' SHAHID WAHEED, J.--- The instant regular second appeal under section 100, C.P.C. Is from the judgment and decree dated 3-11-2009 passed by the learned Additional District Judge, Vehari who while dismissing first appeal of the appellants affirmed judgment and decree dated 7-1-2008 of the learned trial Court whereby the respondent No,l's suit was decreed.
2. Briefly the facts of the case are that Muhammad Ismail and Muhammad Din both sons of Mahya instituted a suit for declaration to the effect that they were owner in possession of suit-land and called in question power of attorney (Exh.P.1). Dated 21-3-1993 registered vide Document No,181 Book No, 4, Volume 21 with Sub-Registrar, Burewala purportedly executed in favour of Peer Noor Nabi Chishti and subsequent transaction made on the basis thereof i,e, (i) Mutation No,458 (Exh.P.2) attested on 12-7-1994 whereby Peer Noor Nabi Chishti transferred the suit-land to his brother-in-law namely Muhammad Ameer (appellant No,1) through exchange; (ii) exchange Mutation No,482 (Exh.P.3) attested on 28-2-1995 whereby Muhammad Ameer (Appellant No, 1) on the strength of Mutation No,458 (Exh.P.2) further transferred the suit property to Allah Bakhsh (appellant No,3); and, (iii) Mutation No,483 (Exh.P.4) attested on 28-2-1995 through which Muhammad Ameer (appellant No,1) gifted the property to his wife Mst. Mehran Bibi (appellant No, 2). It is pertinent to mention here that during the pendency of the suit Muhammad Din and Muhammad Ismail died. Muhammad Ismail died issueless and therefore, his name was deleted whereas after the death of Muhammad Din his wife Mst. Fajjan (respondent No,1) was impleaded as plaintiff. Subsequently, Peer Noor Nabi Chishti also died and, therefore, his legal heirs i,e, respondent No,3(a) to 3(e) were impleaded. In the suit Province of Punjab through District Officer (Revenue), Vehari was also impleaded as respondent. The appellants and the predecessor-in- interest of respondent No,3 i,e, Peer Noor Nabi Chishti filed a joint written statement and contested the suit. Province of Punjab also filed a written statement. In view of divergent pleadings, the learned trial Court framed issues and called upon the parties to produce evidence in support of this respective claims. After recording evidence and affording opportunity of hearing to the parties to the suit, the learned Civil Judge on 7-1-2008 decreed the suit. Feeling dissatisfied, the present appellants filed an appeal before the learned Additional District Judge, Vehari and the same was dismissed vide judgment and decree dated 3-11-2009. Hence, this second appeal.
3. The main submission of the learned counsel for the appellants is that the learned lower appellate Court did not consider the evidence on record and did not come to any independent conclusions, but merely reproduced large portions of the judgment of the learned trial Court and dismissed the appeal, without applying its mind and without grappling with the questions involved in the appeal. Conversely, the learned counsel for respondent No,1 argued that though the learned Additional District Judge quoted extensively from the judgment of the learned trial Court, he was correct in dismissing the appeal. He invited me to reappraise the evidence in the matter and took me through the findings of both the learned Courts.
4. I have heard the learned counsel fcr the parties and examined the record with their able assistance.
5. A perusal of the impugned judgment of the learned Additional District Judge shows that he did not apply his mind to the questions involved in the appeal. I find that several paragraphs i,e, paragraph Nos.2, 3, 4, 5, 6, 7, 9, 10 and 11 of the judgment of the learned Additional District Judge are verbatim .Copy of the judgment of the learned Trial Court and rest of photographs are either loaded with the judgments of the contains the re-worded/rephrased reasoning expressed by the learned Trial Court for decreeing the suit. In fact the judgment of the lower Appellate Court is a faithful reproduction of the judgment of the learned Trial Court. Such a perfunctory disposal leads to wastage of judicial time and the time of the litigants as well and, therefore, is always, regarded as improper judgment and is of doubtful validity. In this regard I find fortification from the principle laid down by the Hon'ble Supreme Court of Pakistan in the case of MUHAMMAD AKHTAR v. THE STATE (PLD 1957 SC 297) wherein it has been held as follows:--- "We note here, with regret, and wish to draw the attention of the High Court to the fact thatthe Sessions Judge's judgment is for the most part a verbatim copy of considerable portions of the trial Court's judgment. In our typed foolscap record, the Sessions Judge's judgment covers 9 pages. Of this matter except for 9 lines at the Commencement and 18 lines at the end, the remaining 7 pages are copies, word by word, from the trial Court's judgment. In this copy, there are reproduced several paragraphs commencing with such words as the following.
"The learned counsel for the defence has laid considerable stress on the fact that etc., etc., "It is again contended by the learned counsel for the defence that etc, etc."
