' SYED TAHIR ALI SHAH, J.--- In hand petition for leave to appeal directed against the judgment/decree, dated 22-12-2005 returned by a Division Bench of Chief Court Northern Areas.
2. Shoukat Ali, (now' deceased) resident of Tehsil Astore filed a suit for damages in the tune of Rs,6,56,000 in the Court of Civil Judge 1st Class Gilgit in the year 1996. The facts embodied in the plaint relate to three different causes whereby the 1st cause is for Rupees, 2,53,000 i,e, damages for the various material dumped at the river side for the construction of a bridge but washed away, which according to the plaintiff was entrusted to him through a contract by the defendants pertaining to the year 1992. The 2nd cause according to the plaintiff arose in the year 1993 when he again dumped material for the construction of the said bridge and which again washed away due to blockade of river. Plaintiff has assessed Rs,2,00,000 as damages of his lost material. Thirdly he claimed compensation of his landed property wroth Rs,1,50,000 as the land deluded due to raising water level of the river. He has attributed it as the negligence on the part of the defendants as they made certain blastings which caused, blockade of the flow of river water damaging his dumped material at the site.
3. Defendants almost denied all allegations asserted in the plaint. Besides they have taken some preliminarily points in their written statements.
4. The learned Civil Judge after a full trial, found the suit not maintainable and accordingly plaintiff was non-suited on 29-4-2002. Appeal against the findings of the trial Court was preferred before the Chief Court Northern Areas which was heard by a D.B. Of the Court. In conclusion the Chief Court partially decreed the suit to the tune of Rs,3,66,107 with interest at the rate 8% from 1993 till payment of decretal amount. Hence this petition.
5. Messrs Malik Shafqat Wali, Advocate for petitioner and Muhammad Issa, Advocate for the respondent appeared and argued at length. Besides the arguments we minutely scrutinized the record of the two subordinate Courts with their able assistance.
6. While going through the record we noticed the following irregularities/illegalities and clear departure from the settled procedure and law:---
(1) Issues Nos.3 and 4 appearing in the judgment of trial Court regarding limitation and cause of action have wrongly burdened' on the defendant. Likewise factual issue No,9 met the same fate. It is now an admitted proposition of law that the onus probandi regarding issues of limitation and cause of action always lie on the plaintiff. The trial Court in his judgment at page three has held that Issues Nos.1 to 8 not pressed and declared disproved. Since the onus probandi was wrongly placed upon the defendant hence convincing evidence on either side has not come to the record.
The issue of limitation being an issue of mixed question of law and facts cannot be decided unless sufficient material available on the file. Likewise, issue No,9 the burden of proof of which should be on plaintiff's shoulder, failing which the defendant could not bring any proof on record.
(2) Documents placed on the trial Court file and mark Exhs.P.l, P.3, P.4, P.5, P.6, P.7 and P.11 are not in conformity with Article 87 of the Qanun-e-Shahadat Order, 1984. The relevant provisions are reproduced for the guidance of the Courts.
Article 87: Certified copies of public document.
(1) Every Public Officer having custody of public document---
(2) "Photostat copies of public documents shall not be admissible unless it has been certified to be the true copy, by the officer concerned who has the custody of the original document."
'All documents referred above attested by Magistrate 1st Class Astore, who apparently did not have the custody of the original documents nor the authority to attest the same. Therefore, documents referred above do not fulfil the qualifications enumerated in the relevant provision of law, hence these are not admissible in evidence.
(3) Plaintiff during his examination-in-chief in the witness-box has failed to rely on these documents which according to him were in proof of his contentions.
(4) It has also noticed in the instant case as well as in many other cases coming across that verification of the plaint is not proper D and in confirmation of order VI, rule 15, C.P.C. It is desired that in future the trial Courts would minutely go through the plaints and ensure that these are within the requirements envisaged by the procedural law. Framing of correct issues and strict adherence to related procedure would minimize the prolonged litigations.
7. We at this juncture cannot remain without observing that the Courts below have not properly thrashed the points involved and to adopt procedure and also the counsel appearing for the parties have failed to put proper assistance to the Courts towards discharge of their duties. Under the circumstances we are constrained to remand the case as no findings can be recorded lacking sufficient material on the record.
8. Accordingly the petition is allowed and converted into appeal. The judgment of the Chief Court dated 22-12-2005 and that of the trial Court dated 29-4-2002 are set side and case is remanded to the Civil Judge 1st Class No,1 Gilgit for de novo trial with the direction to dispose the case after framing the issues properly and giving full chance of hearing to the parties concerned. No orders as to costs.