Recording of evidence

The central issue in the present case was whether the suit filed by the appellant, seeking enforcement of exclusive ownership and copyright over a song and restraining the defendants from its unauthorized use, was liable to be rejected under O.VII, R.11, C.P.C.

Held: The impugned order was beyond the permissible scope of O.VII, R.11 of C.P.C. as set out in the case reported as PLD 2012 SC 247

Tribunal did not give any consideration to the scope of O.VII, R.11 of C.P.C. and embarked upon adjudicating disputed questions in a summary manner, without recording evidence

The “awareness” of the appellant and the alleged “concealment” could not conceivably be ground for rejection of plaint

Therefore, impugned order was set aside and matter was remanded back to the Tribunal for deciding the same on merits after recording of evidence

Appeal was allowed, in circumstances.

When the plaint is barred by any law on the face of it, recording of evidence would be a futile exercise and would amount to encouraging the abuse

Where on the plain reading of the plaint, it can be clearly seen that the suit is patently barred by limitation, no evidence is required

To plead that a plaint cannot be rejected because of the suit being barred by limitation/law, without recording evidence, is to plead against the mandate of law as contained in O. VII, R. 11 C.P.C., which essentially requires the court to reject the plaint which appears from its contents to be barred by limitation

Aggrieved person has to pursue his legal remedies with diligence and if a suit is beyond limitation, the delay of each and every day consumed for approaching the court beyond the period of limitation has to be explained

In the instant case the plaint on the face of it failed to explain the delay of a period of 34 years

The contents of the plaint failed to set up a case in a manner which rendered the question of limitation as a mixed question of law and fact

Mere reading of the contents of the plaint made it abundantly clear that it was statute barred and was liable to be dismissed in terms of O. VII, R. 11, C.P.C without employing valuable judicial resources and time of the Trial Court

By specifically incorporating the provision in terms of O. VII, R. 11, C.P.C, the legislature has empowered the court with an independent suo motu and sua sponte power to examine the plaint by using its wisdom

The courts always nip a frivolous suit in the bud, by rejecting such frivolous, fictitious and untenable claims in order to retain courts' docket and time for more serious claims

Non-actionable plaint or suit is a non-starter and in the interest of administration of justice and good judicial governance, it is best if such plaints are dismissed at the earliest

Keeping in view the mandatory provision of S. 3 of the Limitation Act, 1908, it is duty of every court and forum itself to look into the question of limitation irrespective of the fact whether any objection in this regard has been raised or not

Limitation runs even against a void order and a void order too has to be challenged within limitation

In the instant case, there was no justification at the outset merely by considering the averments of the plaint to overlook the delay of 34 years

When Mst. "SB" did not challenge the impugned gift deed in her life time despite third party transfers through registered deeds, petitioner/plaintiff had no right to claim inheritance of Mst. "SB"

Under Art. 100 of Qanun-e-Shahadat, 1984 a presumption was attached to the impugned gift deed which was 34 years old document at the time of its challenge before the Trial Court

In the instant case, predecessor in interest of the petitioner/plaintiff (Mst. "SB") never voiced any grievance against the Impugned mutation; even on her demise in 2009, her legal heirs kept a mum for almost six years despite being resident of same village, and suddenly woke up from slumber and filed the suit in November 2015, which was not permissible under the law

There was no substance in the petition which was dismissed, in circumstances.

High Court in exercise of revisional jurisdiction declined to interfere in the matter, as there was no illegality or irregularity in the order passed by Trial Court

Revision was dismissed, in circumstances.

The central issue in the present case was whether the suit filed by the appellant, seeking enforcement of exclusive ownership and copyright over a song and restraining the defendants from its unauthorized use, was liable to be rejected under O. VII, R. 11, C.P.C.

Held: The impugned order was beyond the permissible scope of O. VII, R. 11 of C.P.C. as set out in the case reported as PLD 2012 SC 247

Tribunal did not give any consideration to the scope of O.VII, R.11 of C.P.C. and embarked upon adjudicating disputed questions in a summary manner, without recording evidence

The "awareness" of the appellant and the alleged "concealment" could not conceivably be ground for rejection of plaint

Therefore, impugned order was set aside and matter was remanded back to the Tribunal for deciding the same on merits after recording of evidence

Appeal was allowed, in circumstances.

When the question of limitation is one which can be resolved purely on the basis of law, without adverting to the facts, the same can be resolved even without framing the issues.

