' AZIZULLAH M. MEMON, J.---Heard learned counsel for the parties.
1. The impugned order, dated 26-4-2007 passed by an Honourable Single Judge of this Court is indicative of the fact that C.M.A. No. 7769/2006 was heard and that order on the same was passed on such an application; learned counsel for the appellant completed his arguments whereafter learned counsel for the respondents asserted that the impugned order was passed on an application for appointMent of the Receiver over the suit property and not.On an application for grant of temporary injunction.
2. As such, the original record and proceedings of the suit bearing No.1373/2006 is called by us which contains C.M.A. No. 7769/2006 and which application was filed under Order XXXIX rules 1 & 2 C.P.C. Read with section 151 C.P.C. And its contents with prayer thereof read as under:-- "It is prayed on behalf of the plaintiff that for reasons, facts and circumstances stated in the plaint in suit and in the accompanying affidavit herein that this Honourable Court may be pleased to grant temporary injunction against the defendants, his men, agents, employees, workmen and whoever parting with transferring, selling, alienating, damaging and parted with possession to any other person or persons and also restrain the defendant to dispossess/eject the plaintiff from the immovable property being constructed house on Plot No.35, (Old No.44), Survey Sheet JM, measuring 1165 square yards or thereafter with fitting fixtures and construction, thereon situated in Kartrak Parsi Colony, Jamshed Quarters, Karachi, till the final disposal of this suit.
' An ad interim order of stay is also solicited. The prayer is made in the interest of justice."
3. Learned Single Judge having heard the counsel for the parties, passed the impugned order &led 26-4-2007 in the following terms:-- 4.
"The plaintiff has filed suit for specific performance on 16-10-2006 on the basis of alleged agreement of sale dated 10-5-2006 by which he stated that he agreed to purchase the property in question in total consideration of s.1,75,50,000. Out of which a sum of Rs.7.500 M and balance amount was to be paid on 20-10-2006.
' Nazir was directed to inspect the premises and submit his report.
' The Nazir inspected the premises on 14-11-2006 and submitted report that the plaintiff and his family is in possession of the premises in question.
' In another suit earlier filed bearing No. 688/2006 for specific performance Nazir was appointed to inspect the premises and after inspection of the premises Nazir had submitted his report dated 18- 9-2006. From the said inspection report it appears that at the time of inspection of the premises by the Nazir, defendant was in possession of the property in question and plaintiff Muhammad Salim along with one Mr. Abdul Qadir was also present there. On enquiry of the Nazir they stated that they are friends of the defendants and had come there only to see the defendant and further stated that he is not going to purchase the property in question. This statement was made by the plaintiff before the Nazir on 18-9-2006 and now the plaintiff has filed suit on the basis of agreement of sale dated 10-52006. On behalf of the defendant Mr. Khurshid A. Hashmi, categorically stated that the defendant has never agreed to sale the property in question to plaintiffs and plaintiff has forcibly, illegally dispossessed him frOm the premises in question. It further transpired that even in the agreement of sale filed by the plaintiff, execution of which has been denied by the defendant, it not stated that possession of the premises has been handed over to plaintiff in part performance of the agreement clause 3 of the specific performance Act provides that the possession of the suit property will be handed over at the time of registration of sale. From all these documents it appears that the plaintiff taking advantage trespass the property in question, despite the restraining orders passed in Suit No.688/2006.
' Mr. Muhammad Younus learned Advocate in Suit No.1373/2006 stated that the proceedings earlier filed in respect of the property in question was not in the knowledge of the plaintiff, but such statement is contrary to the record. The Nazir has specifically stated in his report the plaintiff was present at the time of inspection and stated that the defendant was in possession of the property in question.
' In view of the above, the Nazir is directed to take over the possession of the suit property."
4. The controversy as to whether the application for temporary injunction or on impugned order was passed on an an application for appointment of Receiver of suit property is not to be entered into and only the contents/details mentioned in the impugned order itself are to be looked upon which, as states hereinabove, clearly states that the order was passed on C.M.A. No.7769/2006 (application for grant of temporary injunction) with the above quoted details.
5. The facts and circumstances involved in the case in hand essentially demand that in-depth details need not be gone into the pleadings of the parties; instead, suffice it to say that the learned counsel for the appellant has cited the following case law in support of his appeal as under:-- In Malik Aman v. Haji Muhammad Tufail (PLD 1976 Lahore 1446) following observations were recorded in Paras Nos.7, 8, 9 and 10 which reads as under:-- "6. However the main question to be seen in the present cases is; as to whether by following the procedure as mentioned above any prejudice has been caused to the interest of the appellants; and whether as such the procedure so adopted is not appellants the principle of natural Justice?
