P L D 1969 Karachi 310 (PLP)

(a) Civil Procedure Code (V of 1908), S. 99‑Evidence recorded in previous judicial proceeding between same parties can be allowed, by consent of both parties, to be placed on file and treated as evidence in each case‑Consent would cure what would otherwise be defective method of letting in evidence‑Judgment and decree in such case would not be vitiated. Varadarajulu Chetty and others v. Velayuda Udayan and another A I R 1925 Mad. 1160 and Jainab Bibi Saheba v. Hyderally Sahib 56 I C 957 rel. (b) Civil Procedure Code (V of 1908), O. XLI, r. 23‑A‑Right of appeal accrues to aggrieved party where Court from whose decree appeal preferred has disposed of case "otherwise than on a preliminary point and the decree is reversed in appeal and the case remitted for retrial". Karim Bakhsh v. Qadir Bakhsh and another P L D 1954 Lab. 228 rel. Nawab Meah Chowdhury v. Beg um Syeda Badrunnessa and others P L D 1957 Dacca 305 and Jyo rish Chandra Chakraborti v. Hem Chandra Roy and another P L D 1959 Dacca 337 ref. JUDGMENT This judgment would govern M. A. No. 55 and M. A. No. 56 of 1968, respectively filed by Muhammad Shafi and his son Muhammad Khalid, and directed against the consolidated order dated 12‑1‑68 of Mir Amir Ali Talpur, Additional District Judge, Sukkur, whereunder he accepted Appeals Nos. 32 and 33 of 1967, respectively, instituted at the instance of Ghulam Rasul and his brother Muhammad Sharif.

2. The admitted facts leading up to the two appeals briefly are that under two agreements of even date dated 12‑9‑59, Ghulam Rasul and Muhammad Sharif, agreed to sell their interests in the land comprised in Survey No. 61/40, situated in Deh Duhalwari Taluka Rohri, respectively in favour of Muhammad Shafi and his minor son Muhammad Khalid. On refusal of the defendant to execute and register a regular sale deeds, Muhammad Shafi instituted two suits, one in his own night and the other on behalf of his minor son Muhammad Khalid for the specific performance of the agreements. Both the suits were instituted in the Court of Civil Judge Rohri, and the suits were respectively registered at Nos. 28 and 37 of 1962. On 10‑1‑62 an application was moved on behalf of Waheed Ahmed Khan Advocate in the suit in which Muhammad Shaft was the plaintiff that in view of the fact that the two suits were instituted by father and son on the basis of agreement of sale of even date and the defendants being also brothers inter se and the same pleas were raised by the parties, "the same evidence will be led by the parties. If the cases are not consoli dated, there would be a repetition of the same evidence. It is therefore necessary that the two cases be consolidated." On the application, Mr. G. A. Shaikh counsel for the defendants made the following endorsement "There is no objection if the suits are consolidated." The trial Court on the reverse of the application recorded an order dated 21‑3‑63 allowing the application and ordered the consolidation of the two suits as he thought that this procedure was envisaged by Explanation 3 added to section 10 of the C. P. C. by amendment introduced in 1962. The learned Civil Judge by a consolidated judgment dated 11‑6‑64 dismissed both the suits for reasons stated therein.

3. The plaintiff‑appellants feeling aggrieved preferred two separate appeals Nos. 82 and 85 of 1964 in the Court of District Judge. Mr. Hamid Ali Memon, Additional District Judge, Sukkur heard the appeals and in a consolidated judgment dated 26‑3‑66 passed the following operative order, remitting the cases to the Civil Judge: "I find that the consolidation was not proper because the parties in the suits were different. The two agreements were independent to each other. The property involved in the two agreements was not the same and 'he consideration for 'both the agreements was different. The perusal of the judgment show that in order to give the finding the learned Judge has used the evidence of both the defendants. According to him the evidence of one defendant could be read at arriving at the conclusion with regard to the other defendants. The two counsel agreed that the two suits be sent back to the lower Court to separate the evidence and then decide the case on t lie merits of each case between the parties to the suit. The evidence of Muhammad Shaffi has been recorded. The counsel of plaintiff would be at liberty either to tender his evidence in the other suit or examine Muhammad Shaffi afresh. The defendants and also the plaintiffs would be at liberty to adduce additional evidence if they deemed it fit to do so. At present the appeals be allowed and the judgment and ‑decree passed by the learned Civil Judge be set aside." The suit was, later on transferred to the file of the Joint Civil Judge, Sukkur.

4. When the files were received by the Civil Judge Sukkur, the renumbered the two suits. On 25‑7‑66, Muhammad Saleh G. Memon, Joint Civil Judge, Sukkur, on the basis of the statements of counsel for the parties to the effect that "true copies of the statements of the parties and their witnesses, who have been examined in case No. 28 of 1962, be produced in case No. 37 of 1962 and the documents relating to Suit No. 37 of 1962 be kept in that suit. The statements and documents may be admitted in evidence", treated the evidence already produced by the parties in both the suits to be the evidence in both cases. In pursuance of the above order the certified copies of the statements and documents in one file were placed in the corresponding file and treated as evidence in each case. The learned Civil Judge by a separate judgment and decree of even date, namely, 21‑2‑1967, granted decree in both the suits for, specific performance of agreements as prayed for by the plaintiffs.

5. This time the defendants feeling aggrieved preferred two separate appeals which were heard by Mr. Mir Amir Ali Talpur, Additional District Judge, who by a single order dated 12‑1‑68, accepted both the appeals, set aside the judgment and decree of the trial Court and remitted the case to the trial Court for decision of the suit afresh after the parties had led evidence as indicated in the order. The learned Additional District Judge thought that the judgment and decree were vitiated on the ground "that the very procedure adopted by the learned lower Court in deciding both these suits is not warranted by law and is contrary to the directions of the appellate Court."