' The arguments referred to were presented before the trial Court and it surprises us to find them being represented as having been placed before the Sessions Court, in the very words used by the trial Court. The contribution made by the- Sessions Judge to ascertainment of facts upon appreciation of the evidence appears to be negligible. A judgment of this kind delivered by an appellate Court cannot be regarded as proper and is of doubtful validity. It does not represent an honest discharge of its duty by the appellate Court."
6. It is an established principle of law that a judicial order must be speaking order manifesting by itself that the Court has made an endeavour to sift the grains from the chaff for the resolution of the issues involved for their proper adjudication. The ultimate result may be reached by a diligent effort, but if the final order does not bear an imprint of that effort and on the contrary discloses arbitrariness of thought and action, the feeling with the painful results, that justice has neither been done nor seems to have been done is inescapable. In this regard reference may be made to the judgment rendered by the Hon'ble Supreme Court of Pakistan in the case of MOLLAH EJAHAR ALI v.
GOVERNMENT OF PAKISTAN and others (20 DLR 221=PLD 1970 SC 173), GOURANGA MOHAN SIKDAR v.
THE CONTROLLER OF IMPORTS AND EXPORTS and 2 others (PLD 1970 SC 158) and Ms. CLARE BENEDICTA CONVILLE and others vs. Mst. SABAHAT IDREES and others (2009 SCM R 851). In the instant case, I find that the judgment recorded by the learned Additional District Judge does not exhibit a judicious treatment of the case and the determination of the dispute and, therefore, cannot be held a valid judgment.
7. It is the duty of the Court of first appeal to deal with all the issues, as the first appeal is a valuable right in which both the questions of law and facts are to be considered and the judgment in the first appeal is to address itself to all the issues of law and facts and decide it by giving direct reasonings. The law is well settled that an appeal under section 96 of The Code of Civil Procedure, 1908 is a substantive right conferred by the statute and it is continuation of the proceedings, which comes entirely upon the first Appellate Court, carrying with it a right of rehearing of law and facts as well as reviewing pleadings and evidences afresh. Thus a duty is cast upon the lower Appellate Court to re-examine the pleadings' arid evidence on record and then determine the relevant issues. Reference in this regard may be made to the case of DEVRAM BILVE v. INDUMATI (2000) 10 SCC 540) and the case of SHIV SHATI COOPERATIVE HOUSING SOCIETY, NAGPUR v. SWARAJ DEVELOPERS and others (2003) 6 SCC 659). In the present case the learned Additional District Judge has not validly decided the legality or, otherwise of the findings and judgment of the trial Court as mere, repetition and harping upon the findings of the trial Court in the impugned judgment of the lower Appellate Court makes it perverse and arbitrary apart from grossly illegal.
Reference in this regard may be made to the case of RAMCHANDRA SAKHARAN MAHAJAN v.
DAMODAR TRIMBAK TANKSALE (Dead) and others (2007) 6 SCC 737 and case of HARYANA STATE INDUSTRIAL DEVELOPMENT CORPORATION v. CORK MANUFACTURING CO. (2007) 8 SCC 120.
8. The object of requiring an Appellate Court to record in its judgment the particulars mentioned in Order XLI, Rule 31 of the C.P.C. Is twofold namely:--- ' (a) to afford the parties an opportunity of knowing and understanding the grounds of the decision with a view to enable them to exercise, if they deem fit and are so advised, the right of second appeal conferred by section 100, C.P.C., and
(b) to enable the High Court in second appeal to judge whether the lower appellate Court has properly appreciated the case.
The Appellate Court has .To marshal the facts and evidence in both the cases of reversal as well as affirmance. Where the judgment of Appellate Court is of reversal the Appellate Court should consider all the relevant and material evidence on record and give reasons for the said decision.
Where the judgment is of affirmance it is not necessary that every piece of evidence is considered once again. But, it is reiterated, there must be sufficient discussion to show that the Court has reassessed the facts and circumstances of the case. In this regard I get assistance from the case of Messrs FAROOQ INTERNATIONAL v. The CHIEF CONTROLLER OF IMPORTS AND EXPORTS and 4 others (1985 CLC 1780), ALLAH BAKHSH and others v. NOOR KHAN and others (1980 CLC 498), Mst. INAYAT BIBI v. NAZIR AHMAD and others (1991 CLC 1660), Mst. AISHA v. Mst. FATIMA and others (1991 CLC 1499), TRUSTEES OF THE PORT OF KARACHI and others v. FAQIR MUHAMMAD (1992 M LD 1782), IMAM DINO and others v. NAWAZ ALI SHAH (2003 CLC 1889), ABDUR RAZZAQ SABAR KHAN (2004 CLC 950), Mst. SABAHAT IDREES and another v. Ms. CLARE BENEDICTA CONVILLE and 4 others (2007 M LD 1732), and MUHAMMAD IBRAHIM v. Mst. MEHMOODA (1991 CLC 1795). According to provision of Order XLI, Rule 31 of the C.P.C. And principles of law laid down in SAILAJANANDA PANDEY v. LAKHICHAND SAO (AIR 1951 Pat. 502) UJAGAR SINGH and others v. GOPAL SINGH and others (AIR 1952 Pepsu 57), Mst.
