MUHAMMAD DERVAISH AL GILANI And 14 Others vs MUHAMMAD SHARIF And Other

SALEEM AKHTAR, J.--All these petitions will be disposed of by this judgment as the question of law and fact and the parties as well, are common. In all these petitions the petitioners had filed ejectment application against respondent No. l in all the petitions who were tenants as claimed by the petitioners. The tenants remained ex parte. However, Muhammad Rasool respondent, appeared and claimed to be the owner of the property. The learned Controller dismissed the ejectment application holding that the relationship of landlord and tenant did not exist between the petitioners and respondent No. 1. The petitioners then filed appeal in the High Court which remanded the case to the learned Controller for re-writing the judgment after taking into consideration all the points discussed in the impugned judgment. We have heard the learned counsel for the petitioners and respondent No.2 in person.

2. The learned counsel for the petitioners contended that as the evidence on record was sufficient to pronounce the judgment there was no occasion to remand it for re-writing the judgment by the learned Controller. The learned Judge in Chamber could have decided the case on merits on the material on record as from the impugned judgment it does not appear that there was any deficiency in evidence or the evidence was not sufficient to pronounce the judgment. In such circumstances the learned Judge instead of remanding case should have pronounced the judgment on merits. 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 Paratnatha Nath Chowdhry and 17 others v. Kamir Mondal and others (PLD 1965 SC 434), Fateh Ali v. Pir Muhammad and another (1975 SCM R 221), Sher Muhammad-and others v. Jamadar Ghulam Ghaus (1983 SCM R 133), Arshad Ameen v Messrs Swiss Bakery and others (1993 SCM R 216) and Syed Abdul Hakim and others v. Ghulam Mohiuddin (PLD 1994 SC 52). In view of the afore stated discussion, we convert the petitions in appeals and allow them. The High Court should hear the appeal after notice of the parties and decide the matter on merits.