MUHAMMAD SAIR ALI, J.-This revision petition is directed against the judgment and decree dated 8.11.2001 passed by the learned Additional District Judge, Okara. The impugned judgment and decree reversed the judgment and decree dated 21 12.2000 of the learned Civil Judge dismissing the suit of respondent No. 1 (Haji Zakria Baloch) for. The specific performance of the agreement dated 20.2.1989 between him and respondent No. 2 and for the cancellation of sale Mutation No. 408, dated 17.4.1989 from respondent No. 2 i.e. Zaka Ullah in favour of Muhammad Jaffar now deceased and represented through the petitioners as his legal representatives. The learned Additional District Judge on accepting the appeal of respondent No. 1, also decreed his suit. Hence this civil revision.
2. Originally this civil revision was filed by Muhammad Zaka Ullah i.e. The vendor, and the present petitioners i.e. Legal heirs of Muhammad Jaffar (the defendants in the suit of respondent No. 1). On 8.5.2006 C.M. No. 932-C/2006 and C.M. No. -933-C/2006 were filed by Mr. Muhammad Hussain Awan, Advocate on behalf of petitioners No 2(a) to 2(j) i.e. The legal heirs of Muhammad Jaffar deceased. On 12.1.2007. C.M. No. 933-C/2006 was allowed and the following documents were made part of the record of this civil revision.
(i) Statement of Muhammad Zakaullah dated 21.4.1992;
(ii) Register Haqdaran-e-Zamden for the year 1986-87 (Ex.P/2): and
(iii) Mutation No. 408, dated 17.4.1989 {Ex.P/3).
Through C.M. No. 932-C/2006, transposition of Muhammad Zaka Ullah from civil revisioner No 1 to a respondent was- sought. The ground for seeking transposition was that being defendant and owner of the suit land, on 21.4.1992 he made a statement before the learned Trial Judge conceding the agreement to sell in favour of the respondent-plaintiff Haji Zakria Baloch and the suit, although in his written statement, he had denied the said agreement. And that issues thereto were framed by the learned Trial Court on his contesting pleadings. The C.M. Was conceded by Muhammad Zaka Ullah as Civil revisioner No. 1, his counsel and also by Haji Zakria Baloch as the respondent plaintiff. Through orders dated 16.1.2007 and dated 12.1.2007, the C.Ms. Were accepted and Muhammad Zaka Ullah was transposed as respondent No. 2. The title of the civil revision was modified to read as "Muhammad Jaffar son of Ahmed Din etc. v. Haji Zakria Baloch and another. "
The number of the civil revision as 2668/2001 remained unmodified.
3 As above stated, this civil revision arose from the suit filed. By respondent No. 1 Haji Zakria Baloch against said Zaka Ullah i.e. Respondent No. 2 and Muhammad Jaffar who died during the suit and his legal heirs (the present civil revisioners) were impleaded as the defendants. Respondent No. 1 as the plaintiff claimed the respondent No. 2 made an agreement to sell dated 20.2.1989 for the sale of the suit land in his favour for Rs 1.00.000/- wherefrom Rs. 30,000/- were paid and the remaining Rs. 70.000/- were to be paid by 31.3.1990. But respondent No. 2 violated the agreement and transferred the suit land to Muhammad Jaffar and Mutation No. 408 thereto was, incorporated on 17.4.1989. Respondent No. 1 sought the specific performance of his agreement dated 20.2.1989 and cancellation of Mutation No 408, dated 17.4.1989 in favour of Muhammad Jaffar.
4 The petitioners filed their contesting written- statement denying the purported agreement and its execution in favour of respondent No. 1 by respondent No. 2 who filed a separate contesting written-statement, admitted the agreement and the mutation in favour of the petitioners and specifically denied execution of agreement dated 20.02.1989 in favour of the plaintiff terming the same as forged and fraudulent.
5. The learned Trial Court framed ten issues on 19.3.1991 and fixed the case for respondent No.1's evidence as the plaintiff
6. Before the production of evidence by respondent No 1 (as per the scanty record and a few interim orders placed with this civil revision). Muhammad Zaka Ullah as defendant No. 1 appeared in person on 21.04 1992 and sought to get his statement recorded. The learned Trial Judge accepting the request, recorded the statement of Muhammad Zaka Ullah as under:- ((Urdu Text))
Respondent No. 2 thus conceded the suit of the plaintiff- respondent No 1 and also admitted making of the purported agreement to sell (Ex.P.T) in favour of the plaintiff and the receipt of earnest money 7 it was thereafter that respondent No. 1 as the plaintiff got the statement of PW1 recorded on the same date of 21 4 1992 while the statements of PW.2 and PW.3 were recorded or 7.11.1992. And those of PW 4 and PW.5 on. 7.7.1993 The petitioners as defendants produced on 18.7.1996 DW1, DW.2, DW.3, DW4 and DW5 on 07.12.1996.
