1995 PLP 8 (MLD)

(3) Whether the suit is bad due to non-joinder of the necessary parties? If so, its effect? OPD (4) Whether the form of the suit is incorrect? If so, its effect? OPD (5) Whether the defendant is entitled to special costs under section 35-A, C.P.C.? OPD (6) Whether Hussain Bakhsh son of Manak predecessor-in-interest of the parties was originally allottee in possession of the suit property mentioned in the head note of the plaint? OPP. (7) If Issue No.6 is proved in affirmative, whether the proprietary rights of the suit property were conferred upon the defendant illegally, unjustifiably and unauthorisedly and registered sale-deed No.591/ 1 dated 11-11-1987 and Mutation No.56 dated 26-11-1987 are illegal, against the facts; collusive, fraudulent and void upon the rights of the plaintiffs for the reasons stated in the plaint? OPP (8) Relief?

3. Issues Nos. l, 6 and 7 were decided in favour of the plaintiffs whereas Issues Nos.2 to 5 were decided against the defendant and the trial Court decreed the suit in favour of the defendant/respondent with costs vide judgment dated 19-2-1991.

4. The respondent filed an appeal before the District Judge, which was accepted. The findings of the trial Court were set aside and the case was remanded with a direction to the trial Court for holding fresh trial from the stage of issues and to decide the issues afresh after recording of the evidence of the parties in accordance with law. The findings on all the issues were set-aside on the ground that entire evidence in this case was recorded by the Reader of the Court. The District Judge observed:

"The learned Civil Judge had delegated his judicial functions to the Reader. There was only one record of evidence and the learned Civil Judge was required to record the evidence in his own hand. He was also required to record a certificate indicating the reason or cause of his inability to record the evidence in his own hand. This factor clearly renders the record of depositions in this case to be inadmissible to furnish a valid basis for the findings on the issues arising out of the pleadings of the parties."

5. It has been submitted on behalf of the petitioners that the evidence was recorded in the presence of the Civil Judge and he had given the following certificate:

"Certified that this evidence was written by my Reader under my dictation as I was feeling pain in my right shoulder." The evidence was recorded in the presence of the counsel for the defendant/respondent and that no objection was raised by him at the relevant time and even in the memo of appeal filed by the respondent this ground was not agitated. He has relied on AIR 1956 Rajasthan page 9 and AIR 1947 PC page 67.

6. The learned counsel for the respondent has supported the impugned judgment dated 18-9-1991 on the ground that the recording of evidence by the Reader of the Court amounted to an illegality and thus had rightly been held so by the appellate Court.

7. The suit pending before the trial Court was a matter in which appeal was allowed and Order XVIII, Rule 5, C.P.C. provides as to how the evidence was to be taken in such cases. In Rule 5 Order XVIII. it is provided that:

"The evidence of each witness shall be taken down in writing in the language of the Court by or in the presence end under the personal direction and superintendence of the Judge The language of rule is clear. The rule is directory rather than mandatory. The evidence preferably is to be taken in the hand of the Judge as indicated by the word "by" but the word "or" occurring immediately thereafter foresees the eventuality but in that case what was mandatory was that the evidence was to be taken down in the presence and under the personal direction and superintendence of the Judge and was to be read over in the presence of the Judge and of the witness and the Judge was required to sign the same. The evidence of the witness was recorded in the presence of the Judge as also the learned advocates of the parties and the learned counsel for the respondent had cross-examined the witnesses at length and he did not raise any objection. I presume that had the Judge not been in the chair and had the witnesses not been examined in his presence, the learned counsel for the respondent must have raised the objection.

8. The provisions of rules 5 and 8 of the Order XVIII, C.P.C. have been sufficiently complied with by the Judge in the case in hand. As has been observed, the Civil Judge gave a certificate which fulfilled the requirements of Rule 8 of Order XVIII, C.P.C. and there was no illegality committed by the Judge of Trial Court. Reference may also be made to section 99 of C.P.C. As no illegality was committed by the Civil Judge in the circumstances narrated above, the decree passed by the trial Court could not be reversed nor the case could be remanded on that ground. Nand Lal and another v. Pooran etc. AIR 1956 Rajasthan page 9 relied upon by the learned counsel for the respondent was not applicable to the present case. In that case the evidence was recorded by the clerk of the Court and the clerk had taken down the evidence without the hearing of the learned Judge whereas in the present case the Judge had given a note of his being present and the evidence having been taken down at his dictation. "Pulukuri Kottaya v. Emperor" AIR 1947 PC page 67 was also not applicable. The trial in the present case was not conducted in a manner different from that prescribed by rules 5 and 8 of Order 18, C.P.C.

9. The District Judge exercised its jurisdiction with material irregularity and failed to advert to rules 5 and 8 of Order XVIII, C.P.C. The judgment and decree, dated 18-9-1991 passed by District Judge, Khushab is set aside. The appeal stands restored. The District Judge is directed to dispose of the appeal on merits in accordance with law.

10. No order as to costs. AA./A-701/L Case remanded.