Briefly stated the facts giving rise to this FAO are that the appellant filed a suit for specific performance of the agreement to sell dated 24-8-1966 in respect of a portion of Property bearing No.SE-II-15-S-2 situated in Main Bazar Ram Gali No.2, Lahore. The respondent resisted the suit, inter alia, on the ground that the agreement was forged and fictitious. On the pleadings of the parties the trial Court framed the following issues:-- (1)Whether the plaintiff has no cause of action and locus standi to bring the suit? OPD (2)Whether the suit is time-barred? OPD (3)Whether the plaintiff is estopped by his act and conduct to bring this suit? OPD (4)Whether the suit is frivolous and vexatious, if so, its effect? OPD (5)Whether the defendant executed agreement to sell dated 24-8-1966 and received Rs.32,500 as earnest money? OPP (6)Whether the plaintiff is entitled to get the disputed agreement specifically enforced, if so, on what terms and conditions? OPP (7)Relief.
After recording evidence of the parties the trial Court decreed the suit vide judgment and decree dated 15-3-1989. The respondent challenged the judgment and decree of the trial Court by way of an appeal which was heard by learned Additional District Judge, Lahore who vide his judgment dated 28-7-1990 allowed the same and remanded the case to the trial Court for a fresh decision.
The appellate Court recast issue No.2 and also framed an additional issue No.6-A which is reproduced below:-- "Whether the agreement to sell in question dated 24-8-1966 is a fictitious document? OPD"
2. The appellant's learned counsel urged that the respondent never challenged the form of issue No.2 or placement of its onus on him at the trial level or during the appeal before the learned Additional District Judge. Hence no relief could have been granted to him on the said ground. In this connection he placed reliance on the following judgments:-- 1.Faqir Muhammad and 5 others v. Sh. Nasim Ahmad PLD 1979 Lahore 356.
2.Mehr Din v. Bashir Ahmad Khan 1985 SCMR 3.Raheem Bakhsh Awan, v. Ejaz Mehmood PLD 1990 Lahore 37.
4.Faqir Hussain Shah Bokhari v. Asmat Bibi 1993 CLC 1388.
He added that both the parties had full opportunity to produce the evidence and the technical objection regarding placement of onus had lost its significance. He next submitted that issue No.5 already framed was comprehensive enough to cover the respondent's objection that the agreement was fictitious. Both the parties had produced evidence in support of their respective claims and there was no need to frame an additional issue and remand the case. He further submitted that the appellate Court was not justified to remand the case without reversing the findings of the trial Court on merits. If framing of an additional issue was necessary, even then the appellate Court ought to have kept the appeal pending and directed the trial Court to record evidence on the additional issue and forward its findings to it. Thereafter the appellate Court should have decided the appeal on merits. In support of his contention he relied on the judgment in the case of Zahida Yousaf v. Iftikhar Akhtar 1982 SCM R 351.
3. On the other hand, the respondent's learned counsel submits that the respondent had specifically pleaded in the written statement that the alleged agreement dated 24-8-1966 was fictitious and the Court ought to have framed a separate issue in relation thereto; that the appellate Court had rightly framed the issue and remanded the case to the trial Court; and that the remand order has been passed in aid of justice and should not be interfered with.
