Full Judgment Text & Judicial Ruling

1988 C L C 1342

1988 C L C 1342

[Lahore]

Before Khalil‑ur‑Rehman Khan, J

MUHAMMAD NAWAZ‑‑Appellant

versus

Sh. NASIR HUSSAIN and others‑‑Respondents

First Appeal from Order No. 127 of 1987, decided on 24th January, 1988.

Civil Procedure Code (V of 1908)‑‑

‑‑‑0. XLI, R. 23‑‑Remand of case by Appellate Court‑‑Order of First Appellate Court remanding case on ground that issue added by Trial Court should not at all have been framed as plea on basis of which issue was framed was unauthorisedly added in written statement, challenged by petitioner‑‑Respondent conceded that assertion added in written statement on basis of which disputed issue was added was not unauthorised and as such First Appellate Court should not have set aside decree of Trial Court and should not have remanded suit for fresh decision after obtaining written statement again‑‑Order remanding case passed by First Appellate Court in view of above concession, held, could not be maintained.

Syed Laqa Haider Zaidi for Appellant. Ch. Khurshid Ahmad for Respondents. Date of hearing: 24th January, 1988.

JUDGMENT

This first appeal was .directed against the order, dated 29‑9‑1987 of the learned Additional District Judge, Jhang whereby the judgment and decree, dated 18‑2‑1987 of the learned Civil Judge 1st Class, Jhang was set aside and the suit was remanded to the learned trial Court with the direction to allow Muhammad Nawaz appellant, to resubmit his amended written statement and then to decide the suit afresh in accordance with law after framing necessary issues, if any.

2. According to the learned first appellate Court, the remand was necessary as issue No.7‑A added on 19‑7‑1978 should not at all have been framed as the plea on the basis of which the issue was framed was unauthorisedly added in the written statement.

3. Ch. Khurshid Ahmad, Advocate for the respondent fairly and A candidly concedes that the assertion added in the written statement on the basis of which issue No.7‑A was added on 19‑7‑1978, was not unauthorised and as such the learned first appellate Court should not have set aside the decree of the learned trial Court and should not have remanded the suit for fresh decision after obtaining written statement again.

4. In view of above concession, the impugned order, dated 29‑9‑1987 cannot be maintained. Consequently, the order, dated 29‑9‑1987 of the learned Additional District Judge is hereby set aside with the result that the judgment and decree, dated 18‑10‑1987 of the learned trial Court stands revived and the first appeal filed by Muhammad Nawaz, appellant, shall be deemed to be pending and shall be disposed of on existing record afresh after hearing the parties. The petitioners are directed to appear on 15‑2‑1987 before the learned District Judge, Jhang who will have the record of appeal summoned and then after hearing the parties, dispose of the appeal within three months. Parties are left to bear their own costs.

H . B . T . /M‑666/ L Remand order set aside.

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