SAYED NAJAM-UL-HASSAN KAZMI, J.- This judgment will decide Civil Revisions Nos. 1473, 1474, 1475, 1476 and 1477 of 1998, as the same arise out of common judgment in five suits and raise common questions of law and fact.
2. Petitioners filed five suits, for seeking declaration to the effect that they were owners in possession of plot No. 39-A, 39-B, 123, situated in Ahmad Block and plot No. 275 situated in Atta Turk Block, New Garden Town, Lahore through letter of transfer dated 12.4.1995 and had raised construction on plot No. 123 after taking necessary sanction and that the respondents had no concern with the property. A decree for permanent injunction was claimed to restrain the respondents from making interference in the construction or possession of the petitioners or from cancelling allotment of the plots. Parties led their evidence whereafter the suits were decreed by the learned Civil Judge by his consolidated judgment dated 18.12.1995.
3. By considering them as aggrieved persons respondents filed 5 appeals to assail the judgment of the learned Civil Judge which were allowed by the learned Additional District Judge by his judgment dated 23.7.1998 and this brings the issue to this Court through the present revision petitions.
4, Learned counsel for the petitioners argued that three miscellaneous applications, one under Section 151 of CPC, other under Order 6 Rule 17 of CPC and the third under Order 41 Rule 27 of CPC were filed in anneal but the learned Additional District Judge remanded the case while deciding the first mentioned application and in this way the other two applications were neither attended to nor decided. It was added that remand of the case on sheer technicalities has never been approved and that till such time the Appellate Court had reversed the findings of the trial Court, remand of the case for re-writing of judgment was not permissible. It was maintained that the learned trial Court has decided the suit on merits on appraisal of entire evidence on record, arguments in appeal were addressed on merits and, therefore, the learned Appellate Court was required in law to decide the appeal on merits and if in that course the necessity of any additional evidence or amendment in pleadings would be felt, the Court will not be denuded of its power to entertain the additional evidence or permit amendment in the pleadings. Learned counsel for the respondents argued the case for some time but found it difficult to justify the impugned judgment.
He further maintained that if the case would be sent to the Appellate Court, the question of recording additional evidence and granting permission to amend the pleadings shall be kept open.
5. On deeper consideration of the submissions made and minute study of the record it reveals that the parties led evidence in the suit, which was considered by the learned trial Court. On appraisal of the evidence, the trial Court accepted the plea raised in the suit and decreed the same. The appeals were filed on 22.1.1998 against the judgment of the trial Court which was delivered on 18.12.1997. In the grounds of appeal, though it was pleaded that the rate was changed from 13.1.1998 to 17.12.1997, on an application filed by the plaintiffs, yet this was not specifically pleaded that respondents were not heard or that any prejudice had been caused, by change of date. All that was said was that the case was decided in hephazard manner by misreading the record. It was only at a later stage that an application under Section 151 of CPC was filed, during pendency of the appeal, by which amendment in the grounds of appeal was prayed for so as to incorporate para No. 3 in the appeal. The amendment was to the effect that the respondents were not allowed to produce exemption rules and evidence about the other suit and that they were not heard when the date was changed and also that the case was decided in the absence of learned counsel for the respondents. It was thus a new plea which was sought to be introduced much after the filing of appeal. The learned Additional District Judge was persuaded by the affidavit filed by the learned counsel and from this it was assumed that the case was decided on a changed date without a notice to the respondents. Learned Additional District Judge was oblivious of the fact that this plea had not been initially raised in the memorandum of appeal and was sought to be introduced by way of amendment. Amazingly, while dealing with the application for amendment, the learned Additional District Judge not only allowed the application but also accepted the appeal and remanded the case which was not permissible, Even it the amendment was to be allowed, yet the learned Appellate Court could not refuse to consider as to whether such plea could be accepted or not. There is a presumption of correctness attached to the judicial proceedings. In this case, the judicial proceedings of the trial Court would show that learned counsel for the parties were heard.
The record indicates that the case was argued on one date when it was adjourned to 13.1.1998.