8. The learned counsel for the parties admitted the above sequence of events and proceedings as correct. They also expressly admitted that the above-statement of respondent No 2 (defendant No. 1) was recorded on 21.4.1992' out of turn and before the evidence of the plaintiff/respondent No. 1
9. The main argument of the learned counsel for the petitioners was that the impugned judgment and decree of the leamed Additional District Judge ignored the evidence of the parties, and was entirely based upon the above conceding statement dated 21 4.1992 of Muhammad Zaka Ullah i.e. Suit defendant No. 1 though this statement had been validly rejected by the learned Trial Judge the being collusive with the plaintiff i.e. Respondent No. 1 and was unworthy of reliance as it was made by respondent No. 2 after transfer of right, interest of title in the suit land.
Ln the contrary arguments, the learned counsel for respondent No. 1 supported the impugned judgment and decree of the leamed Additional District Judge holding that the conceding statement dated 21 4.1992 of respondent No. 2 was by itself adequate to prove Exh. P.1, the receipt of earnest money and the suit And that the learned Additional District Judge validly decreed the suit in favour of respondent No. 1 i.e. The plaintiff.
10. The learned counsel for respondent No. 2 remained non-committal as to his submissions.
11. On hearing the learned counsel for the parties, it became evident that the learned subordinate Courts decided the case by ruling upon the conceding statement dated 21.4.1992 of respondent No 2.
The learned Trial Judge rejected this conceding statement by adjudging it gs factually collusive, main fide. Motivated, fraudulent and detrimental to the petitioners because when made, respondent No.. 2 on transfer of the suit land to the petitioners had ceased to be its owner. The suit was thus, dismissed.
The learned Additional District Judge accepted the said statement as an uncontestable piece of evidence for being the admission of respondent No. 2 as the owner of the suit land regarding making of agreement dated 17.4.1989 (Ex. P.l) and receipt of earnest money of Rs. 30,000/- The uit was thus decreed by the learned Additional District Judge.
12. The ratio in the impugned judgment as recorded by the learned Additional District Judge was that:- "..... On 21.4.1992 statement of Zaka Ullah defendant No. 1. Duly attested by Mr. Shamim Ahmad Khan Baloch, Advocate was recorded by the learned Court Judge, whereby he had stated that he had entered into an agreement of sale of the suit land with the -plaintiff for R.S. 1,00,000/- and the sum of Rs. 30,000/- was received by him at the time of the execution of agreement of sale Ex. P.l and pf the . Remaining amount of Rs. 70.000/- was. Paid by the plaintiff to him, he would have no objection., if the suit was decreed .................... Under Article 113 of the Qanoon-e-Shahadat facts admitted need not be proved. As has been mentioned earlier that on 21.4 1992, statement of Zaka Ullah defendant No. 1 attested by his counsel was recorded by the Trial Court whereby, he had admitted the execution of the agreement of sale as alleged by the plaintiff/appellant and he had also admitted part payment of the sale consideration. Therefore, there was no need to further prove the agreement of sale Ex. P.l by calling marginal witnesses. Ex. P.l in the circumstances stand proved and fully established beyond any shadow of doubt."
13. The question before this Court thus is as to whether the learned. Civil Judge was legally justified in rejecting on merits the conceding statement dated 21.4.1992 of respondent No.2 and thereupon dismissing the suit of respondent No. 1; OR whether the learned Additional District Judge was justified in decreeing the suit in favour of respondent No. 1 on the basis of the admissions made by respondent No. 2 in his conceding statement dated 21.4.1992.
14. Ln my well-considered opinion, both the learned Courts exceeded their jurisdiction and committed a material irregularity by passing the respective decrees. Both the learned Courts founded their- respective judgments and decrees on the factual de-merits of merits of the conceding statement dated 21 04.1992 of respondent No. 2 who admitting the agreement (Ex. P.l) conceded the suit, ln my humble opinion reference to, rejection of reliance on a ruling upon the facts stated in the conceding statement to respondent No. 2 and Ex. P.l were acts beyond the scope of law for the reasons hereinafter recorded.
