The unfortunate controversy between the appellants/defendants and the appellee (hereinafter referred to as the appellant and the respondents respectively) started in the shape of Suit No. 1796 of 1976. The parties played two rounds before the First Appellate Courts. The first round had come to an end on 12-8-1990 when the learned 1Ind A.D.J. Had remanded the case to the trial Court and the second round was brought to end by the learned IIIrd A.D.J. (Central), Karachi. The controvertists have reached this Court in this second appeal under section 100, C.P.C. Which has taken birth out of the judgment pronounced by -the learned IIIrd Additional District Judge, Karachi (Central) in the second round in Civil Appeal No.68 of 1992 on 24-2-1994 who dismissed the said appeal which had been filed by the appellants (L. Rs. Of deceased Mirza Sirajuddin) against the judgment and decree dated 23-9-1992 passed by the learned 1st Senior Civil Judge (Central) at Karachi in the suit referred to above.
2. Brief facts unfolded by the pleadings are that a Plot No.28-B situated in Block No. 19, Federal 'B'
Area, K.D.A. Scheme No. 16, Karachi was originally allotted to one Yaqoot Shah son of M .Z. Shah in 1964 by Roshan Bagh Cooperative Housing Society Limited, Karachi who is undisputedly the actual owner of the said plot. The respondent claimed* that the allotment was cancelled by the said Society and the same was not only allotted to him but lease was also executed in his name by the K.D.A. Late Mitza Sirajuddin, the father of the appellants, who was residing in the adjacent house, trespassed on the said plot on 21-9-1976 and thus illegally took over possession of the above plot along with the construction made thereon by the respondent.
3. The factum of trespassing had been denied by the appellants. According to their claim the suit plot was purchased from Yaqoot Shah in 1973 and construction was made thereon by them.
Therefore, they contended that subsequent allotment and lease in the name of respondent had been obtained through fraud and misrepresentation. The appellants also raised a counter-claim for cancellation of such documents.
Issues were framed, evidence was recorded and the trial Court decreed the suit. The said decree was challenged in Appeal No.76 of 1988, as stated earlier, and the learned IInd A.D. Was pleased to set-aside the decree and the case was remanded back to the trial Court to decide the matter as a fresh.
This order of remand dated 12-8-1990 appears to be the foundation of l' `$ trouble which has been agitated in this second appeal in hand. My reasoning for holding so is based on the following realities. The judgment of .The learned A.D.J. Is spread over only 4 pages. The first two pages are merely recitation of the allegations and counter-allegations picked up from the plaint and the written statement. Issues framed by the learned trial Court were typed on the third page. After this, the learned Judge got the routine sentences typed on fourth page which reads as under:--- "I have heard the learned Advocates for the parties at length. I have also gone through the case- law relied upon by them."
But no case-law was referred in the said judgment. Next few lines on this page were also copied from the facts mentioned in the pleadings which can be labelled as grounds of appeal and then the following few sentences were written as the operative part of the judgment of Appellate Court: "In my humble view it is a fit case for remand. I accordingly set aside the impugned judgment and remand the case to the trial Court with directions to frame issues regarding non-maintainability of the suit under section 70-A of Cooperative Societies Act No.7 of 1925 and innrouer valuation of the suit. The parties are at liberty to adduce evidence if they chooses so before the trial Court and the trial Court to decide the matter as a fresh. Order accordingly.
(Underlining is my own).
This is the judgment in an appeal for which a paper book of 191 pages was prepared by the appellant who was respondent in the second round at the stage of 1st appeal and is respondent in this second appeal too.
3. The tug of war between the learned Advocates is' based on the strength of underlined sentences of operative part of the judgment as reproduced earlier which does not specify as to which provision of law from the Code of Civil Procedure was taken into consideration while remanding the said case. The result was obvious.
The learned counsel for the appellants sought strength from the words "decide the matter as a fresh" used and underlined in the operative part and contended that the trial Court was bound to frame additional issues and judgment could be given only after recording evidence on all the issues afresh.
On the other hand, the learned counsel for the respondent took a stand on the bases of remaining underlined sentences of the operative part of the judgment and stressed that the trial Court had to record evidence only on additional issues and was not competent to touch the previous evidence or to record evidence on the previous issues too. The learned counsel also contended that the sentence "decide the matter as a fresh" would mean to pronounce fresh judgment on all issues previously framed but on the bases of evidence previously recorded.
5. After remand, the case was entrusted with the Court of 1st Senior Civil Judge, wherein two, issues were added along with the main issues (already decided previously) and the respondent/plaintiff was directed to produce evidence. The respondent did not produce any evidence,. However it appear from the record that the respondent made a statement in writing on 22-2-1992 and closed his side. It gave a chance to the learned counsel for the appellant to say that as no fresh evidence was adduced on the previous issues, hence, these issues were decided by the learned 1st Senior Civil Judge on the bases of no evidence and the suit was liable to be dismissed. Thereafter, such evidence of Mirza Ikramuddin brought ought on record by one of the L.Rs. Of late Mirza Sirajuddin.
