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"

I N THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdietion)

PRESENT:
jUSTICE.MUSHIR-ALA:
WIR.-.JUSTICE AMIN-Ub-DIN KHAN

.140.5 IQ OF 2019:.
(Against the jiadgrherii dated'05:12:2018 passed by
Lahore High Court Lahore hi C 2144/ 2013).
• .
I7a.F.46an NakVa.,•4 ....Petitioner(

VERSUS
Alta Muhammad (deedj•liki,•LRs ...RespOndent(4

For the Petitioner(S): Ch. NUsrat Jayed. Bajwa, ASQ

•Syed:Rifagal: Hussain Shah; AOR

For Respondents Masood ASC,

Date of Hearing:. 01..0.1,2,02:1

ORDER

MUSHIR j.---- The •Petitioner has impugned:: the judgment

dated 05.12.2018;. pasgect-iby learned -Bench: of • Lahol-e High::CoUrt;,'

LahOrce; iii C.R.21441 .U-13, • Whereby,. the learned ReViSional COUrt,
•
in consideration of -the: fact that the learned Trial Court has neither

recorded the evidence itself, nor Made: a memorandiun of the

substance ..of..what each••Witness deposed, under .h S own hand.. and

signature as mandated in terms of Rule 8 of Order XVII1 of Code of

Civil Procechire,. 1908 remandect.the - matter .baCk to the trial.

Paragraph 2 of the :impugned jUdgernent:.Observed that 'the LOCal

. Commissioner perform his job.. honestly. The-evidence:

recorded and documents received, by the .Local. Commissioner were.

not in accordance with law. Consequently,..the Revision waS•alloWe

and judgements and d.ecree: of.learned trial. Coutt.; as by.-

the :Appellate cutirt; were Set.aside.i: suit..instityted. an .behalf .

1;1■191i'itlimit;Hrdrim .
 CP 5 UV L9

petitioner will depth .to be pending before the learned.Ctuil:court,:who

will eicantine the.'witneesSes of the partieS himself as decide'..-t

sante afresh," keepinOn iiiew the mandate of Order XX rule 5 C.PC"

Th6 learned Ounstl for the Petitioner contends that t

unpugned judgment. Tis based...on::, :the.::a.asuroption and :: supposItion,:

-nett::iBeriCli' .-asSurned 'in .,pitra.:f?:_,.! that 1. !!the.-4p44...'

COritil*SiOttei diet not 7et1ot-11v 1:11.4. jp12 henestly, whO:.cluring.
. • .• •
.,C.-OminatOrt - recorded:sppy of rei 40s tptaqk against the gist :c.1.0461.1. „
as substance of `their= examination in chief Although, neitherSpeci

objections. Wer e. raised:during ,entr.se. of 'trial nor; it. was agitated in

ivil. .Revissi'on.:inhand, ":The observation inade in the':judgment that

I was persuaded that some wrong for some ulterior motiaef with
collusiveness:was committed," 'remains unsubstantiated. In'additiOn':,

to the InisappreciatiOn rule 8 of order XVIII CPC, it was also urged''.

that impugned judgment based on: SurmiSes and conjectures on

extraneous considerations which are not substantiated from the.

record,

was argued with great vehemence, by the learne

Counsel for the Petitioner that, the learned. bench of the -:high :coptf
erred to rely, on. Ordei° Rule 8 CPC to discard the entire
evidence recorded by :Consent of the partieS through' . 6C
COnnnisSione.r. I was c.ontended that evidence was recorded in
. • ....accordapce with :foxy . .y... t .
; :.Cotrinn$sioner: :Neither: .11*.
• . , , .:•
Respondent objected to the appointment of Local' CommisSioner,
showed.- any.reservation.as I:6 conduct of the.Cuirunissioner or on. the .
. . .
COMinisSione !'sreport
reportAt
. it Was.
. argded that the learned .bench grossly

Court to state its decision on each issue.

