2001 PLP 468 (CLC)

(1) Whether the plaintiff has no cause of action and locus standi to file the suit? OPD (2) Whether the suit has insufficiently been valued for the purposes of court‑fee and jurisdiction, if so what is the correct valuation? OPD (3) Whether the suit is frivolous, vexatious, mala fide and as such the defendant is entitled to special cost? OPD (4) Whether impugned Mutation No.4754, dated 8‑1‑1997 is against facts, ultra vires and has been effected during death bed of hashir Ahmad deceased, thus, is illegal, void, ineffective and inoperative, against the rights of the plaintiffs. (5) Relief. Petitioner was called upon to produce his evidence after framing of issues. On 28‑6‑1999 counsel for respondent made a statement that evidence of three witnesses recorded in other suit titled Nazir Ahmad v. Nazir Begum be also read in this case. Trial Court ordered copies of the evidence of other suit to be placed on a record of this case. The defendant was called upon to produce her evidence and on 4‑10‑1999 both the learned counsel for the parties made a statement to reproduce as the evidence of the respondent recorded in the abovementioned other suit. Trial. Court again ordered that copies of that evidence to be placed on this file and on the basis of evidence recorded in the other suit it was decreed. Respondent challenged the decree in appeal which was accepted through impugned judgment and the case was remanded for fresh trial.

3. Learned counsel for the petitioner contends that the evidence of other suit was placed on record of the present suit with the consent of counsel for the parties, therefore, learned Additional District Judge erroneously set aside the decree of the trial Court on the basis of verbatim reproduction of the evidence recorded in the other case. The evidence was shifted on the file of the present case with mutual consent of the parties, therefore, they are estopped to raise any objection against the consideration of said evidence for decision of the case.

4. I have heard the learned counsel for the petitioner at length and perused the relevant record. Admittedly the evidence of the case titled Nazir Ahmad v. Nazir Begum was copied in verbatim and placed on the file of the present suit for decision with the consent of the counsel for the parties. Law A does not permit the change of procedure through consent. A Division Bench of this Court in the case of Muhammad Younas v. The Crown PLD 1953 Lah. 321 held that the procedure adopted by the Special Judge for examination of witnesses was illegal and vitiated the trials. When he examined certain witnesses common to all the three cases, when one of these witnesses appeared, his statement was recorded in one case and then verbatim copy of his statement was placed on record of other two cases, with the addition of such matter brought out in cross‑examination for the special purpose of that particular case. The witness was, thus, not examined in full in each case. The procedure adopted was declared illegal and not merely irregular. The procedure adopted in fact amounted to single joint trial in contravention of the provisions of Criminal Procedure Code and the Evidence Act. In another case Shabbir and 2 others Mst. Ghulam Fatima 1987 CLC 1407 (Karachi) relying on evidence of one case all the rent cases were disposed of and the judgment of the Rent Controller was set aside on the sole ground that evidence of one case cannot be used verbatim in other case without cross‑examination of the witness in each case independently. In Sheikh Abdul Hamid v. Muhammad Siddique PLD 1981 Lah. 42 two separate ejectment applications were filed against two different tenants. Evidence was recorded in one case and verbatim reproduced in the other case. The judgment of the trial Court was declared illegal and set aside. , Lastly in the case of Malik Aman v. Haji Muhammad Tufail PLD 1976 Lah. 1446 same view was reiterated by my learned brother Zaki‑ud‑Din Pal, J. (as he then was). It is a settled law that evidence of one case cannot be shifted verbatim to the other case for decision. Such a procedure is unknown under the Civil Procedure Code. The consent of the parties cannot change the prescribed procedure. Learned Lower Appellate Court for valid reason has set aside the decree of the trial Court through impugned judgment. The petition has no merit and is dismissed in limine. H.B.T./N‑50/L Petition dismissed.