Allegations of fraud and misrepresentation normally involve investigation into questions of fact but not in every case it is obligatory for the Court to frame issues and record evidence.

Framing of issues and recording the evidence is obligatory when the Court considers that any such issue is raised in the application which is required to be resolved by leading evidence, however, when the Court dealing with the application is satisfied that the application can be decided even without framing the issues and the same does not involve any complicated question of fact, the framing of issue or recording evidence is not inevitable

It is primarily the satisfaction of the Court of first instance dealing with the application under S. 12(2), C.P.C., which is important and no yardstick for the same is fixed and the same varies from case to case.

Section 11(3) of the Family Courts Act, 1964 provides that the parties or their counsel may further examine, cross-examine or re-examine the witnesses, however, such provisions are not meant and designed for enabling a party to fill up the omissions in the evidence of witness who has already been examined, due to negligence and lapse of a party, rather the purpose, the nature and the scope of the power available to the Court in that regard is to enable it to seek clarification on any issue or to have a doubt cleared in the statement of a witness which if left outstanding and without which it would be difficult for the Court to take a right decision.

Fraud vitiates all solemn proceedings, therefore, such like stance where fabrication and manipulation of documents is claimed, as per principle of civil dispensation of justice lis is liable to be adjudicated on the basis of preponderance of probability of evidence (produced by the parties) and technical knockout is not warranted.

Appellate Court allowed the appeal and the application under S. 12(2), C.P.C. was remanded to the Trial Court to record evidence before disposal of the application

Validity

Respondent had alleged serious allegations against the petitioners on the ground that the judgment and decree was obtained by playing fraud on the Court as despite the fact that he was in possession of the suit property since long but still he was not made a party in the case filed before the Trial Court

In view of the claims made by respondent, the Trial Court ought to have given an opportunity to the respondent to lead evidence

No doubt, decision on application under S. 12(2), C.P.C. without recording evidence was not against the law, however it depended on the facts and circumstances of each case

Specific allegations of fraud and misrepresentation were alleged against the petitioners which warranted evidence

No material illegality was found in the impugned judgment

Constitutional petition was dismissed.

Application under S. 12(2), C.P.C., no doubt, is required to be treated like that of a suit, issues are to be framed and evidence is to be recorded but in cases where it is established that the application is legally not maintainable, the same can be dismissed in a summary manner without framing of issues and recording of evidence.

Framing of issues and recording of evidence in every application under S. 12(2), C.P.C. is neither legal requirement nor sine qua non for the Court

Such matter depends upon the circumstances of the case, in which the application under S. 12(2), C.P.C., is filed, as to whether the application can or cannot be decided without recording of evidence and framing of issues or to fix it for pro and contra evidence.

Court is vested with the powers to decide the application even without framing of issues, if it is of the opinion that framing of issues is not necessary.

If plaint was not verified on oath or verified through solemn affirmation before a person authorized to administer the oath, such plaint would be deemed not duly verified on oath and the Court in such a case could not pass a decree without recording of evidence.

While deciding fate of application under S.12(2), C.P.C., Court is not always bound to hold a full dressed trial like a regular suit

Such is left to discretion of Court while dealing with an application under S.12(2), C.P.C. to decide it on case to case basis

If Court concludes that material available on record can safely be utilized for making a just decision on application under S.12(2), C.P.C., according to law, then recording of evidence may be avoided to save people from agony of protracted trial.

Courts are allowed to record evidence through video conferencing, but the witness while making statement on video link has to be kept under supervision of a Judicial or Executive Officer for the purpose of maintenance of court decorum and to supervise the conduct, demeanour and attitude of witness

Certainly, the person giving evidence on video link is to be governed by the same law as applicable to a witness physically appearing before the Trial Court for recording his/her testimony

In case of whatsApp call or any other independent mode of call, the witness may be considered present in the court, albeit without any strong supervision at the witness end, there will be always difficult and awkward situation for the Trial Court, particularly if witness commits contempt of court or perjures himself and it immediately notices that he has purges himself

Identification of witness and administering oath to the person to be examined on video link can be another state of inconvenience for the court and prosecution

To shun such contingencies, as a matter of prudence, the evidence of a person should be recorded in open court, if the witness is inside the country

Nevertheless, if a witness is unable to attend the Trial Court due to serious reasons, the prosecution is to submit an application at the earliest for examining of such witness through video link from the court of corresponding jurisdiction or Sessions Judge of the District or Tehsil where the witness resides or having temporary abode.