15. Issues were framed on 19:3.1991 from the contesting pleadings of the parties The burden of proof being upon respondent No. 1 as the plaintiff, he was ordered to produce his evidence. He took numerous adjournments. However, as per the parties and their learned counsel, before production of evidence by the plaintiff i.e. Respondent No. 1 Muhammad Zaka Ullah (suit . Defendant No. 1) appeared in person on 21.4.1992 and requested the Court for recording his statement. The learned Trial Court ordered that:- ((Urdu Text))
The statement of respondent No. 2 under oath was thus recorded by the learned Civil Judge on 21.4.1992. After the above-statement, respondent No. 1 as the plaintiff produced his evidence through deposition of PWs.
16. By recording the statement of defendant No. 1 (respondent No. 2) before recording the evidence of the plaintiff, the learned Trial Court unusually and abruptly changed the routine course of the trial as well as the order of the production and examination of witnesses. This was a clear violation of Article 130 of the Qanun-e-Shahadat Order, 1984. The provisions whereof mandate that the order in which witnesses are to be produced and examined is regulated by law and practice or in the absence of such law, by the discretion of the Court. The procedure in the civil cases is well-settled.
The issues determine the nature of onus and the right of a party to open the evidence. Where onus to prove the issue(s) is on the plaintiff, he has the right to begin. Where the facts alleged by the plaintiff are admitted by the defendant or if otherwise the Trial Court places the burden of issue on the defendant, the defendant has the right to. Produce the evidence first.
17. Ln this case, the burden of issues was on the plaintiff (respondent No. 1); The learned Trial Court thus directed him to produce his evidence. The mode was not in dispute between the parties. On 21.4.1992 also the suit was fixed for the evidence of the plaintiff but suit defendant No. 1 Muhammad Zaka Ullah (respondent No. 2) appeared in person and requested the learned Trial Court to record his statement, Through above-quoted non-descript order, the' Court allowed this request and recorded the out of turn statement of Muhammad Zaka Ullah defendant. No application was filed by respondent No 2 and no ground(s) ere cited for recording the out of turn statement. The Trial Court proceeded mechanically and presumably oblivious of the extraordinary nature of accommodation being sought by respondent No. 2 The Court casually, without mental application and without reasons allowed ,the request and immediately thereupon recorded the statement of defendant No. 1/respondent No. 2. The mode and manner adopted by the learned Trial Court was contrary to the mandatory provisions of Rule 16. Of Order XVIH of the Civil Procedure Code which provide for the out of turn statement of a party/witness. Dy prescribing that:- '"Power to examine witness immediately:- Where a witness is about to leave the jurisdiction of the Court, or other sufficient cause is shown to the satisfaction of the Court why his evidence, should be taken immediately, the Court may. Upon the application of any party or of the witness, at any time after the institution of the suit,, take the evidence of such witness in manner hereinbefore provided.
(2) Where such, evidence is not taken forthwith and in the presence of the parties such notice as the Court thinks sufficient of the day fixed for the examination, shall be given to the parties.
(3) The evidence so, taken shall be read over to the witness, and, if the admits it to be correct, shall be signed by him, and-the Judge shall, if 'necessary correct the same, and shall sign it. And it may then be read at any haring of the suit.
18. It is thus on an application and for the reasons, like leaving the Court jurisdiction or other sufficient cause." that a witness (or a party) can seek and the Court, on recording reasons of its satisfaction thereto, can allow recording of an out of turn statement.
19. ln the case of Mst. Rafid Inam Khawaja v. Messrs. Orthopaedic & Medical Institute (Pvt), Ltd, and another (1989 CLC 1138). The Honble Mr Justice Wajihuddin Ahmed, then a Judge of the Sindh High Court interpreted the object of the above provisions that:- "The object of an examination, de bene esse, under Order 18. Rule 16, C P.C. Is. Normally to record the evidence of a witness, who on account of his or her imminent leaving the jurisdiction of the Court or other sufficient cause, is required to the examined out of turn and in advance of the evidence in the case to be recorded in the ordinary course. ((Blur page issue)) the instance provision namely Order 18 Rule 1 CCPG the only specific matter spoken of is a witness's likelihood to leave the jurisdiction of the Court and such a single specific category cannot, in principle, control the subsequent general words. The doctrine of ejusdem generis thus is not attracted in the construction of sub-rule (1) of Rule 16 of Order XVIH, C P C. l am, therefore, of the view that in every.
