' This civil revision impugns the judgment and decree dated 17-12-1998 passed by the leaned Additional District Judge, Lahore, dismissing the appeal of the Province of the Punjab and others- petitioners against the judgment dated 27-6-1998, of the learned Civil Judge, Lahore, decreeing the suit of Chaudhary Miraj Din & Company-plaintiff respondent, for declaration and injunction.
2. The brief facts of the case are that four lots of the railway track from Madhuke Railway Station to Trimmed Barrage, were put to auction on 14-1-1995, by giving auction notice through newspaper by the petitioners. The respondent was highest bidder for Lot No,1, for Rs,38,50,000. The bid was approved by the Chief Engineer Irrigation, Multan, petitioner No,2, vide his letter dated 27-3-1995.
According to terms and conditions of auction, the respondent deposited 1/4th of the bid price on the date of auction. The petitioner conveyed the approval of bid to the respondent vide Letter No,1061/62/23-S dated 17-4-1995 and the balance 3/4th of the amount of bid price of Lot No,1 amounting to Rs,30,03,000 was deposited by the respondent on 4-7-1995 with National Bank of Pakistan, Main Branch, Jhang Sadar. The petitioner confirmed receipt of Rs,30,03,000 and allowed respondent to lift material of Lot No,1 within 40 days under the strict supervision and guidance of Sub-Divisional Officer, Head Works Sub-Division, Trimmed vide his Letter No,1793/23-S dated 18-7- 1995. The respondent was not able to lift the total material of Lot No,1 due to some dispute between Irrigation and Power Department and Pakistan Railways Authority. The respondent submitted an application to Chief Engineer, Multan petitioner No,2 on 12-2-1996. The same was forwarded to S.E.
Haveli Canal Circle, Multan, petitioner No,3, to measure and to take necessary action for refund of balance amount vide his Letter No,136/Gen of 1996/2271/ 373/73, dated 16-2-1996. Copy of this letter was endorsed to the Executive Engineer, Trimmu Head Works Division, petitioner No,3, who reported to the S.E. Haveli Canal Circle, Multan petitioner No,3 vide Letter No,212/CT dated 13-2-1996 that refund of Rs,20,26,734 be made to the respondent and necessary approval from Chief Engineer may kindly be obtained. The Chief Engineer, Multan petitioner No,2 on 13-2-1996 directed S.E. That the balance amount may be refunded in pursuance of said direction dated 13-2-1996, petitioner No,4 intimated to petitioner No,3 vide Letter No,457/23-S dated 15-2-1996 with a copy of Chief Engineer, Multan vide endorsement No,458/23-S, dated 15-2-1996, that total length pertains the above-cited lot was 13704 feet out of which only 6700 feet had been lifted by respondent Ch. Merj Din & Company and balance of 7004 feet had not been lifted by him because the same was under dispute between the Railway and Irrigation Department. In view of the said report petitioner No 2 accorded sanction to refund an amount of Rs,20,26,734, the costs of 7004 feet railway track which was not lifted by the respondent. After the sanction by the Chief Engineer a bill of Rs,20,26,734 was prepared vide S.No,3057/2953 pages 185-187 for payment to the respondent. Despite sanction accorded by petitioner No,2, petitioner No,4 Executive Engineer refused to make payment to the respondent whereupon respondent filed Writ Petition No,7054 of 1996 dated 21-4-1996 in the High Court, which was withdrawn by him in view of factual controversy raised by the petitioners. On the report submitted by the petitioner No,3, directed to the Secretary, Irrigation and Power Department, Lahore constituted Committee consisting of three Chief Engineers to probe into the matter and also held in abeyance order issued by petitioner No,2. Chief Engineer, Multan do 28-2-1996 for refund of amount of Rs,20,26,734. The said Committee cancelled the order dated 28-2-1996 for refund of Rs,20,26,734 passed by petitioner No,2 Chief Engineer, Multan. The respondent filed a suit for declaration and injunction challenging the order dated 1-12-1996, passed by the Secretary Irrigation and Power Department and contended that the same was illegal void unilateral, arbitrary and that Secretary had no lawful authority to cancel the entry made in the measurement book by the Sub-Engineer and verified by Sub-Divisional Officer and that respondent-plaintiff was entitled to refund of Rs,20,26,734 as sanctioned by the competent Authority.
3. The petitioners contested the suit controverting the averments made by the respondent in the plaint. The petitioners raised preliminary objection pertaining to territorial jurisdiction of Civil Court at Lahore to entertain and adjudicate the matter. It was contended that the total length of track required to be lifted was 54816 feet which was divided into four lots and area of each lot was 13704 feet. The respondent physically lifted whole material length of Lot No,1 and the alleged dispute between the Railway Authority and Irrigation Department is incorrect and baseless. The story of non-lifting railway track according to agreement is fabricated and it has been prepared with the connivance and collusion of Sub-Engineer and Executive Engineer just to defraud the Government worth laces of rupees. In fact entire land of 13704 feet of Lot No,1 was lifted by respondent. The Secretary, Irrigation and Power Department vide his office order dated 1-12-1996 rightly held in abeyance refund order passed by petitioner No,2 and was within his rights to constitute Committee to probe into the matter. The order of refund dated 28-2-1996 was illegal, void and based on fictitious reports. The respondent was not entitled to recover of Rs,20,26.734 and that suit filed by him was liable to he dismissed.
