The facts relevant for the decision of this civil revision are that the petitioner purchased House No.85/86 situated in Mohallah Shikari, Ahmadpur East through registered sale-deed dated 2-6- 1975 from one Syed Ibrar Hussain. The respondent Niaz Muhammad filed a suit to pre-empt the sale. The petitioner resisted the suit. The trial Court framed issues, recorded evidence and after hearing the arguments decreed the suit vide judgment dated 18-12-1982 which was assailed by the petitioner through an appeal in the first appellate Court, which accepted the appeal vide judgment and decree, dated 18-2-1985 and remanded the case for deciding Issue No.1 afresh after providing an opportunity to the parties to lead evidence. The trial Court one again decreed the suit vide judgment dated 10-8-1987, which was assailed through an appeal before the District Judge, Bahawalpur, The appellant, when the appeal was fixed before Mr. Riaz-ul-Hassan Alvi, Additional District Judge, Bahawalpur, moved an application on 28-7-1994 for taking additional grounds in the Memorandum of Appeal by way of amendment. The application. Was resisted by the respondent.
The learned appellate Court after hearing the parties dismissed the application vide judgment, dated 4-10-1994. Which has been assailed through this revision petition. The same was admitted to hearing on 10-4-1995 and notice was issued to the respondent, who has entered appearance and contested the petition.
2. The learned counsel for the petitioner argued that the remand order of the first appellate Court dated 18-2-1985 was under rule 25 of Order XLI, C.P.C., therefore, the whole of the suit had to be decided afresh. The learned counsel in this behalf has referred to the cases reported as Ghulam Murtaza v. Ghulam Mustafa and another 1990 CLC 1142, The Boots Company PLC v. The Registrar, Trade Marks 1990 ALD 150, Salika Sewing Machine Co. (Pvt.) Ltd. v. Muhammad Yasin 1990 ALD 431(1) and Mt. Gendo v. Radhe Mohan AIR 1932 Lahore 219.
3. On the other hand, the learned counsel for the respondent argued that although the remand order, dated 18-2-1985 was appealable yet the petitioner had not challenged the same. Therefore, the same cannot be challenged -in the course of appeal, which may ensue from fresh findings of the trial Court under order of remand. The learned counsel in this behalf referred to the case reported as Fazai Hussain v. Abdul Hamid PLD 1971 Lah.
89. It is added that the scope of the appeal after the fresh decision of the suit after the remand is limited. The appellate Court cannot go behind- the findings in the earlier appeal. In this behalf reliance is placed on the cases reported as Abdul Hakim v. Saadullah Khan PLD 1970 SC 63, Nooran v. Shah Muhammad PLD 1968 Lah. 433, Abdul Qadir and others v. Muhammad Arshad and others 1995 MLD 699 and Muhammad Hussain v. Fazal Haq and another PLD 1974 Lah. 208). It is argued that the remand order was under Rule 23- A of Order XLI, C.P.C. And reference to rule 25 is irrelevant. It is added that the point, which was not taken in the lower Court cannot be allowed to be agitated in appeal. In this behalf reference is placed on the cases reported as Uttam Singh v. Mt. Datar Kaur and others AIR 1932 Lahore 444, Abdullah Khan v. Nisar Muhammad Khan PLD 1959 (W.P) Pesh. 81, and Hazura Singh v. Kishan Singh and another AIR 1933 Lahore 447. The next argument is that the appeal was filed on 9-5-1987 while the application for taking additional grounds:was made on 28-7-1994 much after the expiry of the period of limitation. Therefore, the same cannot be allowed to be urged or added. In this behalf reliance is placed on the case reported as Jiwan Shah and others v. Mt. Fateh Bibi and another AIR 1921 Lahore 228. The arguments are summed up with the submission that the petitioner fully understood the scope of the remand order. It is for this reason that he did not raise this point in the trial Court after the remand and the same was also not taken as a ground in the Memorandum of Appeal for the same reason. The amendment sought is clearly an afterthought and the purpose was only to delay adjudication of appeal.
4. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record, relevant provisions of law and precedent cases. Now I proceed to deal with the arguments. The learned counsel for the petitioner in the first instance argued that the remand was under rule 25 of Order XLI, C.P.C. On the other hand, the learned counsel for the respondent argued that, in fact, the order was under rule 23-A as added by Punjab Amendment.
Therefore, before proceeding any further we have to refer to the provisions of rule 25, Order XLI, C.P.C. Which reads as under: -- "Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of 'the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with .Its findings thereon and the reasons therefor."
It is clear from the above provisions that: Firstly, under rule 25 the matter is sent back to the trial Court only for the purpose of recording evidence or findings on the given issue and the appeal remains pending before the appellate Court; and Secondly, the order of remand under rule 25 is only an interlocutory order while the final order is passed under rule 26.