6. The plaintiff‑appellants feeling aggrieved have preferred Misc. Appeals, referred to above.

7. The learned counsel for the appellants strenuously argued: that the learned Additional District Judge (Mir Amir Ali, Talpur) had misinformed himself by stating that the directions of the first appellate Court remanding the cases had not been. followed, and that at any rate, after the order of remand the counsel for the parties had agreed that certified copies, of the evidence on one file and copies of the documents in the other file should be placed and treated as evi dence in the corresponding file and that this procedure was warranted by law and the respondents having agreed to this. procedure could not be permitted to resile from their admissions:. The learned counsel next argued that assuming without: conceding that there was any irregularity in the procedure adopted by the Court with the consent of the parties, the judgment and decree were not vitiated, in view of the provisions of section 99 of the C. P. C. Lastly, it was argued that the order of the appellate Court remanding the suit filed by Muhammad Shafi in which all the evidence had been recorded, could not Lave been remanded and he should have disposed' of the appeal on merits. The learned counsel while pressing into service the provisions of section 99 of the C. P. C. contended that the procedure even if irregular would not justify. the setting aside of the judgment and decree unless and until the procedure had occasioned prejudice to a particular party and, at any rate, the respondents in their appeal before the firsts appellate Court had not made a grievance of any prejudice:‑ The learned counsel relied on the decision in Varadarajulu Chetty and others v. Velyuda Udayan and another (A I R 1925 Mad. 1160) wherein it was ruled: "Evidence recorded in a previous judicial proceeding, between the same parties can be made admissible in a subsequent proceeding by the consent of both parties." In this decision the learned Judge relied on the decision o the Full Bench in Jainab Bibi Saheba v. Hyderally Sahib (56 I C 957). A At page 1160 the learned Judge quoted the following observation: "Courts Trotter, J. (as he then was) held in the case referred to Consent can cure what would otherwise be a defective method of letting in evidence in its substance and context relevant and germane to the issues." The learned counsel for the appellant then invited my attention to the decision of Karim Bakhsh v. Qadir Bakhsh and another (P L D 1954 Lah. 228) in which Kaikaus, J. (as his Lordship then was) was required to decide precisely the question, which is agitated in the present appeals, namely, whether the right of appeal accrues to the aggrieved party under rule 23‑A of Order XLI, C. P. C., where the Court, from whose decree an appeal is preferred, has disposed of the "case otherwise than on a preliminary point and the decree is reversed in appeal and the case remitted for retrial." At page 234 his Lordship summed up the discussion thus:‑ "There can be no doubt that so far as this High Court is concerned, the order of remand which is appealed against can be a decree. This Court has added rule 23‑A in Order XLI, under which fall all remands for fresh trials that are not covered by rule

23. There is a corresponding provision in Order XLIII, rule 1 by which an appeal is provided against an order of remand under Order XLI, rule 23‑A. Although the present order of remand purports to be under section 151, it is really covered by Order XLI, rule 23‑A. A right of appeal cannot be taken away by referring to an inappropriate provision. An appeal lies therefore, against this order of remand as an appeal against an order. Section 2 of the C. P. C. provides that a decree does not include an order against which an appeal lies as from an order. It is obvious, therefore, that the order of remand cannot be a decree. This appeal is, therefore, to be regarded as a first appeal against order and to be stamped as such."

8. The learned counsel for the respondents, on the other hand, argued that the impugned orders were not appealable. He relied on two decisions of the Dacca High Court, namely (1) Nawab Meah Chowdhury v. Begum Syeda Badrunnessa and others P L D 1957 Dacca 305 and (2) Jyotish Chandra Chakraborti v. Hem Chandra Roy and another P L D 1959 Dacca 337.

9. The above decisions instead of supporting the argument of the learned counsel for the respondents, rather clinch the matter against him. It appears that the attention of the learned Judges in the two cases was not drawn to the decision in Karim Bakhsh v. Qadir Bakhsh and another in which Kaikaus, J. after referring to rule 23‑A, which was added to Order XLI held that under that rule fall "all remands for fresh trials that are not covered by rule 23." His Lordship then observed: "There is a corresponding provision in Order XLIII, rule 1 by which an appeal is provided against an order of remand under Order XLI, rule 23‑A." In Joytish Chandra Chakraborti's case, the learned Judge had failed to notice that on 28‑3‑1955, by its Notification No. 2584‑G, the Dacca High Court had also made amendment, adding rule 23‑A, on the lines amended by the Madras High Court, Lahore High Court and Allahabad High Court. In Nawab Meah Chowdhury's case the learned Judges, at page 316, after noting the amendment adopted by the Dacca High Court on 28‑3‑55 by its Notification No. 2584‑G and adopting rule 23‑A in Order XLI, accepted the preliminary objection of the respondents in regard to the non‑maintainability of the appeal on different ground, namely, ". . . for clearly it is not an order of an appellate Court which has reversed the decision of a trial Court that disposed of the suit on a preliminary point".

10. To sum up the discussion with the consent of the parties, as in the instant cases, evidence recorded in one judicial proceedings can be made admissible in other judicial proceedings, and that the parties having specifically agreed that the copies of the evidence and the copies of the documents on the one file should be placed on the corresponding file, can be treated as legal evidence and the order of remand by the learned Additional District Judge is appealable under rule 23‑A. I accordingly accept both the appeals, set aside the orders of remand, and remit the appeals to the Court of the District Judge, Sukkur, for rehearing of the appeals on merits, after affording opportunity to the parties and their counsel. Costs to follow the event. K. B. A. Appeals accepted.