4. From the divergent pleadings of the parties the learned trial Court framed the following issues:--
(1) Whether the impugned order dated 1-12-1996 passed by defendant No,1 is against law and facts, illegal, void and ineffective upon rights of the plaintiff? OPP
(2) Whether this Court lacks territorial jurisdiction in this case? OPD
(3) Whether the suit of the plaintiff is not maintainable? OPD
(4) Whether the order of the refund of Rs,20,26,734 of defendant No,2 in favour of plaintiff is illegal and fictitious? OPD
(5) Whether the suit of the plaintiff is false, frivolous, baseless and therefore, the same is liable to be dismissed? OPP
(6) Relief.
5. Parties led their evidence. The suit of Miraj Din & Company respondent-plaintiff was decreed in its favour vide judgment and decree dated 27-6-1998 by the Civil Judge, Lahore, by relying on the evidence of defendants specially from D.W.1 and D.W.2 and the Chief Engineer was competent to make the refund order of the said amount. Further, that in the present case, a representation was made by the plaintiff and the case was scrutinized by the field staff and on the basis of calculation in the M.B. The claim of the plaintiff was found genuine and the refund order was made by the then Chief Engineer. D.W.1 who was Superintending Engineer, under the Chief Engineer, failed to bring on record any finding of the Inquiry Committee constituted by the Acting Secretary, Irrigation, then Chief Engineer, Dera Ghazi Khan, D.W.1 failed to prove that fraud was committed by the field staff including XEN, and S.D.O. Therefore, findings of the Committee cannot be considered as lawful finding as the plaintiff was not given any notice to appear and put forward his version. On the question of territorial jurisdiction the learned Civil Judge held that, the order impugned in the suit has been passed by the then Acting Secretary at Lahore and the suit can be filed at a place where even a fraction of cause of action arises and the Civil Court at Lahore has got the jurisdictions. On IssueNo,3 it was observed that, although there was an arbitration clause in the auction notice but the defendants did not invoke the arbitration and joined the proceeding in the suit without filing petition under section 34 of the Arbitration Act, therefore, the suit of the respondent-plaintiff was maintainable. Under Issue No,5, the plaintiff-respondent was declared to be entitled for refund of Rs,20,26,734 vide order dated 1-12-1996 passed by the defendant No,1 (Secretary Irrigation) was declared against the law.
6. Feeling aggrieved the petitioners preferred an appeal assailing the impugned judgment and decree dated 27-6-1998. The learned Additional District. Judge observed that the impugned judgment and decree has been passed on the basis of consistent and corroborated statement of P.Ws. And the documents produced by them. In the absence of inquiry report, order dated .1-12- 1996 was rightly set aside by the learned trial Court.
7. The learned counsel for the petitioners inter alia contends that both the lower Courts have failed to take into consideration the principle laid down by the superior Courts that the plaintiff should stand upon his own legs and should not take the benefits of weakness of the defence evidence.
Adds that the documents Mark "A" to Mark "I" cannot be read in evidence as there .Is no provision in law to mark the documents, even otherwise the marked document has no legal sanctity under the law. According to him only the proved documents under the Articles 78 to 91 of the Qanun-e- Shahadat Order, 1984 and exhibited under Order 13, rule 4 of the C.P.C. Can be read in evidence.
Finally it is contended that the objection about photo copy of the handwritten receipt of the Accountant (Exh.P.6) has not been decided by the Civil Judge, and this point has also escaped the notice of the Appellate Court. Further states, that the admission of defendant No,2 Chief Engineer appearing as D.W.2 Marks "G" and "H" has been prepared by the Sub-Engineer and it contains the pass order for Rs,20,26,734 does not carry any weight in the eye of law as the D.W.2 was neither the author nor signatory of the document referred above. Finally the learned counsel argued that the judgment of the learned First Appellate Court is vitiated on account of violation of mandatory provisions of Order XLI, rule 31, C.P.C. Because the learned Additional District Judge has not stated the point for determination, and therefore, there was neither any decision thereon nor the reasons for the decision have been recorded.
8. The impugned judgment of the learned Additional District Judge reveals that he was under the influence of the fact that the petitioners have neither examined any member of tile Committee constituted by the Secretary. Irrigation nor any report of the said Committee was produced in evidence. He proceeded to dismiss the appeal by observing that, "the impugned judgment and decree has been passed on the basis of consistent and corroborated statement of P.Ws. And the document produced by them". He has not kept in mind the principle that the plaintiff should stand upon his own legs and should not take the benefits of weaknesses of the defence evidence. He has neither discussed the evidence of the plaintiff nor adverted to the question that whether documents Mark "A" to Mark "I" could have been read in evidence as there is no provision in the law to mark the document. Rule 4 of Order 13, C.P.C. Is relevant which reads as under:-- "4. Endorsement on document admitted in evidence.--- (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 namely---
(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 initialed by the Judge.
