This first appeal calls in question the order of remand passed by Additional District Judge, Sheikhupura dated 27th of September, 1988 on an appeal filed by respondents Nos. 1 and 2.
2. The facts forming the background of the dispute between the parties are that on 2-6-1970 the respondents Nos. 1 and 2 had filed a suit for permanent injunction against the appellants and respondents Nos. 3, 4, 5 and predecessor-in-- interest of respondents Nos. 6 to 13. This suit was decided on the basis of a compromise on 25th of February, 1977. Subsequently, on 12th of September, 1981 the present suit was filed by the appellants for specific performance of the agreement arrived at between the parties on 25th of February, 1977 as also the earlier agreements between them. In the written statement filed by the respondent, an objection was taken that the suit was barred by res judicata in hew of the earlier decision in the suit for permanent injunction on 25th of February, 19'1. The averments made in the plaint were repudiated by the respondent. Out of the pleadings of the parties the learned trial Court framed as many as 9 issues:--
(1) Whether the suit is barred by res judicata and under section 47 of C.P.C. For the reasons detailed in preliminary objections Nos.1 and 2 of written statement? OPD. 3.
(2) Whether defendants Nos. 1 and 2 entered into a contract of sale about the land in dispute in favour of the plaintiffs on 18-9-1961? OPP
(3) Whether the said agreement of sale was ratified on 26-10-1963 by Manzoor defendant No. 5 on behalf of defendants Nos.1 and 2, if so, what is its effect? OPP.
(4) Whether Manzoor Hussain was authorised to rectify the alleged agreement on behalf of defendants Nos.1 and 2? OPP.
(5) Whether defendants Nos. 1 and 2 entered into an agreement of sale about the land in dispute in favour of defendants Nos. 3 on 1-1-1970? OPD. 3.
(6) Whether defendant No. 4 has validly sold the land in dispute in favour of defendant No. 3 on behalf of defendants Nos. 1 and 2? OPD. 3.
(7) Whether the agreement dated 18-9-1961 is invalid due to uncertainty and also because it is opposed to public policy? OPD.
(8) Whether defendant No. 3 has paid the price of the land to the State through defendant No. 4. If so, what is its effect? OPD-3.
(9) Whether the decree dated 25-2-1977 was collusive, without jurisdiction and ineffective, against the rights of the defendant No. 3? OPD-3
3. By means of its judgment dated 2nd of January, 1986 the trial Court decided under issue No. 1 that the suit was barred by res judicata and proceeded to dismiss the suit in view of this finding.
The trial Court did not decide the other issues as according to it the decision of issue No. 1 alone, was sufficient to dispose of the suit.
4. Dissatisfied with this decision of the trial Court, the respondents Nos. 1 and 2 filed an appeal in the District Courts which was heard by an Additional District Judge. He accepted the appeal on 27th of September, 1988 after holding that the trial Court instead of deciding issue No. 1 only should have decided all the issues. He, therefore, remanded the case for re-decision to the trial Court. The appellant has challenged this order of remand in the present appeal.
5. Pre-admission notice was issued to the respondents on 6th of December, 1988 for appearance at limine stage. The parties were however directed to come prepared to argue the main appeal also in the interest of expeditious disposal.
6. I have heard Mr. Muhammad Hanif Niazi learned counsel for the appellant as well as Mr. A.
Waheed Saleem, Advocate, appearing on behalf of respondents Nos. 1 and 2 and 6 to 13 and Mr. Hamid Mahmood Advocate for respondents Nos. 3 and 4. The record of the trial Court has also been perused.
7. The learned counsel for the appellant relying upon Order XX, Rule C.P.C. Has contended that since the decision on the question of res judicata under issue No. 1 was sufficient to non-suit the respondents Nos. 1 and 2, the trial Court was under no obligation to decide all the issues and was correct in confining its decision to this issue alone. It is also contended by the learned counsel for the appellant that the learned Additional District Judge without setting aside the finding of the trial Court on issue No. 1 could not have remanded the case to the trial Court. The learned counsel has relied on Ramzan Bibi and 14 others v. Ahmad Din PLD 1986 Lah. 402 and Habibullah and others v.
Mst. Aziz Bibi 1986 CLC 2126.
8. As regards the first contention of the learned counsel it is correct that under Order XX, Rule 5, C.P.C. The trial Court can in a proper case confine its decision to one or more of the issues without leaving other issues undecided, if it comes to the conclusion that decision on those issues alone would suffice for disposal of the suit. Issue No. 1 however, in the present case pertaining to res judicata was not treated as a preliminary issue by the trial Court instead evidence was recorded on all the issues by the Court without any protest from the appellants. The practice of fragmentary decision of issues arising in a suit has been depreciated by the Supreme Court of Pakistan and the Privy Council. It will be useful to reproduce the well-known observation of the Judicial Committee in Tarakant Bannerjee v. Puddomoney Dossee (10 MIA 4'76), which have been repeatedly followed:-- "This is certainly a serious evil to the parties litigant, as it may involve the expense of a second appeal as well as that of another hearing below. It is much to be desired therefore that in appealable cases the Courts below should as far as may be practicable, pronounce their opinions on all the important points. In the present case, the merits not having been entered into in the Courts below, their Lordships find themselves unable to dispose of the suit."
9. I have examined, the decision of the trial Court on issue No. 1 and have found it to be wholly unsustainable. As also indicated in the present suit, the plaintiffs had claimed specific performance inter alia of the agreement arrived at between the parties during the first round of litigation on 25th of February, 1977. This agreement was obviously not and could not be the subject-matter of the earlier suit which had been filed on 2nd of June, 1970. The trial Court while deciding issue No. 1 appears to be totally oblivious of this important fact and had erroneously observed that a comparison of two plaints proved the subject-matter in the two suits was exactly the same. The trial Court was under an obligation to have taken notice of the subsequent agreement dated 25th of February, 1977 and then decided whether or not the suit was barred by res judicata. Though the learned Additional District Judge, had not adverted to this aspect, yet the order for remand is amply justified in view of the matter which I have taken. In Ramzan Bibi and 14 others v. Ahmad Din the evidence of the plaintiff was not recorded but was closed under Order XVII, rule III, C.P.C. And it was in these circumstances held that it was not necessary to decide all the issues. Similarly in Habibullah and others v. Mst. Aziz Bibi the Court held that the lower appellate Court had correctly decided all the crucial issues involved in the case. In the present case, however, this position is not true. The evidence had been led by the parties on all issues but only issue No. 1 was decided. It may also be noticed that while deciding issue No. 1 the trial Court itself had observed that issues Nos. 2 to 4 were dependent on the agreements dated 18th of September 1961 and 26th of October 1963 which had been availed by the respondent on 25th of February. 1979. But strangely enough no finding was recorded on issues Nos. 2 to 4 and the decision was specifically confined to issue No. 1.
Alone by the trial Court.