SAFDAR SALEEM SHAHID, J.- This revision petition has been directed against the judgment dated 16.12.2020, whereby the learned District Judge, Jhang, accepted the appeal filed by the respondents and remanded the case to the trial Court for decision afresh.
2. Brief facts necessary for decision of the instant petition are that the petitioner filed a suit for declaration claiming his actual date of birth as 04.04.2000, but the same has wrongly been mentioned in his matriculation certificate as 14.10.1998 by the respondents and prayed that they may be directed to undo the wrong entry in their record. The respondents resisted the suit by filing written statement and the learned trial Court, out of divergent pleadings framed issues, recorded evidence of the parties and having gone through the same decreed the suit vide judgment and decree dated 15.07.2019. The respondents being dissatisfied, filed an appeal, which was allowed and the case was remanded to the trial Court for decision afresh, vide judgment dated 16.12.2020 passed by the learned District Judge, Jhang.
3. Arguments heard. Record perused.
4. A perusal of the record shows that the learned appellate Court while upholding the findings of the trial Court to the extent that the correct date of birth of the petitioner was 04.04.2000, observed that the learned trial Court has failed to determine as to whether the said date was wrongly incorporated in the record of the respondents as 14.10.1998 due to some inadvertence of the Board officials or due to submission of application by the petitioner himself? Since plaint in the suit as well as the evidence brought on record by the parties was sufficient to decide the matter, findings of the learned trial Court to the extent of correction of date of birth was rightly upheld by the learned appellate Court. However, the learned appellate Court, despite there being sufficient material on record did not consider the same and illegally remanded the case to the learned trial Court throwing the parties in another round of litigation. Since the appellate jurisdiction is in continuation of the original lis, the first appellate Court having similar powers as provided in Section 107 of the CPC, should have itself decided the matter instead of remanding the same back to the trial Court.
Reliance has been placed on the cases of Pramatha Nath Chowdhury and 17 others vs. Kamir Mondal and 3 others (PLD 1965 SC 434), Roazi Khan and others vs. Nasir and others (1997 SCMR 1849) and Habib Ullah vs. Azmat Ullah (PLD 2007 SC 271).
5. Although the learned appellate Court is empowered to remand the case to the learned trial Court afresh, but with certain restrictions. Rule 23 and 23-A of Order XLI of the C.P.C. being the relevant provisions are reproduced as under:- "23. Remand of case by appellate Court.--Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand that case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to readmit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.
23-A. Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point and the decree is reversed in appeal, and a re-trial is considered necessary the Appellate Court shall have the same powers as it has under Rule 23."
In view of the above provisions of law, the appellate Court was empowered to remand the case and direct as to what issues shall be tried in the case so remanded, if the decree appealed against was on a preliminary point and was reversed in appeal. However, in the instant case, the trial Court had finally decided the matter and not on a preliminary point, therefore, the appellate Court should not have remanded the case but it should have considered all the points itself and decided the same in accordance with law. Furthermore, under the provisions of Rule 24 of Order XLI of the C.P.C. when evidence on record was sufficient to enable the appellate Court to pronounce judgment, it may, after resettling the issues, if necessary, finally determine the suit. Rule 24 of Order XLI of the C.P.C. reads as under:- "24. Where evidence on record sufficient. Appellate Court may determine case finally. Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds."
In addition to the above, as per Rule 25 of Order XLI of the C.P.C. even in case where the trial Court has omitted to frame or try any issue or to determine any question of fact, which appears to be essential, the appellate Court may frame issues and refer the same for trial and direct to take the additional evidence required; and such court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor. Rule 25 of Order XLI of the C.P.C. is reproduced as under:- "25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from. Where the court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor."
In view of the above provisions of law, remand should not be lightly ordered if the evidence on the record is sufficient for the appellate Court to decide the question itself. Learned counsel for the respondents could not dispute the settled legal position regulating remand conceding that impugned judgment was not covered by the afore-referred Rules 23, 23-A and 25 of Order XLI of the C.P.C. Furthermore, it is well settled by now that where the evidence on record is sufficient for the appellate Court to decide the matter itself, remand should not be ordered. The case law cited by the learned counsel for the petitioner fully supports his case.
6. For what has been discussed above, the instant petition is allowed and judgment of the appellate Court to the extent of remand of the case to the trial Court for decision afresh is set aside. The appeal filed by the respondents shall be deemed to be pending before the appellate Court, which shall itself decide the same by determining all the points, as required by it to be dealt with by the trial Court. There shall be no order as to costs.