GHULAM MUST AFA MUGHAL, J. -- The captioned appeal by leave of the Court arises out of the judgment dated 2.7.2018 passed by the learned Azad Jammu & Kashmir High Court in appeal No, 147 of 2012.
2. The precise facts forming the background of the captioned appeal are that the appellant, herein, filed a suit for perpetual injunction against the defendants-respondents, herein, in the Court of Civil Judge, Court No, 1 Kotli on 10.4.1996. It was averred that land comprising Khasra No, 494 measuring 2 kanal, 11 marla situated in village Andah, Tehsil Khuiratta was shamilat-e-deh and is in possession of the plaintif f. It was further claimed that the plaintif f is owner in the village and the suit land is situated adjacent to his owned land. It was claimed that the defendants intend to dispossess the plaintif f forcibly by interfering in his peaceful possession. The suit was contested by the defendants by filing written statement. A counter-suit was also filed by Muhammad Azhar Khan for declaration on 17.6.1999. It was claimed by him that the land survey No, 164 measuring 3 kanal, 2 marla situated in village Khuiratta is in the ownership and possession of the plaintif f and he was abroad for earning his livelihood.
It was further claimed that while taking the advantage of the absence of the plaintif f, Raja Talib Hussain, defendant- appellant, herein, with the connivance of the revenue officials has got changed survey No, 164 and converted it into his ownership. This suit was also contested by the defendant, appellant, herein, by filing written statement on 20.7.1999. Vide order dated 22.5.2000, the learned Trial Court consolidated both the suits, framed issues and directed the parties to lead evidence pro and contra . At the conclusion of the proceedings, the learned Trial Court granted a decree of perpetual injunction in favour of Talib Hussain, appellant, herein, whereas the counter-suit filed for declaration on by Muhammad Azhar Khan was dismissed for want of proof vide its judgment and decree dated 24.6.2010. Muhammad Azhar Khan, respondent, herein, feeling aggrieved from the judgment and decree dated 24.6.2010 filed an appeal before the Additional District Judge Kotli, who after hearing the parties vide judgment and decree dated 28.6.2012 dismissed the appeal. The second appeal was filed before the Azad Jammu & Kashmir High Court by Ghulam Yousaf and others, which was accepted through the impugned judgment. The learned High Court after hearing the parties remanded while observing as under:-- "I have scrutinized the evidence produced by the parties as well as perused the impugned judgments and decrees passed by both the Courts below . The record of the case shows that defendants/appellants, herein, in support of their claim produced witnesses namely , Abdul Aziz, Abdul Qayyum and one of the defendant Aurangzeb. Their statements were recorded before the Trial Court on 14.9.2000, 22.12.2001 and 22.12.2001, respectively and also produced an application Ex. DA. copies of periodical record, Ex.DB, Ex.DC were also annexed, with the file. A perusal of judgment of Trial Court reveals that above-mentioned oral and docum entary evidence has not been considered by the Courts below . The Trial Court while passing its judgment dated 24.6.2010 only taken into consideration the evidence of Talib Huss ain, plaintif f/respondent, herein, alongwith the evidence of rival plaintif f, Muhammad Azhar . Moreover , the learned Additional District Judge has also not considered the evidence of above- mentioned witnesses and concurred with the findings of learned Civil Judge. Without, considering evidence of above-stated witnesses, the impugned judgment is bad in law and result of non-reading of evidence."
3. Mr. Fiaz Haider Nawabi, the learned Advocate appearing for the appellant argued with vehemence that the remand has been ordered by the learned High Court for reconsideration of the evidence, which is available on record and it was enjoined upon the learned High Court to decide the case itself because the parties are litigating since a considerable time. The learned Advocate submitted that by now law is well-settled that remand cannot be made in routine rather a case should be remanded when it is desirable not otherwise. He argued that in the present case when the documents have already been considered by the Trial Court in light of evidence of the parties then it was necessary for the High Court to reconsider this evidence if the same has not been considered properly .
4. Raja Khalid Mehmood, the learned Advocate appearing for the respondents that as the evidence, which has material bearing on the case, was not considered by the first Appellate Court as well as the Trial Court, therefore, the High Court was left with no option except to remand the case for obtaining the wisdom of the Courts below . The learned Advocate defended the impugned judgment and submitted that no illegality has been committed by the learned High Court while remanding the case, hence, this appeal is liable to be dismissed.
5. We have heard the learned Advocates representing the parties and have gone through the record of the case. A, perusal of the record would show that the case has been remanded for consideration of some documentary evidence which has already been considered by the learned Trial Court as well as the first Appellate Court. The High Court has, in such circumstances, ample powers to consider the evidence and decide the case itself. By now, law is well-settled that remand is desirable when recording of fresh evidence is required. Where the Court has already considered the documentary as well as oral evidence then the remand is not desirable as has been held by this Court in the case reported as Abdul Rashid v. D.E.O. and another (1997 SCR 367). It was observed in the cited case that where an Appellate Court is in a position that it can give judgment on merits of the case on the basis of the evidence already available on the record then remand should not be ordered. Similar view has been taken in case reported as Pramatha Nath Chowdhury and 17 others v. Kamir Mondal and others (PLD 1965 SC 434), whereby the full bench of the apex Court of Pakistan at page 442 of the report observed as under:-- "It remains now to examine one other argument advanced on behalf of the appellant, namely , that in any event the learned Judges should not have decided the case themselves but should have remanded the case to the proper Court for determination of the question as to whether there was a valid tenancy in this case. We are unable to accept this contention. A remand should not be lightly ordered if the evidence on the record is sufficient for the Appellate Court to decide the question itself. There can be no bar to the Court doing so. Having examined the reasons given by the learned Judges of the High Court for deciding the question we are unable to say that the evidence was not so sufficient. There was adequate evidence on the record upon which the decision of the learned Judges in the High Court could have been based. W e see no reason, therefore, to interfere only on this ground."
(underlining is ours)
In view of the above and in the circumstances of the case, we are of the view that the learned High Court should not have remanded the case simply for the reason that certain documents already on the record have not been considered by the Trial Court. The proper course for the learned High Court was to decide the case itself because due to unnecessary remand of cases, the parties to the /is suffer agony of trial and unnecessary expenses. We are also of the view that unnecessary remand defeats the right of speedy justice.
The upshot of the above discussion is that the appeal is accepted and the impugned judgment dated 2.7.2018 recorded by the learned High Court is set aside and the case is remanded to the High Court with a direction to decide the appeal itself on the basis of available evidence.