P L D 1960 Supreme Court (Pak (PLP)

S. M. Abbas, Attorney for Respondent No. 2. Date of hearing : 3rd June, 1960. CORNELIUS, C. J.-This is an appeal by the plaintiff Muhammad Ismail Chowdhury upon special leave granted to consider whether the High Court of East Pakistan acted within its powers in interfering with findings of fact recorded in favour of the plaintiff by the trial Court (the 2nd Munsif, Sadar, Chittagong) which had been confirmed on first appeal by the Subordinate Judge. The suit was for specific performance of an oral contract for sale of land. The Munsif had held it to be proved that there had been a contract entered into with the plaintiff by the first defendant Abdul Khaleque Sowdagar on behalf of the second defendant, his son, Nazir Aiimud, who was a consenting party to the contract. The land stood in the name of the second defendant, and an attempt by the plaintiff in the course of the trial to establish that the true owner of the land was the father, and the son was only a benami title-holder, was disallowed by the Munsif. Since the refusal of the defendants to carry out the Abdul terms of the contract, which took place in 1953-54, a part of the Khaleque area in question had been compulsorily acquired by the Govern- Cornelius, meat for which a sum of Rs. 310-8-0 had been received by way of compensation by the defendants, and in the suit by a supplementary amendment, it was claimed that this amount should be ordered to be paid to the plaintiff by the defendants. It was the plaintiffs case that he had paid the f ull consideration for the land at the time when the contract to sell to him was made. Both claims were decreed by the Munsif. The subordinate Judge armed his judgment while extending the period allowed for execution of the sale deed. In the High Court, these decrees were reversed by a learned Single Judge who found that the Munsif had made out a new case or the plaintiff which was at variance with that set up in the plaint where the allegation was that the property was jointly owned by the father and son, and they had jointly contracted to sell it to the plaintiff. The principal relief he claimed was execution of a sale-deed by both defendants. The learned Judge in the High Court also found it difficult to understand how, after finding that the contract was with the father to sell the property of the son; the Munsif had found it possible to decree the suit against the father ex parte, and at the same time to direct the son to execute the deed of sale. The reason why the case had proceeded exparte against the father was because of the latter's failure, or it may be refusal, to attend the Court in person in order that he should be put to the oath as to whether the plaintiff's case was true or not. The plaintiff had made a prayer to that effect on the 30th April, 1956. On the same day, the Munsif made an order directing that Abdul Khaleque Sowdagar should appear in Court on the following day, to take the oath, under pain of action under Order IX, rule 12, Civil procedure Code. On the 1 st May 1956, a medical certificate was produced the effect that Abdul Khaleque Sowdagar who was then aged 5 years, was ill and unable to attend, but this did not satisfy the Court which ordered that he should come within an hour and half, failing which the provisions of Order IX, rule 12, Civil Procedure code would be enforced. Later, the same day, an affidavit was filed by Abdul Khalique Sowdagar, which ill an confined to bed and unable tomove.The Munsif declaring that the affidavit was made by a motor driver who could know nothing about illnesses rejected it and struck out the defence of Abdul Khaleque Sowdagar which was joint with that of his son Nazir Ahmad. Thereafter, on the plaintiff and following day two witnesses were examined for the plaintiff and on behalf of the defendants Nazir Ahmad was examined and cross-examined, and full evidence as to the transaction from the point of view of the defendants was given by a second witness for the defendants, namely, Muhammad Anoo Meah, who is Munshi to Abdul- Khaleque Sowdagar. In the course of this ,.. hearing a prayer was made by the plaintiff for inspection of the i, spot . 'Thas was resisted on behalf of the defendants, but it was owed by the Munsif, who declared that he would inspect the spot "either today or on any other day which I shall announce". The spot was actually inspected on the 18th May 1956. There is nothing to show that that date was announced or communicated to the defendants. At the inspection only the plaintiff and his pleader were present. The result of the inspection was that the Munsif found two houses standing on the disputed land and a vegetable garden laid on it, with a tarja fence on the .east side. Clearly, the things which the Munsif saw were those which the plaintiff pointed out to him. For, in the plaint, he had merely stated that after being given possession, he bad constructed a "house bhiti" and planted trees on the land. In the schedule attached to the plaint also, the land was