The statutory provision as contained in section 13(2)(iv) of the Rent Restriction Ordinance lays down that a landlord who seeks to evict his tenant should apply to the Controller for a direction in this behalf; and if the Controller after giving the tenant a reasonable opportunity of showing cause against the appellant is satisfied that the building or rented land reasonably and in good faith is required by the landlord for the r econstruction of a building on the site, and the landlord has obtained the necessary sanction for the saidre-construction from the Municipal Committee, then he may an order directing the tenant to put the landlord in possession of the building. The question which arises for consideration is as to how to attain satisfaction which can enable the Controller to pass any order as required by the provision referred to above. It is admitted that more than one witness was examined by the respondent landlord as well as by the appellants to prove their respective contentions. They were subjected to examination and cross-examination in one case only and not in any other case. There were as many as three issues on merits, relating to reconstruction, damage and enhancement of rent. There is no doubt that whole of the property was to be reconstructed according to the respondent, but as to whether any damage had been caused and rent was sought to be enhanced by the tenants could be determined by recording evidence separately in all the cases. It is possible that in the case of one of the appellants issue No.2 with regard to damage might be proved while in the case of others it was not proved.
Similarly, issue No.3 with regard to enhancement of rent might be proved in case of one or two and in all other cases it might not be proved if evidence was recorded separately.
' The learned Controller has however, recorded evidence in one case only and has copied down verbatim the same in all other cases, without giving opportunity to all the appellants to examine or cross-examine the witness in their cases. This has resulted in grave prejudice to the case of the appellants.
7. The Controller, according to the relevant provision as referred to above, has to be satisfied in respect of each and every case independently and in context of evidence produced in relation thereto. In the present case the issues, as mentioned above, show that if evidence is recorded separately then different material may be brought on record by the parties concerned in order to prove their respective contentions. The controller has to be satisfied in context of such material and evidenced before passing any order. Since no material was allowed to be brought on record, except by one of the appellants, therefore, it cannot be said that case of all the appellants has not been prejudiced otherwise. It appears that on the basis of the evidence recorded in one case all the cases have been decided. It is apparently against the principle of natural Justice and the orders passed by the Court's below in this behalf cannot be sustained in law.
8. It has been held in Hassan Gul v. The State that where statements were recorded in one case only and carbon' copies of depositions were placed on record of other cases, the procedure adopted by the Court was illegal it has been further held that the Court should apply mind independently to the facts and circumstances of each case in that case the statements of prosecution witnesses were recorded only in one case but were made available for other case in verbatim. It was held that the procedure so adopted was illegal.
' Similar view has been taken in Muhammad Younis v. The Crown and The State v. Kalandar Khan. It is true that the matter in question in both the cases referred to above was covered by the prescribed criminal or civil procedure, but since the principle of natural justice also demands the same as laid down by the said authorities, therefore, in the present cases evidence should have been applied independently in context of the evidence brought on record in each and every case the same should have been disposed of.
' My lord, the Chief Justice Sardar Muhammad Iqbal has held recently in a Transfer Application (No.239/C-75) in regard to ejectment application pending before the Controller, that the Learned Controller recorded evidence with the consent of the parties in one case so that it may be read in other three cases involving common question of fact and law. It was observed that even if the parties had consented, the learned Controller should not have resorted to this procedure because the same is not warranted by law. Therefore, the case was transferred from the Court of the Controller, who was seized of the matter to another controller."
In Shabbir and 2 others v. Mst. Ghulam Fatima (1987 CLC 1407) following observations were recorded:-- "I have perused the record of all the rent cases. The appellants who are tenants filed their separate written statements and also affidavits in evidence. Only Abdul Hamid appeared for the cross- examination in the case No. 489 of 1976 and his depositions were kept duly typed in other cases though no witnesses in other cases and relying his evidence in one case all the rent cases were disposed. Of. It is to be noted that in view of this situation other four tenants were not cross- examined though on the reverse of their affidavits in evidence lengthy cross-examination was typed but it was cross-marked and not signed by the Rent Controller. From this, it is clear that their evidence has got no value.
' In case of Hassan Gul v. The State reported in 1975 PCr.LJ 437 it has been held that where statements recorded in one case only and carbon copies of depositions were placed on record of other cases, the procedure adopted by the Court was illegal. In the case of Muhammad Younis v.
Crown reported in PLD 1953 Lahore 321 it has been held that even the parties consented to that arrangement of keeping depositions of one case to be read in other cases. It is not in accordance with law. For the reasons stated above the case are remanded back to the Rent Controller with the directions to proceed with the cases after providing an opportunity to the parties and to decide according to merits and law. The cases are very old. He should dispose of their rent cases within 3 months".
