2003 PLP 1652 (CLC)

5. After appraisal of the evidence on the record the learned trial Court vide judgment and decree, dated 30-9-2000 decreed the suit for possession in favour of the respondent.

6. The petitioner preferred an appeal which was dismissed by the learned District Judge, Islamabad vide judgment and decree, dated 4-7-2001. The learned Appellate Court re-appraised the evidence on the record and concurred with the findings of the learned trial Court.

7. Civil Revision No.454-D of 2001 has been filed against the abovementioned concurrent findings of fact passed by both the learned lower Courts.

8. The respondent filed another suit for possession and recovery of money on the same date viz. 26-9-1997 against his other tenant Muhammad Maqbool Abbasi (petitioner in Civil Revision No.455-D of 2001). The plaint was based on identical grounds that the lease period has expired and that the respondent needed the property in question for his own personal use.

9. This suit was defended on identical legal and factual grounds. Both the plaints in the respective suits and the corresponding written statements are similar and identical in nature. It is not surprising that exactly the same issues were framed by the learned trial Court in this case as well.

10. After framing of the issues, the examination-in-chief of the respondent as P.W.1 was similarly recorded on 22-5-1998. The cross -examination in this case also took place on 28-2-2000. D.W.1 is the statement of the petitioner which was recorded.

11. The learned trial Court dealt this suit as well vide judgment and decree dated 30-9-2000. The appeal filed by Muhammad Maqbool Abbasi was dismissed vide judgment and decree, dated 4-7-2001 passed by the learned District Judge, Islamabad.

12. Civil Revision No.455-D of 2001 has been preferred against the above-mentioned concurrent findings of both the learned lower Courts.

13. Sardar Muhammad Aslam, Advocate for the petitioner (in Civil Revision No.454-D of 2001) has mainly attacked the concurrent findings of the learned lower Courts on the ground that the evidence of P. W.1 was recorded in different hands. According to him, the learned trial Court did not record the evidence himself nor was it recorded under his dictation. He criticised the recording of the statement of P.W.1 on similar grounds. He further contended that the learned trial Court erred in disposing of Issues Nos.5, 6 and 12 together which was erroneous and which caused prejudice to the petitioner. On merits, it was contended that both the learned lower Courts have erred in misreading and non-reading of the evidence on the record and their findings were perverse.

14. The learned counsel for the petitioner (in Civil Revision No.455-D of 2001) in addition to the grounds already referred to above vehemently contended that in the suit titled as Samir Manzoor Khokhar v. Muhammad v. Muhammad Maqbool Abbasi, the evidence recorded in the suit titled as Samir Manzoor Khokhar v. Shaiq Hussain was copied and reproduced verbatim and that this procedure was illegal and vitiated the entire proceedings. He relied upon the principle laid down in the cases of Shamsul Haq and 3 others v. Muhammad Jamil PLD 1996 Lah. 235, Shabbir and 2 others v. Mst. Ghulam Fatima 1987 CLC 1407, Nazir Ahmad v. Mst. Ghazala Bashir 2001 CLC 468 and Muhammad Younas v. The Crown PLD 1953 Lah. 321 in support of his contention that such verbatim shifting of evidence of one case to the other is illegal and vitiates the trial.

15. Conversely, Sh. Zameer Hussain, Advocate appearing for the respondent submitted that as far as the case of Muhammad Shaiq Hussain petitioner is concerned, the argument of the learned counsel for the petitioner that the evidence was not recorded in one hand is based on misconception of facts. According to him, the examination-in-chief of the respondent/plaintiff was recorded on 22-5-1998 by Mr. Munsif Khan Minhas, the then Civil Judge, Islamabad. However, the cross- examination could not take place for almost one year and 9 months and when it was conducted on 28-2-2000, the learned Civil Judge had been succeeded in the office by Syed Muzaffar Ali Shah, Civil Judge 1st Class, Islamabad who recorded the cross-examination as well as the evidence of the petitioner in his own hand. On merits, it was contended that the evidence produced by the plaintiff/respondent was sufficient to warrant a decree in his favour which was rightly granted by both the learned lower Courts. It was submitted that the concurrent findings of fact are not liable to be upset in revisional jurisdiction. Regarding the Objection raised in Civil Revision No.455-D of 2001 that the evidence in that case was not recorded but was a verbatim copy of the evidence produced in the former suit, it was contended that although, the statements were identical in nature, it was for the obvious reasons that the basic facts of both the cases were strikingly similar. It is also submitted that the petitioner had not raised any objection either before the learned trial Court or before the learned First Appellate Court and that this objection, even if available, could not be taken for the first time in revision. Arguments have been heard and record perused.