ANITA M. HARRETTO v. ABDUL WAHID (AIR 1985 Bom. 98) and RAM LAL DUTT SARKAR V. DHIRENDRA NATH ROY and others (AIR 1943 PC 24), the Appellate Court is required as follows:-
(1) to state in its judgment the points that arise for determination;
(ii) in order to understand and note what the points for determination relates to and why they were raised, it is absolutely essential to mention the facts of the case. It is not sufficient to state that the facts are given in the judgment of the trial Court;
(iii) the points for determination must cover all the important questions involved in the case;
(iv) the points for determination must not be general and vague.
In view of afore-stated requirements of law it is now well-settled that the following are not the proper judgments:-
(a) a mere statement that a point is proved or not proved;
(b) that counsel admits that certain evidence is the best evidence;
(c) the arguments of plaintiff's counsel represent the correct view of the case;
(d) that the point' is absurd or ridiculous or worthless;
(e) that the Judge is in agreement with the court below;
(f) judgment based on mere conjunctures and presumptions;
(g) judgment based on evidence not legally admitted; and
(h) judgment not based on independent application of mind to the facts and evidence of the case.
' In this regard reference may be made to MUBARAK HUSSAIN v. Syed SHAH HAMID HUSSAIN (AIR 1916 Pat. 262), ANBOR ALI v. NICHAR ALI (AIR 1950 Assam 79), MAHABIR PRASAD v. MAHADEO PRASAD and others (AIR 1916 All. 260), BALWANT SINGH BALDEV SINGH and others (AIR 1921 Lah. 119), MAHANT GYAN PRAKASH DAS v. Mt. DAKHAN KUAR and others (AIR 1938 Pat. 69) and BHAGWAN DAS and others SHAMSHER SINGH (AIR 1918 Lah. 135).
The judgment before me is practically nothing but a recapitulation of the judgment of the trial Court. It is unfortunate that the lower Appellate Court did not make a bid for proper appraisement of merits of the case put forward by the parties. This is nothing but dereliction of duty and complete failure to exercise jurisdiction.
9. It is essential that a Judge should accord fair and proper hearing to the persons sought to be affected by his orders and give sufficiently clear and explicit reasons in support of the orders made by him. Now, after the Constitution (Eighteenth Amendment) Act, 2010 this right has become a fundamental right under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973. The rule requiring independent reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law. In the instant case the learned first Appellate Court passed the impugned order without recording its own reasons in support of the impugned judgment but on the contrary it merely felt content by reproducing the paragraphs from the judgment of the trial Court. This is clearly a violation of law and Constitution. In this regard reference may be made to the case of LAHORE DEVELOPMENT AUTHORITY, LAHORE and others (2003 YLR 1579).
10. Before parting I deem it necessary to observe that when judicial power is exercised by an authority normally performing executive or administrative functions the superior courts insists upon disclosure of reasons in support of the order on two grounds: one that the party aggrieved in a proceeding before the court has the opportunity to demonstrate that the reasons which persuaded authority to reject his case were erroneous; the other that the obligations to record reasons operates as a deterrent against possible arbitrary action by the executive authority invested with the judicial power. This principle on all fours is also applicable to judicial officers who are trained to look at things objectively and, therefore, he is supposed to excel in this trait of character in view of the sacred and sensitive nature of his duties and the pivotal position which justice occupies in Islam. Injunctions of Islam also enjoin that those who performs the function of a Judge must not only possess profound knowledge and deep insight but also the man of integrity and capable of holding the scales of justice even under all circumstances. The judicial officer is not only expected to guard his reputation jealously but also perform his sensitive duty with due diligence and his conduct should not exhibit dereliction of , duty and complete failure of exercise of jurisdiction. .
11. In view of above, I cannot accede to the request of the learned counsel for the respondent that I should reappraise the evidence and come to my own conclusions. It is for the First Appellate Court to give its finding after a proper appreciation of the evidence. Thus, without going in the other questions raised by the parties, this second appeal is hereby allowed on the basis of aforesaid preliminary substantial question of law raised by the appellants. The impugned judgment and decree dated 3-11-2009 of the learned Additional District Judge, Vehari is hereby set aside and the matter is remanded to the learned Additional District Judge, Vehari for fresh disposal in accordance with law preferably within a period of six months. The parties are directed to appear before the learned Additional District Judge, Vehari on 16-7-2012. No order as to cost.