described as "homestead bhiti". We are informed by Mr. A. S. M. Mofakker for Nazir Ahmad that a house bhiti or homestead bhiti merely means a raised earth platform on which it is proposed later to construct a house. Mr. Guha appearing for the appellant has not controverted this statement with any confidence. In any case there seems to be a clear discrepancy between what the plaintiff said he had constructed and planted on the disputed land, and what the Munsif was able to find. It is quite evident that the discrepancy is due to his having no other guide to show him the actual condition at the spot except the plaintiff himself. The condition of the suit-land is described by Anoo Meah in the following words :- " Suit-land is in the midst of houses and is `Khila' (i.e. open) land. Suit-land is contiguous to homestead of plaintiff." It is stated at the Bar that the land is very small in area and is surrounded on all sides by houses, and it seems quite evident that some of these houses were shown to the Munsif when he inspected the spot as being actually situated on the disputed land. In the High Court, it was observed that the proceedings which led to the striking out of the defence of Abdul Khaleque Sowdagar, resulted in the Munsif becoming "exasperated". This was very evidently the case, and there seems no doubt whatsoever that from that point onwards, the attitude of the trial Court towards the defendants was tinged with prejudice. We are unable to see that the powers given by Order IX, rule 12, Civil Procedure Code can be employed for such a purpose as in the present case namely, to force an old and respectable merchant, quite possibly from a sick bed, upon the demand of the plaintiff, to Court in order to make an oath in support or otherwise of the plaintiff's case. Indeed section 9 of the Oaths Act, 1873, which enables the Court to give effect to an offer by one party to be bound by the oath of the opposite party, clearly provides that "no party ,g or witness shall be compelled to attend personally in Court solely for the purpose of answering such question" i.e. whether or not he will make the oath. Quite obviously, the power under Order IX, rule 12, C. P. C., was misused in this case by the~B Munsif. It appears to be the ,foundation of the bias which from that point onwards seems to us to have affected his attitude in the case. No other explanation can be put forward for his extraordinary conduct in regard to the inspection of the spot, which he carried out without notice to the opposite-party, and without making the slightest effort to fix the boundaries of the small area which was in dispute. The prejudice thus appearing in the conduct of the case shows itself in a number of places in the judgment of the Munsif. Having struck out the defence of the first defendant in a manner which appears to us to be quite illegal, he proceeded to give full effect at every stage, in favour of the plaintiff, to the fact that Abdul Khaleque Sowdagar was not defending the case and had not come forward to depose in support of his son. Thus, with regard to the main issue in the case, namely, whether there was any contract as alleged by the plaintiff the Munsif first pointed out that the suit was proceeding ex parte against the first defendant and went on to say that he had not appeared even as a witness for his son. Observing that the denial of the contract by any other person was "worthless", he went on to say :- " In the absence of any denial by defendant 1, that part of the case stands proved ex parte on the evidence of the P. W." Later he said that the evidence for the defendants served to prove that his son Nazir Ahmad did actually accept and bind himself with the commitments of the father Abdul Khaleque Sowdagar in the deed. Now, in the written statement there was a denial by Abdul Khaleque Sowdagar of all connection with the case. He had said that the land belonged exclusively to the son Nazir Ahmad, and that it was quite untrue to say that any money had been paid to him or that any promise had been made by him or by his son to execute the deed. Even if this be excluded, on the strength of the peremptory order under Order IX, rule 12, C. P. C. there is clear evidence given by Nazir Ahmad denying that on the date mentioned by the plaintiff, he or his father contracted to sell the suit-land to the plaintiff or that they received any money from him. He said on the other hand that the plaintiff had paid Rs. 800 by way of advance to the Munshi, Anoo Meah, with a request that he should secure the consent of Nazir Ahmad to the sale of the land but he Le. Nazir Aamad had refused to accept the money or to sell the land. The Munsif clearly misread this evidence, and the even more explicit statement by Anoo Meah, when he came to the conclusion that the defence evidence "most certainly proves that defendant 1 represented defendant 2 during the talks and further that defendant 2 did actually accept and bind himself with the commitments of defendant 1 in the deal". A reason was given by the defendants