1999 PLP 34 (SCMR)

AJMAL MIAN, C.J.

This is an appeal with the leave of this Court against the judgment 'dated 26-4-1992 passed by a learned Chief Justice of the High Court of Balochistan in Civil Revision No.20 of 1992, filed by the respondents against the concurrent judgments/decrees dated 28-3-1991 and 30-11-1991 passed by the Qazi Punjgur and by the learned Majlis-e-Shoora, Makran Division at Turbat, respectively, decreeing the appellant's suit and affirming the same in appeal, allowing the same by setting aside the above Judgments/decrees.

2. The brief facts are that the appellants field a suit on 11-8-1986 against the respondents in the Court of Qazi Panjgur claiming possession of 1/2 share in each of the two pieces of land described in the plaint known as Kohna Chah/Ligurck and Kunar-e-Digar, both adjacent to each other. It was averred that while appellant No. I was away to Karachi, the respondents encroached upon the suit land and unlawfully occupied half portion of each of the two parcels of suit land by means of 'Lathbandi' with the help of tractor. Respondents Nos. I to 6 denied the claim and pleaded that they were in possession of the land as their ancestral property. Respondents Nos.7 to 10, who were impleaded at the subsequent stage, also denied the claim. On the basis of pleading of the parties, the learned Qazi framed five Issues. The appellants produced seven witnesses while the respondents produced three witnesses besides the statement of their attorney. The learned Qazi by his judgment dated 17-3-1988 partly dismissed the suit on the ground of variation in boundaries claimed by the plaintiffs as stated by the witnesses and on the ground of vagueness. The appellants filed an appeal before the Majlis-e-Shoora. The main ground for the challenging of the aforesaid judgment was that the learned Qazi did not properly record the statements of the witnesses. No translator was appointed by the Qazi, who was not conversant with Baluchi language and was a Pakhtoon. It was further averred that the statements were not recorded by the Reader to the Court faithfully as he was under the influence of respondents Nos.1 to

7. The Majlis-e-Shoora by a consent order dated 12-3-1989 set aside the above judgment/decree of the Qazi and remanded the case for de novo trial. The aforesaid order reads as follows:--

3. It appears that after the above remand order, the learned Qazi re-framed the Issues on 29-3-1987 and the parties led their evidence afresh. The appellants produced four witnesses while respondents Nos. I to 6 produced five witnesses. The learned Qazi after hearing the parties by his judgment and decree dated 28-3-1991 decreed the suit. Respondents Nos. I to 6 filed an 3ppeal before the Majlis-e-Shoora, which was dismissed through the judgment/decree dated 30-11-1991. Thereupon, the respondents filed the aforementioned civil revision, which was allowed through the judgment under appeal and the concurrent judgments/decrees were set aside. Against the same, a petition for leave was filed and leave was granted to consider, whether the learned Judge in Chambers was justified in taking into consideration the evidence which was recorded before the remand of the case for de novo trial.

4. In support of the above appeal Mr. M. Aslam Chishti, learned Senior Advocate Supreme Court appearing for the appellants, has vehemently contended that since the statements of witnesses were not properly recorded prior to the remand order and as the same was the main ground in the appeal which was allowed by consent order for de novo trial quoted hereinabove, pursuant whereof the learned Qazi re-framed the Issues and recorded fresh evidence which was relied upon by the two Courts below, the learned Judge in Chambers was not justified in relying upon the evidence which was earlier recorded before the He has also referred to one of the grounds in the memo. of appeal which was filed against the first judgment/decree (at page 70 of the paper book), wherein it was alleged that inter alia the Court Reader and the Orderly incorrectly recorded the statements. In support of the above averment he has also referred , to an affidavit at page 72 of the paper book. On the other hand, Mr. Basharatullah, learned Senior Advocate Supreme Court for respondents Nos. I to 6, has vehemently urged that this Court cannot look into the memo of appeal filed by the appellants against the above first judgment/decree of the learned Qazi and this Court would have to confine itself to the aforesaid consent order and the legal position. He further submitted that as to the incorrect recording of statements by the Reader, no such objection was raised before the learned Qazi when these were recorded. His further submission was that an Appellate Court has no such power to order de novo trial. Its power is what is contained in section 107 of the C.P.C. His last submission was that, in any case, in view of Article 162 of the Qanun-e Shahadat, this Court cannot remand the case on account of improper admission or rejection of evidence.

5. The basic question in issue is, what is the import of the term "de novo trial". In' this regard, reference may be made to the Black's Law Dictionary, Fifth Edition at page 392, wherein the above term has been defined as under: - ,,, De novo trial': Trying a matter anew; the same as if it had not been heard - before and as if no decision had been previously rendered. - A perusal of the above-quoted definition of the above term indicates that it connotes trying a matter anew as if it had not been heard before and as if no decision has been previously rendered.

