MIRZA VIQAS RAUF , J. The petitioner namely Muhammad Shafiq, being aggrieved of the judgment and decree dated 27th August, 2012 passed by the learned Additional District Judge, Minchinabad is seeking intervention of this Court in exercise of its revisional jurisdiction as embodied in Section 115 of the Code of Civil Procedure (V of 1908) (hereinafter referred as "CPC").
2. Facts in brief necessary for adjudication of instant petition are that Muhammad Yasin, respondent instituted a suit for possession through pre-emption with the assertions that Muhammad Shafiq (petitioner) though has purchased the suit land but in order to defeat his right of pre-emption he got incorporated the transaction as an exchange through mutation No.4853 dated 12th March, 2005. It is averred in the plaint that the respondent for the first time got information of sale on 19th May, 2005 at 06:00 pm at his "Dera" situated in Basti Manu Pura Billage Pughal, Tehsil Minchinabad. On receiving the information he immediately expressed his intention to pre-empt the suit land having superior right of pre-emption. In furtherance of the same, he also sent a notice of Talb-i-Ishhad to the petitioner through registered envelope acknowledgment due. Suit was contested by the petitioner , who submitted his written statement wherein assertions contained in the plaint were controverted. From the divergent pleadings of the parties, learned trial court framed necessary issues. After encapsulating the controversy in the issues, evidence of both the sides was recorded and suit was finally dismissed through judgment and decree dated 02nd April, 2011.
The respondent, feeling dissatisfied preferred an appeal before the learned Additio nal District Judge, Minchinabad, which was accepted through impugned judgment and decree dated 27th August, 2012 and matter was remanded to the learned trial court to decide the same afresh in accordance with law .
3. Record reveals that this petition was admitted for regular hearing on 31st October , 2012, however , the respondent was proceeded ex-parte and as such this petition was posted for ex-parte hearing.
4. Learned counsel for the petitioner contended that suit was initially rightly dismissed by the learned trial court. He added that though the evidence was recorded through reader of the court and the local commission but it does not render the judgment nullity in the eyes of law. Learned counsel submitted that appe al has been accepted merely on the basis of technicalities and the impugned judgment is not tenable. In order to supplement his contentions, learned counsel has placed reliance on "FAYYAZ AHMAD and others versus Mst. ANAZA BUKHARI and others" (2016 MLD 1271 ) and "LIAQUA T ALI versus ADDITIONAL DISTRICT JUDGE, JHELUM and 2 others"
(2014 CLC 1 12).
5. After having heard learned counsel for the petitioner at considerable length, I have perused the record.
6. It is an admitted fact that after framing of issues evidence of the parties was recorded through reader of the court and local commission. Suit was initially dismissed, however , in appeal preferr ed by the respondent, learned Additional District Judge, while observing non-compliance of Rules 4, 5 & 8 of Order XVIII of "CPC" accepted the appeal and remanded the matter to the learned trial court to decide the same strictly in accordance with law. The moot point thus emerges before this Court is as to the effect of non-compliance of provisions contained in Order XVIII of "CPC" on the judgment rendered by the court on the basis of evidence not recorded by the Presiding Officer himself.
