' Muhammad Rafique, appellant/plaintiff, through the filing of the present appeal, has called in question judgment and decree, dated 29-9-2003, whereby the learned Additional District Judge accepted respondents' appeal and remanded the case to the learned trial Court, after setting aside judgment and decree, dated 13-12-2000, passed by the learned trial Court, through which it decreed appellant's suit. For possession through specific performance of agreement of sale.
2. Briefly stated the facts, relevant for the decision of the present appeal, are that the appellant filed a suit for specific performance of agreement to sell, dated 29-9-1991 against the respondents, pleading therein that Muhammad Hussain, deceased, agreed to sell the land, measuring 12 Kanals, 6 Marlas, to him for consideration of Rs.2,77,000 out of which a sum of Rs.50,00b was received by him and pursuant thereto a sum of Rs.15,000 was paid before the Sub-Registrar. It was asserted in the plaint that defendants Nos.3 and 4, in connivance with the Patwari, manoeuvred to enter/attest mutation of exchange No,341 dated 30-9-1991, regarding the said land, in their favour and the refusal on the part of the defendant No,1 to execute the sale-deed necessitated the filing of the suit.
During the pendency of the suit, defendant No,I died and thereupon his legal heirs were impleaded as defendants. The respondents contested the suit by way of filing the written statement, thereby controverting the allegations made in the plaint. The learned trial Court framed the necessary issues, recorded the evidence of the parties and proceeded to decree the suit in favour of the appellant, vide judgment and decree, dated 13-1-2003. The respondents Nos.1 and 2 assailed the said judgment before the appellate forum and the learned Additional District Judge., after finding that the "point" of possession is to be determined by the learned trial Court by framing separate issue, accepted the appeal, set aside the judgment and decree and remanded the case to the learned trial Court to decide the matter, afresh, after framing issue regarding possession, vide judgment and decree, dated 29-9-2003, hence the present appeal.
3. Learned counsel for the appellant has contended that the learned Appellate Court, without adverting and discussing to the findings on all the issues, which were decided in favour of the appellant, has reversed the well-reasoned findings of the learned trial Court, thus, the impugned judgment is not sustainable in law. Conversely, the learned counsel for the respondents has supported the impugned judgment.
4. Upon the examination of the available record, I find that the learned trial Court framed seven issues and, while deciding all the issues in favour of the appellant, decreed his suit. Judgment of the learned trial Court shows that it decided issue No,7 after giving cogent reasons and exhaustively rendering its findings, after taking into consideration the documentary as well as oral evidence on record. On the other hand, the impugned judgment was passed only on the basis that the learned trial Court did not frame the issue with regard to the possession. It is evident from the impugned judgment that while upsetting the judgment of the learned trial Court, the learned lower Appellate Court did not advert to the reasonings adopted and findings given by the learned trial Court. Under the law, it is incumbent upon the learned lower Appellate Court that while giving judgment at variance, the reasonings adopted by the learned trial Court should be dealt with.
Additionally; I find that the learned lower Appellate Court has failed to take into account the material pieces of evidence while passing the impugned judgment. The Honourable apex Court of the country in a case reported as Madan Gopal and 4 others v. Mardan Bepari and 3 others PLD 1969 SC 617 while dealing with the similar proposition of law, has held as under:-- ' .... If the findings of the First Appellate Court cannot be supported on the evidence on record or if it has failed to take into account a material piece of evidence or if it does not reveal a logical basis for differing from the findings of the trial Court, or is otherwise found to be arbitrary or capricious, it will have to be rejected in second appeal."
' The principle laid down in the case of Madan Gopal (supra), was further approved by the apex Court in the case reported as Mir Haji Khan and 11 others v. Mir Aijaz Ali and 2 others PLD 1981 SC 302.
5. Perusal of the impugned judgment manifests that the learned Additional District Judge set aside the judgment and decree and remanded the case to the learned trial Court to decide the matter, afresh, after framing separate issue regarding possession. The only ground on which the case was remanded, as discernible from the impugned judgment, is that there are certain contradictions in the stance of the appellant qua the factum of possession and that no separate issue regarding possession was framed by the learned trial Court. Even if the First Appellate Court was of the view that the learned trial Court has 'omitted to frame the issue regarding possession, that does not, under any stretch of imagination, give any legal justification to the learned Additional District Judge to set aside the judgment and decree of the learned trial Court and reverse the findings of the trial Court, that too without giving its own findings. In that case the proper course for the.
Learned Additional District Judge was to resort to the provisions of Order XLI, rule 25, C.P.C., but no way the findings on merits of the trial Court could be reversed on the plea that certain issue has not been framed and without rendering its own findings. It appears from the tenor of the impugned judgment that the learned Additional District Judge was completely oblivious of the said provision of law, which provides that where the Court from whose decree the appeal is preferred, has omitted to frame or try an issue, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the case for trial to the Court and shall direct such Court to take the additional evidence and shall return the evidence to the Appellate Court. In the case in hand, after finding that the issue of possession is necessary for the determination of the controversy between the parties, the learned Additional District Judge erroneously and under misconceived notions of law unsettled the issues, which were determined by the learned trial Court. The law does not permit an Appellate Court to adopt such course of action. To my mind, where a Court comes to the conclusion that a particular issue should have been framed but was not framed by the learned trial Court or certain findings on fact are necessary for determining the controversy between the parties and that further evidence should be taken on these points, then the proper course before the Appellate Court is to make an order under the provisions of Order XLI, rule 25, C.P.C., instead of remanding the whole case. This view is fortified by the judgments passed C by the Honourable apex Court of the country reported as Muhammad Ali and 9 others v. Muhammad Sharif and 4 others 1994 SCM R 1715 and North-West Frontier Province Government, Peshawar through Collector, Abbottabad and another v. Abdul Ghafoor Khan PLD 1993 SC 418. It has been held in Messrs Fahim and Company and another v.
National Bank of Pakistan and 5 others 1976 SCM R 100 that the Appellate Court is not bound to remand the case to the learned trial Court but it is also empowered to record evidence itself.
' In view of the provisions of Order XLI, rule 25, C.P.C. And being guided by the aforesaid law declared, I am of the view that the approach of the learned Additional District Judge, while setting aside the impugned judgment and decree and remanding the case to the learned trial Court for its fresh trial, is not sustainable in law. The impugned judgment undoubtedly was passed in violation of the aforenoted provisions of law and the law declared by the apex Court of the country, which is binding on all the Courts of Pakistan per force of Article 189 of the Constitution of Islamic Republic of Pakistan.
6. In the above perspective, I have examined the impugned judgment and find that the same suffers from grave legal infirmity, thus, E the same is not sustainable and I have no hesitation in setting aside the said judgment, which is contrary to law.
7. Upshot of the above discussion is that the present appeal is allowed and the impugned judgment and decree, dated 29-9-2003 is set aside with no order as to costs. Resultantly, the appeal, filed by the respondents Nos.1 and 2, shall be deemed to be pending before the learned District Judge, Kasur, who shall, himself, decide the appeal, afresh after hearing the parties and of course in accordance with law without being impressed by any of the observations, made in the instant judgment. Needless to mention that he is bound by the law declared, as noted above.