' ZIA-UR-RAHMAN KHAN, J.---The instant revision is directed under section 115, C.P.C. Against the judgment and order, dated 29-1-2010 passed by the learned Additional District Judge-VII, Mardan in Appeal No,3/13 of 2009 whereby while accepting the appeal of the respondents, the judgment and decree, dated 8-6-2009 passed by the learned trial Court dismissing the suit of the respondents, has been set aside and the case remanded to the trial Court for observing all the legal formalities and thereafter giving a fresh decision in accordance with law. Likewise, in the connected Revision Petition No,480/2010 filed by the petitioners which arises out of the same judgment whereby the decree, dated 8-6-2009 has been set aside and the case remanded to the trial Court. As both the revision petitions arise out of the same judgment, and there being involved the same subject-matter between the same parties, therefore, I would like to dispose of both the revision petitions through this single order.
2. Brief facts giving rise to the instant litigation are that the present respondents filed Suit No, 148/1 originally of 2005 against the present petitioners with regard to the disputed property for a declaration, possession and injunction fully described in the head note of the plaint to the effect that they are owners of the said property and the entries of the Revenue Record are collusive, fraudulent and are liable to be rectified in their favour. The contents of their plaint show that they are laying claim of title towards the disputed property on the basis of sale Mutation No,6590, dated 30-11-1992 and the present petitioners have got no concern with the same. The present petitioners contested the suit by submitting their written statement. Likewise, prior to that, they had also instituted a Suit No,146/1 of 2009 originally of 2004 against the above petitioners with regard to the disputed property for declaration, decree for injunction on the ground that the entire property was originally owned by Mst. At to widow of Akbar Khan who alienated the same on the basis of Mutation No,4686, dated 10-1-1976 out of which they subsequently transferred 8 kanals by way of sale and the remaining is still owned by them. In their suit, they have also assigned some fraud to the aforesaid petitioners, Although both the suits were in respect of one and the same property and the parties were also the same but the learned trial court did not consolidate both the suits nor framed joint issues arising out of both the suits. Rather proceedings in both the suits were conducted separately and after conclusion of trial, the suit of respondents was dismissed and that of the petitioners was decreed and in this way the disputed property has been held to be the ownership of the present petitioners, Feeling aggrieved of the said judgments and decrees the respondents filed two separate appeals before the Court of District Judge which found favour with the said Court and through a single judgment referred to above while accepting the appeals, the cases were remanded to the trial Court for fresh proceedings, thus the instant revision petitions.
3. The first contention made by the learned counsel for the petitioners is that as there was sufficient material available on the record ditty produced by both the parties in support of their respective allegations, thus there was no justification for the remand of case. The second contention is that there was legally no need of consolidating both the suits and framing consolidated issues and the remand of the case on the ground of non-consolidation of both the suits is unwarranted and misconceived. His next contention is that as counsel for the parties had mutually agreed to record evidence in one suit which was prior in time and place its copies on the file of the other case, thus this practice was warranted under the law and the learned appellate Court has committed a serious mistake to take serious view of this lacuna.
4. I have heard the learned counsel for the petitioners at sufficient length and also went through the record of both the cases and would like to take combined effect of all the contentions raised by the learned counsel.
5. Admitted position is that the present petitioners filed their Suit No,146 originally of 2004 against the contesting respondents with regard to the disputed property and contrarily the said respondents also filed Suit No, 148 against the present petitioners and other respondents with regard to the same property. These suits on each and every date were fixed and proceedings therein were carried on one and the same day and evidence in the first suit was recorded and considered in the other suit without making a specific order for the consolidation of both the suits.
The learned trial Court did not bother as to whether recording of evidence was sufficient for deciding the fate of the connected case with regard to the one and the same property between the same parties and whether the same evidence could be placed upon the file of the connected case for making it a base for passing a judgment and, that too in the absence of any consolidation order. The answer to this legal question is definitely in negative. It is a settled proposition of law that whenever two suits pertain to the same subject-matter between the same parties, then it is incumbent upon the trial Court to make a specific order for consolidation of both the suits and to frame consolidated issues and thereafter record the evidence of the parties in support of their respective allegations. This is also a settled law that in the absence of consolidation, the evidence of the parties has to be separately recorded in both the suits and evidence in one case cannot be placed and considered in the other suit for passing a judgment. In the case in hand, there were two separate suits, evidence of the parties was recorded in one suit and was considered as valid one in the other suit. This' practice was certainly unwarranted rather was prohibited in accordance with the provisions of Qanun-e-Shahadat Order 1984, due to non-recording of evidence in the subsequent suit, the averments of the pleadings of the parties have gone un-substantiated and in the absence of any material, the learned trial Court was not legally in a position to record an independent judgment by referring to the evidence of the parties recorded in another suit.
Therefore mere statement of learned counsel, dated 27-5-2009 that "the statement recorded as D.Ws. In suit No,146/1 would be considered as P.Ws. In Suit No, 148/1" is not sufficient to fulfil the requirements of the legal provisions of law which stand violated in the instant suit. Identical question came up for consideration before the Lahore High Court in a case reported as Nazir Ahmad v. Mst. Ghazala Bashir (2001 CLC 468). The relevant observation for convenience sake is reproduced "---Shifting of evidence of one case to the other---Validity--Evidence of one case could not be shifted verbatim to the other case for decision for such procedure was unknown to the Civil Procedure Code---Consent of parties could not change prescribed procedure because law would not permit the change of procedure through consent".
6. The facts of the reported case amply fulfil the requirements of the instant case because in the reported case too, a remand order of the appellate Court was assailed in similar circumstances but while upholding remand order, the revision petition was dismissed.
7. Likewise in another D.B. Judgment of the same High Court reported as Muhammad Arif v. Malik Muhammad Farooq (2002 CLC 1361), it was observed as under:-- " Section 151, O. XLI, R.33 and 0.1, R. 10---Qanun-e-Shahadat (10 of 1984), Art. 57---Evidence recorded in one suit and relied upon by the Trial Court in the other without consolidating both the suits--- Effect---Two suits were pending before the same Trial Court---Application to consolidate both the suits was filed by the appellants but the suits were not consolidated---On the basis of ex parte evidence recorded in the suit in which the appellants were not party, Trial Court decided both the suits and passed judgment and decree against the appellants---Validity---High Court directed the Trial Court to implead the appellants in the other suit and consolidate both the suits--- Judgment and decree passed by the Trial Court were set aside and the case was remanded for decision afresh."
8. Due to this fact, the evidence of the parties is deficient in nature and they could not substantiate their claims properly. This lacuna floating do the surface of record was of palpable nature and could not be remedied by the parties or their counsel through their mutual agreement entered into before the learned trial Court. Likewise, the other observations recorded by the learned appellate Court while remanding the case are also not without force. In this backdrop of the matter, the impugned judgment of the learned appellate Court for remanding both the suits to the learned trial Court for observing the legal formalities is hereby maintained and resultantly these revision petitions being devoid of merits and not suffering from any infirmity legal or otherwise, are hereby dismissed in limine.