Qatl-i-amd, attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees, rioting armed with deadly weapon, unlawful assembly

Appreciation of evidence

Recording of evidence

Video-link

Accused was charged for committing murder of the brother of the complainant by firing

Dispute over the cooking of bread between the deceased and the accused had been advanced as motive behind the crime

Accused was aggrieved of order passed by Trial Court directing to record evidence of eye-witness residing abroad through video-link

Validity

Record showed that statement of eyewitness in the case through video call i.e. IMO from Saudi Arabia had not been recorded in accordance with the formulated guidelines

Similar was the case of statement of other witness in the connected criminal appeals

Conviction and sentence of accused recorded in the case were set aside and cases were remanded to the Trial Court for recording the statements of witnesses either on their physical presence before the court and, if it was not possible, then it might be recorded through video link/conferencing by following the formulated guidelines and then to decide the cases on merits in accordance with law.

Where element of forgery, misrepresentation or fraud is involved, the said issue cannot be decided summarily, rather it being mixed question of law and fact can only be adjudicated upon after settling issues and appreciating the evidence to be led by the parties in pros and cons.

Whenever a controversial question of fact, especially practice of fraud is raised, the proper course for the court will be to frame issues on such question and decide the lis on its merits in the light of evidence to be made available before it.

Original owner of suit property (respondent) filed suit for cancellation of inheritance mutation claiming therein that she was shown to be dead by practicing mis-representation

Civil Court decreed the suit

Respondent subsequently transferred the suit property to the beneficiaries

Petitioner filed application under S.12(2), C.P.C. contending therein that she had purchased the suit property from legal heirs of the respondent

Bank, in whose favour the petitioner had mortgaged the suit property, also filed application under S.12(2), C.P.C.

Petitioner's application was concurrently dismissed by the courts below

Validity

One party claimed that the respondent passed away in the year 1985 or prior thereto and thereby the inheritance mutation along with various registered instruments were not only attested, rather money decree by Banking Court was passed as well, whereas in contra, the other/rival party asserted that the respondent after getting the consent decree from the Civil Court in her favour and transferring the suit property to beneficiaries as well, subsequently departed in the year 2003

Real controversy inter se both set of the parties could not be resolved until and unless the date of death of respondent was determined through proper/due trial

Issue of limitation in the lis was a mixed question of law and fact which could not be determined without conducting the trial

Constitutional petition was allowed, impugned order was set aside and the trial court was directed to decide the application filed by petitioner and the Bank jointly.

Adjudication in constitutional jurisdiction takes place on the basis of affidavits and counter-affidavits and no examination or cross-examination on such affidavits is permissible in constitutional jurisdiction and, therefore, controversies that require resolution of disputed questions of fact cannot possibly be adjudicated upon in constitutional jurisdiction under Art. 199 of the Constitution.

Contention of petitioner was that the agreement to sell was executed on 21-12-1998 whereas the suit was instituted on 04-02-2009, hence was barred by time under Article 113 of the Limitation Act, 1908

Validity

Specific issue regarding limitation had already been framed

Much evidence had already been recorded and the trial was at its final stage

Question of limitation, in the present case, was a mixed question of law and facts requiring evidence

Mere fact that the suit was filed with a delay of more than seven years by itself was not sufficient to reject the plaint until and unless material was available on record to suggest the date of refusal

Constitutional Petition was dismissed.

Plaintiff claimed declaration of the facts that he purchased the vehicle through a sale agreement and then handed it over to the defendant on rent, while the defendant in his application under S.12(2), C.P.C. asserted that he purchased the vehicle through an agreement for consideration; that the vehicle was handed over to him while the outstanding amount was paid to the plaintiff, who also recognized the same by putting his signatures on the agreement

Case set up by the plaintiff was of payment of outstanding rent while that of defendant was of ownership

Pleadings explicitly formed an allegation of misrepresentation which fell within the ambit of S.12(2), C.P.C.

Courts below should have given opportunity to the defendant to advance evidence as the submissions raised in the application could not have been decided summarily

Constitutional petition was allowed and the Trial Court was directed to decide the application of the defendant afresh keeping in view the scope of S.12(2), C.P.C. after recording evidence of the parties afresh.

Question of limitation did not hinge on any factual controversy and consequently did not require recording of any evidence for its just determination.

Accused was aggrieved of order passed by Trial Court directing to record evidence of eye-witness residing abroad through video-link

Validity

Presence of accused in criminal trial was must for obvious reasons that plea of accused in shape of cross-examination of witness had to be recorded as was mandated by S. 353, Cr.P.C.

