' MUHAMMAD FARRUKH IRFAN KHAN, J.--- Through this civil revision under section 115 of the C.P.C. The petitioners call in question the validity of the impugned judgments and decrees dated 31-1-1990 and 16-10-1994 passed by the courts below. Through the former the learned trial Court dismissed the suit of the petitioners on the basis of statement of referee and through the latter the learned Addl. District Judge dismissed the appeal filed by the petitioner against the orders of the learned trial Court.
2. Learned counsel for the petitioners submits that the judgments and decrees passed by the courts below are bad in the eyes of the law; that the referee was not appointed with the consent of the predecessor of the petitioners namely Mst. Zanib Bibi rather the same was appointed on the statement of the counsel for the petitioner's predecessor which is against the spirit of Article 33 of the Qanun-e-Shahadat, Order, 1984; that prior to recording of the statement of the referee the predecessor of the petitioners filed application to cancel the said referee as she had lost confidence in him; that despite this fact the learned trial Court recorded the statement of referee and rejected the application; that the statement made by the referee before the learned trial Court was not based on his personal knowledge rather the same is based on hearsay evidence; that the predecessor of the petitioners moved another application for summoning of referee in the Court for cross- examination on the grounds that the oral statement of the referee and the report in writing are contradictory; that before recording the statement referee never contacted the petitioners; that this application was also rejected by the learned trial Court without any cogent reasons; that the suit of the petitioners was dismissed in the light of the statement of referee which is not permissible under the law; that the matter should be decided on merit after recording the evidence of the parties; that the learned appellate court also erred in law while dismissing the appeal of the petitioners . Relies on 1996 MLD 674 and PLD 1970 Supreme Court 241.
3. On the other hand, learned counsel for the respondents vehemently defended the impugned judgments and decrees while arguing that the petitioner's predecessor herself gave consent for the appointment of the referee; that under Article 33 of the Qanun-e-Shahadat Order, 1984 the parties are bound to the statement made by the referee; that the referee was not bound to summon the petitioners prior to recording of his report as under. The law he has to give report according to his own personal knowledge and he should not rely upon hearsay or third party information and other, circumstances. Relies on 2005 CLC 1949, 2003 CLC 161, 1989 SCMR 1083, PLD 2002 Lahore 190, 1996 CLC 1932, 1994 SCMR 1171, 1998 SCMR 468.
4. Arguments heard. Record perused.
5. Perusal of the record shows that vide order dated 12-9-1988 learned counsel for the parties agreed to refer the matter to the referee on whose statement the matter shall be decided. Learned counsel for the parties agreed on the name of Abdul Ghafoor Khan to be appointed as a referee.
The learned of the Qanun-e-Shahadat, 1984 which is reproduced as follows:--- "Article 33--- Admission by persons expressly referred to by party to suit. Statements made by persons to whom a party to the suit has expressly referred for information in reference to matter in dispute are admissions."
6. The language of the Article referred supra shows that when a party to the dispute refers the matter to a third person for opinion in matter the statement of such third person is binding on the parties and is to be considered as a statement of the parties. In the present case the situation is entirely different. The matter as well as the name of the referee was not proposed by the parties rather it was proposed by the learned counsel for the parties. In the case reported as Alamgir Khan and another v. Rashid (1988 CLC 1171) it has been ruled out that in the presence of the parties statements of the parties, should be recorded instead of their counsel and in the absence of the parties, counsel should make a statement that he was doing so as attorney of his client and on his behalf. Where this procedure is not followed, agreement was held to be not binding on the party.