' In Dr. Syed Altaf Hussain Bukhari v. Siddique Ahmed Chaudhry (1996 CLC 654), following observations were recorded in para "This approach of the trial Court to the issue involved is clear erroneous and cannot be upheld. The purpose for carrying out inspection under Order XVIII, rule 18 C.P.C. Is only to help the Court in understanding the controversy and appreciating the evidence on the record. But the inspection carried out by the Court -is neither substitute evidence nor it can supersede the evidence on the record. It needs no gainsaying that Court of law is required to decide the matter on the basis of evidence and not merely on the basis of inspection carried out by the Judge unless there is specific agreement by the parties to be bound by the decision readered on the basis of personal inspection by the Judge himself. The rationale behind this rule is not difficult to understand. Although while carrying out inspection the Judge is required to write an inspection note but the fact remains that he is not a witness in the case nor can be cross- examined and, therefore, it would be dangerous to allow the matters to be decided merely on his own opinion formed on the basis of local inspection (see Muhammad Juman and another v.
Mst. Aqlan and 2 others (PLD 1980 Karachi 108). Dr. Nur Muhammad and another v. Khushi Muhammad and 6 others (PLD 1975 Lahore 515). After exhaustive view of the case law on the subject it was observed that "inspection was not a substitute for evidence and a judgment based merely upon inspection is not binding unless the parties agree."
' In Abdul Rashid v. Mahmood Ali Khan (1994 SCMR 2163) Honourable Supreme Court was pleased to record the following observations in para No.6:-- "With these principles, it is now to be considered whether the appellant has succeeded in establishing that the commercial activity of the respondent by running a press is causing nuisance to the neighbours. The learned Controller has given a finding that running of the press is not a nuisance to the neighbours, but it is a nuisance to the wife of the appellant as she is sick and is residing on the first floor. The conclusion, therefore, is that it is due to the sickness of the wife of the appellant that the activities of the respondent have become a nuisance. The learned Controller had inspected the site and has incorporated his personal observation also and it seems that perhaps he himself did not feel annoyance by the noise and vibration of the press, otherwise he would not have restricted the nuisance only with regard to the wife of the appellant. We may, however, observe that inspection of location by a Court may be necessary and helpful in deciding a case, but surely it should not be substituted as an evidence, which otherwise is required to be produced by a party. No doubt printing establishment may be a nuisance where the noise and vibration from its operation damage or interfere with the use and enjoyment of adjoining property, but mere running of a press is not a nuisance per se, but it may become nuisance because of the manner in which it is conducted and operated. If it is run in a reasonable manner without in any way offending the rights of adjoining property owners, it will not be termed as a nuisance. The question whether noise and vibration constitute nuisance depends upon the circumstances of the case including the locality, the nature of the business, the character of the machinery and the manner of using the machinery. The appellant had given permission to the respondent to run the press, but this will not imply that it should be operated in a manner, which may cause nuisance.
The extent and standard of nuisance. The extent and standard of nuisance has to be judged in the light of the principles enunciated above. In the locality there are workshops, machineries, Flour mills, etc., in the neighbourhood of the disputed building. The appellant's wife is said to be sick due to which the running of the press has been termed as a nuisance. The illness of the appellant's wife has been sought to be proved by producing two old Medical certificates without examining the doctors or in any manner producing any cogent and substantive evidence of the present state of her health. In these circumstances, the respondent cannot be charged with committing acts of nuisance interfering with the peaceful life of the appellant and his family. The appeal is, therefore, dismissed with no order as to costs."
' In Nur Elahi v. The State (PLD 1966 SC 708) honourable Supreme Court was pleased to record the following observations at page No.713:-- "The law is that every criminal proceeding (and in fact every civil proceeding) is to be decided on the material on record of that proceedings and neither the record of another case nor any finding recorded therein should affect the decision. If the Court takes into consideration evidence recorded in another case of a finding recorded therein the judgment is vitiated. A finding recorded in a criminal case is not legal evidence in another criminal proceedings. In fact there is an express provision in the Evidence Act,. That is, section 43, which debars the Court from taking it into consideration. It makes no difference that the finding is recorded by a High Court or the Supreme Court. It remains irrelevant. The Court which is to determine a matter must determine the matter itself unaffected by opinion expressed in other cases."
' In Muhammad Arif v. Malik Muhammad Farooq (2002 CLC 1316) following observations were recorded in Para No.10 of the judgment:-- "10. It is admitted fact that appellant was not a. Party in the suit filed by Ghulam Haider and Altaf Hussain against the legal heirs of original owner Malik Muhammad Ismail. It is also admitted fact that predecessor-in-interest of original owner Malik Muhammad Ismail filed written statement in the suit filed by Ghulam Haider and Altaf Hussain controverted the allegations levelled in the suit.
