SHEHZAD MUZAFFAR Versus MASAIL KHAN ABBASI
MUHAMMAD YUNUS SURAKHVI, C.J.--- This appeal, by way of leave of the Court, has been directed against the judgment and decree passed by the High Court on 20-4-2001, whereby the appeal filed by the respondent herein was accepted and the case was remanded to the trial Court under Order XLI, rule 25 of the Code of Civil Procedure.
2. The necessary facts, giving rise to the present appeal, are that the respondent herein filed a suit for damages of Rs.5 lacs against the appellants in the Court of District Judge, Muzaffarabad on 21-11-1991. It was alleged in the plaint that Muhammad Riaz, the son of respondent, was traveling in Bus No.421-AJKC on 4-6-1991 whose driver was appellant No.2 and it was schedule to Muzaffarabad from Rawalpindi. When the bus reached near Dewal, due to rash driving and negligence of the driver, the bus met an accident and it smashed with a wall in consequence of which the son of respondent and one other person died on the spot and various others were injured. The owner of the bus was Shehzad Muzaffar appellant No.l. The plaintiff-respondent due to the said accident was mentally tortured and his life had become miserable. Both appellants Nos.l and 2 are responsible for the death of son of respondent as the driver had no licence and he was untrained and the incident took place due to his negligence and rash driving. The plaintiff therefore, claimed a decree of Rs.5 lacs as damages from the defendants appellants. The learned District Judge after necessary proceedings and taking the evidence of the parties from both the sides ultimately dismissed the suit on 26-6-1999 for want of proof. The respondent herein filed an appeal against the aforesaid judgment and decree passed by the District Judge. The High Court accepted the appeal vide its judgment and decree dated 20-4-2001 and remanded the case to the trial Court under Order XLI, rule 25, C.P.C. with a direction to summon the personal file of the deceased from the relevant hospital and after recording the evidence on facts to return the evidence to the High Court alongwith its findings thereon the reasons therefor. The High Court vide its impugned judgment has made basis para. No.7 of the judgment of the trial Court to remand the case under Order XLI, rule 25, C.P.C. to take additional evidence. Para. No.7 of the judgment of the trial Court in order to have proper perception is reproduced below:--
It was observed by the High Court that the perusal of the above para reveals that it is necessary to determine the question of fact of dependents/legal heirs of the deceased, service particulars of the deceased, i.e. his date of induction in service, age, pay, qualification, length of service till attaining the age of superannuation and other emoluments he could have been entitled to till attaining the age of superannuation had he not died as alleged by the appellant (respondent herein). These questions of facts appear essential to the right decision of the suit upon the merits. The trial Court shall summon the personal file of the deceased from the relevant hospital and after recording the evidence on facts, stated above, shall return the evidence to this Court alongwith its findings thereon and reasons therefor".
3. ???????? In support of appeal it was vehemently contended by Mr. Abdul Rashid Abbasi, the learned counsel for the appellants, that the High Court has committed an error by remanding the case under Order XLI, rule 25, C.P.C. to the trial Court. The learned counsel submitted that the remand order could have been passed by the High Court only if the trial Court had omitted to frame or try any issue or when it was essential on the part of trial Court to announce an effective judgment on the basis of evidence which was not sufficient for the said purpose. The learned counsel also contended that as a matter of fact the High Court by remanding the case to the trial Court provided the plaintiff an opportunity to fill up the lacunas and patch up the gaps in his case, whereas on the basis of evidence brought on record, the plaintiff ?respondent miserably failed to prove his case against the defendants? appellants. The learned counsel also submitted with vehemence that it was not even argued from the side of plaintiff-respondent that the case may be remanded so that the relevant file may be summoned from the concerned office. The High Court thus fell in a grave error in remanding the case and providing the plaintiff another opportunity to prove his case, whereas during the course of evidence he was provided sufficient opportunities to lead evidence in support of his case but all the same he failed to do so. The learned counsel in support of his case placed reliance on reported case titled Mst. Fatima Bibi and another v. Allah Ditta and 19 others (1983 CLC 557), Muhammad Dervaish Al-Gilani and 14 others v. Muhammad Sharif and others (1997 SCMR 524), Syed Naeem Abbas v. Mst. Shabana Anjum (PLD 1997 Kar. 363) and Muhammad Habib v. Sultan Ahmed Khan (1997 CLC 1196) by contesting that the High Court should have in the first instance pointed out the . question of fact which was essential for the just decision of the case and then remanded the case to the trial Court if it had felt some difficulty to pronounce the effective judgment in absence of certain evidence, but the High Court on the other hand remanded the case to the trial Court simply to help the plaintiff-respondent to make up the deficiency in his evidence.
4. Controverting the arguments raised by the learned counsel for the appellants, Syed Nazir Hussain Shah Kazmi, the learned counsel for the respondent, submitted that the plaintiff-respondent has made certain allegations in his plaint and thus material allegations have not been denied by the appellants in unequivocal terms. The denial of allegations on the part of defendants-appellants being evasive in nature, the judgment of the High Court,. remanding the case to the trial Court, suffered from no illegality or infirmity as pointed out by the learned counsel for the appellants.