The relevant pare of which is reproduced as follows:--- "In case the petitioners were present, it was necessary to have their own statements recorded instead of their counsel, but in case they were not present then the counsel should have made a statement expressly mentioning that he was doing so as attorneys of the petitioners and on their behalf. This was not done. It is to be noted in this connection that the petitioners had moved before the learned Authority an application the same day i.e. 9-5-1975 (Annexure 'B') for time to change their counsel, but that application had been rejected the same day for the reason that it was only intended to delay the matter (Annexure 'D'). On these showings, I am unable to hold that the petitioners had been a party to the agreement to which the other parties in the matter had subscribed. The petitioner's grievance that the matter had been disposed of on the basis of an agreement to which they had not been a party and without hearing them as substance. "
7. Furthermore, in the present case Abdul Ghafoor was appointed as referee, who while appearing before the learned trial Court vide order dated 1-1-1989 got his statement recorded in the following terms:- {{URDU TEXT}} ' The above statement of the referee shows that he has no personal knowledge about the matter and he got his statement recorded on the basis of hearsay evidence, therefore, he cannot be termed a referee. In this regard, I am fortified by the case reported as Ali Hussain v. Rafiquddin and 9 others (PLD 1977 Lahore 418) wherein it has been observed that "a referee is a person who acts on his own knowledge and belief and not a person who is appointed to decide the matter after inquiry and after taking other evidence." Similar view is taken in the case reported as Sher Zaman Khan v.
Noor Zaman Khan and another (PLD 1977 Lahore 672) wherein it has been held as follows:--- "The statement of a referee is not his finding. It is a statement made before the Court on the basis of knowledge or belief of the referee and has all the characteristics to operate as an admission of the parties on which a decree can be based by the Court. A statement made, by the referee on the basis of inference drawn from evidence taken by him is an award and not the statement of a referee under section 20 of the Evidence Act."
' When the statement of the referee is considered in light of the above referred case-law it is crystal clear that the said Abdul Ghafoor cannot be termed in any manner as a referee in view of the Article 33 of the Qanun-e-Shahadat Order, 1984.
8. It is also important to note that prior to recording of the statement of the referee, predecessor of the petitioners made an application before the learned trial Court for cancellation of referee us she had lost confidence in him but the learned trial Court without deciding the said application proceeded to record the statement of the referee. In the case reported as Muhammad Bashir v.
Qazi Bashir Ahmad and 8 others (1996 MLD 674) it has been observed that " even if it is accepted that the parties agreed for appointment of the solitary witness but subsequently by making an application, petitioner resiled therefrom hence the contract stood abrogated. The decision based on the statement of the solitary witness is illegal on this ground also because the contract ceased to exist between the parties before his statement was recorded."
9. In view of the above discussion, this Court is of the view that:---
(i) The person appointed as referee by the learned trial Court in light of the statement of learned counsel for the parties is not in accordance with the spirit of Article 33 of the Qanun-e-Shahadat Order, 1984 and dictum laid down, in case deported as Alamgir Khan and another v. Rashid (1988 CLC 1171).
(ii) In view of the dictum laid down in cases Ali Hussain v. Rafiquddin and 9 others (PLD 1977 Lahore 418) and Sher Zaman Khan v. Noor Zaman Khan and another (PLD 1977 Lahore 672) the person appointed as referee cannot be termed as "referee", therefore, his statement is not binding on the parties in view of the Article 33 of the Qanun-e-Shahadat Order, 1984.
(iii) In light of the application of the petitioner's predecessor regarding cancellation of referee prior to recording of his statement the contract stood abrogated and the learned trial Court was not justified in deciding the matter based upon the statement of a, person regarding whom the parties consent was no longer present. Case-law referred to by the learned counsel for the respondents are distinct because in all these cases the referee was appointed with the consent of the parties and their statements were recorded on their own knowledge and not based on hearsay or material gained and collected through other sources.
10. In view of the conclusions .Drawn above, this revision petition stands accepted as a result whereof judgments and decrees dated 31-1-1990 and 16-10-1994 passed by the learned courts below are hereby set-aside and the matter is remanded back to the learned trial Court with direction to decide the same on merit after recording the evidence of the parties expeditiously and preferably within a period of six months from the date of receipt of certified copy of this order.
Parties are directed to appear before the learned trial Court on 6-7-2011.