SAVED NAJAM-UL-HASSAN KAZM1, J. -- This appeal arises from remand order, dated 1.7.1991 passed in appeal by the learned Additional District Judge, Jhelum.
2. Facts necessary for the disposal of this appeal are that respondent filed a suit to pre-empt sale of land measuring 45 kanals, 13 marlas, on the grounds of being co-sharer. The sale which was pre-empted, was effected through mutation No. 2028, dated 25.4.1989 while the suit was instituted on 2.9.1989.
3. Appellant resisted the suit and raised number of objections, legal as well as factual. After issues and evidence, the learned Civil Judge dismissed the suit on 25.11.1990.
4. Feeling aggrieved, respondent went in appeal which was accepted and . The learned Additional District Judge, framed an additional issue on the question of talb-e-ishhad and remanded the case for decision after recording evidence. Against this order, the present appeal has been preferred.
5. Learned counsel for the appellant argued that the case could not he remanded simply on the ground that an additional issue had been framed and in any case, if the Appellate Court feels necessity of further evidence it could he recorded in appeal.
6. Learned counsel tin- the respondent has not opposed this proposition of law and has no objection to the decision of the appeal by the learned Additional District Judge himself. He, however, submits that since the plea of talb was taken for the first time in appeal- and the issue has been framed in appeal, theretore, the respondent has a right to lead evidence.
7. From the facts noted supra and also the material on record, it is evident that the sale was effected through mutation dated 25.4.1989 which was pre-empted in the suit instituted on 2.9.1989.
Admittedly, this was a period of interregnum, when there was no statutory law of pre-emption. It is not disputed by the learned counsel for the parties, that Talh-e-Ishhad has to he proved in accordance with the rule laid down by the Hon'ble Supreme Court, in the case of "Haji Rana Muhammad Shabhir Ahmad Khan Vs. Government of Punjab Province, Lahore" (PLD 1994 SC 4). It is also apparent from the record that the learned Trial Court did not frame any issue on the question of talb as apparently, this issue was not seriously urged. Be that as it may, the plea of talb was vehemently raised in appeal which necessitated the framing of additional issue.
8. It is a settled rule, that if the Appellate Court, feels that the existing issues are not comprehensive or take some issue needs resettlement then mere framing an additional issue or recasting of the additional issue cannot be made a ground to remand the case. Remand is only possible if the judgment is reversed on merit. Reference can he made to rule 23-A of Order 41, CPC. Since the additional issue was framed in appeal the Appellate Court should have recorded additional evidence by itself, under Order 41, Rule 28 of CPC, or it could secure the evidence through the Trial Court, by keeping the appeal pending. Remand. Of the case was neither warranted nor proper. It is repeatedly observed that the Appellate Court should not remand the case in routine as it lead to unnecessary frustration among the parties and also adds to their agonies. The appropriate and approved course is that the Appellate Court shall itself decide the appeal by receiving additional evidence if necessary.
9. For the reasons above, this appeal is partly allowed, and the impugned order, to the extent of remanding the case is set aside. The learned Addl. District Judge shall allows evidence in support of additional issue of talb and after recording evidence, he should decide the appeal on merit and in accordance with law and keeping in view the rule given in the judgment noted supra.
10. Parties shall appear before the learned Additional District on 15.6.1999 who shall decide the appeal within six months with intimation to the Additional Registrar of this Court.