' SALEEM AKHTAR, J.--- The petitioner has challenged the legality of the order passed by the learned Judge in chambers whereby revision application filed by him was dismissed in limine.
2. Briefly the facts are that the petitioner had filed suit for declaration and permanent injunction against the respondent. On 24-4-1976 when the matter was fixed for hearing, the respondent and his advocate remained absent and as no written statement was filed the respondent was declared ex parte. The matter was adjourned to 27-4-1976 for evidence of the petitioner/plaintiff. On 27-4- 1976 advocates for both the parties were present and the case was fixed for 28-4-1976 for judgment as the petitioner had filed the ex parte proof. After hearing arguments on 28-4-1976 the case was- fixed for orders on 10-5-1976. It seems that on 28-4-1976 the respondent had filed an application under Order IX, rule 7, C.P.C: notice of which was issued. On 10-5-1976 the Presiding Officer was on leave and the hearing was adjourned to 12-5-1976 for orders. On 12-5-1976 the learned trial Court heard arguments of the advocates for the parties. He dismissed application under Order IX, rule 7, C.P.C. And pronounced an ex parte judgment against the respondent whereby the suit was decreed. The respondent then filed an appeal which was dismissed by the learned Additional District Judge, Karachi. The respondent then filed a revision petition, which was allowed, the judgment and decree was set aside, but the order declaring respondent ex parte was maintained and the case was remanded to the learned trial Court for evidence of the plaintiff and to proceed from the stage as it was on 24-4-1976. As the operative part of the order requires interpretation, the same is reproduced hereunder:- "Therefore, I set aside the decree of the two lower Courts below and send back the case to the trial Court for proceeding with the case from the stage of the evidence of the plaintiff as it was on 24-4- 1976 after the petitioner had been made ex parte. I want to make it quite clear that I have not set aside the decision made by the trial Court in making the petitioner ex parte on 24-4-1976 because nothing has been brought to my notice which could convince me that the order of ex parte was unjustified.
12. I have refrained from commenting on the submission made by the two learned counsel of the opposite-parties on the merits of the case in view of the fact that I have come to the conclusion that original Court committed material irregularity in granting the decree without recording the evidence of the plaintiff. I am further of the view that decision on merits would depend upon the evidence of the plaintiff and the facts brought out in examination-in-chief and cross-examination of the plaintiff/appellant, which was best be done by the trial Court and then it can be canvassed before the appellate Court."
3. On remand the learned trial Court recorded the statement of the petitioner/plaintiff and adjourned the case for the evidence of his witnesses. The learned counsel for the respondent objected to the recording of evidence of the petitioner's witnesses on the plea that the matter was remanded only for recording the evidence of the petitioner/plaintiff and not his witnesses. The petitioner filed an application under Order XVIII, Rules 2 and 4, C.P.C. On. 17-10-1993 praying that he may be allowed to produce and summon the witnesses as mentioned, in the list of witnesses. This application was dismissed by the learned trial Court on 21-10-1993. The petitioner then filed revision application in the High Court against the order dated 21-10-1993, which was dismissed by the impugned judgment with the following observation:-- "From the remand of this Court it appears to me that only the evidence of the plaintiff is to be recorded. It is, therefore, that the evidence of the petitioner is to be recorded. If the evidence of other witnesses of the petitioner could be recorded, the whole object of the remand order would be rendered redundant and it is not proper for the party who himself is a party to the remand order to attribute redundancy to the order of this Court in this matter."
' The petitioner has challenged this order in this petition.
