Stereo HCJDA 38.

Judgment Sheet
IN THE LAHORE HIGH COURT
BAHAWALPUR BENCH BAHAWALPUR
JUDICIAL DEPARTMENT

C.R. No.465 of 2015.

Syed Nazeer Hussain Shah. vs Syed Tasawar Husain Shah etc.

JUDGMENT

Date of hearing 28.09.2022.

Petitioner by Mr. Pervaiz Akhtar, Advocate

Respondents No. 5 Mr. Asad Khan Wajid Advocate.

Respondent No.4 In person.

SAFDAR SALEEM SHAHID, J.:- Through this judgment

instant civil revision (C.R. No.465/2015) and connected C.R.

No.482-D of 2015 are proposed to be decided simultaneously, as
common questions of law and facts are involved therein. In both
the petitions judgment dated 08.07.2015 passed by learned
Additional District Judge, Hasilpur, has been assailed whereby
judgment and decree passed by learned trial court was set aside
and the case was remanded back for decision afresh.

2. For the sake of convenience, the parties shall be referred to

hereinafter as mentioned in the title of the instant petition.
3. Brief facts necessary for disposal of both the civil revision
petitions are that Syed Akhtar Hussain Shah respondent No.4 filed
a suit for specific performance of contract dated 19.08.2000
against Tasawar Hussain Shah etc. and Ghulam Nabi petitioner in
connected civil revision, also filed a suit for specific performance
of contract dated 12.02.2000 against Syed Tasawar Hussain Shah
etc. regarding the property in question, before Civil Court,
C.R. No.465 of 2015. 2

Hasilpur District Bahawalpur. Both the suits were contested by the

defendants in respective suits by filing written statement wherein
they raised many legal as well as factual objections. Both the suits
were consolidated and out of divergent pleadings of the parties,
consolidated issues were framed by the learned trial court. After
recording evidence and hearing both the parties, learned trial court
passed the consolidated judgment and decree dated 26.05.2011
whereby suit filed by Ghulam Nabi petitioner in connected
petition was decreed whereas suit filed by Syed Akhtar Hussain
Shah respondent No.4 was dismissed. Feeling aggrieved, Syed
Akhtar Hussain Shah respondent No.4 filed appeal and cross
objections before learned Additional District Judge, Hasilpur,
which was accepted, impugned judgment and decree was set aside
and the case was remanded the learned trial court for decision
afresh.
4. Learned counsel for the petitioners contended that
impugned judgment has been passed by the learned 1st appellate
court while ignoring the relevant law and facts of the case,
therefore, same is not sustainable in the eyes of law; learned trial
court provided all opportunities to the parties to produce evidence
and decided the suit after recording complete evidence of the
parties and gave findings on each and every issues; the case can be
remanded only when it becomes necessary if insufficient
evidence has been recorded by the learned trial court; impugned
judgment is result of mis-reading and non-reading of evidence
which is liable to be set aside.

5. As per office report, respondent No.1 has been served

personally but no one has turned up on his behalf to pursue the
matter in hand whereas respondent No.2 & 3 have refused to
accept service, therefore, said respondents are proceeded against
ex-parte.
6. Respondent No.4, present in Court, submits that impugned
judgment has been passed by learned 1st appellate court in
accordance with law; no illegality or material irregularity has been
C.R. No.465 of 2015. 3

pointed out by learned counsel for the petitioner in the impugned

judgment. Prays for dismissal of both the petitions.

7. Arguments heard. Record perused.

8. It has been noticed that Syed Akhtar Hussain Shah
respondent No.4 and Ghulam Nabi petitioner in connected civil
revision, filed their respective suits for specific performance of
contract, before learned trial court. After adopting due process,
learned trial court decreed the suit filed by aforesaid Ghulam Nabi
whereas suit filed by respondent No.4 was dismissed. The appeal
filed by respondent No.4 was accepted by 1st appellate court and
the case was remanded to the learned trial court for decision
afresh. The contention of learned counsel for the petitioners is that
learned trial court provided complete opportunities to the parties
to produce their respective oral as well as documentary evidence,
recorded their evidence on each and every issue and decided the
suit on merits, therefore, suit cannot be remanded for decision
afresh rather the 1st appellate court should have been decided the
matter on merits. The relevant law on this point is Order XLI Rule
23 CPC which is reproduced as follows:
23. REMAND OF CASE BY APPELLATE COURT.