16. As far as Civil Revision No.454-D of 2001 is concerned, a perusal of the record does show that the examination-in-chief of the plaintiff/respondent was recorded on 22-5-1998 by the learned Civil Judge who was then seized of the matter. The cross-examination upon this witness took place after a long delay of one year and 9 months and when it was conducted on 28-2-2000, it was recorded by his successor-in- office namely Syed Muzaffar Ali Shah, Civil Judge, Islamabad. Similarly, the statement of D.W.1 was recorded by the said successor Judge. There is thus, no force in the submissions of the learned counsel for the petitioner that the recording of evidence suffered from any legal defect. Both the learned lower Courts relied upon the oral and documentary evidence produced by the respondent/plaintiff and arrived at a concurrent findings. From a perusal of the evidence on the record, the learned counsel for the petitioner has not been able to indicate any misreading and non-reading of evidence on the record.

17. The objection that the learned trial Court had disposed of Issues Nos.5, 6 and 12 together which had prejudiced the trial is also devoid of force, as the said issues were inter-connected and their disposal as such did not cause any prejudice to the petitioner.

18. As regards the objection which is germane to Civil Revision No.455-D of 2001 only, it has been seriously contended by the petitioner that the evidence in this case was not recorded but was merely reproduced from the file of the other case, The learned counsel for the petitioner was at pains to point out the similarity/congruity of the said evidence. He heavily relied upon the cases-law referred to above to urge that such violation of procedure must result in vitiating the trial. It was prayed that on account of this legal infirmity, both the civil revisions were liable to be accepted and the cases were to be remanded to the learned trial Court for a trial afresh. After giving anxious consideration to the above submissions, find no force in the contention raised by the learned counsel for the petitioner for a variety of reasons. It is noticed from the record that the statement in both the cases was recorded on the same dates. In both the cases, the examination-in-chief of the plaintiff/respondent was recorded on 22-5-1998 while the cross-examination took place on 28-2-2000. The evidence of the respective petitioner/defendant was recorded on 27-9-2000. At the conclusion of either statement, the following endorsement is present:-- This was duly signed by the learned trial Judge.

19. The presumption of correctness attaches to all judicial and official proceedings unless the contrary is proved. In the present case, the petitioner has not been able to point out any such defect which could detract from the aforesaid presumption.

20. It is also worthy of note that the petitioner fully participated in the proceedings before the learned trial Court and raised no objection to any defect of procedure. It is not the case of the petitioner that he was not present before the Court or that the endorsement made by the Court under his statement was incorrect. After the learned trial Court passed the decree against the petitioner, he preferred an appeal. A perusal of the memorandum of appeal would show that no such objection was taken by, the petitioner therein. The objection now raised in this civil revisionl appears to be an afterthought and not in good faith.

21. The learned counsel for the petitioner was specifically quarried as to what prejudice, if any was caused to the petitioner by the alleged irregularity of procedure. The learned counsel for the petitioner failed to point out any such prejudice.

22. The principles of administration of justice particularly with reference to the Islamic Jurisprudence have now come to be well-settled that all procedures are basically meant for advancement of substantial justice. Law has never favoured the making of a fetish of a technicality. I am fortified in holding this view by the rule of law laid down in the case of Messrs Bisvil Spinners (Pvt.) Ltd. v. Pakistan through Secretary, Ministry of Finance, Islamabad and 2 others PLD 1992 SC 96 wherein the following principle has been reaffirmed:-- "If a piece of evidence is otherwise relevant and pertinent for the decision of an issue, it is untenable argument that notwithstanding the fact that it is genuine and otherwise reliable, it should not be made use of because in the process employed for the collection of the material, an irregularity or for that matter an illegality was committed."

23. It is also a cardinal principle of law that in order to seek justice, one must be fair and should do justice himself. No equities exist in favour of the petitioner. The reliance placed upon the aforesaid cases referred by the learned counsel for the petitioner is not apt. In Shamsul Haq's case (supra), there were 11 suits filed by the plaintiff. The objection that the Presiding Officer had recorded only the statement of the plaintiff himself and that the remaining evidence was recorded by someone else was taken in appeal, upon which, it was found by the learned Appellate Court that in fact the remaining evidence was recorded by someone else not so authorized. In Shabbir's case (supra) where the statement of only tenant was recorded and the same was reproduced in the other cases wherein different tenants were defendants was held to be against law. In Nazir Ahmad's case (supra) the certified copies of the evidence recorded in one case were placed on the record of the other case and this procedure was found to be violative of law and principles of natural justice. The case reported as Muhammad Younas v. The Crown (supra), dealt with a criminal matter where certain witnesses common to all the three cases were recorded in one case and then verbatim copy of the said statements was placed on the record of the other two cases. It was held that the witness was thus, not examined in full in each case.

24. It is thus, obvious from the foregoing that the facts and circumstances of the instant case are altogether different from the facts of he cited cases.

25. The upshot of the above discussion is that there is no merit in both the civil revisions which are hereby dismissed. The parties to bear heir own costs. S.A.K./M-1935/L Petitions dismissed.