(2) Where a document so admitted is an entry in book, account or record, and a copy thereof has been substituted for the original under the next following rule, the particulars aforesaid shall be endorsed on the copy and the endorsement thereon shall be signed or initialed by the Judge."
' The above mentioned rule 4 of Order 13, C.P.C. Mandates that the document should not be exhibited until they are proved. See case of Feroz Din and others v. Nawab Khan and others AIR 1928 Lah.
432.
' Mere marking of a document as an exhibit, does not dispense with the requirement of proving it.
The provisions of Order 13, rule 4 of the C.P.C. Are mandatory. It has been ruled in the case of Fazal Muhammad v. Mst. Chohara and others 1992 SCM R 2182 that the provisions of Order 13, rule 4, C.P.C.
Are not complied with, the document cannot be considered in evidence. The legal evidence which is to be admitted in evidence is to be exhibited under Order 13, rule 4 of the C.P.C.
9. The objection raised by the petitioner about Exh.P.6 photo copy of the handwriting receipt by the accountant was not disposed of. Under Article 75 of the Qanun-e-Shahadat Order, 1984, the document must be proved by primary evidence. The primary evidence has been defined in Article 73, which means the document itself produced for the inspection of the Court. Cases in which secondary evidence relating to document may be given has been mentioned in Article 76. Photo copy of receipt has been admitted and read in evidence without observing the legal requirement of Article 76 of Qanun-e-Shahadat Order, which is illegal.
10. There is another glaring irregularity on the part of the Civil Court that it relied on the admission of defendant No,2, Chief Engineer, Irrigation, when he in his testimony states that Marks "G" and "H" has been prepared by Sub-Engineer which contains the pass-order for Rs,20,26,734. Whether the admission made by the defendant has evidentiary value under Articles 31 and 32 of the Qanun-e- Shahadat Order 1984'? Is a question to be decided by the Court. Admittedly the Chief Engineer, defendant No,2, was neither the author of the above-stated document nor the witness of the document referred above nor the same in original was produced for inspection by itself and exhibited without formal proof of the same could have not been relied as held in the case of Khan Muhammad Yousaf Khan Khattak v. S.M. Ayub and 2 others PLD 1973 SC 160.
11. The document Exh.P.1 to Exh.P.7 were produced by the respondent-plaintiff Miraj Din & Company in rebuttal. The same was obtained from the record of the High Court. Whether the above-stated documents were proved or not under the law, ought to have been decided, under Article 89 read with Article 91 of the Qanun-e-Shahadat Order, 1984, because a public document may be proved by the production of the original or by a certified copy under Article 88 or in the manner prescribed by Articles 89 and 91 of the Qanun-e-Shahadat Order, 1984.
12. It is important to mention here that under Order 18, rule 3, C.P.C., evidence of rebuttal can only be given on the issues, the burden of proving of which is on the defendant. The above-stated rule lays down the procedure to be followed in a case where there are several issues and burden of proving the some of them lies on the party other than the party beginning. The plaintiff has two alternatives. In the first place, it may lead its entire evidence on all the issues whereafter the other party will produce its entire evidence. In the alternative, the party may in the first instance, produce evidence only on such issues, the burden of proving of which lies on other party and disprove such issues by leading evidence in rebuttal after the other party has produced its evidence on all the issues. See cases, of Barrister Ch. Muhammad Abdus Saleem and 4 others v. Mst. Tanveer Mirza and 3 others 1996 SCM R 351 and Allah Yar and others v. Ghulam Jeelani and others 1996 SCM R 662.
13. It is a rule of law that an appellate judgment should state the points arising for determination, its decision thereon and the reasons for G its decision. The learned Additional District Judge, has not passed a speaking order while disposing of the appeal. He has not stated points for determination.
Neither he has given any decision nor the reasons for the decision in compliance with the provisions of Order XLI, rule 31 of H the C.P.C. He disposed of the appeal without discussing the evidence produced by the plaintiff-respondent Miraj Din & Company. The Honourable Supreme Court in the case of Askar Ali and others v. The State PLD 1959 SC (Pak.) 251, set aside the judgment of the Appellate Court which was passed in violation of the Order XLI, rule 31, C.P.C. In case of Muhammad Tufail v. Mst. Sardar Bibi and 2 others 1998 CLC 1969, it is ruled that:-- ' Appellate Court below proceeded to dismiss appeal, but in its judgment neither had referred to the points urged by the appellant nor had referred to any evidence. Judgment rendered by Appellate Court being not adjudication of rights of parties, could not be called a 'judgment' in the eyes of law. High Court in exercise of its revisional jurisdiction, set aside the judgment and decree of Appellate Court below."
' For what has been discussed above, this civil revision is accepted. The judgment and decree, dated 7-12-1998 passed by the learned Additional District Judge, dismissing the appeal of the petitioner, is set aside. The case is remanded to the learned District Judge, with the observation that the appeal shall be decided afresh within three months dealing with all the points noted in paras. 8 to 14 of this judgment. Parties to bear their own costs. Revision accepted, and .