' This order will decide Civil Revision No,2244 of 1996, wherein remand order, dated 9-7-1996, of the learned Additional District Judge, Sialkot, has been challenged.
2. A suit for declaration with injunction was filed, by the respondents, to challenge the entries in the revenue record, pertaining to the year 1972 till the filing of the suit and for injunction to restrain the petitioner from taking possession of any specific number or from raising construction thereon.
3. After issues and evidence, the suit was dismissed by the learned trial Court on 21-6-1992. An appeal was filed by the respondents against the judgment of the learned trial Court. During the pendency of the appeal an application under Order 6, Rule 17 of C.P.C., dated 24-1-1996 was filed by the respondents, for inserting paragraph 6-A of the plaint and also for impleadment of Collector of the District as party. The learned Additional District Judge, while allowing the application for amendment and impleadment of party, set aside the judgment and decree of the leaned trial Court and remanded the suit to the trial Court for obtaining amended plaint, framing proper issue, receiving evidence and for decision of the suit afresh.
4. In this revision petition, the remand order, passed in appeal has been called in question.
5. Learned counsel for the petitioner argued, that the prerequisites for the the grant of amendment, have not been properly kept in view, no sufficient cause was made for seeking amendment in plaint, the Collector could not have been added as a party even if the amendment was allowed, and in any case, the case could not be remanded for allowing another opportunity of producing evidence. Conversely, learned counsel for the respondents, while supporting the judgment of the learned Appellate Court, submitted that the proposed amendment was necessary and material for the determination of real matter in controversy and the court was competent to allow amendment even at appellate stage and also that the order did not suffer from any legal infirmity.
7. There is no cavil with the proposition, that the Appellate Court is competent to allow amendment, in the plaint, at appellate stage, if the same is necessary for the determination of the real issue and for granting effective relief. The proposed amendment, sought in the plaint, does not appear to have an effect of changing the nature of the suit which will still remain a suit for declaration with consequential relief. Insertion of additional facts in the plaint, without changing the text of the suit or its very nature, is not ordinarily refused. Even otherwise, amendment claimed was in furtherance of the plea already raised in the plaint and was necessary to examine the controversy raised in the plaint. The learned Appellate Court allowed amendment by way of insertion of paragraph 6A of the plaint, subject to payment of reasonable cost, and to this extent, the order does not require any interference. However, the order of the learned Appellate Court allowing impleadment of a Collector as a party and remanding the case cannot be justified can sustain for the reasons hereafter.
8. To resolve the controversy between the parties, and to determine the rival claims in respect of the entries in revenue record, as also in the property subject-matter thereof, the presence of Collector as a party in the suit is never deemed necessary. Parties are making rival claims regarding the property and seeking determination thereof, therefore, presence of the two rival claimants can only be necessary or proper. Simple fact that the entries in the record were challenged would not furnish any logical basis for impleadment of the Collector or revenue functionaries as a party as the decree of the Court in a suit for declaration determining the rights of the parties, will be binding upon the revenue authorities who are bound to implement the decree in their record and to prepare the same in terms thereof without claiming any right of being heard. At best, the revenue functionaries could be witnesses, who could depose one way or the other, for clarifying the facts or rendering assistance in appreciation or adjudication of real controversy but nevertheless, their impleadment as a party will not be mandatory as the authorities do not claim rights in their own favour and only are the custodian of the record which have to maintain the same, strictly in accordance with law. There was, therefore, no occasion to give a direction for impleadment of a Collector as a party and the order of the learned Additional District Judge to this effect cannot be approved.
