SHAHID BILAL HASSAN, J. --- Succinctly, the facts necessitated the instant civil revision are as such that the respondents No, 1 and 2 instituted a suit for cancellation of documents by maintaining that respondent No, 1 was owner of land measuring 165 kanals 03 marlas, situated in village Mandiali revenue estate, District Sheikhupura, while respondent/plaintiff No, 2 was his general attorney, who (plaintiff No, 2) was authorized to effect exchange deed for the transfer of 165 kanals, 03 marlas land in favour of Muhammad Ashraf, predecessor-in-interest of petitioners with land measuring 16 kanals situated in Labour Colony Muridke, District Sheikhpura. It was further alleged that in collusion with the Sub-Registrar Ferozewala land measuring 16 kanals situated in Rakh Baoli Jamadar was incorporated in sale-deed, thus, Sub-Registrar Forezewala had ignored the contents of general power-of-attorney. The said exchange deed was registered on 25.05.1998. It was alleged that said fact came into the knowledge of the respondents No, 1 and 2/plaintiffs on 03.11.2000; hence, the suit was filed by contending that exchange deed registered on 22.05.1998 was illegal, void and ineffective upon the rights of the respondents No, 1 and 2/plaintiffs. Separate written statements were filed by the predecessor-in-interest of petitioners as well as respondent No,
3. The divergent pleadings were summed up into following issues:---
(1) Whether the plaintiffs are entitled for decree for cancellation of documents of exchange deed registered on 22.05.199$ being illegal, unlawful, through fraud and misrepresentation? OPP
(2) Whether the mutation in pursuance of registration of impugned exchange deed is also illegal, unlawful and ineffective upon the rights of the plaintiff? OPP
(3) Whether the plaintiff has no cause of action and locus standi to file this suit? OPD
(4) Whether this Court lacks jurisdiction to try the instant suit? OPD
(5) Whether the plaintiffs have not come to the Court with clean hands? OPD (5-A) Whether the suit is defective due to non-joinder and misjoinder of necessary parties? OPD-2 (5-8) Whether the suit is barred by time? OPD-2 (5-C) Whether the suit is not proceedable in its present form? OPD-2 (5-D) Whether the suit is filed vexatiously and defendant is entitled to special cost u/s. 35-A, C.P.
C.? OPD-2 (5-E) Whether the plaintiffs have not come to the Court with clean hands? OPD-2
6. Relief.
After recording evidence of both the parties, the learned Trial Court vide judgment and decree dated 17.02.2009 dismissed the suit of he respondents No, 1 and 2/plaintiffs. Being aggrieved of the same, they preferred an appeal before the learned Appellate Court, which ultimately was allowed, judgment and decree of learned Trial Court was set aside, vide impugned judgment dated 1712.2011, case was remanded to the learned Trial Court for decision afresh in accordance with law.
3. Feeling aggrieved by the impugned judgment passed by learned Addl. District Judge, Sheikhupura the instant civil revision has been filed by the petitioners.
4. Learned counsel for the petitioners while reiterating the grounds urged in this civil revision has further argued that impugned judgment is against law and facts of the case Adds that while passing the impugned judgment, the learned Appellate Court has failed to apply his judicial mind.
Submits that on memorandum of appeal Court-fee valuing Rs, 15,000/- was not affixed, despite the fact that at trial stage Court-fee of Rs, 15,000/- was affixed, hence, the appeal was liable to be dismissed on this single score, but even then the appeal was allowed, which is illegal and unlawful; that it was the duty of the learned Appellate Court to determine the question of Court-fee even if same was not agitated before it; that when memorandum of appeal was not properly stamped, the same cannot be termed as appeal in eye of law; that mandatory provisions of Order XLI, Rule 31 of the Code of Civil Procedure, 1908 have been violated; that material illegalities and irregularities have been committed while passing impugned judgment; that sufficient and ample evidence, oral as well as documentary, was available on record, but even then the learned Appellate Court has remanded the suit to the learned Trial Court, which on the face of it seems to be just for rewriting the judgment, which is not warranted under the law, because the learned Appellate Court itself could render judgment and decree; that the impugned judgment is based on surmises and conjectures; that the learned Appellate Court has traveled beyond the jurisdiction vested in it; that no issue-wise findings were recorded by learned Appellate Court despite the fact that learned Trial Court had dismissed the suit on the basis of limitation, but without reversing the same by cogent reasoning, as same is legal issue, the case has been remanded, which is not warranted under the law; that it is settled by now that when sufficient evidence is available on record, the learned Appellate Court should have decided the appeal on merits after appreciating the same, rather to remand the suit to the learned Trial Court. Lastly submits that the impugned judgment is bad in the eye of law and not sustainable because of having been passed in a mechanical way without applying judicious mind; resultantly, while allowing this civil revision, the impugned judgment may be set aside and learned Appellate Court may be directed to decide the appeal on merits at its own. Relies on Gul Rehman v. Gul Nawaz Khan 2009 SCMR 589, Shafiq Ahmad V. Mirza Muhammad Anwar Beg PLD 1968 Lahore 367, Amjad H. Malik v. Mst. Razia Begum and others 1989 SCMR 1414, Rehmatullah Khan and another v. Ghulam Farid and others 2009 SCMR 371, Mst. Shahida Zareen v. lqrar Ahmed Siddiqui PLJ 2011 SC 82, Abdul Ghani v. Mst. Hameeda Bano 1998 CLC 2070 'Lahore, Khuda Bukhsh V. Khushi Muhammad and others PLJ 2011 Lahore 130, Muhammad Bashir v. Mst.
