' A suit for recovery of Rs,9,200 filed by Umar Daraz, respondent against the appellant, was dismissed by the learned trial Court by its judgment and decree, dated 29-9-1981, The respondent preferred an appeal which has been allowed by the learned Additional District Judge, and the case remanded to the learned trial Court .The remand order, dated 24-11-1984 has been assailed through this appeal.
2. The reason which weighed with the learned Additional District Judge, in remanding the case to the learned trial Court, was that the written statement was not available on the record and the learned counsel who represented the appellant in the first appeal, failed to produce the copy of the written statement, before the appellate Court. This led it to hold that the written statement, was not filed by the respondent and the trial Court incorrectly recorded on the file that it was tendered. The operative part of the impugned order is reproduced below: ' I, therefore, accept the appeal, set aside the judgment and decree passed by the learned trial Court and remand the case with the direction that the learned Civil Judge should direct the respondent to produce the written statement and thereafter he should proceed with the dates in accordance with law."
3. I have heard the learned counsel for the parties. It is contended on behalf of the appellant that the written statement was submitted in the trial Court and the learned Additional District Judge, fell in error to hold otherwise. The counsel for the appellant has also produced before me from his brief a copy of the written statement, said to have been filed in the trial Court but he is unable to state as to why this copy was not placed before the learned first appellate Court. However, his main submission as recorded in the order, dated 6-3-1985, is, that in case the written statement was missing from the file, the learned Additional District Judge, should have reconstructed the record and decided the appeal on merits. On the other hand, the learned counsel for the respondent has supported the impugned order.
4. After going through the available record I am not left in any manner of doubt that the written statement was filed in the trial Court. The fact that issues were struck by the trial Court and evidence was recorded on the basis thereof, lends ample support to such an inference. It is a different matter that at the appellate stage, the document was missing from the trial Court's file.
The view taken by the learned Additional District Judge that the written statement was not at all filed, is palpably wrong and in this behalf I am unable to agree with him. It appears that no serious effort was made to have the document traced out and brought on the record. Seemingly, the case has been remanded to the learned trial Court with undue haste.
5. This appeal is, therefore, accepted and the impugned order set aside, leaving the parties to bear their own costs. The appeal is assigned to the learned District Judge Jhang for disposal who shall in the first instance, have the written statement traced out. If it is not available, the record shall be reconstructed and the appeal decided on merits. The copy of the written statement shown to me by the learned counsel for the appellant shall be produced before the learned Additional District Judge.
' Before parting with the case, it may be observed that if the written statement is not traced out, the responsibility for the loss of the document shall be fixed. If it is found to have been removed from the file, due to default and wrongful act of some official of the Court, he shall be proceeded against in accordance with law.