PLJ 2007 SC 369
[Appellate Jurisdiction]
Present: Rana Bhagwandas, Nasir-ul-Mulk & Syed Jamshed Ali, JJ.
HABIBULLAH--Appellant
versus
AZMAT ULLAH--Respondent
C.A.No. 58 of 2000 and C.P. No. 167-L of 2000,
decided on 8.11.2006.
(On appeal from the judgment dated 11.11.1999 passed by Lahore High Court, Lahore in R.F.A. Nos. 188 and 562/1999).
Civil Procedure Code, 1908 (V of 1908)--
----O.XLI, Rr. 23 & 23-A--Constitution of
[P. 373] A & B
PLD 1962
Civil Procedure Code, 1908 (V of 1908)--
----Judgment of a Court, is to be in accord with the findings and in case of conflict, the same Court or the appellate Court has jurisdiction u/S 152 CPC, and even, under inherent powers to bring the operative directions of the judgment in accordance with the findings therein--Appeal allowed.
[Pp. 373 & 374] C
Syed Iftikhar Hussain Gilani, Sr. ASC and Mr. M.A. Zaidi,
AOR for Appellant (in
Syed Iftikhar Hussain Gilani, Sr. ASC and Mr. M.A. Zaidi, AOR for Petitioner (in C.P. No. 167-L of 2000).
Nemo for Respondent (in both cases).
Date of hearing: 8.11.2006.
Judgment
Syed Jamshed Ali, J.--Civil Appeal No. 58/2000 has been filed against the judgment and decree dated 11.11.1999 whereby the suit of the respondent, subject-matter of R.F.A. No. 188/1999, was remanded to the learned trial Court with a direction to determine Issues Nos. 10, 11 and 13. The facts of the case are, briefly, noted hereunder.
2. Habib Ullah, the appellant, and Azmat Ullah the respondent are real brothers. On 8.4.1994, the appellant executed an agreement to sell his house for a consideration of Rs. 6,50,000/-, received an earnest money of
Rs. 1,50,000/- while the balance had to be paid till 7.4.1995 which was also the date for completion of the transaction. On 29.1.1995, the appellant filed a suit seeking cancellation of the agreement dated 8.4.1994 on the ground that he had forcibly been given Rs. 1,50,000/- and the aforesaid agreement was the result of undue inference, coercion and threats to his life. On 29.3.1995, Azmat Ullah, the respondent herein filed a suit for specific performance. Both the suits were consolidated and the following consolidated issues were framed:--
"1. Whether the plaintiff Habib Ullah has not approached this Court with clean hands?
2. Whether the plaintiff Habib Ullah is estopped by his own fact and conduct to file the suit ?
3. Whether the defendant Azmat Ullah is entitled to Special costs, if so to what extent?
4. Whether the agreement dated 8.4.1994 is the result of pressure, undue influence, coercion and has not been executed by the plaintiff with his free consent?
5. Whether the said document is liable to be cancelled?
6. Whether Habib Ullah plaintiff is entitled to the injunction restraining the defendant from using the said documents for any purposes or from interfering in the physical possession of the plaintiff?
7. Whether Azmat Ullah is entitled to Specific performance of agreement dated 8.4.1994?
8. Whether Azmat Ullah has not come to the Court with clean hands?
9. Whether Azmat has not paid the Court fee on the plaint according to the value of the suit?
10. Whether the suit of Azmat Ullah is counter blast to the suit of Habib Ullah?
11. Relief."
3. The parties led evidence in support of their respective pleas. Vide judgment and decree dated 9.3.1999. The suit filed by the appellant for cancellation of the aforesaid agreement was dismissed while the suit filed by the respondent for specific performance was decreed solely on the basis of the failure of the appellant to prove Issues Nos. 4, 5 & 6. R.F.As. No. 188/1999, arising out of the suit for specific performance, and 562/1999 arising out of the suit for cancellation of the agreement, were filed by the appellant before the learned Lahore High Court. The findings of the learned trial Court that respondent was not able to establish any undue influence and coercion in the matter of execution of the agreement dated 8.4.1994 was affirmed. Accordingly, R.F.A. No. 562/1999, was dismissed. Through C.P. No. 167 of 2000, the petitioner seeks leave to appeal in this matter, against the judgment dated 11.11.1999. As far as suit for specific performance is concerned, the learned High Court, in paragraph 17, of the impugned judgment, found:--
"Since in this case, neither evidence was discussed nor independent reasons were recorded to decide Issues Nos. 9 and 10, therefore, the matter in the suit for specific performance will have to be remanded for decision of the suit afresh, on merit in accordance with law after considering the evidence on record".
Accordingly, R.F.A. No. 188/1999 was allowed and the suit for specific performance was remanded to the learned trial Court for decision of Issues Nos. 10, 11 and 13 afresh.
4. Despite notice, no body appears for the respondent. Mr. Iftikhar Hussain Gillani, Sr. ASC for the appellant in support of this appeal, has been heard. At the out set, he brought to our notice that in pursuance of the direction in the impugned judgment the suit was again decided by the learned trial Court against the appellant but on first appeal the judgment and decree of the learned trial Court have been reversed and the suit remanded to the learned trial Court where it is pending.
