P L D 1959 (W (PLP)

Three questions have been referred to us by a Single Bench. They are as follows :‑ (1) On what considerations, if any, can Majlis‑e‑Shoora record evidence in appeal ? (2) Whether under the local law, the defendant need not be given an opportunity to produce evidence ? (3) Whether the Majlis‑e‑Shoora is entitled to raise new pleas in appeal ? These questions are of obvious importance because they were raised before us in several appeals.

2. The first question arose lastly in appeal. No. 9 of 1956. The facts are that Shakar Khan appellant filed a suit for taking a piece of land by pre‑emption on the allegation that he had expressed his desire to Mustafa, respondent‑defendant, for taking the land in exercise of his right of pre‑emption and that Mustafa had agreed to transfer the land to him but subsequently arranged to cultivate it in disregard of the appellant's claim. The plaint shows that the appellant‑plaintiff was not certain whether the land had been purchased by Mustafa, and therefore he requested Mustafa to disclose its price, if he had purchased it, but Mustafa rejected the request whereupon the appellant‑plaintiff instituted the suit He has alleged that he was not aware of the price of land, and, therefore, could not pay proper court‑fees on the application The suit was filed on the 11th of July 1954. The respondent defendant statement was recorded on the 2nd of August 1954, in which he stated that he had purchased the kind in dispute and developed it, but that the appellant‑plaintiff was nor entitled to pre‑empt it because he made no attempt to take it before its development, and had thus lost his right of preemption. He further stated that the sale‑deed related to two plots of lane, but the suit was with regard to one of them only. On the 29th, of August 1954, the respondent‑defendant made an applica tion with a prayer that the appellant‑plaintiff should be ordered to pay proper court‑fees. The Court ordered an inquiry for ascertaining the price of land, which was found to be Rs.

750. Court‑fees on this amount was not realised, but a bond containing an undertaking to pay the required amount of court‑fees was taken On the 2nd of October 1954, the respondent‑defendant made another application in which he stated that he had agreed to give the hand of his sister Mst. Daulat in marriage to Muhammad Qasim and, therefore, Muhammad Qasim and his father Mandu Khan had transferred the land in dispute to her in lieu of her dower, and that she made a gift of the land to the respondent‑defendant. He contended that there could be no right of pre‑emption in favour of the appellant‑plaintiff in these circumstances He submitted his written statement on 10th of October 1954, in which he repeated the contentions, which were more elaborately raised in his last application.

3. No issues were framed on the pleadings of the parties. The Qazi of Bhag, who tried the case, took on record a copy of a document, dated 23rd March 1950, which shows that the transaction was made between four brothers of Mst. Daulat as one party, and Mandu Khan, the father of Qasim as the other party. It contains several covenants relating to the rights and obligations of the parties arising from the marriage between Mst. Daulat and Qasim and to the transfer of the land in dispute to the four brothers in lieu of dower. The Qazi of Bhag did not consider the document as reliable because of some erasures, which he found in the original document, which was apparently shown to him, but he relied on the oral evidence that was produced by the appellant‑plaintiff. Two witnesses Bakhtiar and Hameer supported the case of the appellant‑plaintiff. Mandu Khan and his son gave a statement, which is at page 37 of the record, that the land had been sold. According to them the land was sold for Rs. 400 to the respondent‑defendant. After recording this evidence and owing to the failure of the respondent‑defendant to disprove the contention of the appellant‑plaintiffs, the Qazi of Bhag decreed the suit and ordered the respondent‑defendant to deliver the possession of the land to the plaintiff on receipt of Rs. 400.

4. The respondent went in appeal to the Majlis‑e‑Shoora. Dur ing the pendency of the appeal, Mst. Daulat made an application to the Majlis that the land was transferred to her by the father of leer husband in lieu of her dower. She was not formally made a party to the appeal, but the Majlis proceeded to consider her contention and heard the evidence of four witnesses who were produced by her. Their statements were apparently not recorded, but after hearing them the Majlis accepted their statements as true, accepted the appeal and set aside the order of the Qazi of Bhag. Shakar Khan, appellant‑plaintiff has come in second appeal to this Court against the judgment of the Majlis.