4. There is considerable force in the arguments raised by the appellant's learned counsel. The form of issue No.2 about limitation was not objected to by the respondent in the trial Court or in lengthy grounds of appeal filed before the learned Additional District Judge. Both the parties were fully conscious of their respective claims and had full opportunity to produce their evidence. The respondent never made any application before the trial Court for amending or recasting issue No.2 and placing its onus on the appellant. It was held in the case of Malik Raheem Bakhsh Awan (PLD 1990 Lahore 37) that once both xhe parties had led evidence in support of their respective contentions then question of onus lost its importance and on that score the decree of the trial Court could not be interfered with in the absence of any prejudice to the other side. In the facts and circumstances of the case, the appellate Court ought to have decided issue No.2 on merits in the light of the evidence produced by the parties. As A regards the necessity to frame an additional issue it may be observed that issue No.5 already framed was comprehensive enough and duly covered the question whether the agreement to sell was genuine or not? Issue No.5 reads as under:-- Whether the defendant executed agreement to sell dated 24-8-1966 and received Rs.32,500 as earnest money? OPP The onus of said issue was specifically placed on the plaintiff/appellant. After discharge of onus by the plaintiff, the defendant/respondent was within his rights to produce evidence to show that he had never executed the agreement and received the earnest money and that the agreement was fictitious. There was hardly any need to frame an additional issue and remand the case for a fresh decision of the suit. As mentioned above, both the parties were fully conscious of their respective claims and had full opportunity to produce evidence to substantiate the same. Ordinarily the appellate Court should not readily lean in favour of remanding a case on technicalities alone and should decide the controversy between the parties on merits. In the case of Syed Faqir Hussain Shah Bokhari (1993 CLC 1388) it was observed:-- "Unnecessary remands entail delay in the decision and also consume much valuable public time and expense of the parties. Therefore, this practice unless found inevitably necessary was deprecated in various pronouncements by the superior Courts. Unless found in cul-de-sac, remand met with little approval from me. An effort for final decision of the controversy in appellate or revisional jurisdiction was much conducive to quicker administration of justice to the parties locked in it. That was the need of the time and call of the day. Court must favourably respond to it for avoiding despondency in the litigant parties. "
I respectfully follow the view expressed in the above-quoted judgment. In the case of Mehr Din (1985 SCM R 1) the plaintiff had sued for possession of land by pre-emption on the ground that it was agricultural land. The contesting defendant had pleaded in the written statement that the suit land was urban immovable property, hence not pre-emptiable by the plaintiff. The trial Court did not frame a specific issue as to whether the land in dispute was an urban immovable property.
When the matter came up before the Additional District Judge, he allowed the appeal, framed two additional issues including the one regarding the character of the suit land and remanded the case to the trial Court for decision of the additional issues. The appeal filed against the remand order was dismissed by the High Court. After remand the trial Court dismissed the suit, and the land in dispute was held to be urban immovable property. The pre--emptor's appeals were dismissed by the Additional District Judge and the West Pakistan High Court, Lahore. Therefore, the matter went before. The Hon'ble Supreme Court and the Court was pleased to hold as under:-- "We find that unfortunately the additional issue in question was not happily worded and correctly framed by the Additional District Judge keeping in view before him the pleadings of the parties. The plaintiff had sued for possession of the land by pre-emption on the ground that it was agricultural land and the contesting defendant had denied the allegations and set up the plea in rebuttal that the land in suit was urban immovable property not pre-emptiable by the plaintiff: In this state of the pleadings the onus rested on the plaintiff to prove that land in suit was agricultural land on the date of the sale as alleged by him, and it was not at all necessary for the disposal of the suit to have framed an issue on the plea raised by the defendant in defence to the effect that the land in suit was village immovable property. He could have, however, adduced his evidence in rebuttal to show that the property in suit was not agricultural land but urban immovable property on the date of the sale."
It was further observed: We find that throughout the trial the parties were fully cognizant of this issue which really arose out of the pleadings of the parties and they had also adduced their evidence in respect thereof. So,....In our considered opinion no prejudice was done to any of the parties in the failure of the Court to frame a proper issue in the suit arising out of the pleadings of the parties."
5. As regards the documents Exh. DW6/3-36 the same, though de--exhibited, were considered by the trial Court. At any rate, after setting aside the order dated 14-12-1988 whereby the respondent's application for additional evidence was set aside the appellate Court could have recorded additional evidence for bringing the said documents formally on the record. The appellant's learned counsel has do serious objection if the said-documents are either read in evidence or formally brought on the record through the statement of Ch. Inayatullah, Advocate. Hence the appellate Court may record the statement of Ch. Inayatullah, Advocate or any other material witness and formally bring the documents on the record in accordance with the provisions of the C.P.C.
6. For the foregoing discussion, the appeal is allowed, the remand order dated 28-7-1990 is set aside and the case is remitted to the learned Additional C District Judge for a fresh decision of the respondent's appeal on merits- in accordance with law keeping in view the observations made in para. 5 above. The parties are left to bear their own costs.