This judgment will decide F.A.O. No.36 of 1995.
2. Facts necessary for decision of this appeal are that respondents filed a suit for declaration to the effect that Ahmad had transferred the land by way of mutation to Tamleeq No.15, dated 10-12-1929 and also that Mutation No.88, dated 6-9-1932, in favour of predecessor of appellant was illegal and ineffective. The suit was resisted on legal and factual plane. One of the objections was that previously a suit was instituted in which a different plea was raised and after having remained unsuccessful up to High Court, the second suit was filed which possibly was not competent in view of the rule of estoppel and also provisions of Order 2, Rule 2 of C.P.C.
3. After issues and evidence, the learned Civil Judge dismissed the suit on 12-4-1993. In appeal, the learned Additional District Judge remanded the case for fresh decision, after allowing the parties with opportunity of further evidence.
4. The order of remand has been challenged in the present appeal.
5. Learned counsel for the appellants and Qiam Din son of Sultan Mehmood respondent No.2, present in Court have been heard. No one has entered appearance on behalf of remaining respondents, despite notice, hence proceeded against ex parte.
6. Main grievance of the appellants is that the suit was decided by the learned Civil Judge, after considering the entire evidence on record and there was no justification for the learned Additional District Judge to avoid decision on merit. Perusal of the judgment in appeal reveals that the learned Additional District Judge by making reference to certificate, assumed that-the suit was decided by the trial Court with reference to previous litigation and on this assumption, he remanded the case for determination of the matter afresh. It was also observed that propriety and legality of Mutation No.15 was not determined and the same allegedly remained uninfluenced by the previous litigation.
7. It is a settled rule that if parties had led evidence and the case had been decided on merit, the Appellate Court should have re-examined the evidence and decided the same in accordance with law. If evidence is not sufficient or an issue is omitted, the learned Appellate Court can reframe the issue, decide it on the existing evidence or by receiving further evidence and in any case, suit cannot be remanded simply because one of the issues was not decided or some further evidence was required. Without reversing the judgment on merit, remand was not permissible in law.
Frequent remand has never been approved by this Court as it results in wastage of time and creates frustration in the litigants. In this case, there was sufficient evidence on, record, and issues were properly framed. At best, the Appellate Court could have itself recorded further evidence and decided the appeal on merits, instead of remanding the case and opening another litigation. The course adopted by the Appellate Court is contrary to law. Reference can be made to Malik Raheem Bakhsh Awan v. Ejaz Mehmood and another (PLD 1990)
8. For the reasons above, this appeal is allowed, the impugned order to the extent of remanding the case to the learned Trial Court is set aside with the result that appeal shall be deemed to be pending before the learned Additional District Judge, The learned Additional District Judge will, if the parties so desire, receive additional evidence and decide the appeal on its own merits and in accordance with law and preferably within six months.