However, on an application for early hearing, the date was changed with notice to the respondents.
The attendance of learned counsel for respondents has been marked when the hearing was concluded. The respondents wanted to challenge the proceeded recorded on 17.12.1997 and 18.12.1997 on the plea that they were not present. Simple affidavit would not have been sufficient as it could not wash away the presumption of correctness which is attached to the judicial proceedings. Neither any opportunity of cross-examination was allowed nor the learned counsel ever recorded his statement. No opportunity of rebuttal was given to the petitioner. So much so, comments of the learned trial Court were not secured and instead the plea sought to be raised by way of amendment was accepted as a gospel truth. It will be doubtful if presumption of correctness attached to the regularity of judicial proceedings could be set at naught by an affidavit, more so, when the plea was not initially raised. Be that as it may, it is not the case of the respondents that the evidence was not allowed to be produced. Evidence was led by the parties in the trial Court and since the evidence was on record, the proper course for the Appellate Court was to decide the appeal by itself on merits.
6. Under Order 41 Rule 23 of CPC, the case can be remanded if the suit was decided on a preliminary issue and findings are reversed in appeal. Rule 23-A of Order 41 contemplates that remand is permissible, if the judgment is reversed in appeal. Remand of the case for re-hearing on sheer technicalities has never been approved. In this case, the learned Additional District Judge, though taken note of the fact that the appeal was argued on merits, yet did not decide the appeal on merits nor reversed the judgment of the trial Court on merits and, therefore, remand of the case for re-hearing purposes was not permissible. Under Order 41 Rule 27 of CPC. If additional evidence is allowed in appeal, the same can be recorded by the Appellate Court itself or through the trial Court, without remanding the case. It has been repeatedly observed that remand of the case shall be avoided unless it is indispensable and that too if the pre-requisites are fulfilled. The judgment having not been reversed on merits, there was hardly any reason for the Appellate Court to remand the case.
7. It is also observed that there were two other applications, one under Order 6 Rule 17 of CPC and under Order 41 Rule 27 of CPC which were never disposed of on merits by the learned Appellate Court. The Appellate Court is required to decide all the pending applications before decision of the appeal, as non- decision of such applications results in un-necessary remand of the case. It may be observed that the main objection of the respondents was that certain rules of exemption policy or the evidence of other cases could not be produced. In the first instance, the rules could be produced in appeal and the Appellate Court could admit the same in evidence by giving an opportunity of rebuttal to the petitioner. The evidence of other cases will not be relevant as unless the witnesses are produced, any statements of witnesses recorded in other cases, if they are alive, will not be admissible in law, without producing them in Court in the other suits. In case, the respondents intend to produce documentary evidence, though already allowed opportunity of evidence in the trial Court, they can apply for such permission which of course can be attended on its on merits and in accordance with law. Nevertheless, the cases could not be remanded, simply on the ground that the hearing was accelerated on an miscellaneous application particularly when record indicated that the learned counsel for the parties had been heard on previous date and on final dates they were present. Even otherwise, learned counsel for the respondents has not opposed remand of the cases to the Appellate Court for decision of appeals afresh, by keeping the question of amendment and additional evidence open.
8. For the reasons above, these petitions are allowed, judgment dated 23.7.1998 of the learned Additional District Judge, Lahore is set aside with the result that the five appeals filed by the respondents shall be deemed to be pending' which will now be decided by the learned Additional District Judge afresh.
9. The parties will appear before Sayed Nasir Ali Shah, Additional District Judge, Lahore on 16.11.1998.
The learned Additional District Judge will decide the two applications, one for amendment of written statement and the other for additional evidence on their on merits. Respondents shall be at liberty to apply for additional evidence in the form of rules of exemption policy or any other record, which application, if filed, shall be decided on merits and in accordance with law.
10. After deciding the applications and recording additional evidence if allowed, the appeals will be decided on merits, by the learned Appellate Court, by hearing the parties, so as to ensure final disposal thereof within three months, with intimation to the Deputy Registrar (Judicial) of this Court.