5. He impleaded Mustafa, the original defendant, only as a respondent to this appeal, but Mst. Daulat was also made a party by order of this Court. Counsel for the appellant has criticised the judgment of the Majlis before us on the ground that the Majlis was not entitled to examine witnesses produced on behalf of Mst. Daulat, for that amounted to converting the appeal into an original trial and impliedly joining Mst. Daulat as a party to the suit. We had the benefit of hearing four counsel, three of whom appeared before us in the above‑mentioned three appeals and one of whom, namely, Mr. Karam Elahi appeared amicus curiae. References were made by learned counsel to the Shariat Law on this question and " Hujjat‑al‑Lah‑ul- Baligha " p. 668, which is a book of great authority, was cited in support of the contention that the duty of the Court was to do justice, for which purpose it was not bound by any limitations of procedure. Mr. Muhammad Fazil contended that under sections 3, 4 and 7 of the Dastur‑ul‑Amal Diwani, Kalat, the parties had to submit their pleadings and issues had to be struck, but the scope of appeal was left undefined in section 24 of the Dastur‑ul‑Amal, which contained no provision corresponding to sections 96 and 100, and Orders XLI and XLII of the Code of Civil Procedure (Act V of 1908). This difference between the two procedures gave wide powers to the appellate Courts, according to counsel, and that the Courts were required to do justice irrespective of the narrow scope, which has been prescribed in Act V of 1908. Mr. S. M. Arif cited section 2 of the Law of Evidence, Kalat, and contended that the Majlis‑e‑Shoora was a `Court' and that as such entitled to record evidence. He also cited Bhag Singh Bugga v. Dewan Jagbir Sawhney (A I R. 1941 Cal. 670) in support of his contention that the High Court was expected to aim at preventing injustice only because the provisions contained in the Dastur‑ul‑Amal Diwani did not provide details of procedure.

6. Mr. Muhammad Fazil after expressing the view men tioned above supported the appellants' contentions against the judgment of Majlis‑e‑Shoora by referring to the unreported judgment in 2nd Civil Appeal No. 3 of 1957, in which Munshi, J. has observed as follows: " Section 24 of Dastur‑ul‑Amal Diwani Kalat merely provides for appeals to be heard by Majlis‑e‑Shoora. This section does not empower Majlis‑e‑Shoora to hear evidence. No other section of Dastur‑ul‑Amal Diwani has been pointed out to me to show that Majlis‑e‑Shoora is empowered to hear evidence while dealing with an appeal. There is not even a provision in this Dastur‑ul‑Amal analogous to Order XLI, rule 27, C. P. C. whereby the appellate Court under certain specified circum stances is empowered to record additional evidence. It is, therefore, clear that the Majlis‑e‑Shoora acted without juris diction when they heard evidence led by the respondent and acted on it." We were, to begin with, in doubt whether to agree with this view totally, because to lay down that under no circumstances Majlis‑e‑Shoora could record additional evidence might be too narrow a view. We felt strengthened in this view because learned counsel who appeared before us contended that there was no provision in the Dastur‑ul‑Amal Diwani under which the appellate Courts were authorised to remand cases to the lower Courts. We have, however, found that the power to remand a case with suitable directions to a lower Court is contained in section 25 of the Dastur‑ul‑Amal Diwani. Moreover, in the absence of any provision empowering the appellate Courts to take additional evidence we could be guided by the expression appeal ' itself, which occurs in section 24 of the Dastur‑ul‑Amal Diwani. An appear means invocation of the authority of a higher Court for rectifying the mistakes made by the lower Court. In this view, the scope of appeal should be taken, in the absence of any provision to the contrary, to be restricted to the decision of the objections that may be raised against the judgment from which an appeal is preferred. There is nothing to the contrary in Dastur‑ul‑Amal Diwani; nor does it pretend to be a Code of Civil Procedure. Agha Abdul Hamid, Wazir‑e‑Azam, Kalat, has stated in 1951 in his foreword to the Law of Evidence, Kalat, as follows:- " Accordingly, the Government of Kalat has, with the prior sanction of the Ruler of Kalat, prepared three Codes and enforced them (1) The Penal Law of Kalat ; (2) The Code of Criminal Procedure ; and (3) The Law of Evidence. Moreover, instructions relating to the Civil Procedure have also been issued and codification of Shariat Law is in hand."

7. The Dastur‑ul‑Amal Diwani, Kalat, 1952, contains a statement in section 1 that it was enforced in the place of the previous Dastur‑ul‑Amal. The expression " Dastur‑ul‑Amal Diwani " can, we think, be accurately translated by the words " Basic Provisions of Civil Procedure ". In realisation of the meagre provisions that it contains, power has been conferred by section 27, which is its last section, on the Wazir‑e‑Azam (or the High Court) for making additional provisions. If the Law Reforms Commission was not at present considering the amend ment of laws, we would have considered the advisability of making a recommendation that a provision analogous to Order XLI, rule 27, C. P. C. (Act V of 1908) be made under this section. At present we consider it to be adequate that the observations made by Munshi, J. be enforced.

