' This civil revision impugns the order dated the 21st of June, 1990 passed by the Additional District Judge, Gujrat, whereby he had accepted the appeal, set aside the impugned jugdment and decree passed on merits and remanded the case to the Civil Judge for deciding the suit afresh in the light of two additional issues framed by the learned Additional District Judge.
2. The facts leading to the revision are that Mst. Bibi respondent had instituted a suit seeking it to be declared that she was owner in possession of the land measuring 44 Kanals. According to her, Hayat petitioner had sold away the land to her and also delivered the possession but subsequently she found that the petitioner instead of mutation of sale had got the transaction mutated as mortgage with possession for Rs,8,550 (Rupees eight thousand five hundred and fifty only). The respondent had instituted the suit after the petitioner had made his bid to get the mortgage redeemed. The petitioner had resisted the suit asserting that he had never sold the land and the transaction was that of mortgage for the consideration of Rs,8,550 (Rupees eight thousand five hundred and fifty only) which was duly incorporated in the impugned mutation. The suit of the respondent was dismissed by the Civil Judge, Mandi Bahauddin on the 21st of December, 1976. The respondent, however, challenged it in appeal which was accepted by the Additional District Judge, Gujrat vide the judgment and decree dated the 19th of February, 1983, who had remanded the case and deleted the following issues already framed by the Civil Court:
(1) Whether the plaintiff has purchased the suit land?
(2) Relief.
3. The learned Additional District Judge vide judgment supra substituted the said issues. with the following two issues:--
(1) Whether the plaintiff had obtained the suit land from the defendant on the basis of any sale in her favour?
(2) Whether the disputed mutation is based on fraud and collusion?
(3) Relief.
4. The learned trial Court again dismissed the suit vide its judgment and decree dated the 14th of October, 1987 answering both the issues against the respondent and in favour of the petitioner holding that the transaction was a mortgage and not a sale. The respondent again took the- matter to the Court of appeal and met with success. The learned Additional District Judge vide his impugned judgment and decree dated the 21st June, 1990 set aside the judgment and decree of the lower Court after remanding the case for fresh decision on the following two additional issues:- --
(1) Whether entries in Revenue Record regarding mortgage are correct? OPD
(2) Whether there was any agreement between the parties to mortgage the land? OPD.
5. The order of remand of first appellate Court was subject to limitation imposed by rule 25, Order XLI of the Code of Civil Procedure. The powers of the Court to frame an issue and refer the same for trial to the Court below by taking additional evidence are circumscribed by certain prerequisites.
The' remand of the case is ordered when need be there to determine any question of fact which appears to the appellate Court essential to the right decision of the suit upon merits.
6. If the evidence available on record is sufficient for the appellate Court to decide the questions involved then order of remand ought no to be passed. The Supreme Court had ruled in Pramatha Nath Chowdhury and 17 others v. (1) Kamir Mondal, (2) Ismail Mondal, (3) Baju Mondal alias Hagura Mondal and (4) Dukha Mondal PLD 1965 SC 434 that:--- "Remand should not be lightly ordered if the evidence on the record is sufficient for the appellate Court to decide question itself."
7. It is really regrettable that the present case involving simple matter was toyed with by the Courts below. In the first instance omni bus issue was framed back in 1974. No miscarriage of justice was caused to the parties even in presence of the said issue. Anyhow, the appellate Court had substituted that issue for two issues which had clearly covered the pleadings of the parties and points in issue. The parties had adduced evidence on both the issues and the learned trial Court had decided them on evidence brought on the subject. The learned appellate Court, however, instead of deciding the appeal on merits on the basis of evidence brought by the parties proceeded to frame two additional issues. It is noteworthy that when previously the appellate Court had for the first time reframed the issues, the respondent or the petitioner had not raised any objection to the issues reshaped nor the respondent had claimed any other issue. There was hardly any necessity for framing two more issues regarding the entries in Revenue Record and existence of agreement between the parties on the second round of litigation. The entries in Revenue Record shall follow the findings of the Civil Court and there was hardly any need of framing specific issue thereon. The issue on agreement as to the mortgage was also unnceesary in presence of issues already framed. Since the respondent had asserted that the transaction between the Parties was a sale and .not mortgage, therefore, it was for her to prove the same. The issues had been rightly framed under Order XIV, rule 1 of the Code of Civil Procedure and evidence had also been recorded thereon. The learned appellate Court instead of deciding the case on merits had wrongly chosen the soft course of remanding the case which was in contravention of spirit of provision of rule 23 or 25 of Order XLI of the Code of Civil Procedure. In the circumstances I set aside the impugned judgment and decree and direct the learned District Judge, Gujrat to decide the appeal himself or make over to any Additional District Judge for its disposal on merits.
The parties shall appear before the learned Court on the 1st of November, 1992.