7. Though in the case of "FAYYAZ AHMAD and others versus Mst. ANAZA BUKHARI and others" (2016 MLD 1271 ) and "LIAQUA T ALI versus ADDITIONA L DISTRICT JUDGE, JHELUM and 2 others" (2014 CLC 112) this Court observed that in absence of any prejudice to any party such omission of Judge could not be termed as an illegality but to my mind principles laid down in the said cases would not be helpf ul to the petitioner as it appears that the Court was not properly assisted on both the occasions. There is yet another distinctive feature as in the case of Liaquat Ali's supra matter was dealt with in constitutional jurisdiction which undoubtedly has different scope as compared to the revisional jurisdiction. In the case of Fayyaz Ahmad' s the learned Civil Judge has appended memorandum at the foot of the statements of the witness as such principles laid down in the said judgment are also not applicable to the case at hand. It is even apparent that judgment of this Court rendered in the case of "GHULAM MUST AFA and another versus ABDUL MALIK" (PLD 2008 Lahore 4) was not brought in the notice wherein this Court, while outlining the object and scope of Order XVIII of "CPC" held as under:- "6. It stands proved on record that testimo ny of P.W.5 and P.W.6 and also of D.W.1 and D.W.2 was got recorded by the Reader and not by the court itself. It also has been admitted that evidence was got recorded in one suit only and was thereafter copied in all the other suits. Order XVIII contemplates that if evidence is not taken down in writing by the Judge, he shall be bound as the examination of each witness proce eds to make a memorandum of the substance of what each witness deposes, and such memorandum shall be written by the Judge and shall form part of the record. This provision is manda tory and is required to be strictly adhered to and followed, the enactment has been incorporated, so, that the Judge should be cognizant of the testimony made by the witnesses, to obviate any chance of misconstruing or misinterpreting it. In furtherance thereto Rule 14 of Order XVIII contemplates that if the Judge is unable to make a memorand um as required by this Order , he shall cause reasons of such inability to be recorded and shall cause the memorandum to be made in writing from his dictation in open Court. Order XVIII, Rule 14(2) thereafter provides that the memorandum so made shall form part of the record, therefrom, this provision makes it imperative, incumbent and binding upon the court to record reasons for its inability to make a memorandum and till the needful is not done, the same cannot be treated to form part of record. Thus it is absolutely clear and unambiguous, that provisions of Order XVIII, Rule 8 and Order XVIII, rule 14, C.P.C. have to be complied with, completely and adhere d to as mandated, because if needful is not done, the same cannot be treated to be part of the record. Though the Civil Procedure Code, 1908, contains both substantive and procedural enactments, and the present matter prima facie falls into the ambit of procedural enactment, but the provision assumes and wears the mantle, of substantive law, because a specific penalty is provided for non-compliance. In the present matter the provision were not adhered to, therefore, the testimony of these witnesses could not have been treated to form part of record. But it was so done, thus evidence was misread.
7. The contention of the learned counsel that putting a certificate at the end of testimony of P.W.6 by the court "dictated by me" is substantial compliance of the stated provisions is incorrect, because the order contains no reasons, as contemplated by law . It, therefore, is overruled."
Guidance in this respect can also be sought from "MUHAMMAD RAFIQUE and others versus MUHAMMAD RAMZAN and others" ( 2007 SCMR 540 ).
8. In order to regulate the procedure in the matters relating to the civil disputes "CPC" was promulgated. Order XVIII of "CPC" prescribes the mechanism of hearing of the suit and examination of witnesses. Rule 4 of the said Order mandates that evidence of the witnesses in attendance shall be taken orally in open court in the presence and under the personal direction and superintendence of the Judge. In terms of Rule 8 where the evidence is not taken down in writing by the Judge, he is bound to make a memorandum of the substance of what each witness deposed and such memorandum is to be written and signed by the Judge which shall form part of the record. In furtherance thereto, Rule 14 of Order XVIII contemplates that if the Judge is unable to make a memorandum as required by the Order , he shall cause reason of such inability to be recorded, and shall cause the memorandum to be made in writing from his dictation in open court. Order XVIII Rule 14(2) of "CPC" thereafter provides that the memorandum so made shall form part of the record, therefrom, this provision makes it imperative, incumbent and binding upon the court to record reasons for his inability to make a memorandum and till the needful is not done, the same cannot be treated to form part of record. It is thus absolutely clear and unambiguous that provisions of Order XVIII Rules 8 & 14 of "CPC" have to be complied with completely and adhered to as mandated, because if needful is not done, the same cannot be treated to be part of the record. There is a cardinal principle of law that when a statute describes or requires a thing to be done in a particular manner; it should be done in that manner or not at all. Reference in this respect, if needed, can be made to "MUHAMMAD HANIF ABBASI versus IMRAN KHAN NIAZI and others" (PLD 2018 Supreme Court 189), "SHAHIDA BIBI and others versus HABIB BANK LIMITED and others" (2016 CLD 2025 ) and "ZIA UR REHMAN versus Syed AHMED HUSSAIN and others"
(2014 SCMR 1015 ).