Sattar Bibi and another PLD 1995 Lahore 321, Manzoor Hussain v. Malkham Khewat No, 40 through Shukar Din, etc. PLJ 1998 Lahore 65 and Allah Yar v. Muhammad Riaz and others PLJ 1981 Supreme Court 855.
5. On the contrary, learned counsel appearing on behalf of the respondents by favoring the impugned judgment have prayed for dismissal of the instant civil revision by contending that the learned Trial Court had failed to appreciate the evidence brought on record in true perspective and on the question of limitation it has been argued that the instant case is governed by Article 143 of the Limitation Act, 1908, which provides period of limitation as 12 years for filing suit; hence, the suit was within time; that no order for affixing Court-fee on memorandum of appeal was passed.
Relies on Muhammad Hussain, etc. v. Muhammad Nawaz, etc. PLJ 1991 Lahore 500 and Rehmat Ali and 3 others v. Abdul Ghani through Legal Heirs 2003 MLD 618 Lahore.
6. Heard.
7. The first and foremost question to be resolved is whether on memorandum of appeal Court-fee had to be affixed, when same was affixed on plaint during the Trial Court. The answer is affirmative because the respondents Nos. 1 and 2/plaintiffs have sought cancellation of document and the value of the suit for the purpose of Court-fee and jurisdiction has been fixed and admitted as Rs, 500,000/-, so the Court-fee of Rs, 15,000/- has to be levied on the memorandum of appeal before the learned Appellate Court, which needful has to be done by the respondents No, 1 and 2/plaintiffs.
8. Legislature has entrusted a very important duty to the first Appellate Court. It is for that Court to decide finally all questions of fact on which the disposal of the suit might depend and the Appellate Court should not easily agree with the Trial Court simply because it was not inclined to take much trouble over the case. If the Appellate Court itself does not examine the facts and the evidence and does not even mention the points which the case raises, it will be certainly failing in its duty. Perusal of record appended with the instant civil revision as well as judgment of learned Appellate Court goes to evince that sufficient and ample evidence is available on record to resolve the controversy between the parties, even same has been considered by learned Appellate Court, but instead of delivering judgment and decree at its own by appreciating the facts and evidence on record, in order to avoid to make exertion, remanded the case to the learned Trial Court, apparently just to rewriting of judgment and not otherwise, which is not warranted under the law, because when no other evidence is required to be produced or collected, there is no need to remand the case to the learned Trial Court for decision afresh, rather the learned Appellate Court ought to have considered the same and passed the final verdict; in this regard guideline can be sought from Gul Rehman's case 2009 SCMR 589, wherein it has invariably been held that, Sufficient evidence available on record not thrashed out by Appellate Court---Dismissal of appeal by Appellate Court mainly depending on decision of Trial Court---Validity-Impugned judgment was not a judgment in its true sense---Appellate Court had chosen the path of least resistance instead of applying 0. XLI, R. 32, C.P.C., in strict sense for having ample powers under Rr. 32 it 33 thereof---Case was remanded to Appellate Court for writing fresh judgment after hearing both the parties. It is also manifested from the judgment rendered by learned Appellate Court that the documents submitted by the parties and oral evidence adduced have not been considered while passing the impugned judgment and reversing the findings of the learned Trial Court, which is a patent irregularity and not justified under the law and can be termed as remanding the case without any reason; In Amjad H. Malik's case 1989 SCMR 1414 the apex Court of this country has held that, Where documentary evidence in the form of exhibits and witnesses produced were not considered by the Appellate Court, it was a procedural irregularity justifying the remand. Even in Mst. Shahida Zareen's case PLJ 2011 SC 82, similar view has been adopted, wherein it has been held that, Where evidence on record was sufficient for Appellate Court to decide the question involved, then order of remand ought not be passed. Moreover, if the question of limitation is involved in a lis, it is not appropriate to remand the case to the learned Trial Court, to enhance the miseries of the litigant public to undergo second round to litigation, rather it is appropriate for the Appellate Court to dilate upon the same, especially when sufficient evidence, oral as well as documentary; in this regard reliance is placed on Abdul Ghani's case 1998 CLC 2070-Lahore wherein it has been observed that, Remand of case---Time-barred suit---Not in interest of the parties to remand case to the Trial Court for putting the parties to further litigation when the same was badly time-barred.
9. So far as the case-law submitted by learned counsel for the respondents is concerned, with utmost respect, same has no relevance to the facts and circumstances of this case, because same is on different premises; hence, it does not render any assistance to the respondents' cause.
10.In view of above discussion, by placing reliance on the judgments supra, the instant civil revision is allowed, impugned judgment dated 17.12.2011 passed by learned Addl. District Judge, Sheikhupra is set aside and case is remanded to the learned Appellate Court, where the appeal filed by the respondents No, 1 and 2/plaintiffs shall be deemed to be pending, who shall decide the same afresh after hearing both the parties in accordance with law.