.• C;;P.51.0./. l9•

erred. .00nclude.:that.: for • the non:-compliatice of the 1noted

provisions ap.4 :•1114grnepto.•the • .of the: :loWe ar.ce
rendered of no legal consequence, It .was. MSc; arguedlhat t e-

learned Rev siorial Court failed. to exercise its:jurisdiction and decide

the matter; on meritS.,

The learned 'edithael for the Respondent 'suppbrte

impugned Judgment, :.On our query,:. h101 CandidlY • conceded :.that,

Local CoMinissioner. 'Was appointed by. consent, of the Parties. He •
alsb concedes that.ho'ohjeetion'as- to the conduct:arid/or MantieP
. .
which the evidence was recorded by the Local Cominissiori.er' w

raised before the learned Trial Court, the learned Appellate Court, or

even in the Revision before the learned High court. Learned... counsel.
;
for- the:ReSpondent .to .d.eindiastrate. that '-a1. 4y.
.was caused to. the Respondent by rccording.and receiVing.evi . ence,.

tin otigh Localdoquilipsipiner.

•Arginnents heard.. ;perused. tne ..recdrd: °Cofii t,

. .: . ..
under the Code, subject to such term's and condition., as maY. e:
. - -... , . . ..- --- . • .. - make•
•.
prescribed3, may appoint:a . Commission t a person,
local trnfeatigatitiri, take accounts, and/Or: .make - partition-.
.•
elaborate manner and procedUre in record evidence by 0:•COtirt
provided. Tor Under they C,ode4 normal circumstances; the

evidence of a witness is, to he recorded by.a judge, in open Courts,..

under his own hand,.;superintendence; and/or linger 1.4io personal
direction6, The evidence of a withesa is 'taken orally- in .open. in

9 "CodeCivil Proeedure; i908

3.
Section5, Order. 00eXVI, xvw, XXVI.CPC
4 See Order CPC in oivil:eases and Section 353 .to 365 Cr:P..a in ,Criitinal
cases
4 cq. Order kylII QPC
5 • Rule
6 Rule 41 87? 5 oi Order XViII.CpC

.9.
 CP'51.0/12.

the presence and Under' the personal direction an d superintendeiriCe‘o

the judge?'. The: COUrt ordinal* records the deposition of a.witnesS

in Writing in question arid.anstjer foiin, but` in that of a riartative,..

generally in the •vernacular.language of the Court, or in Enl liSh,..
read. over to the WitneSS'after which any discrepancies or error(s). are:.
• corrected: befOreSigningiO:

6. here are tWo situations that are contemPlated oder

the Code, where it as not necessary to take the evidence of a witness
verbatiin; in kvriting .but.the judge'is reqiiired to aMake 'rnemorandta :
of the, Substance . of iOhcit witnessdePosei.e afi ie. eXaMination...
• -• ' • •

.of each witness proceeds: One such situation that is provided. Wiz,
where 'the epidence'ts not. taken down in Writing by the Judye', 91
Secondly ill. unappealable Casesio: Every mernoranduin so , made
forMs part: ofr,the,recordli:' Cases 'where a judge:.. is, unable.:
prepare such memorandiun,:hp ;i0: 47equired to recomi.,::reasoas for: the
sarneP,.:On examining the scheme of Order XVIII. CPC, and other.

enabling provisions of the. Cade, it is clear that where :the verbatim

evidence is being s .:recorded in writing, there.: is no neceSsl :,of
making anY ://ierii,oranqi,64 ., Of the. sUl stance of what each Wi 4s
deposes.::T4p reebiding of s meinOtandlito of the substanCe o
evidence rneari& the. essenee, 81.1hatalIPP ) Oi'eert-lXaafihP P.A.Cfer1P4 that

may be neCeSsary :for tile:jUst determination of the cont covers in.

