M/s. Shah Nawaz Khan and sons vs Govt. of NWFP and others
This appeal challenges a High Court judgment that remanded a civil matter to the Trial Court for the third time due to an alleged failure to frame necessary issues. The core legal question was whether the High Court was justified in remanding the case despite the existence of relevant issues and evidence on record. The Supreme Court held that the High Court erred in its decision to remand. The Court observed that the Trial Court had already framed a specific issue regarding the plaintiff's locus standi, and both parties had led evidence fully aware of their respective pleadings. Consequently, the Supreme Court set aside the remand order and directed the High Court to decide the Regular First Appeal (RFA) on its own merits based on the existing record. The key principle laid down is that remand should be a measure of last resort, used only when absolutely necessary for fair adjudication. Unnecessary remands cause undue delay, prolong the agony of litigants, clog court dockets, and waste judicial time, and should be avoided when the appellate court possesses sufficient material to resolve the controversy.
- Is a High Court justified in remanding a case for the framing of issues when the parties were already aware of their pleadings and evidence had been led?
- Does the failure of a Trial Court to frame a specific issue absolve the appellate court from deciding the matter if sufficient material is available on record?
- Under what circumstances should an appellate court resort to the remand of a case to a Trial Court?
- 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, CPC. 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 RFA.
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. Civil .