9. In addition to the above, one cannot ignore the provisions embodied in the Qanu n-e-Shahdat Order , 1984, which was promulgated to consolidate the law of evidence, so as to bring it in conformity with the injunctions of Islam as laid down in the Holy Quran and Sunnah. Chapter X of the Order ibid lays down the procedure of the examination of witness. Article 130 provides the order of production and examination of witnesses, which is to be regulated by the law and practice for the time being relating to civil and criminal procedure respectively and in the absence of any such law by the discretion of the court. By virtue of Article 131 a power is vested with the court to decide as to the question of admissibility of evidence. In terms of Article 137 a clog has been imposed on asking of leading question except with the permission of the court. By virtue of Article 143 it is the court, who can decide when a question be asked and when witness to be compelled to answer . Recording of evidence is not a mere formality .
Non-adherence to the procedural provisions would result into a chaos on the one hand and on the other it will render all the procedural requirements, which are undoubtedly for the advancement of ends of justice, as illusory and incapacitated. Provisions relating to recording of evidence by the Presiding Officer himself and in the manner provided by the law is meaningful in all respects. Allowing an abdication to the provisions regulating the recording of evidence would mean to render the same as redundant and obsolete. Role of a Court in the matter of recording of evidence is not symbolic but authoritative in all respect.
10. Adverting to the ratio laid down in the judgments reported as "FAYYAZ AHMAD and others versus Mst.
ANAZA BUKHARI and others" (2016 MLD 1271 ) and "LIAQUA T ALI versus ADDITIONAL DISTRICT JUDGE, JHELUM and 2 others" (2014 CLC 112) it is observed that both the pronouncements run on the question of prejudice to the party and it was held that in absence of any prejudice to any party omission on the part of Court/Judge to adhere the mandate of Order XVIII "CPC" cannot be termed as an illegality .
11. The term "prejudice" is though nowhere defined in the "CPC" but for the said purpose we can advert to the different law dictionaries. The Chambers Dictionary provides the definition of "prejudice" as "a judgement or opinion formed prematurely or without due consideration of relevant issues; prepossession or bias in favour of or against anything; unthinking hostility; injury or harm; disadvantage; a prejudgment (obs); (Spenser prejudize ) prognostication. - to fill with prejudice; to prepossess or bias in favour or against something; to injure, harm or endanger; to prejudge, esp unfavourably (obs). - adj prej'udiced having prejudice; biased. -adj prejudicial (- dish'l) injurious; detrimental; prejudiced (obs). - adv prejudicially . - without prejudice a phrase used to require an understanding that nothing said at this stage is to detract from one's rights, to damage claims arising from future developments, or to constitute an admission of liability ."
Black' s Law Dictionary Ninth Edition portrays the meaning of "prejudice" as noted below:- "prejudice,
1. Damage or detriment to one's legal rights or claims. See dismissal with prejudice and dismissal without prejudice under DISMISSAL. legal prejudice . A condition that, if shown by a party , will usu. defeat the opposing party' s action; esp., a condition that, if shown by the defendant, will defeat a plaintif f's motion to dismiss a case without prejudice. The defendant may show that dismissal will deprive the defendant of a substantive property right or preclude the defendant from raising a defence that will be unavailable or endangered in a second suit. undue prejudice . The harm resulting from a factrier 's being exposed to evidence that is persuasive but inadmissible (such as evidence of prior criminal conduct) or that so arouses the emotions that claim and logical reasoning is abandoned.
2. A preconceived judgment formed with little or no factual basis; a strong bias."
In the Random House Websters' s Unabridged Dictionary Second Edition mean ing of "prejudice" is defined as under :- "prejudice 1. an unfavourable opinion or feeling formed beforehand or without knowledge, thought, or reason, 2. any preconceived opinion or feeling, either favorable or unfavorable. 3. unreasonable feelings, opinions, or attitudes, esp. of a hostile nature, regarding a racial, religious, or national group.
4. Such attitudes considered collectively: The war against prejudice, is never -ending. 5. damage or injury; detriment: a law that operated to the prejudice of the majority .
6. Without prejudice. Law. without dismissing, damaging, or otherwise affecting a legal interest or demand. 7. to affect with a prejudice, either favorable or unfavorable: His honesty and sincerity prejudiced us in his favor ."
An inference from the above thus can safely be drawn that whenever there is a departure intentional or unintentional from an express provision of law it will result into causing a prejudice to one of the party to the lis.
