Ihsanuliah and others instituted a suit against Niamatullah and others first in the Courts established under N.-W.F.P. Regulation II of 1975 and then on 7-9-1989 in the Court of Senior Civil Judge, Malakand after it was found that the interest of the minors was involved in the case which excluded the jurisdiction of the forums established under-the Regulation. The suit was for declaration that the plaintiffs were owners in possession of 59 "toras" out of 64 "toras" of the suit land situate in village Thana, Swat Ranizai, Malakand Agency further described in the plaint. The basis of the claim was that the property was jointly owned as it originally belonged to their common predecessor-in-interest, Shah Hussain Baba. Written statement was filed. The suit was contested, issues framed and evidence recorded. The trial Judge on 13-4-1993 decided Issue No.2 against the plaintiffs by holding that since the dispute between the parties was that of partition it was within the exclusive jurisdiction of the Revenue Courts and thus the jurisdiction of the Civil Court was barred. Consequently, the plaint was returned to the plaintiff under Order VII, rule 10, C.P.C. For presenting it to competent Court. Against this decision the plaintiff went in appeal to the District Judge, who by his judgment and decree dated 1-2-1994 while holding that the Civil Court did possess jurisdiction as question of declaration of title was involved, dismissed the suit on merits after examining the evidence under Order 41, Rule 24, C.P.C. The District Judge found that the suit was hit by the principle of res judicata as the subject-matter of the suit had already been adjudicated upon between the parties by competent forums. It was also held to be barred by time.
The plaintiffs have now assailed the judgment and decree of the Appellate Court.
2. The learned counsel appearing for the petitioner advanced only one argument, namely, that since the return of the plaint by the trial Judge was an order, it was appealable under Order 43, Rule 1 (clause ' a') whereas the powers of the Appellate Court under Order 41, Rule 24, C.P.C., to adjudicate upon issues not already decided by trial Court, is restricted to appeals against decrees.
Reliance was placed on judgments from Indian jurisdiction, Rameshwar Prasad Misra v. Industrial and Prudential Assurance Co., Bombay and another (AIR 1927 Oudh 218). It was thus contended that once the Appellate Court concluded that the Civil Court had jurisdiction, he ought to have remanded the case to the trial Court for decision without adjudicating the merits.
3. On the other hand, the learned counsel for the respondent contended that there was sufficient evidence for the Appellate Court to pronounce judgment in the case and that remand of the case at this juncture will only prolong the agonies of the parties. In this context it was contended that no prejudice had been caused to the petitioner on account of disposal of the appeal on merits.
Reliance was placed on Wali Muhammad v. Dur Muhammad 1985 CLC 516, Nasir Ahmad v. Khuda Bakhsh (1976 SCM R 388) and Mst. Sardar Begum etc v. Muhammad Saleem alias Seema PLD 1984 SC 62. It was further urged that the merits of the case be also adjudicated upon by this Court as the Appellate Court had done.
4. The decision of this revision hinges upon the interpretation of Order 41, Rule 24, Civil Procedure Code as the Appellate Court had pressed into service this provision of law to decide all the issues in the case despite the absence of finding on any of them by the trial Court. The rule reads as under:-- "24. Where evidence on record sufficient, Appellate Court mad- determine case finally.--Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds."
The rule undoubtedly empowers the Appellate Court to pronounce judgment on issues not determined by the trial Court if sufficient evidence exists instead of remanding it for retrial. But the rule also makes it clear that it can be invoked A only where the appeal is preferred against a decree. In the present case, no decree had been passed by the trial Court but the plaint was returned to the plaintiff under Order VII, Rule 10, C.P.C., which was an appealable order under clause
(a) of Rule 1 of Order 43, C.P.C.,. The same question came up before the Oudh High Court in the case of Rameshwar Prasad Misra ibid, where it was held that when appeal is filed against the order of return of plaint by the trial Court the Appellate Court could only try the issue of jurisdiction and if it considers the lower Court's order to be wrong it should simply direct that Court to try the suit and that decision by the Appellate Court do merits is ultra vires. Like the present case, in that case too the Appellate Court had pressed into service Order 41, Rule 24 and decided all the issues on the evidence of the parties when the appeal was against the order of return of plaint.
5. There can be no two views that Order 41, Rule 24, C.P.C., is restricted to appeals against decrees and is not applicable to appeals against orders. Since there had been no finding on any of the issues, apart of Courts from the question of jurisdiction by the trial Court the Appellate Court was not empowered under any provision of the C.P.C. To adjudicate upon those issues. No doubt, the remand of the case would entail further delay in the adjudication of the suit but the omission by the Appellate Court was not insignificant so as to be overlooked. Not only that the law has not been followed but prejudice has been caused to the plaintiffs as they have been deprived, of findings on issues by one Court, and that also of the trial Court. Thus the case deserves to be sent back to the trial Court for decision on all the issues.
6. The question of jurisdiction of the Civil Courts already stands decided by the Appellate Court. No error could be pointed out in this decision. The suit was not only for partition but essentially for declaration as to title of a major portion of the suit land. The Appellate Court thus rightly held that the Civil Courts were possessed of jurisdiction in the matter.
7. For the reasons above stated the revision petition is allowed and the judgment and decree of the Appellate Court to the extent of decision on merits is set aside and the suit is remanded to the trial Court for decision on all the issues Before parting with the judgment, I may observe that the trial Court while deciding the case shall ignore the findings of the Appellate Court on merits and that the suit being an old one should be disposed of within three months from the receipt of the record.
The parties are left to bear their own costs.