2000 PLP 1311 (CLC)

Sardar Abdul Majeed Dogar for Petitioner. Ch. Muhammad Tufail Kasuri for Respondents. , Date of hearing: 11th April, 2000. A suit for declaration filed by the petitioner was decreed by the learned trial Court vide its judgment, dated 16‑3‑1994; Where against an appeal was filed by the respondent/defendant, which appeal has been accepted by the learned Additional District Judge, Kasur vide his judgment, dated 13‑11‑1999 on the ground that the evidence before the trial Court led ‑by the parties was not recorded by the Presiding Officer himself‑and was recorded by the Reader of the Court. Without adverting to the merits of the case, the judgment was set aside and the matter was remanded to the trial Court for trial afresh. This is a petition against the same.

2. It. is contended by the learned counsel for the petitioner that the parties evidence was recorded in the presence of the Presiding Officer of the Court, the witnesses were examined by the respective learned counsel; no objection was raised during the course of the evidence or even during the final arguments before the trial Court. It is further contended that even in the memo. of appeal filed before the first appellate Court there was no such challenge. However, during the course of arguments before the learned Additional District Judge this fact was pointed out, which led the learned appellate Court to set aside the judgment of the trial Court for this reason alone. It is contended that having participated before the trial Court. It was not permissible that the' respondent could take this objection nor was it proper for the appellate Court to set aside the judgment of the. learned trial Court.

3. On the other hand, the learned counsel for the respondent states that the procedure laid down for recording of the evidence, as provided in Order 18, Rules 5 and 8 of the C.RC., has been violated, therefore, the appellate judgment is perfectly legal and valid. Relies on Shamsul Haq and 3 others v. Muhammad Jamil PLD 1996 Lah. 235 to support this contention. 4.The learned counsel for the parties have been heard at length and the matter is being disposed of as a notice case.

5. Admittedly, the evidence was produced by the parties. It was ‑recorded by a Court official in the presence of the Presiding Officer of the Court. Both the parties had cross‑examined the witnesses of each other through their learned counsel. At the closure of the evidence of each of the parties, their learned counsel had put signatures on the order sheet in token of correctness of the proceedings. At no stage any such objection was taken before the learned trial Court, not even during the course of arguments at the final stage. The matter was agitated before the first appellate Court and that too during the course of, arguments when it was not a ground of challenge in the memorandum of appeal. The conduct of the parties is quite evident from the proceedings of the case. The respondent in the circumstances turned round and objection when the case was decided by the trial Court against him. There has been no prejudice whatsoever caused to either of the parties. 8 Had it been so, the matter would have been agitated before the trial Court itself or objection taken in that regard. There is an affidavit by Ch. Muhammad Latif, Advocate, who represented the petitioner before the appellate Court, denying his inclination for the remand of the case on this ground. It has remained uncontroverted.

6. In the circumstances, I am constrained to observe that the remand was wholly unwarranted and will result in duplication of the proceedings only. It could not be the objective of the procedural provisions of the Code which are meant for the advancement of the cause of justice. It was not such a deviation or violation as would have rendered the proceedings null and void, despite waiver on the part of the parties and their conduct, specially when no prejudice is alleged even. The judgment cited by he learned counsel for the respondent proceeds on its own peculiar facts and is not attracted to the facts and circumstances of the present case. For the above reasons, I am not inclined to uphold the view taken by the learned Additional District Judge in the matter. The judgment impugned herein is, thus, set aside. Resultantly, the appeal filed by the respondent before the first appellate Court shall be deemed pending, which shall be heard and decided in accordance with law after hearing the parties concerned. The learned counsel for the petitioner has requested that the matter may be heard by some other Additional District Judge. There seems no ground for the same. However, in order to allay any such apprehension, the learned District Judge, Kasur may hear the appeal himself, it possible, or entrust the same to some other Additional District Judge. The revision petition is accepted accordingly. No order as to costs. H.B.T./S‑28/L Revision accepted