12. This Court in the case of "COLLECT OR OF SALES TAX versus Messrs KHURSHID SPINNING MILLS LTD. and another" ( 2017 PTD 196 ) held as under :- "9. The very assumption of jurisdiction by the Assistant Collector , in the instant matter, was against the said express provision of law. It is well settled that a forum cannot take cognizance of a matter beyond its pecuniary jurisdiction, prescribed in the relevant law. Inherent defect cannot be cured to defeat the provisions of statutes or enactments affecting the jurisdiction of a forum. It is inalienable right of every citizen to have protection of law and to be treated in accordance with law, in terms of Article 4 of the Constitution of the Islamic Repu blic of Pakistan, 1973. An order passed against a person by any forum against, express provisions of law on the subject, if allowed to stay intact, would cause serious prejudice to legal right of citizens. Reference can be made to Izhar Alam Farooqi, Advocate v. Sheikh Abdul Sattar Lasi and others (2008 SCMR 240), Mst. Fateh Bevi and others v. Additional District Judge, Khushab and others (2008 SCMR 1262 ), Muhammad Anwar and others v. Mst. Ilyas Begum and others (PLD 2013 Supreme Court 255) and OMV Energy v . Ocean Pakistan and others ( 2015 CLC 1504 )."
13. There is no cavil to the proposition that in terms of Order XVIII Rule 4 of "CPC" evidence of the witnesses in attendance shall be taken orally in open Court in the presence and under the personal direction and superintendence of the Judge. By virtue of Rule 8 if the evidence is not recorded by the Judge himself he is bound to make a memorandum of the substance of what each witness deposed and such memorandum is to be written and signed by the Judge which shall form part of the record. It is manifestly clear therefrom that law provides mechanism for recording of statements of witnesses. Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973 mandates an inalienable right of every citizen and to be treated in accordance with law. The proceedings conducted in oblivion of legal mandate or an order or judgment passed against a person by any Court/T ribunal/Forum offending the express provision of law on the subject, if allowed to stay intact, would cause serious prejudice to legal right of parties. Guidance in this respect can be sought from "MUHAMMAD ANW AR and others versus Mst. IL YAS BEGUM and others" (PLD 2013 Supreme Court 255).
The relevant extract from the same is reproduced below:- "11. In the instant case, the learned Revisional Court while overturning the trial court order has absolutely failed to assign any valid reasons, except invokin g the general principle of law that the technicalities of law should not be allowed to thwart the rights of the litigants . I fail to understand as to how the noted principle can be used as a tool to avoid, shun or to defeat the specific rules of law and to save a party from the consequences of its delinquency against the clear command of law on the concept and in terms of legal technicality . It is a well known principle of law that where the law requires an act to be done in a particular manner it has to be done in that manner alone and such dictate of law cannot be termed as a technicality ."
14. Learned counsel for the petitioner as a last resort though has pointed out that by virtue of Act XIV of 2020, Section 26B has been added in "CPC" which bestows the court power to appo int a Commission from a list of approved penal, comprising of advocates and retired judges, maintained by the District Judge concerned, on payment of such fee and terms and conditions as may be determined by the court for the purpose of recording of evidence but suffice to observe that such an amendment cannot operate retrospectively it will always be of prospective implication. Reliance in this respect can be placed on "Messrs SUI SOUTHERN GAS COMP ANY LTD. and others versus FEDERA TION OF PAKIST AN and others" (2018 SCMR 802) and "SHAHIDA BIBI and others versus HABIB BANK LIMITED and others" (PLD 2016 Supreme Court 995).
15. There can be no cavil to the proposition that a court can direct recordin g of evidence through a local commission but this can be done in extraordinary and rare circumstances. Such power cannot be exercised in an omnibus fashion for defeating the object of Order XVIII of "CPC" and Chapter X of the Qanun-e-Shahadat Order , 1984.
16. The nutshell of above discussion is that the learned Civil Judge has committed a material irregularity in the process of recording of evidence and as such judgment dated 20th April, 2011 was not tenable. The learned Additional District Judge was thus justified to set the said judgment at naught, while exercising its appellate jurisdiction. Resultantly instant petition fails and is dismissed with no order as to costs.