7. We respectfully agree with his observations‑and our reply to the first question is that the Majlis‑e‑Shoora has no power to record evidence during the hearing of an appeal.

8. The third question referred to us is allied in nature to the first one. It arose in Appeal No. 23 of 1958. Nazat Muhammad appellant‑plaintiff filed a suit, against the respondent defendant to take a certain piece of land by pre‑emption. Neither the description of the land nor its boundaries were given in the plaint. The appellant‑plaintiff stated in the sub‑heading of the plaint that he claimed to take by pre‑emption one ` bund ' of agri cultural land of the value of Rs.

300. The respondent‑defendant pleaded that he had purchased the ` bund ' in suit for Rs. 300 from Maula Dad and Hazar Khan and had informed the appellant -plaintiff of the purchase of the land and offered to give it to him if he wanted to take it in exercise of his right of pre‑emption, but that he had declined to take it. He also pleaded that the ‑suit was barred by time. No issues were framed on the pleadings of the parties.

9. The Qazi of Bhag tried the suit during the course of which he recorded the statements of the parties, evidence of two witnesses of the appellant‑plaintiff and took on record copies of two docu ments which purport to be receipts of payment of price in two transactions of sale. One of them was executed by Maula Dad with reference to two` Bunds ', which was sold by him for Rs.

120. The other was executed by ‑Hazar Khan and relates to the sale of two plots of land for Rs.

108. Nazar Muhammad stated the boundaries of the entire land in suit in his statement and they were adopted by the Qazi of Bhag, presumably on the understanding that they were correct and included the entire land in dispute. The Qazi of Bhag has stated in his judgment dated the 18th of September 1955, that the respondent‑defendant vas called upon to prove his allegation that the appellant‑plaintiff was informed of the sale and yet did not promptly institute the suit. He failed to substantiate the allegation and requested that appellant‑plaintiff be put to oath. The appellant‑plaintiff was accordingly put to oath. In view of the oath taken by him and the evidence of the witnesses produced by him the Qazi decreed the suit. The respondent‑defendant went in appeal to the Majlis‑e‑Shoora and the Majlis raised the question whether the appellant‑plaintiff had made ' Talb‑e‑Mowasibat ' and ` Talb‑e Ishhad ' and after making enquiries from the appellant‑plaintiff came to the conclusion that those preliminaries had not been performed. It, therefore, accepted the appeal and dismissed the suit of the appellant‑plaintiff. He has now come in II appeal to this Court.

10. Mr. Muhammad Ahmad, counsel for the appellant, questioned the procedure adopted by the Majlis‑e‑Shoora. He contended that the Majlis was not entitled to raise new pleas because as an appellate Court its jurisdiction was limited to considering the objections which had been taken against the judgment of the trial Court, and because the parties were bound by their pleas and the issues which arose from those pleas. No issues were struck in this case, yet the scope of enquiry was determinable by the pleas themselves. The scope of appeal has not been prescribed by section 24 of the Dastur‑ul‑Amal Diwani, yet an appeal could not be regarded as a retrial and that its scope could not be the same as that of the original trial. The Majlis‑e- Shoora exceeded the limits of the original trial also by conceiving objections of its own accord and examining the appellant‑plaintiff on the objections so conceived by it. We agree with counsel and should point out that even a Qazi trying a suit originally has ordinarily to consider and decide the cases only according to pleas raised by the parties themselves and the issues framed on their pleas, subject to the provisions of section 4 of the Dastur‑ul‑Amal; Diwani. Moreover, having come to the conclusion with reference to the first question referred to us that the Majlis‑e‑Shoora is not entitled to record evidence in appeal, we consider ourselves equally persuaded to conclude that the Majlis‑e‑Shoora could not of its own accord raise new objections, which involved proof of addi tional facts.

11. Our answer, therefore, to the third question is that the Majlis‑e‑Shoora cannot raise new pleas in an Appeal unless all the facts necessary for their decision are already on the record. We may add that the converse of this proposition ii not always true.