7 See Order X RUle 2 Order XVIII Rule 4, 5, 9, and Order XXVI, Rule :CF;O .,
8 Rule 5 of Order XVilf:
9 Rule 8 of the Order XVIII
10 Rule 13 of Order
u Rule 14 (2) of Ofder. XVIII
11 of Order XVIII 'cpb

. :.
 CP 510/19

7. The manner procedure for recording evidence

through cominission-is elaborately provided for under Order

CPC. Once th:6 Commission, under the orders of the toUrt, '
.• •

executed and. 3.e'• evidence recorded, - Aide COrtatissioner:Is

retinal the ,comlnission3:. together, :with his signed repro2:t,':and-,4be

evidence recorded asper the: direction: and ordei t f.. the, Court. The
evidence SO: recorded andjaken by the .Commission, Flab.*

objections brad deeision of the ebtirt, forms part•of the record; and
to be 'treated and considered as if the evidence has been .reordere

by :the Cburt• n:o.t

:..appreciate. the •-acheine .of the provisions of the 1h.e`E;eaifed
bench of the High Court erred. to toy on. rule .8-of •Order'XVIII;

to*discard• the .evidente •reCorded. through the •Conithission appointed

by consent Ofthe Pa.t Rile .8:of .0.rder )'VIII is not. applicable-•in

cases Where - th• e eVidence is recorded., under. 41:e:orders of the .Court
. :through. Commission, Under•-the given facts and circunista:ncea.o
tlae ..case,e
ther
.• • wo:p.
„..• • •.. justification to .remanti. case. t®::.
,•
learned •:Trial .- t:ourt'•for•:.dremOvo. • .trial or • proceeding safreah.. The .:,trial;;

Pourtpudge 2YAay &aloe until(consideration . the. • .'evidence.•

memorandum .of..evideriee
• •.,. ; as•• • .. •••.. „may be, .either:recorderd.,1*•".
the cerwt. its ei f,•• the :predeesSor judge1.5,-..or through. CominiSSiOn,.

Once - suCh;.report..of the commissioner, along 2 with. the'evidence-;:po:

•
recorded is la-ken -eeord,-. •It' forms part':.6f the. jaidiCial::-;reet4. d.,,•:,
and is to he i7ead...atanY•••:hearifig of 'the ,suitI3 and:fOr ;making.any

order car pkoriounQerfient,of ,Judgment: The provisions .rioted herein.

is Rule '4 anit.1.0 of 0,r-der xxya.:ropc

1 1 Order XVIII and XXVI CPC
15 Rule 15. of Order XVIII; CpC
:16 Order XXVI; Rule '7, CPC,
17 Rule 16 (3) and. Rule ri of Order XVIII', CPC

a. • . se
 ":"3griPnrk'.7.PpLiPrrrrigor.spirneRr,A
W,',"3",,---.'', 17,

CP' 51 0 / 19

are metre enabling. PrOviPriori; :relating to :a matter of procedlut. and

•. •
•not affecting the jurisdiation of the: Court.

8. Where coUrt, for any reasons; is dissatisfied with

proceedings of COMmissioneri there is nothing -
in the Code; Which •
preVciitS. it froth directing a further :eitqUiry -as it '.1.har ..C1.60,1)
f
.811:bsstitp:ong the:- :cOminisPiOner :andlor•:recalling afid
witriesS alrea.d.y exa.i-nined.by...the commissioner; Whose deposition
found to • be illegible; . arribiguous ttnclear, on any Materia
• -.
particular affeeting the merits ofthe case. A party carinOt
appeal" the 'cleciSiork of a: r.eVisional Court for de,--
novo trial ad a
Matter of righ-08'.:.

