the learned Trial Court is directed to decide this issue in specific terms that whether this suit where claim of dower debit is disputed, can proceed or filed before Civil Court or not."
8. It is settled principle of law that remand can only be ordered when the evidence on the record is insufficient to pronounce judgment. In the present case, reasons advanced by the learned lower Appellate Court for remanding of the case were neither in line of settled law nor supported by record. Apparently, the learned lower Appellate Court just to avoid exercise of scanning of evidence and recording its own findings that might be contrary to the findings of the learned Trial Court shrug its shoulder by passing a remand order which is not desirable. The purpose of Appellate Court is to correct the mis-reading and non-reading is committed by the learned Trial Court but in the present case on the one hand the learned lower Appellate Court in para No. 9 of the impugned judgment and decree observed that the findings of the learned Trial Court are based on presumption but on the other hand instead of recording its own findings remanded the matter to the learned Trial Court for its decision afresh. Moreover, it has been held by the Hon'ble 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 Robeena Shaheen V. Muhammad Munir Ahmad C.C. 75 (Muhammad Farrukh Irfan Khan, J.) placed on case Arshad Ameen Vs. M/s. Swiss Bakery and others (1993 SCM R 216). Wherein it has been laid down as under:- "There is no dispute that the entire evidence on the issue involved in the ejectment case was on record and even on remand there is no order for recording additional evidence in the matter. The learned Additional Controller has been directed to re-assess the evidence and give his findings again. This clearly shows that the evidence on record is sufficient to give a finding. In these circumstances the remand by the Appellate Court was not proper."
Similar is the situation in the present case. The learned lower Appellate Court neither observed that the evidence on the record is insufficient to pronounce judgment nor passed any order to the learned Trial Court for recording of additional evidence as such the impugned judgment and decree of the learned lower Appellate Court is not sustainable.
9. So far as to the issue of jurisdiction is concerned, the learned Trial Court vide judgment and decree dated 15.4.2003 recorded its findings on issue No. 3 that the learned counsel for the respondent/defendant did not press this issue it is settled principle of law that presumption of truth is attached to judicial proceedings but the learned lower Appellate Court while overlooking this aspect of the matter and relying upon the statement of the learned counsel for the respondent/defendant directed the learned Trial Court to decide this issue afresh. Even otherwise, question of jurisdiction is a question of law and no additional evidence was required to the learned lower Court to decide the same itself after hearing the arguments of the learned counsels for the parties on this point.
10. 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 8.3.2004 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 am not doing so as it would deprive a party from one right of appeal/revision, therefore, I am left with no other option but to remand the case with the observation that the appeal filed by the respondent shall be deemed pending before the learned lower Appellate Court 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.