Ordinarily, under provisions of Criminal Procedure Code, 1898 evidence against accused was to be recorded in his presence, in open court and in presence of a judicial officer, so that a fair opportunity was to be provided to accused to cross-examine witness

High Court set aside order passed by Trial Court as same was contrary to law

Revision was allowed in circumstances.

Petitioner, under Art. 199 of the Constitution, sought direction to Trial Court to first record examination-in-chief of all witnesses of respondent and thereafter allow petitioner to cross-examine those witnesses

Validity

Complete statement of a witness entailed examination-in-chief, cross examination and re-examination

If a witness had entered witness box, it was legally desirable that his statement in complete be recorded in one session

Fragmentary recording of statement was to be avoided subject to certain legal and well-reasoned exceptions

High Court declined to interfere in recording of evidence by Trial Court as desired by petitioner

Constitutional petition was dismissed in circumstances.

Under S.82B of the Banking Companies Ordinance, 1962 it was not required that Banking Mohtasib shall decide each complaint after formal recording of evidence but rather intent was to enable Banking Mohtasib, should he so deem expedient in circumstances of a case, to take evidence of any party or witness by way of affidavit

Such intent was manifest when S.82B(4)(c) was read with S. 82D(3) of the Banking Companies Ordinance, 1962

Had the intent of Legislature been that complaints before the Banking Mohtasib could, in each and every case, only be decided after formal recording of evidence, then S. 82D(3) of Banking Companies Ordinance, 1962 would have been omitted

Where findings in the Bank's own internal investigation reports and per acknowledgments made by Bank before Banking Mohtasib, fraud/maladministration was accepted by the Bank, or in cases where fact that Bank's employees were acting in the course of employment when they committed the fraud/maladministration was accepted, then in such cases formal recording of evidence to establish fraud and vicarious liability was not required

Section 82E(1)(c) also enabled Banking Mohtasib to pay reasonable compensation to the complainant.

Suit was dismissed on the ground that the person who appeared in the witness box for evidence on behalf of company was not an authorized person

Validity

Defendant in written statement had not challenged the maintainability of the suit for want of mandatory requirement of O. XXIX, R. 1, C.P.C.

Even issue for maintainability of suit was not framed by the courts below

Plaintiff-company was not required to hold a meeting of Board of Directors to decide by a Resolution as to who and how many would be witnesses in a particular suit to appear on behalf of the company

Courts below had erred in law while passing the impugned judgments and decrees

Matter was remanded to the Trial Court with the direction to decide the same afresh on merit on the basis of evidence available on record

Second appeal was allowed, in circumstances.

Under S.82B of the Banking Companies Ordinance, 1962 it was not required that Banking Mohtasib shall decide each complaint after formal recording of evidence but rather intent was to enable Banking Mohtasib, should he so deem expedient in circumstances of a case, to take evidence of any party or witness by way of affidavit

Such intent was manifest when S.82B(4)(c) was read with S. 82D(3) of the Banking Companies Ordinance, 1962

Had the intent of Legislature been that complaints before the Banking Mohtasib could, in each and every case, only be decided after formal recording of evidence, then S. 82D(3) of Banking Companies Ordinance, 1962 would have been omitted

Where findings in the Bank's own internal investigation reports and per acknowledgments made by Bank before Banking Mohtasib, fraud/maladministration was accepted by the Bank, or in cases where fact that Bank's employees were acting in the course of employment when they committed the fraud/maladministration was accepted, then in such cases formal recording of evidence to establish fraud and vicarious liability was not required

Section 82E(1)(c) also enabled Banking Mohtasib to pay reasonable compensation to the complainant.

Procedure-Suit was dismissed on the ground that the person who appeared in the witness box for evidence on behalf of company was not an authorized person

Validity

Defendant in written statement had not challenged the maintainability of the suit for want of mandatory requirement of O. XXIX, R. 1, C.P.C.

Even issue for maintainability of suit was not framed by the courts below

Plaintiff-company was not required to hold a meeting of Board of Directors to decide by a Resolution as to who and how many would be witnesses in a particular suit to appear on behalf of the company

Courts below had erred in law while passing the impugned judgments and decrees

Matter was remanded to the Trial Court with the direction to decide the same afresh on merit on the basis of evidence available on record

Second appeal was allowed, in circumstances.

