MUHAMMAD MUNIR KHAN, J.~ The facts giving rise to this revision briefly are that Mohammad Asif petitioner and Arif Hussain respondent were partners in the firm namely "Mohammad Asif, Mohammad Ashiq and Company, Lahore." There arose differences between them and it was no more possible to carry on partnership business. So on 20.1.85, Mohammad Asif filed a suit for the dissolution of partnership and the rendition of accounts against Arif Hussain respondent. The suit was resisted whereon six issues were framed. The parties adduced evidence in proof/disproof of issues. The trial court granted preliminary decree for the dissolution of partnership and rendition of accounts. Mr. Mati ur Rehman's, Advocate was appointed as a receiver. Feeling aggrieved thereby, Arif Hussain filed appeal which was entrusted to Malik Nazir Hussain Awan, Addl. District Judge, Lahore, who vide his judgment dated 6.5.85, accepted the appeal, set aside the preliminary decree passed by the trial court and remanded the case with the direction "to get the rejoinder from the plaintiff and thereafter to recast the issues and then to proceed to decide the suit afresh in accordance with law." Hence this revision.
2. The learned counsel for the petitioner submitted that the judgment of the learned Addl. District Judge suffers from non-reading of record inasmuch as the rejoinder filed by the plaintiff was already on the record and finds mention in the judgment of the trial court and that instead of directing the trial court to recast the issues, the learned Addl. District judge himself should have resettled the issues and then proceeded in accordance with Rule 25 of Order 41 C.P.C. The learned counsel for the respondent has frankly and rightly conceded that the rejoinder had already been filed by the plaintiff in the trial Court.
3. I have considered the submissions made by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the petitioner. Since the rejoinder was already on the record of the trial court, therefore, there remains no doubt that the judgment of the learned Addl. District Judge suffers from non-reading of the material on the record of the trial court.
Consequently, there was no occasion to direct the trial court to get the rejoinder from the plaintiff and thereafter to recast the issues. Furthermore, if the learned Addl. District Judge was not satisfied with the issues framed by the trial Court, then he could frame the issues and refer the same for trial and taking of additional evidence to the trial court. Instead of making an order in accordance with the provisions of Rule 25 of Order 41 C.P.C., the appellate court unnecessarily directed the trial court to recast the issues and then to proceed to decide the suit afresh in accordance with law. I have painfully noted the growing tendency on the part of the lower appellate court to remand the case on one pretext or the other. They try to dig out infirmities in the proceedings and in the .Judgment of the trial court in order to remand the case. This not only creates hardship to the litigants but also leads to inordinate delay in the disposal of the cases. The provisions of rule 24&25 of Order 41 C.P.C, provide an alternative to remand: i) Whether evidence on record is sufficient to enable the Appellate Court to pronounce judgment then it need not remand the case to the trial Court and may determine the issues itself.
Ii) Where the trial Court has failed to frame or try or determine any issue essential to the just decision of the suit upon merits, the Appellate Court may, if necessary, frame and refer the same for trial to trial Court and in such case shall direct such Court to take additional evidence and such court shall proceed to try such issue and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor.
4. The wisdom behind this provision of law is to minimize the possible hardship to the litigants and to avoid unnecessary delay in the disposal of the cases. I have painfully noted that the Lower Appellate Courts do endeavour to find out procedural defects and infirmities in the judgments of the trial Court simply to avoid writing judgments more particularly in lengthy and complicated cases. It is always desirable that instead of setting aside the judgment and decree and remanding the case alternative to remand provided in rules 24&25 of Order 41 C.P.C, should be followed and the judgment and decree of trial Court may be set- aside only in exceptional and unavoidable circumstances.
Pursuant to the above discussion, the revision is accepted. The judgment of the learned Additional District Judge is set-aside the case is sent back to him for fresh decision of appeal in accordance with law after affording the parties opportunity to being heard. The parties are left. To bear their own costs.