5. After hearing the respective contentions of the learned counsel for the parties and perusal of the impugned judgment, it may be stated that the suit filed by the respondent for damages was dismissed by the trial Court for want of proof. On appeal taken to the High Court it felt advised to remand the case to the trial Court under Order XLI, rule 25, C.P.C. and it was directed that the trial Court shall summon the personal file of the deceased from the concerned hospital and after recording the evidence on facts, shall return the evidence to the High Court alongwith its findings thereon and reasons therefor. The High Court has not expressed its opinion so far as the merits of the case are concerned. We also refrain from expressing any opinion. However, it may be pointed out that the provisions of Order XLI, rule 25, C.P.C. are applicable only where the Court, from whose decree the appeal is preferred, has omitted to frame of try any issue or determine any question of fact which appears to the Appellate Court essential for the right decision of the suit on merits. However the issue to be proved should strictly arise from the pleadings of the parties but, where the Court has framed the issue or has determined such question of fact, the provisions of this rule will be inapplicable. In other words, on the evidence brought on record if the Court feels some difficulty to pronounce an effective judgment, it may resort to Order XLI, rule 25, C.P.C. but on the other hand the case cannot be sent back to the trial Court for recording additional evidence in order to fill up the lacunas or patch up the gaps in the case of a particular party.
In a case reported as Mst. Fatima Bibi and another v. Allah Ditta and 19 others (1983 CLC 557) it was observed by this Court that Order XLI, rule 25, C.P.C. gives power to the Appellate Courts to frame issue and refer the same for trial to the Court below if need be arise by taking additional evidence but the rule permits this course only if the trial Court omitted to; (i) frame an issue, (ii) try an issue' or (iii) determine any question of fact which appears to the Appellate Court essential to the right decision of the suit upon the merits. It follows that an appellate Court may remit issues to the lower Court for findings where the trial Court failed to try an issue or determine any question of fact essential to the right decision of the suit on merits. It would thus appear that provisions of Order XLI, rule 25, C.P.C. enlarge the scope of remand after framing issue, which is essential to the right decision of the suit upon merits. Therefore, under this provision the issue may not necessarily arise out of the pleadings of the parties, A case, however, cannot be remanded to enable a party to produce evidence which ought to have been given in the lower Court and where the lower Court has not omitted to decide any issue or any question of fact.
In a case reported as Muhammad Habib v. Sultan Ahmed Khan (1997 CLC 1196) it was observed that where both the parties were fully conscious of their respective claims and had full opportunity to produce their evidence to substantiate the same, Appellate Court should not have remanded the case on technicalities alone and should have decided the controversy between the parties on merits. Thus, remand order was set aside and the case was remitted to the Appellate Court below for fresh decision on merits in accordance with law.
In a case reported as Syed Naeem Abbas v. Mst. Shabana Anjum (PLD 1997 Kar. 363) it was observed that whatever evidence was available with the plaintiff, the same had been produced and the respondent had been given reasonable opportunity to produce all her documents,, however, if she had chosen not to bring on record any document, the Court was not required to allow the parties to produce additional evidence as and when she desired for the reason that the evidence on record was not sufficient to establish the case. The Appellate Court was required to come to its own conclusion on the basis of evidence which was brought on record by the parties and decide the appeal in accordance with law instead of remanding the matter to the trial Court unnecessarily to provide one of the parties to fill up the lacunas or gaps. The case was remanded and the Appellate Court was directed to dispose of the appeal on merits.
In a case reported as Muhammad Dervaish Al-Gilani and 14 others v. Muhammad Sharif and others (1997 SCMR 524) it was observed that the Appellate Court instead of remanding the case should have decided the case itself. The power for remand of case should not be exercised lightly but sufficient care should be taken in remanding the case. The Court should examine the evidence and if on examination it comes to the conclusion that the same is not sufficient to pronounce the judgment or decide the issues between the parties, the case should be remanded or the Court could itself record evidence and decide the same. Where, however, there was sufficient evidence on record on which decision could be made, remand would not be justified.
6. The survey of the case-law shows it beyond any manner of doubt that the requirement of Order XLI, rule 25, C.P.C. is not to fill up the lacunas or gaps in the evidence of a particular party but is primarily for the purpose that if on the basis of evidence brought on record by the parties the Court is unable to pronounce an effective judgment, it may exercise its powers under Order XLI, rule 25, but if from evaluating the evidence or record the Court can easily decide the matter on the basis of material which had already been brought on record, the remand order is not justified under the said provision of law. In the instant case the High Court has failed to observe that the trial Court has omitted to frame or try any issue or to determine any question of fact, which appeared to the Appellate Court essential to the right decision of the suit upon merits. The High Court also failed to record the finding that no effective judgment could have been passed by the trial Court in absence of framing any issue of determining any question of fact, which may be necessary for the right decision of his suit upon merits.
7. The High Court has thus committed an illegality by remanding the case to the trial Court and the ground made basis for remand of the case is not recognized by Order XLI, rule 25, C.P.C. or any other provision of law. The High Court in the first instance should have recorded its finding that on the basis of evidence on record it was unable to pronounce an effective judgment and then to proceed further but it failed to do so. The remand order cannot be allowed to be made to patch up the gaps and lacunas left by a particular party especially so when that party was given reasonable opportunities to produce evidence but it failed to do so.
8. Another reason on the basis of which the remand order passed by the High Court is found to be illegal is that the High Court simply directed the Court below to give the respondent an opportunity to summon certain file and to give certain additional evidence but no opportunity was given to the defendants-appellants to provide them a chance of rebuttal. It, therefore, follows that the High Court without any justifiable reason wanted to help the plaintiff-respondent so that he might be able to fill up the lacunas and make up the deficiency left in his evidence. We also have a sympathy with the respondent as his son lost his life in the bus accident but in the absence of evidence we cannot help him by passing a decree in his favour.
9. In the light of what has been stated above, we set aside the remand order passed by the High Court and remit the case to the High Court to give its findings on the merits of the case on the basis of evidence already produced by the parties. In the circumstances of the case we pass no order as to costs.
H.B.T./332/SC(AJ&K) ???????????
Order accordingly.