The respondent herein had brought a suit for specific performance of an agreement dated 4-7- 1969 alleged to have been executed by the petitioner herein for the sale of half portion of Ihata for a consideration of Rs,2,000. the suit was contested. Execution of the agreement was denied.
Necessary issues were framed by the trial Court whereafter the parties produced evidence in support of their respective pleas. Vide judgment, dated 18-3-1993 the learned trial Court dismissed the suit by taking the view that the execution of alleged agreement to sell dated 4-7-1969 had not been proved. The respondent challenged that judgment by instituting appeal before the First Appellate Court, which appeal was accepted by the learned District Judge, Bhakkar, remanding the matter to the trial Court, after framing certain issues. It is this judgment, which has been challenged through this revision petition.
2. The learned counsel contends that Issue No,1 was quite comprehensive. and exhaustive to cover the controversy spelt out of the pleadings of the parties and the learned Appellate Court has erred in law in remanding the matter to the trial Court. It is contended that there was ample evidence produced by the parties, which could enable the Court to decide the appeal itself instead of remanding the matter.
The respondent has remained unrepresented despite notices through ordinary means and registered post issued to him and receipt thereof. He has thus been proceeded ex parte and petition heard accordingly.
3. Issue No,1 which had been framed by the learned trial Court was as follows:-- "Whether the defendant sold the disputed Ihata No,39 of one Kanal land in consideration of Rs,2,000 to the plaintiff and in this regard agreement deed bated 4-7-1969 was executed? OPP"
The learned District Judge while hearing and deciding the appeal has, however, framed the following issues:--
(1) Whether the defendant. executed the agreement on 4-7-1969 in favour of the appellant? OPP
(2) Whether the agreement to sell was for consideration OT Rs .2 ,000 and the possession was delivered to the plaintiff? OPP
(3) Whether the plaintiff had constructed the house and Cliardewari and had spent the amount of Rs,50,000 for its construction? OPP
(4) Whether the plaintiff had no cause of action? OPD
(5) Whether the suit is time-barred?
(6) Whether the suit is insufficiently valued for the purposes of court-fee and jurisdiction? OPD
(7) Whether the defendant is entitled to the special costs under section 35-A C.P.C.
(8) Relief.
I find force in the contention of the learned counsel for the petitioner that Issues Nos,1 and 2 proposed by the learned District Judge in his judgment were wholly unnecessary and were indeed bifurcation of issue No,1 already having been framed by the trial Court which had enabled the parties to lead evidence in support of their respective pleas. The parties were fully alive of the controversy involved. I also find force in the contention that as far as possible the remand is to be avoided and should be ordered only when absolutely necessary. In the present case the parties had availed the opportunity before the trial Court to produce evidence. They could not have any legitimate grievance in this regard. The respondent who was appellant before the First Appellate Court had not even made any grievance in his memorandum of appeal that proper issues had not been framed. This was for the reason that. Issue No,1 was comprehensive and exhaustive to cover the whole controversy.
As a result of the above the remand order passed by the learned Appellate Court is not sustainable which is set aside. Resultantly the appeal filed by the respondent shall be deemed pending before the First Appellate Court/District. Judge, Bhakkar who shall hear and decide the same in accordance with law. The petition is accepted accordingly. No order as to costs.