2007 PLP 386 (CLC)

MUHAMMAD AKHTAR SHABBIR, J.

Mst. Sakina Bibi, plaintiff/petitioner herein had instituted a suit for declaration challenging the Mutation of gift No.137, dated 6-12-1995 on the ground of fraud and misrepresentation, against law and facts and ineffective upon her right. It was contended in the plaint that defendant No.3 her father being an old aged person was permanent patient was unable to walk around and even to speak and for a long period, he was suffering from serious ailment and defendant No.2 through fraud and in connivance with the officials of defendant No.4 got registered the said mutation of gift in favour of defendant No.1, as a result of which she was deprived of the property of her father.

2. During the proceedings of the suit on 16-12-1996, defendant No.3, father of the plaintiff, appeared before the Court and recorded his better statement wherein it was stated by Phhali Khan son of Bahadur Ali that he with his own consent had gifted away the landed property in favour of his daughter defendant No.1 in lieu of her services rendered to him. On his statement, the Court framed additional Issue No.2-A, and on this statement dismissed, the suit vide, judgment and decree, dated 13-3-1997. Feeling aggrieved, the petitioner preferred an appeal, which came up for hearing before a learned Additional District Judge, Rawalpindi, who vide his judgment and decree, dated 31-10-2001 dismissed the appeal and maintained the judgment of dismissing the suit of the plaintiff/petitioner.

3. Learned counsel for the petitioner contends that the suit was dismissed by the learned trial Court without providing an opportunity of recording the evidence of the petitioner and performing the required procedure provided in the Code of Civil Procedure. Further contends that the statement of defendant No.3 was recorded in absence of the petitioner and she was not allowed an opportunity to cross-examine him.

4. On the other hand, learned counsel for the respondents vehemently opposed the contentions of the learned counsel for the petitioner and supported the judgment of the Courts below by contending that it' an owner of the property had categorically stated that he himself had gifted away his property in favour of respondent No.1, then there was no need to further continue with the proceedings of the suit.

5. I have heard the arguments of the learned counsel for the parties and perused the record. Under Order X, rule 2, C.P.C. the Court at the first hearing of the suit, or at any subsequent hearing, any party appearing in person or present in Court, or any person able to answer any material question relating to the suit by whom such party or his pleader is accompanied, shall be examined orally by the Court, and the Court may, if it thinks fit, put in the course of such examination questions suggested by either party. The better statement under rule 2, Order X, C.P.C. is recorded for the purpose of ascertaining the real matter in controversy and if such material is not evidence per se and is not to be used a means of trial and the Court is not held mini trial within a full fledged trial. The Court can examine the parties, if the pleadings of the parties are wanting any clearity and for the purpose of getting the case of the parties properly on record or feels necessity to frame proper and legal issues if pleadings of the parties are ambiguous and evasive etc.

6. The statement under Order X, rule 2, C.P.C. can be taken into consideration but it cannot take the place of a statement made on oath and. it cannot be given the status of an admission which may be conclusive. Reference in this context may be made to the case of Sher Singh and others v. Pirthi Singh and others AIR 1975 All.

259. The power conferred by Order X, rule 2, C.P.C. is intended to be used by the Judge only when he finds it necessary to obtain from a party information on any material question relating to the suit and ought not to be employed so as to supersede in the Code of Civil Procedure. Where the burden lay on the plaintiff to prove his ease in ordinary course yet the proceedings at the trial opened by the Court calling on one of' the defendants to give evidence not on any, specific point but on the whole case and the witness is then cross-examined at length not through the Court but by the other party themselves. Though the defendant was deeply implicated which the Court had to investigate and knew most about the whole affairs and the Judge may have thought it useful to hear at the outset the account of the matter, but in absence of some more cogent reason such a deviation from normal and proper procedure cannot be approved. Reference in this behalf can be laid on the case of Manmohan Das and others v. Mt. Ramdei and another AIR 1931 PC

175. The statement of a party unless substantiated by evidence of the party in witness-box cannot be treated as evidence against opposite party who has no opportunity of cross-examining his opponent who made the statement. The party to a suit must give evidence as a witness in respect of matters which are directly within his knowledge. In this context reference can be made to case of Dogar Mal Amir Chand v. Pleader AIR 1930 Lah. 947.

7. In the instant case, the suit has been contested by the defendant and from the pleading of the parties, two issues have been framed, which are as under:-- (1) Whether the defendant No.3 is suffering from any ailment or disability, if so, what is the effect? OPP (2) Whether the plaintiff is owner of the suit property and the Mutation No.137, dated 6-12-1995 is the result of fraud, collusion and is illegal against the fact and is liable to be set aside? OPP

8. On the better statement of defendant No.3, Issue No.2-A was later on framed by the learned trial Court, but the petitioner was not provided an opportunity to establish her case with regard to the ailment and disability of defendant No.3. As discussed in the preceding paragraph, the statement under Order X, rule 2, C.P.C. is not an evidence as it was not recorded in presence of the plaintiff/petitioner. She was also not afforded an opportunity of cross-examine him and the learned trial Court has deviated from the normal and proper procedure prescribed in the Code of Civil Procedure, and dismissed the suit without taking into consideration the provisions of Order VII, rule 11 of the Code of Civil Procedure, which provides that where the plaint does not disclose the cause of action, the plaint is liable to be rejected and not dismissed.

9. Learned counsel for the respondents when confronted with the above legal as well as factual aspect of the case has not been able to controvert this legal objection of the learned counsel of the petitioner that the petitioner has been condemned unheard.

10. Consequently, for the foregoing reasons, civil revision is accepted and the impugned judgment and decree passed by both the Courts below are set aside. The case is remanded to the trial Court with the direction to decide the same afresh after providing an opportunity of producing the evidence to the parties within a period of six months. No order as to costs. H.B.T./S-214/L Revision accepted.