' This application for revision filed under section 115, C.P.C. Must be allowed. Hafiz Muhammad Ramzan, applicant No,1 (since dead), predecessor of applicants Nos.1-A to 1-E was the owner of the property bearing C.S. No,B-2389 situated at Anaj Bazar, Sukkur, which he had sold to applicants Nos.2 to 5, through a registered sale-deed dated 5-4-1975. The respondent who was a tenant of the shop situated on the ground floor of this property was served with a notice under section 13-A of the Sindh Urban Rent Restriction Ordinance, 1959 (since repealed) by the new owners followed by ejectment proceedings. He, however, filed a suit for specific performance of contract, declaration and permanent injunction against Hafiz Muhammad Ramzan and others in the Court of Senior Civil Judge, Sukkur, on the strength of an agreement for sale alleged to have been executed by the said Hafiz Muhammad Ramzan in respect of the disputed shop on 31-12-1974. The suit was resisted on various grounds. Among other pleas, the applicants alleged that the agreement for sale dated 3142-1974 was a forged document. The pleadings of the parties gave rise to the following issues:-
(1) Whether defendant No,1 executed agreement of sale dated 31st December, 1974 in favour of the plaintiff in respect of the suit property for consideration of Rs,20,000?
(2) 1974 and Rs,3000 on 15th September, 1976 as part payment of the suit property?
(3) Whether the plaintiff is protected u/s 53-A T.P. Act?
(4) Whether the sale-deed by defendant No,1 in favour of the defendants 2 to 5 is improper, fraudulent and of no legal consequences?
(5) Whether defendants Nos.2 to 5 were already in the knowledge of the sale of suit property in favour of the plaintiff?
(6) Whether the plaintiff is entitled for specific performance of the contract?
(7) Whether the suit is hit by sections 42 and 56 of Specific Relief Act?
(8) Whether the defendants Nos.2 to 5 are bona fide purchaser and without notice?
(9) Whether the suit is maintainable according to law?
(10) What should the decree be?
2. The respondent examined himself (P.W.1), Tahir Hussain (P.W.2), Muhammad Iqbal (P.W.3), Masood Akil (P.W.4), Syed Ikhtiar Hussain (P.W.5) and Nasir Beg (P.W,6), while the applicants examined Abdul Malik (D,W.1), Saghir Ahmed (D.W.2), Abdul Razak (D.W.3), Muhammad Sohail (D.W.4), Hafiz Muhammad Sharif (D.W.5), and Abdul Kabir (D.W.6).
3. On the assessm ent of evidence available on record, both oral as well as documentary, the learned Senior Civil Judge, Sukkur, decided almost all the material issues against the respondent and dismissed the suit vide judgment dated 3-11-1983. The respondent challenged this judgment and decree in I-Civil Appeal No,121 of 1983 before District Judge, Sukkur, which was heard by II- Additional District Judge, Sukkur, who set aside the judgment recorded by Senior Civil Judge, Sukkur and remanded the case vide judgment dated 23-6-1987. His decision may be stated in his own words:- "From the side of respondents various authorities have been referred on the point of onus of proof, the conduct of earlier transferee not to sleep over his right, the effect of bona fide purchase and the obligation of party to contract. The authorities will be pertinent subject to proof of signature of the execution on sale agreement. This Court has refrained from giving any findings on the issues depending on the oral evidence for the reason that the Court has formed opinion that this is a case fit to be remanded to the lower Court for the reasons that the opinion of the Court after making naked comparison, has declared the signature of deceased seller to be forged on the agreement of sale executed between plaintiff of the suit and defendant No,1, which is not safest course. No doubt under section 73 of Evidence Act corresponding proviso Article 84 of Qanoone-Shahadat, Court has power to compare alleged genuine signatures with consideration, in which it was observed that the appellate Courts should not rashly and without sufficient cause set aside a decree of the first Court and order the re-trial in any case, in which this can possibly be avoided.
8. In the case of A.P.L. Palaniappa Chettiar v. A.K.R.M.S. Firm, reported in AIR 1935 Rang. 19, this question was examined and it was remarked:- "It was not for the Court to insist that the plaintiff should produce evidence. The plaintiff has only himself to blame if it now turns out that this was a fatal course to pursue. The pleadings and the issues were clear and in my opinion the parties could not have failed to appreciate what the real issues were that fell for determination in the suit."
9. The case of Municipal Committee, Abohar v. Megh Raj and others, reported in AIR 1935 Lah. 161, is again clear on this point, wherein a distinction was drawn between different rules of Order 41 relating to order of remand.
