Messrs SHAH NAWAZ KHAN AND SONS vs GOVERNMENT OF N.-W.F.P. and others
Civil appeal before the Supreme Court of Pakistan challenging the High Court's judgment remanding a regular first appeal (R.F.A.) back to the trial court for a third round of litigation. The High Court had remanded the matter on the ground that the trial court failed to frame a specific issue under Order XIV, Rule 1 of the Code of Civil Procedure 1908 regarding facts denied by the department. The Supreme Court observed that the controversy was sufficiently covered under the existing issue regarding locus standi, both parties fully understood their respective stances as pleaded, and complete evidence had been led on the record. The Supreme Court held that the High Court had all requisite material before it to decide the appeal itself. The Supreme Court set aside the remand order and directed the High Court to decide the R.F.A. on merits, reiterating that remand must only be ordered when strictly necessary, to prevent unnecessary delays and uphold the constitutional mandate for inexpensive and expeditious justice.
- Whether an appellate court is justified in remanding a case for framing a new issue when the existing issues and evidence adequately encompass the controversy?
- Under what circumstances should an appellate court resort to remanding a case to the trial court?
- Does the absence of a specific issue warrant a remand if both parties were fully aware of their respective pleadings and led relevant evidence?
- Order XIV Rule 1, Code of Civil Procedure 1908
ORDER
' JAWWAD S. KHAWAJA, J.---Learned counsel for the appellants states that already in earlier rounds of litigation the case was twice remanded to the trial Court. Through the impugned judgment, yet again the matter has been remanded by the High Court to the trial Court. The reasons for this have been given in the second sub-para of the paragraph 7 of the impugned judgment which, for ease of reference, is reproduced as under:- "The respondent/department has denied all these facts. Regrettably, no issue was framed in this respect in terms of Order XIV, Rule 1, C.P.C.. No doubt it is the duty of the parties to point out the framing of necessary issue(s) and ordinarily if no such move is made during the pendency of lis, it shall be presumed that the issue has been abandoned. But it is equally the duty of the learned trial Court to frame correct issues which are necessary for determination of the real controversy between the parties and merely because the parties have not pointed out necessary issues does not absolve the learned trial court to perform its legal and statutory duty. Action or inaction on the part of the court cannot prejudice a party to litigation. Failure of the learned trial Court to determine material issue amounts to exercise of jurisdiction illegally and with material irregularity."
'We note that in fact this very aspect of the case was encapsulated in the issues framed by the trial Court and in particular issue No,3, in the following terms:- "(3) Has the plaintiff got a locus standi ?"
' It is also evident from the record that both parties were aware of their respective stance as set out in their pleadings and moreover evidence was also led in the light thereof. In this view of the matter, there was no justification for remanding the case by the High Court to the trial Court for the third round of litigation. The High Court had all the material before it to enable it to decide the R.F.A.
3. In view of the foregoing discussion, we allow this appeal and set aside the impugned judgment.
As a consequence, the matter is sent to the High Court for decision of the RFA by itself.
4. We may add that 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. It is quite apart from clogging the court dockets and wastage of precious Court time. Courts are also to bear in mind, the constitutional imperative requiring the State to "ensure inexpensive and expeditious justice."