5. In support of the appeal, he contends that Issue No. 9, inter alia, was required to be decided afresh according to the findings in Para 17 of the impugned judgment but it is not reflected in the operative part of the judgment which appears to be and accidental slip and, therefore, the operative direction in the remand order is required to be brought in-conformity to the findings in paragraph 17. His next submission is that remand order did not fall under Rule 23 or 23-A (Lahore amendment) of Order XLI of the Code of Civil Procedure and, therefore, the learned High Court acted illegally and unlawfully by directing a remand only to obtain findings on certain issues. The course open to the High Court was to act under Rule 25 of the said order, to ask for the findings of the learned trial Court on the disputed issues and retain file on its own record. He also vehemently contended that order of remand is not to be lightly ordered and the issues ought to have been determined by the learned High Court itself under Rule 24 of Order XLI of the Code of Civil Procedure. His next grievance is that dismissal of appellant's suit for cancellation of agreement could not automatically result in the decree in the suit for specific performance because not only a plaintiff in a suit for specific performance has to establish his willingness and readiness to perform his part of the contract but also that grant of relief of specific performance, even when execution of an agreement to sell is proved, remains discretionary with the Court.
6. We have considered the submissions of the learned counsel for the appellant. From perusal of the judgment of the trial Court, we find that Issue No. 9, was not independently decided on the basis of the evidence recorded in the suit. The basis to decree the suit of the respondent was failure of the appellant to prove Issues No. 4 and 5. As far as second contention is concerned, we find merit in it because remand of a case under Rule 23 could only be ordered when the Court from whose decree an appeal was preferred had disposed of the suit upon a preliminary point and the decree was reversed. Under Rule 23-a, a remand would be justified when the Court considers re-trial of the suit necessary. Under Rule 25, the appellate Court retains the file on its record and remits the case to the trial Court for the decision of the issues not determined and return the findings to the appellate Court. Therefore, none of the aforesaid provisions was attracted to remand the case to the learned trial Court for recording findings on the issues which were not determined by the said Court. We will like to observe that there are some judgments of the superior Courts which recognize inherent powers of an appellate Court to remand a case. We will, however, like to observe that in the first instance, it is doubtful where in view of express provisions for remand of a case the inherent powers could at all be exercised and secondly, we do not find any unusual feature in this case to warrant a remand under inherent powers. This Court, has, in a number of
judgments, reiterated that a remand of the case should not be lightly ordered and if evidence on record is sufficient then the appellate Court should decide the case itself. The Courts administering justice have to bear in mind that an order of remand re-opens another chain of litigation which not only entails wastage of public time but also delays disposal of the cases, involves unnecessary expense of the parties and these vices are seriously detrimental to the justice system. Reference may be made to Muhammad Dervaish Ali Gilani and 14 others V. Muhammad Sharif and others (1997 SCMR 524). In the said case the learned High Court had remanded the case to the Rent Controller for re-writing the judgment. It was interfered with by this Court by referring to a number of judgments and the rule which was emphasized in the following words:--
"The principles for remand of the case to the lower Court for deciding on merits or retrial are well-settled. This power should not be exercised lightly but sufficient care should be taken in remanding the case. The Court should examine the evidence and if it comes to the conclusion that it is not sufficient to pronounce the judgment or decide the issues between the parties, it can remand the case or may itself record the evidence and decide it. But if on record there is adequate and sufficient evidence on which decision can be made, the remand would not be justified. Reference can be made to Paramatha Nath Chowdhry and 17 others v. Kamir Mondal and others (PLD 1965 SC 434), Fateh Ali v. Pir Muhammad and another (1975 SCMR 221), Sher Muhammad and others v. Jamadar Ghulam Ghaus (1983 SCMR 133), Arshad Ameen v. Messrs Swiss Bakery and others (1993 SCMR 216) and Syed Abdul Hakim and others v. Ghulam Mohiuddin (PLD 1994 SC 52)".
We will not like to encumber this judgment with the precedent cases because the above said rule does not admit of any controversy.
7. We will like to observe, for the purpose of guidance only, that if in pursuance of an order of remand the subordinate Court decides the case, an appeal against order of remand does not become infructuous which has to be decided on its own merits and the post remand decision will be subject to the final decision in the pre-remand proceedings. Although in this case the decision rendered in the post remand proceedings by the learned trial Court has been set aside and the suit is pending yet this appeal is being decided on its own merit. For the above said preposition, we will like to refer to Radha Charan Sardar V. Haribar Mondal and others (PLD 1962 Dacca 564).
8. We have reproduced the issues in this judgment to demonstrate that, in fact, these were wrongly numbered in as much as that after Issue No. 6 instead of Issues No. 7 and onwards, the figure 9 appears. It was only a typographical error. The contention has merit that the judgment of a Court, is to be in accord with the findings and in case of conflict, the same Court or the appellate Court has jurisdiction under Section 152 of the CPC and, even, under inherent powers to bring the operative directions of the judgment in accordance with the findings therein.
9. For what has been stated above, Civil Appeal No. 58/2000 is allowed, the impugned judgment of the learned High Court is set aside and the case is remanded to the learned High Court for recording findings on Issues Nos. 9, 10 and 13 (as numbered in this judgment).
Civil Petition No. 167-L/2000.
The learned counsel does not press this petition which is dismissed.
(Malik Sharif Ahmed) Order accordingly.