2011 PLP 205 (CLC)

MUHAMMAD YAWAR ALI, J.

This judgment will also dispose of Regular First Appeal No. 85 of 2010 titled Syed Ameer Hassan Shah v. Faiz-ur-Rehman as common questions of law and fact are involved in both these matters.

2. Briefly stated the facts of the case necessary for the disposal of this appeal are that the respondent filed two separate suits one against the appellant and another against Syed Ameer Hassan Shah on 5-6-2007. A civil suit filed against the appellant under Order XXXVII, Rule 2 Civil Procedure Code 1908 on the basis of a `Pronote' dated 23-6-2005 for recovery of a sum of Rs.9,50,000 was registered as Civil Suit No. 13 of 2008. Another civil suit filed against Syed Amir Hassan Shah under Order XXXVII, Rule 2 Civil Procedure Code, 1908 on the basis of a `Pronote' dated 23-6-2005 for recovery of a sum of Rs. 9,50,000 was registered as Civil Suit No. 8 of 2008. That issues were framed and evidence was led by both the parties. The leaned trial Court while relying on the evidence of the plaintiff/respondent (herein) decreed both the suits with costs by means of judgment and decree dated 19-12-2009.

3. The learned counsel for the appellant submits that miscarriage of justice has been occasioned by the learned trial Court while passing the impugned judgment and decree since evidence recorded on behalf of the parties in one case has been verbatim reproduced in the other. The learned counsel further submits that impugned judgment and decree dated 19-12-2009 is liable to be set aside on the ground that the same has been passed without due application of mind as evidence in one case has been shifted verbatim to the other case and it cannot be said with any certainty as to in which case the evidence was actually recorded.

4. The learned counsel for the respondent has opposed the appeal and submitted that no exception can be taken to the impugned judgment and decree since the same has been passed after the pleadings of the parties and the evidence led by both the sides was taken into consideration. That the impugned judgment and decree does not suffer from any illegality or infirmity and hence not open to any exception.

5. A perusal of the evidence produced by both the parties in Civil Suit No. 13 of 2008 subject matter of the appeal (herein) and the evidence recorded in Civil Suit No. 8 of 2008 which forms subject matter of R.F.A. No. 85 of 2010 titled Syed Ameer Hassan Shah v. Faiz-ur-Rehman Shah would show that it is verbatim the same. A bare reading of the evidence recorded in both the cases would show that even a comma or full stop has not been changed. It is too much of a coincidence for evidence recorded in two separate suits to be one hundred percent identical. If evidence had been recorded separately in both the cases there would have been some difference between them. It is trite that the evidence of one case cannot be shifted verbatim to another case for rendering of a decision, such a procedure would be totally alien to the Civil Procedure Code as has been held by this court in Nazir Ahmad v. Mst. Ghazala Bashir 2001 CLC

468. After going through the evidence produced by the parties in Civil Suit which forms subject matter of this appeal and evidence as it appears in Civil Suit which forms subject matter of the dispute in R.F.A. No. 85 of 2010 it cannot be said with any certainty as to in which case the evidence was recorded and subsequently shifted verbatim to the other. Such a practice would cause grave injustice and would also militate against all known norms of natural justice as has been held in Malik Aman v. Haji Muhammad Tufail PLD 1976 Lahore 1446. The trial Court while seized of two different civil suits filed under Order XXXVII, Rule 2, C.P.C. had not given any special reason why evidence was recorded only in one case and shifted to another.

6. In this view of the matter, this Regular First Appeal is accepted, the impugned judgment and decree dated 19-12-2009 is set aside and the case is remanded for giving a fresh decision after affording an opportunity to both the parties for producing evidence. Both the parties shall appear before the trial Court/Additional District Judge Mianwali Camp at Piplan on 22-11-2010 who will record fresh evidence of both the parties and finally decide the case within thirty (30) days after both the parties put in their appearance. Office is directed to transmit the record of the case to the learned trial Court. H.B.T./Z-51/L Case remanded.