12. The second question arose from an observation made by the Majlis‑e‑Shoora in its judgment from which Appeal No. 22 of 1956 was preferred to this Court. Abdul Malik, respondent -plaintiff, filed a suit against Arbab Muhammad Bakhsh and Wahid Bakhsh appellant‑defendants for the recovery of the possession of a plot of land on the allegation that the appellant -defendants had by force ousted the respondent‑plaintiff from it. No description or boundaries of the plot of land were given in the plaint. Arbab Muhammad Bakhsh, appellant‑defendant, submitted a written statement, which was really not a written statement, but only an application, described as a written state ment, for better particulars so that he could discover the identity of the land in suit. Statements of Abdul Malik and Arbab Muhammad Bakhsh were recorded by the Qazi of Bhag, who decreed the suit. He has stated in his judgment that two witnesses supported the claim of Abdul Malik, though they declined to give their evidence on oath on the Holy Quran. Appellant defendants insisted on that oath and therefore the Qazi called upon the appellant‑defendants themselves to give evidence on that oath, but they refused to do so. The Qazi inspected the land in suit, made enquiries from the inhabitants of the town and decreed it on the ground of the refusal of the appellant‑defendants to take the proposed oath in support of their defence. They went in appeal to the Majlis‑e‑Shoora and contended that they were not given an opportunity to produce witnesses, and that the witnesses of the respondent‑plaintiff were examined without giving them oath on the Holy Quran. The Majlis‑e‑Shoora rejected both the pleas as follows :‑ "Allah Yar Faqir and Dost Muhammad have given evidence in favour of the plaintiff' (Abdul Malik), but the defendants (Muhammad Bakhsh and Wahid Bakhsh) insisted to take oath to disprove the claim of the plaintiff. It is against the law of Shariat that in the presence of the evidence of the plaintiff, the defendant should be allowed to dispose the plaintiff's claim on oath. Yet on the insistence of defendants, Qazi Sahib wanted to put them on oath, but they refused to take oath and admitted the claim of the plaintiff. Moreover, on enquiries made at the land in suit, the public supported the claim of the plaintiff. The appellant's only objection (against the decision of the Qazi) is that he (the Qazi) did not give an opportunity (to him) to produce witnesses and that the witnesses of the plaintiff were examined without administering oath to them. Either of these two objections is against the law of Shariat".

13. Mr. Muhammad Fazil Khan, counsel for the appellant-defendants has cited Hujjat‑ul‑Lah‑ul‑Baligha (pp. 670 and 675), and Falsafa‑e‑Shariat (p. 283) in support of his contention that according to the law of Shariat, a defendant cannot be allowed to negative the case of the plaintiff by taking oath if the plaintiff produces evidence in support of his claim. He also pointed out that statements of the witnesses produced by Abdul Malik, respondent‑plaintiff, were not reduced to writing by the Qazi of Bhag, and that his judgment was based on vague impressions of what he heard from the witnesses and from the inhabitants of the locality It was, therefore, impossible for appellant‑defendants to remove those impressions without having an opportunity to produce witnesses on their behalf.

14. The omission to reduce to writing statements of witnesses and the procedure of making local enquiries is obviously an error with which, however, we are not concerned at present. We see no justification for the view taken by the Majlis‑e‑Shoora that an opportunity to produce evidence need not be given to a defendant. Mr. Karam Elahi contended that the basis of the erroneous view was the failure of the Majlis‑e‑Shoora and the Qazis to recognise the codified law of Kalat as binding on them. The substantive civil law according to section 11 of the Dastur ul‑Amal Diwani, is Shariat as well as the custom that is followed by the Muslim population, but to the extent to which there are provisions in the Dastur‑ul‑Amal Diwani, the Law of Evidence, Kalat, and other codified law that is in force, the Qazis and the Majlis‑e‑Shoora are definitely bound by them and they must act accordingly. The Courts governed by the Dastur‑ul‑Amal Diwani and the Law of Evidence, Kalat, have no authority to contravene the provisions contained in those statutes. Section 12 of the Dastur‑ul‑Amal Diwani and sections 34 and 35 of the Law of Evidence, Kalat, deal with the burden of proof, and sections 54 and 57 of the Law of Evidence, Kalat, prescribe the order in which witnesses should be produced and the order in which they should be examined, cross‑examined and re‑examined. Section 73 of the Law of Evidence, Kalat, does lay down that improper rejection of evidence shall not be a ground by itself for a new trial or reversal of any decision in any case provided that it should appear to the Court before which such objection is raised that admission of the evidence that was rejected would not have induced it to vary the decision. The object of this provision is to avoid unnecessary prolongation of litigation and this provision comes into operation after an error mentioned in it is committed. It does not provide a justification for not giving an opportunity to a party to a trial to produce its evidence. We should not omit to mention here that offers and acceptance of the offers to administer special oath are dealt with in sections 77 to 81 of the Law of Evidence, Kalat. They must be kept in mind by the Courts whenever a question of administering special oath arises.

