' This judgment shall dispose of R.SA. No,17 of 1973 and R.S.A. No,18 of 1973, arising out of the same decree dated 18-9-1972 of the learned District Judge, Gujranwala in pursuance of the remand order passed by the Supreme Court in Civil Appeals No,718 of 1984 and 719 of 1984.
2. Brief facts of the case are that the appellants/plaintiffs filed separate suits for possession in the Court of Civil Judge, Wazirabad in respect of land in dispute. The trial Court decreed the suits on 18- 5-1972 in their favour. The appeal before the learned District Judge, Gujranwala was accepted at the instance of the respondents/defendants on the ground that pedigree-table Exh.P3 was not admissible under sub-section (6) of Section 78 of the Evidence Act.
3. The appellants herein filed appeal against the said decree which was accepted vide order dated 20-2-1984 and the case was remanded to the learned District Judge for fresh decision.
Respondents/Defendants herein, filed appeal before the Supreme Court which was accepted by order dated 27-5-1990 and the case was remanded to this Court.
4. Mr. C.A. Rehman, learned counsel for appellants contended that the seal of High Commissioner for Pakistan in India on pedigree-table (Exh.P3) amounted to an implied certificate that the certified copy of the document in question, is duly certified by the Indian Officer having legal custody of the original and showed a substantial compliance with the provisions of subsection (6) of Section 78 of the Evidence Act. The submission is that Exh. P3, therefore, stood proved and the learned District Judge erred in not relying on this document of conclusive importance. No authority has been cited in support of his contention by Mr. C.A. Rehman, learned counsel for the appellants.
5. I have perused the document Exh.P3 with the assistance of the learned counsel for the parties.
The admitted position is that it does not bear a certificate that the copy was certified by the legal keeper of the said document, but bears the seal of the High Commissioner for Pakistan in India with some initials above it.
6. The legal position is quite clear. Under subsection (6) of Section 78 of the Evidence Act, copy of a public document thereof should be certified by the legal keeper with a certificate under the seal of Notary Public or of a Consul or Diplomatic Agent, that the copy is duly certified by the officer having legal authority of the original in proof of the document according to the law of foreign country.
7. It would thus be seen that all the mandatory provisions of subsection (6) of Section 78 of the Evidence Act were not complied with. The learned District Judge, therefore, acted in accordance with law in not relying on this document. A Refer Shah Bano Begum v. Iftikhar Muhammad Khan (PLD 1956 (W.P.) Kar. 363), Muhammad Khan v. Faqir Hussain Khan and 3 others (1989 SCMR 1164) and Muhammad Usman Kennedy v. Lal Muhammad and 12 others PLD 1975 Kar.
352.
8. Mr. C.A. Rehman, learned counsel for the appellants next contended that the objection was raised by the respondents as to the admissibility of Exh.P3 and the learned trial Court failed to decide the objection but exhibited the documents on record. On appeal, the learned District Judge excluded it from consideration on the ground that it was not admissible in evidence and, therefore, the appellants were prejudiced in pursuing the case before the trial Court, inasmuch as, if the trial Court had pointed out during the course of proceedings that the document was not admissible in evidence, they might have made some effort to produce a proper document in conformity with the provisions of subsection (6) of Section 78 of the Evidence Act. The contention is devoid of force.
Appeal is in continuation of original proceedings. Under Order 41, rule 33 of the Civil Procedure Code, the Appellate Court can pass any decree or order which ought to have been passed by the trial Court. The impugned judgment suffers from no legal infirmity on this score.
9. It is next contended by Mr. C.A. Rehman that no objection was taken as to the mode of proof of Exh. P3 before the trial Court. However, the Supreme Court in the remand order has held that the objection had been taken by the respondents at the time of tendering pedigree-table Exh.P3 in evidence. The appellant, therefore, cannot be permitted to re-agitate this question in post remand proceedings.
10. In view of the above, I find no force in these appeals which are hereby dismissed with costs.