Muhammad Faheem Wali, J.- Petitioners instituted a suit seeking therein declaration of ownership in respect of the property, detailed in the headnote of plaint, perpetual prohibitory & mandatory injunctions and possession. The respondent No.1 contested the suit by filing his written statement.
Learned trial court after processing the suit in accordance with laid down procedure and hearing the parties, decreed the suit partially vide Judgment & Decree dated 28.09.2019 to the extent of declaration and perpetual injunction. Aggrieved of the said decree, petitioners and respondent No.1 preferred their respective appeals. Learned Additional District Judge-III, Charsadda, vide consolidated Judgment & decrees dated 10.06.2021 allowed both the appeals, set aside the Judgment & Decree of trail court and remanded the case back to the trial court to record additional evidence of respondent No.1 and send thumb impressions of petitioners etc. to FSL for their comparison and then decide the case afresh in accordance with law. Still not satisfied, the petitioners have preferred the instant civil revision.
2. Arguments heard and record perused.
3. Record reveals that the learned appellate court remanded the case back to the learned trial court to get recording of evidence of respondent No.1 and to get verify the thumb impression of parties from FSL. The law which deals with the concept of remand of civil suit is Section 107 and Order-XLI of the Code of Civil Procedure Code. According to section 107 CPC, an appellate court, can determine a case finally or to remand a case or to frame issues and refer them for trial or to take additional evidence or to require such evidence to be taken. However, powers under Section 107 CPC are subject to conditions and limitations as may be prescribed; and such conditions and limitations have been settled down in Order XLI CPC, and appellate Court may itself frame additional issues and take additional evidence and/or direct the lower court to frame additional issues on the specified points of fact and/or law and require the lower court to take additional evidence and then decide the questions afresh. This process is distinct from a retrial or a trial de novo as it has a limited scope and extent. It is applicable if
(i) a trial court had omitted to frame an issue
(ii) omitted to try an issue or (iii) omitted to determine any question of fact which, in the view of the appellate court was essential for dispensation of justice. Although, remanding a case is discretion of the appellate court, but this discre tion has very strict parameters. As a general rule, if appellate court can do complete justice on the basis of the record before it, the appellate court must not remand the case. An appellate Court is required to decide matters finally instead of remanding the cases, unless there is a chance of miscarriage of justice.
4. A bare reading of the impugned judgment revealsthat the remand order was passed only due to the application of respondent No.1 for permission to adduce additional evidence of the then Patwari Halq and Tehsildar who entered and attested the impugned mutation with a request to send the thumb impression of plaintiffs and defendants No.1 to 3 for FSL/expert opinion plus taking special oath. Under theses circumstances the provision of Rule 28 of Order XLI CPC would come into play which provide for the mode of taking additional evidence. According to ibid rule, wherever additional evidence is allowed to be produced, (i) the Appellate Court may either take such evidence or (ii) direct the Court from whose decree the appeal is preferred, or (iii) ask any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court. Order 28 of Rule XLI of CPC reads as under:
28. Mode of taking additional evidence. Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court.
5. For these reasons, if learned appellate court below had come to the conclusion that the recording of additional evidence would be advantageous to secure the ends of justice, then, without touching the judgment & decree impugned before it, the appellate court was required to either take the evidence by itself or send the case back to the trial court or any other subordinate court to record evidence, and after getting such evidence recorded, decide the fate of appeal in accordance with the record as well as additional evidence.
6. For the above recorded reasons, I while allowing the instant revision petition, set aside the impugned judgment & decrees dated 10.06.2021 to the extent of setting aside decree of trial court and remanding the case back to the trial court; and hereby send this case back to the learned appellate court, where both the appeals would be deemed pending, to proceed with the matter in accordance with provisions of Rule 28 of Order XLI CPC.