4. We have heard the learned counsel for the parties. Mr. Ahmadullah Farooqi, learned counsel for the petitioner contended that in term of the remand order the petitioner/plaintiff was entitled to produce his entire evidence including himself as well as his witnesses, while Mr. KA. Wahab, learned counsel for the respondent that the remand order restricts the recording of evidence only to the extent of the statement of the petitioner/plaintiff himself and not his witnesses. The entire controversy thus rests on the interpretation of the remand order quoted above. It is well-settled principle that on remand the Court trying the suit has to regulate the proceeding and proceed with the case in terms of the order of remand passed by the higher Court. It is, therefore, to be considered whether remand order had debarred the petitioner from producing his witnesses. It may be noted that the respondent had been declared ex parte and in his absence the petitioner was to produce his evidence. In ex parte matters either the decree is passed under Order IX, Rule 6, C.P.C. On the basis of averments made in the plaint on oath or on the affidavit of proof filed by the plaintiff or by recording the oral statement of the plaintiff. These procedures are available in cases the defendant is absent and has been declared ex parte. Perhaps on 244-1976 as the respondent was declared ex parte, the assumption was that on the next date of hearing no one would appear on behalf of the respondent/defendant and mere filing of affidavit of proof will be sufficient for obtaining ex parte decree. However, the learned counsel for the respondent/defendant was present on the next date of hearing and for this reason the decree was set aside as he was not allowed to cross-examine the plaintiff. In this background we have to examine the remand order which states that the case is sent back to the trial Court for proceeding with the case from the stage of evidence of the plaintiff as it was on 24-4-1976 after the respondent had been made ex parte. The learned Judge in chambers has taken pains to explain that it will not amount to setting aside the ex parte order and further observed that the ex parte decree has been passed as the trial Court has committed material irregularity in granting decree without recording the evidence of the plaintiff. Therefore; at this stage also it was within the contemplation that evidence of the plaintiff should have been recorded before passing the decree. There is nothing in the order that only statement of the plaintiff was to be recorded. The emphasis is on evidence of the plaintiff, not on statement of the plaintiff. This conclusion is further supported by the concluding part of the order where it was observed that "decision on merits would depend upon the evidence of the plaintiff and the facts brought out in the examination-in-chief and cross-examination of the plaintiff: Again here the emphasis is on the evidence of the plaintiff and secondly the facts which may emerge from the examination-in-chief and cross-examination, that is the statement of the plaintiff. If the intention would have been to allow the plaintiff to get his statement recorded alone, then in specific terms such order would have been made.
5. One has to distinguish between the words 'evidence of the plaintiff and the 'statement of the plaintiff. Evidence of the plaintiff includes the statement of witnesses, the plaintiff himself and also the documentary evidence that may be produced whereas statement of the plaintiff is restricted only to his examination-in-chief and cross-examination and documents produced by him. The word "evidence" has been defined in Article 2(1)(c) of the Qanun-e-Shahadat, 1984 (section 3 of the Evidence Act, 1872):- "evidence" includes-- ' all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; and
(ii) all documents produced for the inspection of the Court; such documents are called documentary evidence;"
This definition clearly contemplates that evidence means and includes such statements of witnesses which are produced in a Court in relation to the case tried by such Court and also documents which are produced in the Court. From this definition it is also clear that the. Word "evidence" cannot be restricted merely to the statement of a party or to any one specific witness. It will include the statements of all the witnesses recorded by the Court and the documents produced during trial. As the order at each material stage states and refers to the recording of evidence of the plaintiff, it would mean that the evidence of all the witnesses and the statement of the plaintiff himself was to be recorded. Mr. Ahmadullah Farooqi has referred to the Law of Evidence by Monir in which the meaning of evidence has been described in the following manner:-- "According to Stephen, the word 'evidence' as generally employed is ambiguous: (a) It sometimes means the words uttered and things exhibited by witnesses before a Court of Justice; (b) at other times, it means the facts proved to exist by those words or things, and regarded as the groundwork of inferences as to other facts not so proved; (c) again it is sometimes used as meaning to assert that a particular fact is relevant to the matter under enquiry. The word in this Act is used in the sense of the first clause. As thus used, it signifies only the instruments by means of which relevant facts are brought before the Court (viz., witnesses and documents), and by means of which the Court is convinced of these facts." `Evidence' is a comprehensive word which includes statement of witnesses, parties and documents which are produced in a Court or judicial forum to prove or disprove the case. Considering in this context the remand order could not be said to have restricted the recording of evidence of the petitioner/plaintiff alone.
6. Another aspect of the case is that if a restricted view as pleaded by the respondent is taken, then it means that for no fault of his own the petitioner is debarred from leading his evidence to prove the case. The petitioner in law was entitled on 24-4-1976 to produce his entire evidence including witnesses and documents and there was no bar to restrict his right only to the statement of the petitioner himself. Such right which was available on 24-4-1976 was to continue in terms of order or remand which had directed the learned trial Court to proceed from the stage of hearing held on 24-4-1976. In these circumstances, after hearing the learned counsel for the parties, we grant leave, convert the petition into an appeal and allow it. The impugned judgment is set aside and the case is remanded to the learned trial Court for recording the evidence of the petitioner and his witnesses according to law and decide the case accordingly.