GUL HASSAN TAREEN, J. This civil revision petition assails judgment and decree dated 18th March, 2024 of the learned Addl: District Judge-I, Sibi. The Appellate Judge, partly allowed respondents 1 to 3's ('respondents') appeal and, after setting aside judgment and decree dated 27 March 2023 of the learned Judicial Magistrate-II/Civil Judge, Sibi, remanded back the case to the learned Trial Judge with direction to frame issues: issue local commission; allow the parties to lead evidence (if they desire) and then decide the suit.
2. Mr. Inayatullah Khan Marghzani, learned advocate for the petitioners stated that evidence upon the record was sufficient to enable the Appellate Court to pronounce the judgment. He further stated that the PW-1 admitted that the respondents have no concerned with the subject shops as they were not part of the respondents' land. Neat stated that petitioners 1 to 5's predecessor was the lessee of the Municipal Committee, Sibi and they had produced the lease document as Ex:D/2 and they use to pay the lease money and property tax, thus, the impugned remand judgment is not correct.
3. Mr. Abdul Zahir Kakar, learned advocate for the respondents stated that petitioners had pleaded that the subject shops are not part of the respondents' property whereas, this fact could have determined by the local commission through site inspection and not, through oral evidence. He next stated that respondents had made an application before the learned Trial, Judge for issuance of local commission, which was rejected. Thus, the Appellate Court has rightly remanded back the case to the Trial Court.
4. Heard and have gone through the record and the relevant in the Code of Civil Procedure 1908 (`Code') in relation to the remand.
5. Respondents had pleaded that they are the lessees of the suit property, described in para 2 of the plaint admeasuring 218874 sq:ft. In para 3 of their plaint, respondents pleaded that they had left a piece of land towards south at Mir Chakar Khan Road, Sibi. Their predecessor had allowed petitioners 1 to 5's predecessor for construction of five shops on the subject land, however, rent was not imposed; as such petitioners 1 to 5's predecessor was their licensee on the subject land. The petitioners 1 to 5 have further rented out the shops to the petitioners 6 to 10.
Petitioners in their common written statement had pleaded that they have no concern with the suit property and they have constructed the subject shops on the land of Municipal Committee, Sibi which was leased out to their predecessor.
On this material proposition of fact (whether shops are part of respondents land or otherwise), the learned Trial Judge had not farmed an issue. The learned Appellate Judge has rightly observed that this material proposition of fact can be determined through site inspection. Oral evidence in relation to this material proposition of fact was not much relevant and was not substitute of physical site inspection. Thus, I am agree with the conclusion drawn by the learned Appellate Judge in the impugned judgment. However, the Appellate Court while remanding back the case to the Trial Court, has committed a procedural error which should be rectified.
6. The suit was not disposed of by the learned Trial Judge upon a preliminary point. After recording evidence of both the sides, the suit was dismissed. Thus, the learned Appellate Judge has not remanded back the case to the Trial Court under Order XLI rule 23, the Code. Since evidence was recorded, thus, the learned Appellate Judge has remanded back the case to the Trial Court under Order XLI rule 25, the Code. Rules 25 and 26, the Code reads: '25. Where the court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question off act 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 therefore.
26. - (1) Such evidence and findings shall from part of the record in the suit; and either party may, within a time to be fixed by the Appellate Court, present a memorandum of objections to any findings.
(2) After the expiration of the period so fixed for presenting such memorandum the Appellate Court shall proceed to determine the appeal.
The combined effect of the rules 25 and 26 is that the Appellate Court would frame issues and refer them for trial to the Court from whose decree the appeal is preferred. The Court of first instance shall return the evidence to the Appellate Court together with its findings thereon. Upon return of evidence and the findings, either party may present objections to such findings within such time as may be fixed by the Appellate Court and thereafter, the Appellate Court shall proceed to determine the appeal. The Appellate Court while remanding back the matter to the Court of first instance shall itself frame issue/s and shall direct for evidence, however, the judgment assailed in the appeal shall not be set-aside and appeal shall remain pending before the Appellate Court The Appellate Court shall determine the appeal on return of the evidence together with its findings recorded by the Court of first instance and, after the expiration of the period fixed by the Appellate Court for presenting memorandum of objections to such findings.
7. In the instant matter, the Appellate Court set-aside the judgment and decree assailed in the appeal and memorandum of appeal along with record was consigned to the record. The Appellate Court has overlooked rules 25 and 26, the Code, The Appellate Court should have, itself framed an issue, directed for issuance of local commission and directed for further evidence and referred the issue for trial and should have fixed time in which either would 'present memorandum of objections to the findings of the Court of first instance on the issues so referred. To such extent, the findings of the Appellate Court require correction.
In the light of the forgoing, I partly allow this civil revision petition, the impugned judgment dated 18 March 2024 pissed by the Appellate Court is modified as under: 'The learned Trial Judge is directed to issue local commission with direction to determine, whether the subject shops are part of the respondents' property or otherwise'. The learned local commissioner shall be accompanied by the Revenue Authority along with the record and representative of Municipal Committee, Sibi along with the record. After execution of the local commission, the Trial Court shall deal with the report in accordance with the law and allow both sides to lead further evidence (if they intend) and then try the following issue: 'Whether subject shops are part of the respondents ' pleaded property'.
The learned Trial Judge shall return the evidence/report to the Appellate Court with its findings on the said issue and reasons therefor within thirty days. Appeal shall be deemed pending before the Appellate Court. On return of findings and after presentation of objections by either party within fifteen days, the Appellate Court shall proceed to determine the appeal. No order as to costs.