P L D 1952 Baghdad﷓ul﷓Jadid 59 (PLP)

ABDUL HAMID MALIK, J.‑This is an appeal from the judgment and decree of the Court of District Judge, Rahim yarkhan dated 10th December 1951, which affirmed the decree and judgment dated 29th December, 1948, of the Court of Sub -Judge, Rahimyarkhan. In arguing this second appeal, Mr. Chishti, the learned counsel for the plaintiff‑appellant, pointed out that the manda tory provisions of Order 13, Rule 4 have not been complied with by both the Courts below and submitted that there was no alternative except that the case be remanded for retrial. He further added that the material documents on which the case depended were neither proved in evidence nor admitted. He referred three main documents, i. e. (i) Will of Mst. Bibi, (ii) Gift‑deed dated 21st January 1906 alleged to have been written at the instance of Mst. Bibi. (iii) Mutation‑deed dated the 13th November 1907, and submitted that they were even never tendered in evidence. He also referred to other large number of documents which force part of this record. Briefly speaking he vehemently urged that in view of the non‑com pliance of the mandatory provisions of law the case must be sent back for retrial. In support of his arguments the learned counsel has cited Sadiq Hussain Khan v. Hashim Ali Khan 1916 P C 27, and Imam Din and another v. Sri Ram Prabha Dayal 1928 Lah.

142. I do find that their Lordships of the Privy Council, in the ruling quoted above, were pleased to strongly depreciate the failure of the presiding judge to observe the provisions of Order 13, Rule 4 to endorse in his hand that a document was proved against or admitted by the person against whom it was used and stated that they would refuse to read or permit to be read or used any document not endorsed in the manner required. The Lahore ruling cited above laid down that the trial judge must strictly comply with the provisions of Order 13, Rule 4, Civil P. C., with the docu mentary evidence: It is apparent that all the documents referred to above (besides other innumerable documents which form part of this record) were neither tendered. in evidence nor proved. This being so, the learned Subordinate judge was wrong in basing his judgment on such unproved documents because it cannot be said that they were legally brought on the record. Mr. Mustafa Khan, the learned counsel for the defendant‑respondent, conceded that the legal position taken up by Mr. Chishti, the counsel for the appellant, was correct. It follows that both the counsel are agreed that there has been a breach of the mandatory provisions of law (Order 13, R. 4) and the only course left open to this Court is to remand the case for retrial. Under these circumstances I am constrained to send this case back for a proper trial and for a proper judgment. It is regretable to note that the case which was instituted as far back as 29th December 1948 should have to be remanded for fresh trial simply due to the inadvertance on part of the learned Sub‑Judge who failed to observe the mandatory provisions of Order 13, Rule

4. I, accordingly accept this appeal, set aside the judgments and decrees of both the Courts below and remand the case to the trial Court for a proper trial. Needless to add that the trial judge will see that all the documents on record are ten dered in evidence, proved and admitted according to law. Costs in this Court will follow the event. A. H.