Section 10 of Azad Jammu and Kashmir Family Courts Act, 1993 provides that when the written statement is filed, the court shall fix a date for pre-trial hearing of the case and issue a notice to parties for attending the court on the date which shall be fixed by the court and on the date fixed, the court shall examine the plaint, the written statement and documents and if the court deems fit, it shall record statements of parties or their counsel

Court shall ascertain the points at issue between the parties and attempt to effect a compromise or reconciliation between the parties and if the parties fail to compromise or reconciliate the matter, then the court shall frame the issues and fix the date for recording evidence

Where parties fail to reach to a compromise or reconciliation, it is mandatory for the court to frame issues and fix a date for evidence of parties

Section 11 of Azad Jammu and Kashmir Family Courts Act, 1993 provides that when the evidence of plaintiff is concluded then the Family Court shall provide an opportunity to the other party for rebutting the same

Trial Court in the instance case failed to follow the procedure laid down in S. 10 and also failed to appreciate and even discuss the evidence of the witnesses of defendant

Appeal was accepted and the case was remanded to the Trial Court for decision afresh.

Trial judge had to check admissibility of evidence without waiting for any such objection from either side because the judge was required to be vigilant and had to play an active role while recording the evidence of witnesses

Trial Court was duty bound to decide an objection regarding admissibility of evidence then and there and should not defer the same till the end of the trial.

Presiding Officer of the court, while recording of evidence was obliged to bring on record only the evidence which was legally admissible

Any objection raised either by the defence or by the prosecution regarding the admissibility of any evidence was to be decided.

Parties could appear before Local Commissioner on given date and time with their convenience and evidence was recorded in congenial environment rather than recording evidence in Court with a heavy board where above and beyond the cases fixed for evidence, a large amount of different cases were also being fixed daily with diverse stages

Purpose of residuary S.151. C.P.C. was to tackle and handle some particular situations where dispensation of justice could be done effectively

Parties could bear cost for their respective witnesses subject to its adjustment at the time of final determination of the lis and such arrangement was fair and suitable

High Court appointed an advocate as Local Commissioner to record evidence of parties and directed the parties to file their affidavits in evidence along with documents, if any

Application was allowed accordingly.

No bar existed on the power of the Supreme Court under Art.184(3) of the Constitution to record evidence, provided voluminous record and complicated questions of fact and law were not involved

In order to do complete justice, there was no bar on the power of the Supreme Court to record evidence in appropriate cases and pass such orders as may be necessary.

Respondent in a Constitutional petition cannot expect to have petition dismissed by making vague and general assertion to the effect that petitioner involves disputed questions of fact

For a respondent to succeed on such score, he must identify disputed questions which cannot be resolved without recording of evidence.

Where suit was patently barred by limitation, no recording of evidence was required, and court could reject the plaint under O. VII, R. 11, C.P.C.

Principles.

Plea raised by appellant was that process could not be issued through substituted service without recording of evidence of process server

Validity

When defendant did not reside on address given in the plaint or party was avoiding service- willfully or to prove concept. of acknowledgement of service, the Court had to frame issue and record evidence to decide application under O. XLI, R. 21, C.P.C., which had imposed duty upon the Court to verify the fact as to whether the service was duly effected or defendant was not appearing for any sufficient cause

High Court set aside the order passed by Lower Appellate Court and remanded the matter for decision afresh after framing issue on the question of due service to appellant and after recording of evidence of both the parties

Appeal was allowed accordingly.

Plea raised by defendant was that recording of evidence was function of court and appointment of Commission would delay the matter

Validity

If High Court had power to save its time by recording evidence through the Commission, it was expected the counsel appearing for litigants should facilitate the court and cooperate with Commissioners as it was always in their own benefit

Whatever time saved by court in recording of evidence, was consumed by the court in other urgent matters requiring immediate orders in different cases and at the same time it would give some space to the court in reducing backlog by pronouncing lengthy judgments in cases which were ripe for final disposal

High Court appointed another Commissioner for recording of further evidence.

Averments made in the application under S.12(2), C.P.C. showed that none of the same could be decided without recording of evidence

Matter being factual in nature and, in the eye of law, could not be decided summarily

Application containing allegations of fraud could never be decided without recording of evidence

Constitutional petition was allowed and Trial Court was directed to frame issues and provide ample opportunity to both the parties to adduce their evidence and then decide the case in accordance with law.

Proceedings under S.491, Cr.P.C. by their nature were summary in character and the entire evidence was not recorded to decide the main controversy between the parties.