A pre-emption suit fled by the respondent under Section 16 of the Punjab Pre-emption Act, 1913 with regard to an urban house bearing No.228, Ward No.XIl, Chak Nlubarik, Multan City on the around of contiguity was dismissed bpi the trial Court on 11-5-1986 with a finding reached under issue No,.5 that the existence of custom of pre-emption in the locality has not been proved as per the requirement of Section 7 of the Act.
2. An appeal is stated to have been there against filed by the plaintiff on 8-7-1986 in the District Court at Multan which was entrusted for hearing to Sardar Muhammad Jahangir Khan, Additional District Judge, Multan before whom the plaintiff-appellant filed an application on 12-2-1987 for production of a certified copy of Shariat Wajib-ul-Araz as additional evidence under Rule 27 of Order XLI of the C . P . C . With the assertion that it could not be .Produced in the trial Court on account of his ignorance thereabout and was, hence, not even relied upon in the trial Court and could not be produced along with the appeal either. However,. It was not disclosed therein as to how and when did the existence of such a document dawn upon him" The application was contested by means of reply dated 26-6-1987. By the order dated 9-3-1987, the Additional District Judge proceeded to allow the application as per the contents of paragraph 5 of his order. In the succeeding paragraphs whereof he set out to consider the appeal and, strangely enough, framed two additional issues with regard to description of the suit property and limitation on the basis of objection raised by the vendee tit hi; written-statement despite the fact that he had not urged any grievance at any stage about the non-framing of issues with regard to such objections which were undoubtedly capable of being given up expressly and also waived by conduct and he pressed these additional issues into service for accepting the appeal and setting aside the judgment and decree of the trial Court to remand the case for allowing the production of the said additional evidence before the trial Court with a right of rebuttal also given to the defendant.
3. The vendee-6efendan; hash come up to this Court to impugn the appellate order dated 9- 3'-1987 through this F . A .O. A bitter grievance is made to the effect that the Additional District Judge has gone out of his way to contrive an ingenuity for unlawfully providing improper opportunity to the plaintiff to patch up the weaknesses of his case. It is strenuously argued that in the first place the plea of the plaintiff was not such as may have come within the scope of Rulf 27
(ibid) which opens up with the declaration that the parties to an appeal will not be entitled to produce additional evidence in the appellate Court who has been authorised to permit its production in the situations mentioned in the two clauses appended thereto anal whereas the case of the plaintiff did not come under clause (a' he did not nave any eligibility for the purpose created in him by clause (b) thereof which mentions the requirement of the appellate Court for pronouncing judgment to be the governing factor as has been held in Messrs Muhammad Siddiq Muhammad Umar and another v. The Australasia Bank Ltd. (PLD 1966 SC 684). The clause can get attracted to such contentions cases of equally--drawn evidence wherein the Court is unable to pronounce any judgment so that the appeals which are liable to be simply dismissed on the evidence already existing on the record do not come within the scope of this clause wherein the words "for any other substantial cause" have to be understood as merely ejusdem generis.
Reference in this behalf has been made to Sh. Muhammad Wilas and others N, Muhammad Ismail (P T. D 196' SC 466). Learned. Counsel further maintains that mere ignorance of a party about the existence of a certain evidence cannot, at any rate, be considered such a substantial cause and the application was liable to be simply rejected because it was not a case at all of the requirement of the Appellate Court who may possibly have felt such a need in some given case only after it has considered the evidence existing on the record but the Additional District Judge. As is manifested by his judgment, was pre-determined to allow the application and has actually done so without attending at all to the appeal whereto he has adverted only obliquely in the paragraphs succeeding paragraph No.5 of his judgment and has not considered the sufficiency or .Otherwise of the evidence existing on the record for the purpose of pronouncement of judgment, the connotation whereof is not a judgment necessarily in favour of an appellant or even a correct one according to his standards.
4.The arguments raised in support of this appeal are actually formidable and learned counsel appearing for the respondent has not made any serious effort to refute them. Assuming, but without so conceding, that this could be a case for allowing additional evidence then it surpasses comprehension as to why did the Additional District Judge not himself taken such evidence and why did a need arise at all for setting aside the trial Court's decree without adverting even to the reasons contained therein? In thus setting aside the trial Court's decree, the Additional District Judge has transgressed the limits of his jurisdiction by ignoring the dictates of Section 99 of the C .
P . C . He acted inconsistently in devising the method of framing additional issues which, though could not have been framed on account of implied abondonment of his pleas by the defendant, yet, therein the provisions of Rule 25 of Order XLI of the C.P.C. Got attracted wherein there is no concept of remand of the entire case and only issues are sent down for findings thereon for being returned to the Appellate Court which in the meanwhile remains seized of the appeal as a pending cause on its list. It has been repeatedly held that it cannot be the object of remand that an unsuccessful litigant may be provided another opportunity to prove his case and much less can he be allowed to patch up the weakness of his case either by the production of additional evidence or by passing an order of remand.
It is evident that in passing the impugned order the Additional District Judge concerned has proceeded not only in oblivision of the law but has also manifested absence of consciousness regarding the extent of powers vesting in an appellate Court and also about the limitations with regard to their exercise.
5. Reference may here be advantageously made also to Pramatha Nath Chowdhury and 17 others v. Kamir Mondal and 3 others (PLD 1965 S.C. 434) wherein their Lordships of the Supreme Court have strongly disapproved the practice of lightly remanding cases by the Appellate Courts.
6.Result of the foregoing is that the impugned order dated, 9-3-1987 passed by the Additional District Judge cannot be ,sustained in any way. The same is, hence, set aside and the relevant application of the respondent is hereby rejected upon accepting this appeal with; costs.
7.In consequence, the respondent's approved will be considered as still pending and awaiting to be decided in accordance with the law., Learned District Judge, Multan will either decide the said appeal himself or assign it to any Additional District Judge, other than Sardar Muhammad Jahangir Khan who has dealt with it earlier, so l that he may decide it afresh after notice to the parties.