P L D 1952 Baghdad﷓ul﷓Jadid 22 (PLP)

ABDUL AZIZ, C. J‑There are two cross appeals Mst. Aziz Khatoon v. Allah Diwaya and others and Khwaja Ghulam Murtaza v. Mst. Aziz Khatoon and others which have arisen out of an unfortunate case which was instituted in the year 1945 by Mst. Aziz Khatoon and which ended in the original Court on 29th of December 1949 by the dismissal of her suit. The first appellate Court decided the appeal in the year 1951 and this decision has resulted in two appeals stated above before this Court. There is voluminous documentary evidence on the file of the trial Court which was neither admitted nor proved nor tendered in evidence nor was it exhibited. Both the learned counsel have admitted before me that there has been a flagrant disregard of the imperative provision of Order XIII, rule

4. Order XIII, rule 4 reads :‑ "(1) Subject to the provisions of the next following sub‑rule, there shall be endorsed on every document which has been admitted in evidence in the suit the following particulars:‑ (a) the number and title of the suit, (b) the name of the person producing the document, (c) the date on which it was produced, and (d) a statement of its having been so admitted ; and the endorsement shall be signed or initialled by the judge. (2) Where a document so admitted is an entry in a book, account or record, and a copy thereof has been substituted for the original under the next following rule, the particulars afore said shall be endorsed on‑the copy and the endorsement thereon shall be signed or initialled by the judge." From this rule it would appear that there are two stages relating to documents filed by the parties in Court, one is the stage when all the documents are filed by the parties in Court ; the next stage is where the documents are formally proved and tendered in evidence. It is at this stage that the Court has to decide whether they are to be admitted or rejected see A I R 1931 Lah.

546. If the documents are admitted and proved, then the endorsement containing the particulars referred to in the rule is to be made on them. The endorsement is intended to be a record of the fact that the document has been admitted in evidence after the necessary legal formalities have been complied with. In Sadiq Husain Khan v. Hashim Ali Khan, A I R 1916 P. C. 27 Their Lordships of the Privy Council deprecated strongly the practice of not complying with the provisions of this rule and went on to observe as follows :‑ "Their Lordships, with a view of insisting on the obser vance of the wholesome provisions of these statutes will, in order to prevent injustice, be obliged in future hearing of Indian appeals to refuse to read or permit to be used any document not endorsed in the manner required." In Secretary of State v. Sarla Devi, A I R 1924 Lah. 548 in which the provisions of this rule had been completely ignored it was held that the documentary evidence in the case could not be regarded as having been legally brought on the record and as being legally before the Court. In Imamud Din v. Sri Ram Perbhu Din, A I R 1928 Lah. 142 there was a controversy whether the documents had been admitted in evidence and as it was impossible owing to the absence of the endorsements under this rule, to say whether the documents had, in fact, been admitted in evidence or not, the High Court in appeal found it necessary to remand the case to the lower Court for retrial. In this case the grievance of both the counsel is that the' documentary evidence which was necessary for the disposal of the suit was not brought on the file in accordance with law because it was neither legally admitted nor proved nor tendered, nor exhibited. If that evidence is ignored then there can be no decision of the dispute between the parties. In these circumstances I have no alternative but to remand the case for retrial. I feel when I pass this order as this suit which was instituted in 1945, is to go back to the original Court after several years. I therefore accept the appeal of Mst. Aziz Khatoon v. Allah Diwaya and set aside the decree of the Court below and send the case back for retrial with the direction that the Court would not re‑examine the witnesses but will only follow the provisions of Order XIII rule 4 to bring the documentary evidence on the file in accordance with law and then to re‑write the judgment. The appeal of Khwaja Ghulam Murtaza v. Aziz Khatoon and others as a matter of course succeeds and is accepted ; the decree having been ordered to be set aside. I leave the parties to bear their own costs in both the appeals in this Court while the cost in the trial Court shall be the cost in the cause. The parties shall appear before the trial Court on 18th February, 1952. A. H. Cases remanded.