Case where the justice of the cause. So requires and sufficient grounds are disclosed, an examination de bene esse, can be ordered. For instance, in this case, it is a matter of the witness's arriving in the area' of jurisdiction and, thereafter, leaving it in the ordinary course, for following his professional pursuits, together with other factors dealt with above, and such a case, in my view, would be covered by the expression "Other sufficient cause in the provision. Other examples, can be of a witness of such a stage-of ailment or of advanced age, where it may be seriously apprehended that he may not live to see the case to go to trial -Such a witness, would include the plaintiff or the defendant himself, subject to such or similar disabilities. Other instances, in the circumstances of each individual case, may be multiplied and, as I have observed earlier, all that is required to be seen is weather the situation sufficiently contingent to warrant the examination de bene esse, in advance of the trial and for that purpose there is no restriction as to time and the remedy can be resorted to at any time after the institution of a Suit, provided, always, that the metics and equities in a given case so warrant.
After making the above observations, it was also recorded by the Hon ''ble Judge that:- Ln conclusion, in consonance with law, it may be observed that such examination, de bene esse, will effect neither the order in which the witnesses are to ,be examined in this case nor will it operate to undermine the rules of burden of proof, as are applicable, to the controversies involved herein."
20. This Court thus cannot help but rule that order dated 21.4.1992 of the Trial Court and recording out of turn statement of Muhammad Zaka Ullah defendant were acts beyond the scope of Rule.16, Order XVIH' C.P.C. Further the order was a non-speaking order recording no reason or the cause to deviate the normal and routine course of the trial. What ensured on and after 21.4.1992 was patent mistrial of the suit.
21. The record as produced before this Court also shows that the learned Trial Court on recording the out of turn statement of respondent No 2 under oath, did hot give opportunity Of cross- examination to any of the parties. Respondent NO. 2 made the conceding statement dated 21.4.1992 in favour of respondent No. 1 i.e the plaintiff; whose suit was also admitted by respondent No. 2 though he as defendant had filed contesting written-statement denying execution of the agreement to sell and the receipt of earnest money from respondent No. 1. Respondent No. 2 in his written-statement had also specifically admitted sale of the suit land to the petitioners who thus claimed ownership of the suit land and denied the agreement by respondent No. 2 to respondent No, 1 The petitioners thus had a vested right to cross-examine respondent No 2. Ln absence, of an opportunity of cross-examination, conceding statement of respondent No 2 had no evidentiary value and was excludable from the record. The statement of. Muhammad Zaka Ullah could not have been read as evidence nor could it be dealt with on merits by any of the subordinate Courts.
This meant that the learned Trial .Court could not have rejected the statement on its merits and the teamed first Appellate Court was not competent to consider and treat the same as admission of respondent No. 2 in favour of respondent No 1.
22. Confronted with the above legal position, the learned counsel for the parties conceded that owing to the mistrial by the learned Civil Judge, the proceedings on and after 21.4.12992 were coram, non-judice. And that neither the impugned judgment and decree dated 8.11.2001 of the learned Additional District Judge decreeing the suit on appeal of respondent No. 1, nor the judgment and decree dated 21.12.2000 of the learned Civil Judge dismissing the suit were sustainable. The learned counsel for the parties thus jointly requested for setting aside the above judgments and decrees and for remanding the case to the learned Civil Judge for retrial after the stage of issues on allowing the parties opportunity to produce evidence afresh or to expressly adopted the evidence already led by them.
23. This Court therefore in exercise of the powers under Section 115 of the Civil Procedure Code holds that:-
(i) the proceedings in the suit as recorded by the learned Civil Judge on and after 21.4.1992 were coram non-judice and illegal;
(ii) the judgment and decree dated 21.12:2000 of the learned Civil Judge dismissing the suit of respondent No. 1 and appellate judgment and decree dated 8 11.2001 of the learned Additional District Judge decreeing the suit of respondent No. 1 are set aside;
(iii) the case is remanded to the leamed Trial Court for retrial and re-decision as hereinafter directed.
(iv) the suit shall be deemed to be pending and shall' be retried after the stage of issues. The parties shall be allowed full opportunity of evidence which snail be recorded afresh, ln case the parties expressly state by consent that the evidence already produced by them and recorded by the learned Trial Judge bel treated as evidence in the suit, the learned Civil Judge shall consider and decided their request in accordance with the law. However the statement of respondent No. 2 as recorded on 21.4.1992 shall Stand struck off the record. Respondent No. 2 as the suit defendant No 1, shall have the right to depose and to produce, other. Evidence in accordance with the law.
(v) the learned Civil Judge shall re-decided the Suit within a period of six months from the first date of appearance of the parties before him in the post-remand proceedings; and
(vi) any of the parties may appear and produce certified copy of this judgment before the learned Senior Civil Judge, Okara who may try and adjudicate upon the suit himself or may assign it to any learned Civil Judge competent to try and adjudicate thereupon.
24. The civil revision is accepted and decided in the above terms, ln view of the consent-of the learned counsel for the parties as recorded in para. 22 above, there shall be no order as to costs.