. .
It apPearS that the:learned bench of the ijigiii,Cfati4te
into error while'conSidering:the implication of 14ile - 8 Of Order .x.\44-.
CPC and misapplied :ttie same ori:the evidence recorded throtighlhe .
commission, acting under .section 75- read with Ord.er •
appointed by the COurt,

10, It is not always necessary that the. Court - may. ~record'

, •
evidence itself. For A variety of:reasons, it May be recorded through
A Conuni;iSiciri.:19. The - Conit ai.S', a..prificipal 1116 Sr
elerci.se p9WerP.
. delegate alatheritY;s• :Under -75' or brder for Per.sna
appearance., Of a. 'witness in frOnt of.:the CoMmissiorr either ant.. cif its

own accord or on applieation Ofeither party26:1-To*vpr, doeSnot

bar the Coin I. itself of the 4ithoi-ily to examine the ;witness t

is., pot satified.. 1- Rule 1.6 of:bider XVIII; it is prOliide&thatith.-:.:

Order...1/1II; •.:: • .
1§Fu,1 'FII
. •
21 Order KAU, Rule 17

ZIEZaliETE:RiaT.D37.2riemsassamm..:
 UP 510/19

:.cases Where no appeal: the judge may ;merely .:113.a,i<&:

meinorand:11M. of substance. of...the evidence.: Rule 15 of Qrder..X
contains a general provision, that a succeeding
. ; Judge can. deal WI
any :evidente or merpOrandUrn taken by his predecesSerand:Pricieee
.with the. trial:

, proViSiortS: 'of CPC', relating an

attendance,: examinatioh pf- WitneSses",. and producing 'Of doeurnents

the penalties imposed On the witness could he exercised by the

CommisSioner executing, the order of. the Court is deemed to : Oe,:a
.
Civit"Court 22 ,

12. As noted aboVe, the learned CoupSel for the Respondent

was net able to ow :That :any. preindice has :been caused l:e..'the
Resocederit, rattier the comMission :wa.s.. consti.tuted by consent'
the :parties. Iincler the. giVen facts arid "cinchrrista.nces : niceases,
wl-tere evidence is reCoreled• through Cominissioxi, Rule .8 .0f Order

is hot attracted. -As regard . evidentiary value

documents exhibited " and produced before the Loe
Comtnissionst23 it is for the:learned "oust and the ..Appellate::
court that has tO eXamine:'and :appreciate ta eVidetitiOrk..valAce, and
admissibility): otherWise and the revisional court; may see
.exercise of. jurisdiction :accordance with parameters, The
evidentiary value and admissibility can also.be examined further by: .: :
the appellate ' Cdtirt in case: it is wrongly adMitted or appfeciatect
within the 'oet: parameters, of :16.W.' In this:view of the Matter, the
impugned judgment cannot be.sUstaihed.

22 See Ruls 16 to .113 of OiC1er_XXVi CPO

is Qa.rilin-e-ShdhadatUrderi -1984; Section 91.
 incitiired.'froin
— both the counsels •ag•-• -t0 .whefic:
•.• •.. .
matte17'was. reinanded. by ..t; .1--fightourt.to -the 'learned WO taint

-0a.S.
r. .pliett'ithat:the Matter: wa& remandedo. 08',12.204;
• •••••,• .
Alinnst.0i.o. • yeatS‘: haVe'relapised, eVideriCe...cOUld hay
• • • • ••• •
been reCorded.- and case could have , been decided., It is stoted. 6.t

that ..the e :case, is • still- pending .on.,. account of : transfer:

jUrisdietion/Cciurt Pindi;Bhattiari.
•• • to LahOre thetefor,. -.t.
•matter:could-not b.e.proceecled...

Accordingly t e .6aSe has net been. proceeded'. •

decided:. by'the learned - trial Court, thei:record and proceedingS iyrth:e •

edurt May be remitted -r- back: to the'iparned 000i7

• • ••
impugned judgment s :set' Civil; Revision No. ,'"11-4~ X1.3 tithe
• • •
Motiamirtacideceaedj:th.toitgh-L:R: etc. .14s: .Fictsaaii, Nerukez1.

shall be deerned to be pending before the learned High : Court.

Subject Civil Revision . shall...he. heard' arid cleCided oil. rilelits strictly

..in-accordance.Nvitill4w. ifter-dijc notice to the parties.

The- instant AVO. petitidn is 0611'i/cited: ih o appeal- anc

allowed in the terins noted:above.

ISIAlviABAD .
't: JanlJaty,: 2021

Approved for Reporting

.•