The present appellant executed agreement to sell with them on 2-6-1994. It is also admitted fact that respondents Ghulam Haider and Altaf Hussain/ Plaintiffs filed an application for amendment of the plaint to the extent that in agreement to sell due to slip of per instead of square No.53, Square No.83 was written which was accepted by the trial Court vide order, dated 29-5-1995. The legal heirs of the original owner was directed to file amended plaint on 12-6-1995. Legal heirs of original owner filed consenting written statement on 6-3-1998 before- the trial Court. Thereafter, legal heirs of original owner did not enter appearance before the trial Court and ex parte order was passed against them by the trial Court on 25-6-1998. Ex parte evidence of respondents Nos.6 and 7/plaintiffs was recorded by the trial Court and the suit of Ghulam Haider and Altaf Hussain was decreed whereas the suit of the present appellant was dismissed. It is pertinent to mention here that suit of the appellant was dismissed on the basis of the evidence adduced in the suit filed by Ghualm Haider and Altaf Hussain in which present appellant was not a party. In case the aforesaid facts are put in juxtaposition then it brings the case in the area that respondents Nos.6 and 7/plaintiffs secured a decree with collusion of legal heirs of original owner Malik Muhammad Ismail coupled with the fact that aforesaid respondents/ Plaintiffs submitted two applications to consolidate both the suits which were rejected by the trial Court vide order, dated 23-6-1998 and 12-10-1998, in arriving to this conclusion, we are fortified by the following judgments:-- ' Mst. Jahana Bibi v. Iqbal 1991 CLC 553 and M.A. Khan v. Khan PLD 1984 Lahore 396.
' It is pertinent to mention here that both the suits were pending adjudication before the same Presiding Officer. The appellant is a necessary and proper party as per principle laid down by the Honourable Supreme Court in Rashid Ahmed's case 1997 SCMR 171. The trial Court has ample power under Order I rule 10 C.P.C. To transpose implead any proper party in the proceedings. Similarly this Court has ample power to implead any party in view of O.XLI, rule 33, C.P.C. In arriving to this conclusion we are fortified by the judgment of the honourable Supreme Court in Suleman's Khan's case PLD 1992 SC 590. It is also admitted fact Malik Muhammad Farooq and others legal heirs of original owners Malik Muhammad Ismail filed consenting written statement without permission of the Court, therefore, learned trial Court was erred in law to decide the case on the basis of the consenting written statement which was filed without the permission of the Court as is envisaged by O.VI, rule 17 read with O.VIII, rule 9, C.P.C. As per principle laid down by the Karachi High Court in Haji Suleman Ali Muhammad's case PLD 1982 Kar.
111. The principle of section 42 of the Transfer of Property Act in view of the aforesaid circumstances is not applicable in the present case. In arriving to this conclusion, we are fortified by the following judgments:-- ' Raam Naranian and others v. Nawab Sajad Ali Khan AIR 1946 (Sic) 1999 and Hirnavan v. Bassan AIR 1943 Cal.
227.
' It is also settled principle of law that reading of evidence recorded in another case as evidence in case in hand is not permissible by virtue of Article 57- of Qanun-e-Shahadat Order, 1984. In arriving to this conclusion, we are fortified by the following judgment:-- ' Noor Elahi v. The State PLD 1966 SC 708.
' In view of what has been discussed above the impugned judgment, dated 4-10-2000 is set aside.
The appellant be impleaded as respondents in the suit filed by Ghulam Haider and Altaf Hussain v.
Malik Muhammad Farooq. The trial Court is directed to consolidate both the suits and decide the same afresh without being influenced by the aforesaid observations of this Court. Parties are directed to appear before the learned trial Court on 29-11-2001.
6. Thus, irrespective of the fact as to the nature of the application, which was heard by Honourable Single Judge, the impugned order itself having indicated that the application for grant of temporary injunction was heard and the same was passed thereon, the impugned order suffers from the illegalities (with respect), as pointed out in the case law quoted hereinabove.
7. Under the circumstances, this High Court Appeal is hereby allowed, impugned order is set aside with request to learned Single Judge to rehear the parties on all the pending applications and to decide the same afresh in accordance with the relevant of provisions of law.
8. It is not necessary to state herein that any order passed by the learned Single Judge in the three suits filed by the parties respectively, shall not get affected by this judgment and that the proceedings in all the three suits shall be continued with and decided in accordance with their own merits.