9. The next question will be, if the case could be remanded. Remand of the case could be made under Rules 23 and 23-A (as framed by the Lahore High Court) of Order 41 of C.P.C. Rule 23 which visualises the situation where the suit was disposed of by the trial Court on a preliminary point and the decree was reversed in appeal. In such situation, the case is remanded for framing of issues and trial of the case on merits. Rule 23-A provides for the remand in the cases where the trial Court, from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point. The remand under this rule is permissible if the decree is reversed in appeal and retrial is considered necessary by the Appellate Court. Rule 24 provides, that if the evidence on record is sufficient, to determine the suit, then the Appellate Court shall proceed with the disposal of the appeal on the existing evidence. Similarly, Rule 25 of Order 41 of C.P.C. Contemplates that if the trial Court has not framed or tried any issue or determined any question of fact, which, according to the Appellate Court, is essential for the right decision of the suit on merits, the Appellate Court may frame necessary issue and refer the same for trial to the Court from whose decree the appeal is preferred and the trial Court is required to take additional evidence, try the issue, return the evidence alongwith additional findings, for disposal of the appeal. The appeal is kept pending under this rule while findings and evidence is secured from the trial Court. Rules 27 and 28 of Order 41 of CPC, provide, that if additional evidence is allowed, the Appellate Court can either take such evidence directly or can require the subordinate Court to receive the additional evidence and send the file back for disposal of the appeal.
10. The review of the above rules, would, therefore, indicate that under Rule 25 and Rule 28, C.P.0 the cases are not remanded but the files are remitted for compliance of the order of the Appellate Court, and on necessary compliance, the appeal which is always kept pending, is decided by the Appellate Court, on the basis of the existing record alongwith the additional evidence and also the findings.
11. The remand of the case under Rule 23-A of Order 41, C.P.C. Is permissible only if the findings of trial Court are reversed. It is repeatedly held, that frequent remand of the cases should be avoided.
The order of remand must be an order supported by reasons and not a mechanical disposal.
Where the Court feels that a particular issue should be framed and tried or that certain findings on facts are necessary for proper disposal of appeal and that further evidence should be taken on these points, an order can be made under Rule 25 of Order 41, C.P.C., instead of remanding the case as a whole. In the absence of any reversal of findings, no remand is permissible under Rule 23-A ibid.
12. Looking the case as it is, it is observed, that the learned Appellate Court proceeded to remand the case in a mechanical way, without any conscious application of mind. If the amendment had hen allowed, amended plaint could be received by the Appellate Court itself. In case any additional issue had arisen out of the amended pleadings or additional evidence was required, the Appellate Court could, proceed under rule 25 or rule 28 of Order 41, C.P.C. By either framing the issue itself and recording additional evidence or could by remitting the file to the learned trial Court for receiving additional evidence on the additional issues, without remanding the case. In such eventuality, the main appeal should have been decided on its own merits, on the basis of the existing record and the additional evidence, if any. Nevertheless, the judgment could not be set aside. The order of the learned Appellate Court shows, that no findings were recorded on merits of the case and, therefore, admittedly, there is no reversal of findings of the trial Court by any conscious application of mind.
13. The superior Courts, have repeatedly observed that frequent remands in a mechanical manner, cause undue wastage of valuable time of the Courts and, therefore, the Courts should be conscious in exercise of jurisdiction while remanding the cases. Unnecessary remands should always be avoided to save agonies of prolonged litigation. In this case, the learned Appellate Court, being oblivious of the provision of Order 41, rule 23-A of C.P.C. And being unconscious of distinction between the three rules, noted supra, proceeded to remand the case in a mechanical manner, on assumption as if simple amendment in plaint would result in consequential remand of the case.
The view taken by the learned Appellate Court is absolutely perverse and cannot be approved.
14. For the reasons above, this revision is partly allowed, the order of the learned Appellate Court, to the extent of allowing amendment of Collector as a party and remanding the case to the trial Court is set aside, however, the amendment, in plaint, to the extent of insertion of paragraph 6-A of the plaint, as allowed by the learned Additional District Judge, is not interfered with.
15. In consequence, the appeal before the learned Additional District Judge shall be deemed to be pending which shall be now decided by him, in accordance with law and on its own merits, in the light of the observations made hereinabove. Parties shall appear before learned Additional District Judge on 30-10-1997 who shall positively decide the appeal within three months, with intimation to the Deputy Registrar of this Court. No order as to the cost. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.