Therefore, there is no merit in the argument of the learned counsel for the petitioner that the remand -was under rule 25. The remand was also not under rule 23 because the appeal was not from a preliminary decree. The learned counsel for the respondent has rightly referred to the cases of Abdul Hakim, Nooran and Abdul Qadir and others (supra). The cases relied by the learned counsel for the petitioner also support the above view particularly the case of Sh. Ghulam Murtaza (supra).
The provisions of rules 23 and 25 did not cover the remand of suit which has earlier been decided on merits. The Legislature, therefore, to equip the Court with the power to deal with all situations between rules 23 and 25, proceeded to add the following provision vide Punjab Amendment dated 4-8-1938: -- "23-A.---Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point and the decree is reversed in appeal, and a re-trial is considered necessary the Appellate Court shall have- the same powers as it has under rule 23. "
It is clear from the judgment, dated 18-2-1985 that the findings on Issue No.2 were confirmed while the findings on Issue No. l were set aside and the case was remanded back to the trial Court for fresh decision of Issue No. l after providing an opportunity to the parties to produce their evidence.
Therefore, the remand was under rule 23-A of Order XLI, C.P.C. And not under rule 25.
5. The remand older under rule 23-A, C.P.C. Is appealable under Order I XLIII, rule 1(u), C.P.C. The admitted position is that this order was not assailed in appeal by the petitioner. Therefore, he is precluded from disputing the order or any part thereof in view of the provisions of section 105(2), C.P.C. Which reads as under: -- "(1)*********
(2) Notwithstanding anything contained in subsection (1), where any party aggrieved by an order of remand made after the commencement of this Code from which -an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness."
The remand order has become final and the findings recorded therein cannot be allowed to be re- agitated in the present appeal. The learned counsel has rightly referred to the judgment of the Hon'ble Supreme Court in the case of Abdul Hakim and two others (supra) while in the case of Nooran (supra) it was held as under: -- Under the law, before the Code of Civil Procedure of 1908 came into force, such an order could be challenged in an appeal from the final decree though no appeal was preferred against the order itself. Subsection (2) of section 105 was added for the first time in the Code of 1908. It gave finality to the order of remand."
While in the case of Fazal Hussain (supra) this Court concluded the issue with the following finding: -- ........It is well-settled that if an order of remand is appealable but no appeal is filed against the same, then the said order cannot be challenged in the course of appeals which may ensue from the fresh findings of the trial Court under the order of remand---See Abdul Hamid and 2 others v.
Saadullah Khan and 2 others PLD 1970 SC 63 and Satyadhyan Ghosal and others v. Smt. Deorajin Debi and another AIR 1960 SC 941.
Conversely speaking, if the findings, which had attained finality are allowed to be challenged or re- agitated, the net result would be contradictory decisions. This is against the scheme of the Civil Procedure Code rather of the whole of the codified law. Therefore, neither the trial Court could venture to give fresh findings on Issue No.2 already decided in the pre-remand proceedings and findings upheld by the Appellate Court nor the Appellate Court itself in post remand proceedings would be competent to sit in judgment recorded in the order of remand. In this behalf the judgment of the Hon'ble Supreme Court in the case reported as Muhammad Nawaz v. Mst: Ahmad Bibi 1995 SCMR 266 can be beneficially referred.
6. The learned counsel for the respondent rightly argued that the petitioner neither agitated before the trial Court in the post remand proceedings nor took it as a ground in the present Memorandum of Appeal. It is, therefore, evident that the petitioner clearly understood the scope of remand order.
7. Now coming to the next point raised by the learned counsel for the respondent that a plea which has not been taken before the trial Court cannot be allowed to be taken in appeal. The learned counsel in this behalf has referred to the case reported as Uttam Singh (supra). The other point is also an extension of this argument. It was added, that the point which has not been urged in the grounds of appeal cannot be raised in the arguments and that too after the expiry of the period of limitation. The learned counsel in this behalf has referred to the case of Jiwan Shah and others (supra). This point has been dealt with from another angle by this Court in the case of Muhammad Hussain (supra) wherein it was held as under: -- "Order VI, Rule 17, C.P.C. Permits the Court to allow either party to alter or amend his pleadings in such a manner and on such terms as may be just and this permission can be granted at any stage of the proceedings. This provision vests a Court with jurisdiction to allow amendment of the pleadings before it but does not vest a Court with jurisdiction to disturb or take away the finality given to a particular order by section 105(2), C.P.C. ******"
8.Now coming to the other side of the matter. The appeal was filed on 9-5-1985 while the application for amendment was moved more than after eight years on 28-7-1994. It is settled law that amendment cannot be allowed after the period of limitation. The learned counsel in this behalf has referred to the case of Jiwan Shah and others (supra). Therefore, the petition was rightly dismissed by the first appellate Court.
9. The upshot of the above discussion is that there is no merit in this revision. The same is dismissed with costs.