6. No doubt that section 107 of the C.P.C., which defines the power of an Appellate Court does not contain the words "de novo trial". The above section reads as follows:-- "107.--(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power-- (a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein. " A perusal of the above-quoted section shows that under subsection (1) thereof, an Appellate Court has the power to determine the case finally, to remand a case, to frame issues and refer them for trial, and to take additional evidence or to require such evidence to be taken besides other powers mentioned t in subsection (2). In our view, the power to remand a case includes the power to give direction as to the stage from which the case is to be proceeded with. In this regard reference may be made to the judgment of this Court in the case of Jameel Ahmed v. Saifuddin (PLD 1994 SC 501), wherein this Court while dealing with I the scope of a remand order, inter alia, made the following observations:-- "It is well-settled principle that on remand the Court trying the suit has to regulate the proceedings and proceed with the case in terms of the order of remand passed by the higher Court. It is, therefore, to be considered whether remand order had debarred the petitioner from producing his witnesses."

7. The above quoted observations clearly indicate that the question as to the manner in which the trial Court is to proceed in a case after the remand order, is to be regulated by the remand order. However, Mr. Basharatullah has relied upon the judgment of a learned Single Judge of the erstwhile High Court of West Pakistan rendered in the case of Mir Muhammad Khan v. Syed Abdul Shakoor and others (PLD 1962 (W.P.) Peshawar 28), in which he inter alia made the following observations:-- "The learned Additional District Judge has not utilised this provision of law for the purpose. He somehow thought that he had very wide powers in remanding the case to the trial Court for trial of the case de novo. It may be that the learned Additional District Judge was thinking of the provisions of the Code of Criminal Procedure. I have not been able to find in the Code of Civil Procedure of any other civil law by which Civil Courts are governed, any provision of the nature under which the Appellate Court can remand the case for trial de novo. The obvious purpose of the order of remand seems to be that the Court wanted to give the plaintiff fresh opportunity to produce evidence in support of his title. The learned Additional District Judge further thought that there was some law which cast on the Sadar Kanungo in order that the plaintiff's title might be established. I am afraid there is no such law under which such an order could have been passed by the learned Additional District Judge. In support of this proposition, the learned counsel for the petitioners has cited before me the following cases:-- '. (1) Hira Lal v. Rattan Lal AIR 1944 All. 293; (2) Rampat Sahu v. Bhajju Sahu AIR 1936 Patna 160, and (3) A.P.L. Palaniappa Chettiar v. A.K.R.M. Firm AIR 1935 Rang.

19. I agree with the principle laid down in these rulings that a case cannot be remanded to the trial Court in order that it might be re-heard or the plaintiff might be given another opportunity to prove his case by calling fresh witnesses which he might have called on the first hearing. " ,

8. Indeed, the above-quoted observations support the above contention of Mr. Basharatullah. It is true that there is no express provision in the Civil Procedure Code for ordering of de novo trial as provided in the Code of Criminal Procedure but, at the same time, there is no prohibition that while remanding a case, the Appellate Court cannot order de novo trial. It is a well- settled proposition of law that a Court can adopt a procedure in the interest of justice which is not prohibited by any provision of law. Reference is to be made to the judgment of this Court in the case of Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 SC 539). In the case in hand, the allegation of the appellants was that the Reader of the Court was mixed up with the other party and he did not correctly translate the statements of witnesses from Balochi into Urdu language. The appellants' appeal before the Majlis-e-Shoora was allowed by consent of the parties on the basis of the above-quoted joint application for de novo trial. The respondents having agreed to the de novo trial and having got the case remanded by consent, cannot now urge that the Appellate Court had no power to order for de novo trial.

9. We may now refer to Mr. Basharatullah's contention that on account of Article 162 of the Qanun-e-Shahadat, this Court cannot remand the case to the High Court.. In this regard, it may be pertinent to reproduce Article 162 of the Qanun-e-Shahadat, which reads as under:-- "

162. No new trial for improper admission or rejection of evidence, The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that, independent - of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it bought not to have varied the decision. " In our view, the above Article has no application to the case in hand for the reason that the question in issue is not the improper admission or rejection of evidence. The controversy in issue is, as to whether after the remand order or de novo trial the evidence which was previously recorded could have been taken into consideration. The above Article relates to the improper admission or rejection of evidence at the stage when a witness is being examined in the Court.

10. The upshot of the above discussion is that we are of the view that the learned Chief Justice committed an error of law by taking into consideration the evidence which was recorded prior to the remand order. We, therefore, allow the instant appeal, set aside the judgment under appeal and remand the case to the High Court with the direction to re-hear the aforesaid Civil Revision afresh on the basis of the evidence of the parties recorded after the remand order. However, there will be no order as to costs. A.A./I-98/S Appeal accepted