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Petitioner: MUHAMMAD RAFI VS Respondent: Mst. BUKHTAWARHonorable Justice Muhammad Afzal LoneMian Iqbal Hussain,Ch. Rashid Ahmad
1988 M L D 755
1988 M L D 755
[Lahore]
Before Muhammad Afzal Lone, J
MUHAMMAD RAFI‑‑Appellant
versus
Mst. BUKHTAWAR and others‑‑Respondents
First Appeal from Order No. 184 of 1978, decided on 23rd January, 1984.
Civil Procedure Code (V of 1908)‑‑
‑‑‑O.XLI, R.33‑‑Remand order, alteration in‑‑Trial Court framing four issues, allowing parties to lead evidence but proceeding to try only one issue relating to limitation and answering it against respondent‑plaintiff and dismissing suit without touching remaining three issues‑‑First Appellate Court remanding case to Trial Court for decision on all issues but with direction to allow parties to lead evidence‑‑Record showing that parties had ample opportunities to produce their evidence before Trial Court and in fact whatever evidence they wanted to produce they brought on record‑‑Direction given by first Appellate Court for recording fresh evidence, held, uncalled for‑‑Order of remand altered by High Court to extent that case shall be remanded to Trial Court for decision on all issues on basis of evidence already brought on record.
Mian Iqbal Hussain for Appellant.
Ch. Rashid Ahmad for Respondents.
Date of hearing: 23rd January, 1984.
JUDGMENT
The learned trial Court framed four preliminary issues arising out of the pleadings of the parties and they were permitted to lead evidence on these issues. However, the learned Civil Judge proceeded to try issue No.1 only which relates to limitation, answered it against the respondent‑plaintiff and dismissed the suit. The remaining three issues were not touched upon. The plaintiff then went in appeal and the learned Additional District Judge took the view that as the issues were inter‑connected, the trial Court should have decided all the issues. He thus remanded the case to the trial Court for decision on all the issues but with the direction to allow the parties to lead evidence. The validity of the order dated 25 4‑1978 passed by the learned First Appellate Court, has been called in question through this F.A.O.
2. I have heard the learned counsel for the parties and examined the record. The learned counsel for the appellant has no objection to the remand order. The grievance expressed by him, however, is that both the parties produced their evidence before the trial Court on all the issues which was never adverted to or discussed qua the remaining three issues by the learned first Appellate Court and that therefore, there was no justification to give a direction for recording of fresh evidence.
3. It is discernible from the record that so far as the preliminary issues are concerned the parties had ample opportunity to produce their evidence and in fact whatever the evidence they wanted to produce was brought by them on the record. It is also correct that there is no discussion of the evidence in respect of the remaining three issues. The learned counsel for the appellant is thus not wrong in contending that the direction for recording the fresh evidence is uncalled for.
4. In view of the facts obtaining on the record, the learned counsel for the respondent did not have much in defending the impugned order.
5. Accordingly this appeal is accepted and the impugned order is altered to the extent that the case shall stand remanded to the learned trial Court for fresh decision of all the issues but on the basis of the evidence already brought on the record. The parties are left to bear their own costs and directed to appear before the learned District Judge on 22‑2‑1984 who shall assign the suit to
some Court of competent jurisdiction subordinate to him, for disposal thereof. The suit was instituted in the year 1968. It needs to be disposed of expeditiously and I order accordingly.
M.Y.H./2739/L Appeal accepted.