NASIR AHMAD Versus KHUDA BAKHSH

ORDER

1. MUHAMMAD YAQUB ALI, C. J. ‑In an appeal in a pre‑emption suit the District Judge set aside the finding of the trial Judge on issue No. 4 pertaining to value of improvements made by the vendee and remanded the case for fresh trial but without adjudicating upon two other issues which had been answered in favour of the plaintiff‑respondent.

2. In a second appeal, a learned Judge in the High Court has, instead of interfering with the remand order, himself examined the evidence led by the parties on issues Nos. 1 and 5 and dismissed the appeal filed by the petitioners herein.

3. The learned counsel for the petitioners attempted to argue that the order passed by the District Judge had resulted in prejudice to his client inssm6ch as the High Court did not have the advantage of knowing how the District judge would have resolved these issues.

4. The contention raised is without any substance‑ The Civil Procedure Code specifically invests an appellate Court with the same powers as the Court below there are also provisions in Order XLI, C. P. C. to the effect that if there be sufficient material on the record the appellate Court may itself decide an issue which has not been determined by the first Court.

5. The petition for leave to appeal is dismissed.

6. Petition dismissed.