It appears from the judgment of the learned 1st Senior Civil Judge that the learned Judge, in compliance of the said directions, framed two additional issues and decided these issues separately as additional Issue No.1 and additional Issue No.2. But Issues Nos. 3 to 8 were treated as interconnected along with other issues and were decided on the basis of evidence recorded previously. Suit was decreed as prayed by the plaintiff and the counterclaim of the defendant as prayed in the written statement was dismissed.
Appeal filed by the appellants also met the same fate. Hence this second appeal.
6. The learned counsel for the appellants has contended and prayed to set aside the decree passed against the appellant as well as for dismissal of the-suit and in the alternate for setting aside the decree and remand of case to trial Court in accordance with the law. The main contentions of learned counsel for the appellants can be summarised as under:--- (i)That after the order of remand in the first round in Appeal No.76/88 passed on 12-8-1990 for de novo trial, the fresh evidence had to be recorded on all issues. Neither the evidence previously recorded could be taken into consideration nor any issue could be decided on the bases of that evidence.
(ii) That in civil matters, the evidence previously recorded on any issue could be considered by the Court only with consent of the parties to a suit. If there is no such consent then the Court has to record evidence afresh on those issues too which were previously decided if the Appellate Court, while remanding the case, had not specifically directed to record evidence only in respect of those additional issues.
(iii) That the dispute is over a plot claimed from Roshan Bagh Cooperative Housing Society Limited.
As both the parties are covered under section 54 of the Cooperative Societies Act, 1925, the case could only be decided under the above Act being outside the jurisdiction of Court as envisaged in section 70-A of the above Act.
(iv) It was, therefore, contended by the learned counsel for the appellants that as the 1st Appellate Court has not considered these legal grounds, hence the judgment of the learned 1st Appellate Court was bad in law and was entitled to be set aside.
(v) It was also contended that this is a case of no evidence on the issues previously framed as no evidence was adduced by the respondent after the remand of the case. Therefore, the suit should have been dismissed by the trial Court.
(vi) That in such dispute, Mirza Yaqoot, Shah was a necessary party and no suit could proceed in his absence as provided under Order I, Rule 10, C. P. C.
(vii) That the appellants' counterclaim has not been considered at all and no issue has been framed. Therefore, absence of finding on that point have prejudiced the appellants.
The learned counsel for the appellants has sought strength from the cases reported in:--- (i)AIR 1920 Mad. 547, (ii) AIR 1942 Mad. 528, (iii). PLD 1957 Dacca 607, (iv) PLD 1958 SC (Pak.) 392; (v)
1980 CLC 498, (vi) AIR 1957 Tripura 1, (vii) PLD 1962. Dacca 665 and (viii) PLD .1992 Kar. 167.
On the other hand, the learned counsel for the respondent as controverted the contentions of the learned Advocate, for the appellant by contending that the IInd Appeal was not maintainable and no appreciation of evidence could be taken into consideration by this Court as the same stood concluded. Regarding the legal objections raised to the necessity of fresh evidence on all the issues it was contended that no such objection was raised before the 1st Appellate Court as such it has to be ignored at this stage.
7. Both judgments of the subordinate Courts are silent on the points raised before this Court. In the light of this background the points which require consideration in this appeal are: "Whether Remand Order was defective and ambiguous? If it was neither defective nor ambiguous then it has to be seen as to whether was complied with or not in accordance to its spirit. "
Had the order of the learned A.D.J., while remanding the case, been clear on these points, then there would have no need of writing this judgment. Hence this duty is being performed by this Court.
The relevant provisions of remand exist in C.P.C. From Rules 23 to 29 read with Rule 31 of Order 41, C.P.C. Rule 23 deals with the appeals when the trial Court has disposed of the entire suit on a preliminary point and decreed or dismissed the suit on the basis of-that disposal. Rule 25 deals with the cases where the trial Court has not disposed of the case on a preliminary point but omitted to try any material issue which appears to the Appellate Court to be necessary or important and without which no suit could be decided on merits. In such cases the Appellate Court may, if necessary, frame issues and refer the same to the trial Court with directions to take additional evidence. This rule is applicable only when the evidence an record is not sufficient because Rule 24 would be attracted in the cases where the evidence on record is sufficient to decide any appeal. Rule 27 and Rule 28 have to be read together. If the Appellate Court allows additional evidence, for the reasons to be recorded in the judgment, then it may take such evidence itself or direct the trial" Court or any other subordinate Court to take-such evidence. But in such cases the Appellate Court shall specify the points to which the evidence is to be confined as is the requirement' of Rule 29 of Order 41.
