' CH. MUHAMMAD MASOOD JAHANGIR, J.---The facts necessitated for the disposal of the instant civil revision are that the disputed property measuring 2213 Kanals 19 Marlas situated in mouza Mundeykey Tehsil Chunian District Kasur was owned by one Mst. Moosi the mother of petitioner No,11 and maternal grandmother of petitioners Nos.12 to 14 whereas petitioners No,1 to 10 purchased the said land from petitioners Nos.11 to 14 vide Mutations Nos.3458 and 3459 dated 15.3.2003.
However, one Irshad Hussain Bukhari predecessor-in-interest of respondents Nos.1 to 4 preferred a suit for declaration against Bhudhu Khan etc. To the effect that he was owner of the disputed property which was contested by said Mst. Moosi, the previous owner of subject matter of the suit.
The said suit was decreed by the learned trial court on 17.4.1982 and was assailed by said Mst.
Moosi the original owner of the property by filing an appeal which was allowed on 26.4.1993 and the plaintiffs of said suit were directed to amend their suit for declaration to the suit foi specific performance. Mst. Moosi filed Civil Revision No,1215 of 1993 against the said judgment passed by the learned Additional District Judge dated 26.4.1993 and the civil revision was allowed by this Court.
The same was assailed' by said Irshad Hussain Bukhari the plaintiff of said suit by filing a petition for grant of leave to appeal before the august Supreme Court of Pakistan which was accepted and the case was remanded to the civil court and amendment was allowed with the following observation:-- "Consequent upon above arrangement between the parties, appeal is allowed, impugned judgment of the High Court as well as that of the Civil Judge are set aside and the case is remanded to Civil Judge for decision in accordance with the above directions. Case shall be disposed of expeditiously as early as possible preferably within a period of six months, as matter is pending between the parties since long. "
2. After remand of the case the learned trial court recorded the statement of Din Muhammad respondent No,11 as DW6 and ultimately dismissed the said suit vide his judgment and decree dated 22.3.2006. The respondents Nos.1 to 4 filed an appeal before the learned lower appellate Court Chunian and the learned lower appellate court vide impugned judgment dated 12.2.2009 remanded the case to the learned trial court with the observation that the learned trial court had failed to record the evidence of said DW in his own hand, but it was reduced into writing by Reader of the said court in violation of provisions of Order XVIII, Rules 8 and 14 of C.P.C. Through the instant civil revision petitioners have assailed the impugned judgment passed by the learned lower appellate Court.
3. The learned counsel for the petitioners has argued that the impugned judgment passed by the learned lower appellate court is against fact of the case and law on the subject, that the learned lower appellate court while placing his reliance on case law reported as 2008 CLC 590 has wrongly set aside the Well reasoned and a comprehensive judgment and decree passed by the learned trial court, that the learned lower appellate' court has wrongly interpreted the provisions of Order XVIII, Rules 8 and of C.P.C., that the learned trial court had signed the evidence of DW6, but while ignoring that sanctity is attached to the judicial act, the case has been wrongly remanded by the learned lower appellate court on erroneous premises of law, that DW6 was produced by the respondents and at the time of recording his statement even by Reader of the court no objection was advanced by the respondents at the relevant time, that the petitioners had cross examined the said DW on the next date of hearing and even at that time no objection was raised, that even in the memo of appeal the petitioners did not agitate the said objection and made a separate application before the learned lower appellate court and learned lower appellate court without any plausible ground remanded the case on the basis of mere technicalities. The learned counsel for the petitioners has prayed for acceptance of the instant civil revision and setting aside of the impugned judgment. The learned counsel for the petitioners relied upon the judgment reported as Mst. Sardar Bibi and 7 others v. Hameed and another (2000 CLC 1311).
4. Conversely the learned counsel for the respondents has supported the impugned judgment passed by the learned lower appellate court and also argued that it is an admitted fact that the statement of DW6 was recorded by the Reader of the court, but no memo was taken down by the learned Judicial Officer under Order XVIII, Rules 8 and 14, C.P.C., that the said provisions of law are mandatory in nature and its non compliance has rendered the statement of DW6 illegal and of no legal effect, hence the learned lower appellate court had no other option except to remand the said case to rectify the said order. He has lastly prayed for dismissal of the instant civil revision.
5. Arguments heard and record perused.
6. Admittedly the suit was filed before the learned trial court on 09.9.1968, which was earlier decided by the learned trial Court on 17.4.1982 and the matter went upto the level of august Supreme Court of Pakistan. However, the case was remanded by the august Supreme Court of Pakistan and in post remand proceedings the statement of DW6 was recorded by the learned trial court. It is an admitted fact that the statement of DW6 Din Muhammad was recorded on 26.5.2005 by Reader of the Court. However the said statement which is available at page-136 depicts that was signed by the learned Civil Judge and on the next date of hearing the rival party cross examined the said DW when it was again signed by the said judicial officer at.The end of his cross examination on 31.5.2005. Thereafter, the learned counsel for the respondents/defendants got his statement recorded for closing the evidence of respondents/defendants, but no such objection was advanced by defendants/respondents at the time of recording examination-in-chief or cross examination of the said DW.6 before the learned trial court till 22.3.2006 when ultimately the said suit was dismissed by the said court. Even in the memo of appeal filed by respondents before the learned lower appellate court no such objection was raised by them. The legal objection advanced by respondent by filing a miscellaneous application before the learned lower appellate court that the mandate of provisions embodied in Rules 8 and 14 of Order XVIII, C.P.C. Was of compulsory nature and the learned lower appellate court remanded the matter to the learned trial court for rewriting the evidence of said DW6. The above referred rules read as under:- "Rule 8:-- Memorandum when evidence not taken down by Judge.---Where the evidence is not taken down in writing by the Judge, he shall be bound, as the examination of each witness proceeds, to make a memorandum of the substance of what each witness deposes, and such memorandum shall be written and signed by the Judge and shall term part of the record. Rule 14:- -- Judge unable to make such memorandum to record reasons of his inability.---(1) Where the Judge is unable to make a memorandum as required by this Order he shall cause the reasons of such inability to be recorded, and shall cause the memorandum to be made in writing from his dictation in open Court. "
7. It is settled principle of law by the passage of time now that to assess that whether a provision is mandatory or directory in nature the use of word "shall" or "may" is not the only criteria for such determination. The object of relevant provision has to be taken into consideration after examination of the whole of the statute in which those provisions are embodied. The provisions of procedural law are meant to help and not to create obstacles for the litigants to achieve their rights and mere technicalities have to be avoided unless those are found essentially to comply with.