15. Our answer to the second question is that an opportunity to the defendant to produce evidence should not be denied unless a provision of law makes it unnecessary or improper. ORDER (SINGLE BENCH) QADEERUDDIN AHMED, J.‑This order will dispose of the three appeals. The main contentions raised in the above appeals were referred to a Division Bench. The opinion of the Division Bench is elaborate and contains necessary facts. I need not repeat them in this order, and this order may be read in continuation of that opinion. I‑Appeal No. 9 of 1956

2. In appeal No. 9 of 1956, the Majlis‑e‑Shoora should not have treated Mst. Daulat as a party to the proceedings and should not have allowed her to produce evidence on her behalf. Moreover, the statements of all witnesses who were allowed to be produced should have been recorded. Statements of witnesses should not be merely heard by the Courts. The statement of the respondent‑defendant dated the 2nd of August, 1954, the joint statements of the two witnesses, Bakhtiar and Hameer, dated the 17th of December, 1954, and the joint statements of the seller and his son dated the 16th of December, 1954, sufficiently establish that sale had been made, and that the appellant was entitled to take the property that was the subject‑matter of the sale by pre‑emption. The pleadings were not carefully drafted, but as the issues were not framed, their defects were not noticed. It is clear from the judgment of the Qazi of Bhag dated the 18th of December, 1954 that two plots of land were the subject. matter of the sale. I have considered the propriety of remanding the case for clarification of the pleadings, but I think that the delay which has already occurred does not warrant that a retrial should be held. No objection was taken to the description of the land given in the judgment of the Qazi of Bhag. In view of the opinion of the Division Bench I set aside the judgment of the Majlis‑e‑Shoora. The suit is decreed in terms of the judg ment of the Qazi of Bhag. The appellant‑plaintiff' will get the costs of the proceedings throughout. II.‑Appeal No. 22 of 1956.

3. The facts disclosed in Appeal No. 22 of 1956 show that the Qazi of Bhag was influenced by the enquiries made by him from the inhabitants of the town and attached too much importance to the objection regarding the administration of special oath. The procedure of making inquiries from those who are not witnesses of the parties and whose statements are not recorded is not satisfactory. Inspection of the property in suit is not objectionable, but a record of the inspection should be maintained by writing a separate note after the inspection of what was inspected and what was observed and found during the inspection. Moreover, as pointed out by the Division Bench, questions relating to the administration of special oath are to be deter mined in accordance with the Qanun‑e‑Shahadat of Kalat. Unless the provisions of that law or some other law make it proper a, party should not be deprived of the opportunity of producing evidence. As observed by the Division Bench, a defendant is entitled to an opportunity to produce evidence unless a provision of law makes it unnecessary or improper. Insistence on special oath appears to have prejudiced the appellant‑defendants. The Majlis‑e‑Shoora has made an observation in its judgment dated the 17th of March, 1954, to the effect that the defendant had admitted the claim of the plaintiff. I have not been able to find such an admission on the record. If a party declines to produce evidence or admits a claim, then his statement to this effect should be recorded. The trial by the Qazi of Bhag as well as the judgment of the Majlis‑e‑Shoora suffer from such serious defects that neither of them can be upheld. This is a very old suit, but I am constrained to set aside the judgments of the Majlis‑e‑Shoora dated the 17th of March, 1954 and of the Qazi of Bhagi dated the 13th of October, 1953 and to remand the case for re‑trial.;

4. I draw the attention of the officers concerned to the provisions contained in sections 4 and 7 of the Dastur‑ul‑Amal Diwani, and to point out that compliance with these provisions is conducive to proper trial as well as necessary under the law. If they were observed, the plaintiffs' claim would have been ascertained with accuracy, a proper written statement would have been taken on record and issues would have been struck to clarify the nature of the disputes between the parties.

5. I direct that proceedings under sections 4 and 7 of the Dastur‑ul‑Amal Diwani, Kalat be taken and completed within three months and the trial on the original side be concluded within the next three months. III.‑Appeal No. 23 of 1958.

6. In Appeal No. 23 of 1958, the procedure adopted by the Majlis‑e‑Shoora, by which the Majlis raised new mixed pleas of law and fact, has been disapproved by the Division Bench. I accordingly set aside the order passed in appeal by the Majlis‑e -Shoora. The pleadings in this suit were not satisfactory, nor were issues framed on them. As a long time has already been spent I do not wish to remand the suit for retrial for correcting the irregularities some of which call for rectification. The boundaries of the land in suit as given in the order of the Qazi of Bhag dated the 18th of September, 1955 have not been questioned before me. I therefore decree the suit in terms of the judgment of the Qazi of Bhag. The appellant is entitled to get costs of the proceedings throughout. A. H. Order accordingly.