1. ' This appeal against the remand order arises out of a suit instituted by the present appellants for perpetual injunction restraining the defendant-Trust from interfering with ownership rights and possession of the plaintiff in respect of house bearing Survey No.S.W.VIII-52-S-10 situated in Kot Abdullah Shah, Mozang Lahore. Defendant-Trust resisted the suit, filed its written statement. On the basis of the pleadings of the parties, following preliminary issues were framed:-
(1) Whether the suit is not maintainable? O.P.D.
(2) Whether the plaint does not disclose a cause of action? 0 .P. D.
(3) Whether the suit is bad for non-joinder of necessary parties?
2. ' Civil suit was then adjourned for evidence of the parties. Learned counsel for the defendant on 13- 10-1966, conceded the above-noted issues against the Trust. Learned trial Court in view of the concession of the defendant's counsel, proceeded to record finding on the preliminary issue against the defendant vide its order dated 13-10-1966. Thereafter, following issue, on merits, was framed:-
(1) Whether the defendant is owner of the property in dispute? O.P.D.
(2) Relief.
3. ' Parties produced evidence in support of the above-noted issues. Learned trial Judge vide his judgment and decree dated 10-2-1967, found in favour of the plaintiffs and decreed the claim as presented in the plaint. An appeal was filed by Improvement Trust in the Court of District Judge, Lahore. Vide order dated 20-2-1970, learned Additional District Judge, Lahore, accepted the appeal, remanded the suit for trial afresh, in accordance with certain observations. Appeal has been presented in this Court, against remand order.
4. 2: Learned counsel for the parties have been heard, with their assistance, the record has also been examined. Learned counsel for the appellants contended that there was no legal justification, for the learned Additional District Judge to upset the finding of the trial Court on merits and remand the case for its decision afresh after making additions/alterations in the issues framed. Issue on merits was framed in presence of the parties, the defendant-Trust, neither objected to the form of the issue nor allocation of onus of proof. With eyes open, defendant accepted the form of issue and the burden of proof and then went to trial and led evidence in support thereof. After having adopted such an attitude in the trial Court it was not open for the defendant-Trust to reagitate the same matter in the Court of appeal when decision on merits had gone against it. Even otherwise, counsel contended, when entire evidence had been brought on file by both the parties, question of the form of issue and its onus, became immaterial. Learned counsel also contended that there was sufficient evidence present on file to enable the learned Additional District Judge to finally decide the dispute on merits. He stated that unnecessary remands of cases by the Court of appeal have been depricated by the superior Courts in their pronouncements. Under Order XLI, rule 24, Code of Civil Procedure, if the Court felt that issues had been wrongly framed or onus improperly placed on the defendant, it could have resettled the issues and then decided the controversy. It was not the case of either party that the evidence was insufficient for decision of the dispute on merits. In this view of the matter it was contended that remand should not have been ordered. As regards preliminary issues, learned counsel contended that they had already been conceded by the Trust, and as such, could not be reopened. Question of jurisdiction was deeply linked with the question of ownership claimed by the plaintiffs.
3. Learned counsel for the respondent-Trust, however, tried to support the impugned order stating that necessary issues arising from pleadings had not been framed by the, trial Court which had resulted in improper decision of the suit by the trial Court. He submitted that the Court was obligated to frame correct issue which in view of present state of pleadings was "whether the plaintiffs are owners in possession of the suit property", with its onus probandi on the plaintiffs.
5. Incorrect form of the issue and allocation of its onus on the defendant, prejudiced trial of the suit and led the trial Court to erroneous conclusions. I have given serious consideration to the arguments raised at the bar. However, I find myself unable to subscribe to the views of learned Additional District Judge. Trial Court, after the counsel for the Trust had conceded preliminary issues rightly proceeded to frame issue on merits. May be, the grievance raised as to the form and placement of onus was correct, but then it was the duty of the defendant and his counsel to point out to the Court that the issue had been wrongly framed or that the onus had been improperly placed upon them. This they did not do. Obvious inference is that the defendant accepted the issue in the form in which it was settled. Having accepted the position, it went to trial and- produced evidence. It was too late then for it to make any grievance about the issue and the placement of onus of proof. Even otherwise, entire evidence which possibly could be led by the parties in support of the plea of ownership had been brought before the Court. In this view of the matter, the form of the issue and its onus probandi lost all material significance. Burden of proof is material only, when Court finds evidence so evenly balanced, that it can come to no definite conclusion. This was not the case here. The Court, if it came to conclusion that the issue had been wrongly framed, could resettle it and then decide the whole matter in the light of the available material on record, which, in view of both the learned counsel, was sufficient to enable it to decide finally one way or the other. Remand order, therefore, suffered from a serious infirmity. It has been repeatedly observed by the superior Courts that the Courts should not resort to making unnecessary remands, when the matter could be finally decided by it, particularly, when there was enough and sufficient material for the Court to adopt such a course. Remand, beside consuming valuable time of Court, involves the parties into unnecessary litigation and wastage of public expense. If after examining the evidence, still the Court came to the conclusion that more evidence was needed, it could legitimately take recourse to the provisions of Order XLI, rule 27, Code of Civil Procedure and supplement the evidence either itself or through a Court subordinate. Remand order did not in any manner serve the cause of justice. Appeal accordingly is allowed, order dated 20-2-1970 is set aside, case is remitted to the learned District Judge, Lahore, for decision of the civil appeal on merits in the light of material available on record. Parties are directed to appear before the Court on 14-3-1985. Records be sent to District Judge, Lahore without delay. Parties to bear their own costs.