8. The issue regarding min-compliance of Rules 8 and 14 of Order XVIII, C.P.C. Has already been considered by the superior courts in various judgments. In all the judgments as referred below it was laid down that non compliance with the afore-noted rules in absence of any allegation of prejudice was not of invalidating nature. Hussain Buksh v. Muhammad All (1995 CLC 1257), Abdul Majeed and 2 others v. Abdul Ghani (1995 M LD 8), Bahadur All v. Syed Ghulam Sabir Gllani (1990 M LD 588), Nand Lal and another v. Pooran Lal and another (AIR 1956 Raj.9), Pulukuri Kottaya and others v. Emperor (AIR 1947 PC 67), Allah Jiwaya v. Judge Family Court, Ahmadpur Sharqia (1990 M LD 239), Mst. Sardar Bibi and 7 others v. Hameed and another (2000 CLC 1311), Muhammad Ramzan v. Muhammad Jahangir (2012 CLC 844), Liaquat Ali v. Additional District Judge, Jhelum and 2 others (2014 CLC 112) and in Mst. Sardar Bibi and 7 others v. Hameed and another (2000 CLC 1311) in paragraph Nos.5 and 6 it was held as under:-- "5. Admittedly, the evidence was produced by the parties. It was recorded by a Court official in the presence of the Presiding Officer of the Court. Both the parties had cross-examined the witnesses of each other through their learned counsel. At the closure of the evidence of each of the parties, their learned counsel had put signatures on the order sheet in token of correctness of the proceedings. At no stage any such objection was taken before the learned Trial Court, not even during the course of arguments at the final stage. The matter was agitated before the first appellate Court and that too during the course of arguments when it was not a ground of challenge in memorandum of appeal. The conduct of the parties is quite evident from the proceedings of the case. The respondent in the circumstances turned round and objection when the case was decided by the trial Court against him. There has been no prejudice whatsoever caused to either of the parties. Had it been so the matter would have been agitated before the trial Court itself or objection taken in that regard. There is an affidavit by Ch. Muhammad Lauf, Advocate, who represented the petitioner before the appellate Court denying his inclination for the remand of the case on this ground. It has remanded uncontroverted.
6. In the circumstances, I am constrained to observe that the remand was wholly unwarranted and will result in duplication of the proceedings only. It could not be the objective of the procedural provisions of the Code which are meant for the advancement of the cause of justice. It was not such a deviation or violation as would have rendered the proceedings null and void, despite waiver on the part of the parties and their conduct, specially when no prejudice is alleged even. The judgment cited by the learned counsel for the respondent proceeds on its own peculiar facts and is not attracted to the facts and circumstances of the present case.
' The ratio emerging from the aforesaid principles is:-
(i) That the provisions of the procedural law are intended to facilitate and not to throttle the administration of justice. The calls of substantial justice must prevail over the logic On the basis of technicalities.
(ii) That the object of Rules 8 and 14 of Order XVIII of the Code of Civil Procedure is to ensure the accuracy of the record. The preparation of correct record is the foundation of dispensation of justice as finally the judgment is to be rendered on the basis of this record.
(iii) That the trial Court shall prepare the record in accordance with these rules in order to obviate any allegations or counter allegations in preparation of the incorrect record and the duty casts upon the Courts is for the benefit of the litigants.
(iv) That non-compliance or neglect of duty in the context of afore-noted rules in absence of allegations of inaccurate preparation of record or prejudice is irregularity and is not illegality.
9. The suit is pending before the learned trial court since 1966 and the parties cannot be thrown to the court of first instance after decades on the alleged omission of the learned trial court as the respondents have failed to point out that as to what prejudice was caused to their case and whether the statement of the said DW was recorded out of the context or against the narration made by him and if the same is allowed to be rewritten, how the same will be different from the statement already on the record and it will be more beneficial to the case of the respondents/ defendants.
10. For the above reasons, I am not inclined to uphold the view taken by the learned Additional District Judge in the matter. The civil revision is accepted and the judgment impugned herein is, thus, set aside. Resultantly, the appeal filed by the respondent before he first appellate Court shall be deemed to be pending, which shall he heard and decided in accordance with law after hearing the parties concerned on the basis of the evidence already on the record within a period of three months positively. The parties are directed to appear before the learned District Judge, Kasur on 16.6.2014, who may hear the appeal himself, if possible, or entrust the same to some other Additional District Judge for further proceedings.