for the failure of the negotiations with which it is not desirable, in view of the order we propose to make, that we should deal in detail. Therefore, it seems quite clear that the approach of the Munsif to the case throughout the proceedings was affected by strong bias against the defendants, and in favour of the plaintiff. This is the principal reason why his judgment suffered from the numerous confusions which have been noted in the judgment of the High Court. The first appellate Court, namely, the Court of the Subordinate Judge failed to examine the case independently, and we have, with regret, to endorse the opinion of the High Court that the Subordinate Judge "followed the trial Court without considering the case of the parties by himself". Quoting an observation of the Munsif, viz. that the total absence of the first defendant during the trial "cuts the defence helping the plaintiff", the High Court observed that the statement was difficult to understand, and that it had the effect of illegally shifting on to the defendants the burden of proving that there had been no contract. Additionally, the judgment of the trial Court suffered from the defect that it had held Nazir Ahmad bound by the contract with his father, who was not in the circumstances his representative. The learned Judge in the High Court went on to say that the plaintiff's assertion during his evidence that defendant No. 2 was only a benami owner would stand in the way of a valid title passing to him by the execution of a sale-deed by Nazir Ahmad as directed by the trial Court. On these grounds, the High Court set aside the judgments of the Courts below and dismissed the plaintiff's suit. Mr. Guha appearing for .the appellant has attempted to argue that the judgment of the trial Court turned upon findings of fact with which the High Court was not competent to interfere in second appeal. He argued in the alternative that if these findings were not to be sustained by reason of bias in the mind of the trial Court, the proper course would be that the case should be sent back for retrial. Mr. Mofakher for the respondent Nazir Ahmad contended that the judgment of the High Court dismissing the plaintiff's suit should be sustained, or at least if the case was sent for a fresh decision, the parties should not be allowed to adduce any further evidence than they had already led. In the view we take of the case, the proceedings and the judgment of the trial Court are vitiated by clear bias, from which the conclusion must necessarily follow that all those proceedings should be set aside and the case should be remitted for trial before a competent Court. This makes it necessary that the whole procedure, from the point of framing of issues, through the recording of evidence etc. to the delivery of judgment, must be gone through again. To rely on the evidence already on record, as the only evidence in the case, is therefore not possible, and would clearly be dangerous to the dispensation of justice. The evidence on the record includes, for instance, the inspection note of the Munsif, which is clearly the result of a biased view. Should it be desired to obtain an exact appreciation of the nature of the land in suit, it will obviously be necessary to have the spot inspected by some competent and unbiased person, whose evidence can be relied upon by the Court with confidence. The effect of bias in the mind of a trying Judge extends to every part of the proceedings conducted and recorded by him. It is impossible for any superior Court of correction to estimate the value to be placed upon the record of the evidence prepared by such a Judge. Being in control of the entire proceedings he is in a position to influence the course of the examination and across-a,xamination of witnesses in such a way that the result towards which his bias leads him is produced, but the processes are completely concealed and consequently it becomes impossible for a superior Court to distinguish that portion of the proceedings which is affected by bias in the trial Judge. The mere attitude of a biased Judge is often sufficient to determine the nature of the evidence given by witnesses appearing before him. They cannot be expected to speak their minds freely with single-minded adherence to the truth, if they are aware of the direction in which the Court desires to guide the case. Consequently, we are constrained to hold, that the trial of this case has been vitiated by bias in the mind of the trial Judge, and therefore his entire proceedings and all subsequent proceedings in appeal should be set aside, and the case should be remitted C for retrial by a competent Court, and allowing the present appeal, we direct accordingly. The costs of the parties will be costs in the cause. Before parting with the case we think it proper to note that in the general screening-out of Government servants for corrup tion and inefficiency which recently took place, the Munsif Mr. M. A. Bukht, who tried the present case, was removed from service. A. H. Appeal allowed.