10: The case of Ram pat Sahu v. Bhajju Sahu and another, reported in AIR 1936 Pat. 160, decided by a Division Bench certainly appears to lend more support to the contention raised on behalf of applicants. At page 161 it was observed:- "Now it is true that appellate Courts have inherent power of remand as well as specific power of remand given them by the Code, but the Courts, as has been pointed out more than once, should be slow to exercise that jurisdiction and should only use it in appropriate cases. The power of remand is not intended to allow an unsuccessful plaintiff, who had failed to prove his cause of action to have another attempt and call witnesses whom he might have called on the first occasion."
11. In the case of Mst. Motai w/o Fazal Shah and another v. Lt. Col. Sir Muhammad Akbar Khan, Chief of Hoti, and others, reported in AIR 1941 Pesh. 28, it was remarked that unsuccessful litigant in lower Court cannot be allowed to patch up weak parts of the case and fill up omissions by recourse to section 107 and Order 41, rule 23, C.P.C. In appeal.
12. The case of Hira Lal v. Ratan Lal, reported in AIR 1944 All. 293, also supports the above view, wherein it was held that there is no law which can justify an appellate Court in remanding the case to the trial Court in order that a party, who in the opinion of the appellate Court, right or wrong, has failed to discharge the burden that lay on him, may be enabled to have another opportunity of producing evidence.
13. In Sonabai w/o Sawlaram v. Gotiram Nathu and others, reported in AIR 1956 Bom.160, it was held that the appellate Court cannot remand suit to the trial Court to give second opportunity to prove the disputed document.
14. The cases reported as Mir Muhammad Khan v. Syed Abdul Shakoor and others (PLD 1962 Pesh.
28), Syed Modaris Ali v. Syed Md. Ilias Ali and others (PLD 1971 Dacca 309), and Pramatha Nath Chowdhry and 17 others v. Kamir Mondal and others (PLD 1%5 SC 434), are also attracted to the facts of the present case. In the last cited authority the Supreme Court observed as follows:- 'A remand should not he lightly ordered if the evidence on the record is sufficient for the appellate Court to decide the question itself."
15. Article 84 of the Qanoon-e-Shahadat Order, 1984, lays down an additional mode of proving signature and the Court can compare the disputed signature with the admitted signatures. The following observations made in the case of Faizul Haque and others v. Noor Meah and another, reported in PLD 1960 Dacca 835, are self-explanatory:- "In the present case also since the Evidence Act permits such examination by the Court itself, it cannot be said that by launching upon such an examination the Court had committed an error in the procedure of law or that it had made any material mistaken assumption in so launching upon a comparison of the signatures and thumb-impressions on Exh.3. There is no doubt that such inexpert comparison has repeatedly been discouraged by this Court. But nevertheless it cannot be said that it is an illegality in procedure whatever might be the value of such examination."
16. In somewhat similar circumstances Saleem Akhtar J, observed in the case of The Australasia Bank Ltd. v. Messrs H.S. Mahmood Hassan Akbar and 2 others, reported in PLD 1983 Kar. 431, as follows:- 'The defendant No,3 has not appeared to deny these facts and documents. It is the defendant No,2 who has denied his signatures on this document. He has stated that these signatures are forged and have not been made by him. A visual comparison of this signature with the other signatures on documents 5/1 to 5/6 makes it clear that they have been signed by one and the same person.
The question then arises whether this signature has been made by the defendant No,2 or not. The defendant No,2 has only denied his signature on Exh.5/11 but has never asked for sending this document to any handwriting expert to ascertain the correctness of his statement. The plaintiffs have also not adopted this course which was available to them. So the only course open to the Court in such circumstances is to compare this signature with the admitted signatures of the defendant No,2 and then draw its own conclusion. This procedure is permissible under section 73 of the Evidence Act. It is a risky but in the circumstances of the case there is no other option left but to adopt it."
17. In this view of the matter, I am clear in my mind that the appellate Court has wrongly remanded the case to the trial Court when the entire evidence was available on record and it could itself pass a judgment, without referring the matter for the further additional issue which was not necessary, as the other issues already framed covered this issue also.
18. In the result the revision application is allowed and the order of appellate Court is set aside and the case is sent back to that Court with the direction that it shall reinstate the appeal before it to its original position in the file of pending cases and will proceed to hear and dispose of it according to law. Since the matter has already become old, it will be appreciated if the appeal is disposed of within three months. The parties are, however, left to bear their own costs.