The order of the learned Appellate Court which was passed in the first round in Civil Appeal No.76/88, is totally silent regarding specification as .Was required by rule 29 of Order 41. Therefore, the main judgment, in my view, was not a speaking judgment as was required under Rule 31 of Order 41. Hence arising of ambiguity in such circumstances was natural. But intention of the trial Court can be ascertained from the words of the operative part of the judgment. In my view, the intention of the learned Additional District Judge, while remanding the case, was to frame two additional issues and decide all these issues by putting the parties at liberty to adduce evidence, if they choose so, before the trial Court. If purpose of the learned Additional District Judge had been to get the evidence recorded only on the two additional issues then he would have specified the same, as was required, under Rule 28 to take such evidence and send the same to the Appellate Court. There seems no logic to believe that intention of the trial Court was to decide the decided issues one again on the basis of only previously recorded evidence.
Hence I am of the view that on remand of a matter by an Appellate Authority, the trial Court has to provide opportunities to the parties to adduce evidence on all the issues including the additional issues particularly when the Appellate Court had ordered to decide the matter as fresh unless unambiguously specified as required by Rule 29 of Order 41, C.P.C: The trial Court and the Appellate Court, have, therefore, misunderstood the intention of the remand order dated 12-8-1990.
8. As the factor of recording evidence in such situation has to be regulated under the Qanun-e- Shahadat, 1984 (10 of 1984), therefore, it is necessary to find out as to whether the remand order of the Appellate Court could be complied with or not. The relevant provisions of the Qanun-e- Shahadat is its Article 47 (old provision was section 33 of the repealed Evidence Act). I am of the view that if the remand order of an Appellate Court cannot be complied with on account of those exceptions mentioned in Article 47 of the Qanun-e-Shahadat, 1984, for the purpose of recording fresh evidence then reliance may be placed only on the evidence previously recorded, but in case of absence of those exceptions, evidence must be brought on record afresh on all issues, unless specified otherwise by the Appellate Court by harmonising all the issues so that matters be decided on merits. If it is not done so then the additional evidence on few issues may directly or indirectly affect the evidence already on record. The said Article reads as follows: --- "47. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts there gated. ---Evidence given by a witness in a judicial proceeding or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence or is kept out of the way by adverse party, or if his presence cannot be obtained without an amount or delay or expense which under the circumstances of the case, the Court considers unreasonable: Provided that the proceeding was between the same parties or their representatives-in-interest; the adverse party in the first proceeding had the right and opportunity to cross-examine the questions in issue were substantially the same in the first as in the second proceeding Explanation.---A criminal trial or inquiry shall be deemed to be proceeding between the prosecutor and the accused within the meaning of this Article."
(Underlining is my own)
As the proceedings were between the same parties after the remand order, therefore evidence previously brought on record could be relevant for proof of the issues only if the, conditions provided therein had been fulfilled. Recording of evidence on the issue could only be avoided if the suit had fallen in the clutches of exceptions as mentioned in Article 47 which were underlined by me. But there is nothing on record to, show that the witnesses were not available or the same were dead or incapable to give evidence or otherwise kept out of the way by the adverse party or their presence could not be obtained without an amount or delay or expense: The judgment of the learned trial Court is totally silent on this important aspect related to Article 47, as reproduced above which shows that the learned trial Court has not satisfied itself about this important factor and no order has been made by the learned trial Court before consideration of such evidence for proof of the issues. The least what could have been done by the learned trial Court was to obtain consent of the adverse party against whom the evidence was to be considered. In this case, admittedly, as consent of the appellants had not been obtained, therefore, order of the learned trial Court could not be upheld by the learned 1st Appellate Court.
9. For the reasons listed above I accept this appeal and remand this case for re-decision to the trial Court by setting aside the orders of the learned 1st. Senior Civil Judge and IIIrd Additional District Judge, Karachi, pronounced in their judgments dated 23-9-1992 and 24-2-1994 respectively along with the decree passed on 23-9-1992 by the trial Court.
The trial Court would provide full opportunities to the controvertists to adduce evidence on each issue, if they so desire, except on the issues where the parties consent to rely upon the previously recorded evidence.
As this matter has taken a big piece of life of the mortal human beings, which approximately spread over 17 years, hence this matter would not be adjourned for more than 10 days after every hearing.
10. Before parting with this judgment, I would. Be failing in my duties ifI do not express my concern over the tendency of passing orders without referring the concerned provisions of law. The tendency of disposing of appeals, as was done in this case, can never be appreciated. I have avoided to bring the name of the learned A.D.J. On record with this hope that after he comes to know the contents this judgment he shall avoid to embrace such unappreciable method of disposing of the appeals. Same feelings be treated for those who also follow the same path. In the circumstances, there is no order as to costs.
Order accordingly.