' The brief facts of the case are that an application to sue forma pauperism was moved by the appellants before learned Civil Judge at Jhang. All the facts and circumstances leading to the filing of the application were narrated therein.
' This application was contested by a reply which was in detail and parawise. The learned Trial Court considering that justification had been made out for grant of permission to the appellants to sue forma pauperis passed orders accordingly. On the pleadings of the parties, as were before the Trial Court, in the form of the application qua permission to sue forma pauperis and the reply submitted by respondents herein, the learned Trial Court, to begin with, framed following preliminary issue on 22-7-1987:-- "Whether the suit is not maintainable in view of preliminary objection No,1? OPD."
' This issue was decided against the respondents on 13-10-1987. Thereafter issues on merits were framed.
2. The parties were then directed to lead their evidence. The appellants produced four witnesses.
On behalf of the respondents Nazir-ul-Islam Line Superintendent (D.W.1) and Zahoor Ahmad S.D.O.
(D.W.2) were produced. It may be stated at this stage that during the course of the trial of the suit no objection, whatsoever, was raised by the respondents that they should be given an opportunity for filing a formal written statement.
3. Vide judgment dated 7-10-1989 the learned Trial Court decreed the suit of the plaintiffs for the recovery of Rs, 76,500.
4. Feeling aggrieved the respondents filed an appeal. This appeal has now been accepted by the learned Additional District Judge vide judgment dated 10-10-1991. The judgment of the learned Trial Court has been set aside and the case was ordered to be remitted to the trial Court to enable the respondents to file a written statement, thereafter settling issues afresh and affording opportunity of evidence to the parties, if so desired.
5. In support of this appeal it is contended by the learned counsel for the appellants that it is a case of unnecessary remand which practice is being consistently deprecated by the superior Courts.
' He has taken me through the contents bf the application for leave to sue forma pauperis as well as the reply submitted by the respondents thereto and argued that all the averments necessary for just and proper disposal of the controversy between the parties had in fact been made therein.
After going through these two documents, I tend to agree with him. The unfortunate incident in which Abid Hussain, predecessor-in-interest of the appellants lost his life due to the negligence of WAPDA Authorities were fully detailed. The quantum of damages sought to be recovered was also made therein. So much so that the paragraphs 8 to 10 also deal with the usual recitals with regard to denial on the part of the respondents to accept the claim, court-fee leviable, jurisdictional aspect of the trial Court to decide the case. The reply submitted by the respondents to oppose the application for permission to sue as a pauper is also in detail. The averments contained in the application with regard to merits of the case have been denied therein. So much so that even a preliminary objection has been raised, which, as mentioned above had given rise to one preliminary issue. In the circumstances, filing of a formal written statement, after the grant of permission to sue forma pauperis was nothing but an idle exercise. The failure on the part of the Trial Court to act in this behalf has certainly not resulted in any kind of prejudice for the respondents. Needless to mention once again that no objection was raised at the trial Court level that respondents wished to file a formal written statement. They participated in the trial of the suit and led their evidence and ultimate!) suit was decreed against them.
' I find from the memo. Of grounds of appeal of the respondents before the lower appellate Court that such an objection was not raised therein as well. It appears that it is only at the time of hearing of the appeal that this point was put forth which found favour with the learned Additional District Judge, resulting in the impugned order.
6. In my view, the learned Additional District Judge has acted illegally to order remand of the case.
The reliance placed by the learned Additional District Judge on Punjab Province's case (PLD 1958 S.C. 195) is clearly distinguishable on the facts of the case. In the precedent case it was an ex parte decree which has set aside and direction was given to enable the defendants therein to file their written statement. In the instant case the respondents have joined issue with the appellants from the very beginning by filing reply to the application to sue forma pauperis, thereafter, when the issues were framed, they participated in the trial and led their entire evidence. It is only after they had lost the contest before the Trial Court that they thought of putting forth a technical objection, which in my view, cannot be permitted to be raised not only in view of the facts and circumstances of the case but also keeping in view the provision of section 99 of C.P.C. Which prohibits remanding of the case on account of any error, defect or irregularity in any proceedings in the suit not affecting the merits of the case or the jurisdiction of the Court.
7. For what has been stated above, this appeal is accepted and the impugned order passed by the learned Additional District Judge dated 10-10-1991 is set aside. The respondents shall also pay the cost of the litigation to the appellants throughout.