1. This appeal has been filed against the judgment and order passed by the learned District Judge Kotli on 06.07.2011 whereby setting aside the judgment and decree recorded by the learned Senior Civil Judge Kotli dated 28.02.2011, the case has been remanded to the trial Court for fresh decision.
2. Precise facts of the case are that Muhammad Yousaf and another, respondents herein, filed a suit for possession against Abdul Rehman, appellant herein, in the Court of Senior Civil Judge Kotli on 18.02.1997. It was averred in the plaint that defendant is in illegal possession of 7 marias land from Khasra No, 1012 measuring 2 kanal 15 marlas situated in village Dhamol Tehsil & District Kotli, which is in the ownership of the plaintiffs. The other side contested the suit by filing written statement. The learned trial Court framed issues and provided the parties an opportunity to lead evidence. At the conclusion of the proceedings the learned trial Court vide judgment and decree dated 28.02.2011 dismissed the suit for want of proof. Feeling dissatisfied respondents, herein, went in appeal before District Judge Kotli. The learned District Judge after hearing the parties through the impugned judgment and order dated 06.07.2011 remanded the case to the trial Court for fresh decision, hence, this appeal.
3. I have heard the learned counsel for the parties and gone through the record of the case.
4. It may be stated here that the parties are litigating in the case since 1997. The learned trial Court has decided the case on its merits after recording evidence of the parties. Though under Order XX Rule 5 Code of Civil Procedure it is necessary for the trial Court to decide the suit issue-wise and shall state the finding or decision, with the reasons upon each separate issue, however, at the same time the superior. Courts have held in various cases that if, from the record it is possible to resolve the controversy instead of remanding the case back to the lower Court, has to decide appeal on merits. My this view lends support from case titled Abdul Rashid vs. District Education Officer and another (1997 SCR 367) wherein in Para 11 of the report it was observed as under: "Having dealt with various objections and counter arguments in the preceding part of this judgment, I may be observed that the Service Tribunal did not record its findings on the merits of the case of the parties, because it dismissed the appeal on a technical ground. In such a situation the case should have been remanded to the Service Tribunal for applying its mind on the merits of the case but where in the facts and circumstances of the case a finding can easily be given on the merits of the case our practice has always been to decide the case ourselves."
5. In case titled Abdul Aziz vs. Muhammad Ashraf and 8 others reported as 1998 SCR 204 the apex Court while relying upon 1997 SCR 367, supra, held that: "Prevalent practice of this Court is to avoid remand of cases and to decide them if finding can easily be given on merits of the case."
6. Again in case titled Muhammad Karim and 3 others vs. Kaha and 4 others reported as 2012 SCR 404 Supreme Court of Azad Jammu and Kashmir observed as under: "If from the record it is possible to resolve the controversy instead of remanding the case back to the lower Court, the Court instead of remanding the case, has to decide the appeal on merits itself."
7. In the instant case the trial Court has decided the case on its merits though decided some of the issues in a telegraphic manner, however, the first appellate Court should have to decide the controversy on its merits, because the evidence of the parties had already been recorded and the record relied upon by the parties was also available to him for Drawing its conclusion on merits of the case. In such like cases where no additional issue is framed or additional evidence is required especially where the parties are litigating since long the remand of the case was not justified.
8. In view of above the appeal stands accepted and the case is remanded to the District judge Kotli for decision of the case on its merits within a period of 3 months after providing the parties right of hearing.