“Where the Court from whose decree an appeal is

preferred has disposed of the suit upon a preliminary
point and the decree is reversed in appeal, the Appellate
Court may, if it thinks fit, by order remand the case, and
may further direct what issue or issues shall be tried in
the case so remanded, and shall send a copy of its
judgment and order to the Court from whose decree the
appeal is preferred, which directions to re-admit the suit
under its original number in the register of civil suits,
and proceed to determine the suit; and the evidence (if
any) recorded during the original trial shall, subject to
all just exceptions, be evidence during the trial after
remand.”

Perusal of record reveals that learned 1st appellant held that

learned trial court decided the fate of issues No.2,3 & 7, 8 & 9
jointly and decided the fate of issue No.16 & 17 while relying on
findings of issues No.2 & 10. The suit can be remanded where the
trial court has decided the same on a preliminary point which
C.R. No.465 of 2015. 4

should be based on law and facts of proposition, the documents on

which the suit is based are inadmissible in evidence, there is no
cause of action etc. which should relate to the merit of the case or
any insufficient evidence has been recorded by the learned trial
court. The evidence of both the parties has been recorded by the
learned trial court on all the points and no question has been left
unanswered on the basis of which the case can be remanded or on
which point the evidence is not available. Learned trial court has
decided all the issues by answering the whole proposition.
Although some issues have not been decided separately but this is
not material when all the points have been answered properly. No
evidence is required to be recorded on any issue or point. No
question/issue has been left unheard and all the points have been
discussed after recording complete evidence of the parties while
giving findings on each and every issue. Even otherwise, remand
should only be resorted to where it is absolutely necessary for a
fair and proper adjudication of a case. Unnecessary remand results
in undue delay in cases and consequent prolonging of the agony of
the litigants. Reliance is placed on the case of Mst. Shahida
Zareen Vs. Iqrar Ahmad Siddiqui (2010 SCMR 1119) where it
has been held as under:
“Remand of the case should be ordered in exceptional
circumstances when it is found necessary by the
Appellate Court to determine the question of fact which
appears to the Appellate Court to be essential for a right
decision of the suit upon the merits. However, where
evidence on record is sufficient for the Appellate Court
to decide the question involved, then order of remand
ought not to be passed.”

Further reliance is placed on the case of Messrs Shah Nawaz Khan

and sons Vs. Government of N.W.F.P. and others (2015 SCMR
945). Reliance is also placed on the case of Qadir Baksh
(deceased) through L.Rs. Vs. Allah Dewaya and another (2011
SCMR 1162) wherein it has been held as under:
“The wisdom behind the Rule 5, Order XX, CPC is that
the trial court and the first appellate court should
record findings on all the points and non-recording of
finding on each and every issue would not be fatal to the
 C.R. No.465 of 2015. 5

judgment on the strength of the Order XX Rule 54

CPC.”

Learned 1st appellate court passed the impugned judgment without

reasonable justification as no ground was available for remand of
the case to the learned trial court. Learned 1st appellate court erred
in law and remained unable to appreciate the relevant law while
setting aside the judgment and decree passed by the learned trial
court and remanding the case for decision afresh which calls for
interference by this Court.
9. In view of what has been discussed above, both the civil
revision petitions are accepted, impugned judgment is set aside
and case is remanded to the learned 1st appellate court to decide
the same afresh on merits, strictly in accordance with law after
affording an opportunity of hearing to all the concerned. No order
as to costs.

(Safdar Saleem Shahid)

JUDGE
Naeem

Approved for reporting.

JUDGE.