ABDUL HAMEED Versus SABZAL

This appeal from the judgment and decree of the Majlis‑i‑Shoora, Kalat, affirming the judgment and decree passed by the Qazi of Bhag in favour of the plaintiffs/respondents, arises in the following circumstances :‑

1. The respondents, on or about 24‑4‑1968, filed a suit for possession of the house in dispute against the defendant/appellant before the Tehsildar, Bhag, on the allegation that the appellant who was the Pesh Imam of the village mosque, had been permitted to occupy the house as a licensee, but as he was not found suitable for the office, his employment as Pesh Imam was terminated and the licence granting him the use and occupation of the house was revoked. On the refusal of the appellant to vacate the house, they were constrained to file the suit.

2. The Written Statement filed by the appellant was to the effect that the house had been constructed himself about 16 years earlier on the land given to him by Mukhi Dhanan Mal, who had since become an evacuee.

3. The Tehsildar then forwarded the case papers to the Court of the Qazi of Bhag who recorded, what he called the joint `wazahati bayan' of the respondents. The same day the `wazahati bayan' of the appellant also was recorded. Thereafter, the case papers were again sent back to the Tehsildar who framed the issues. Ultimately, 6 witnesses were examined on, behalf of the respondents and 5 witnesses on behalf of the appellant in the Court of the Qazi of Bhag. It might as well be mentioned that the appellant and the respondents were not examined this time. The learned Qazi finding: the material issues in favour of the respondents, decreed the suit. The appellant then filed an appeal before the Majlis‑i‑Shoora, Kalat, which came to be dismissed on 10‑2‑1969, resulting in this appeal.

4. One of the contentions raised by Mr. Munawar Ahmed, learned: counsel for the appellant was that as the appellant and the respondents bad, not been examined at the trial, and as no opportunity was given to the: appellant to cross‑examine the witnesses examined by the respondents, the: entire trial was in utter disregard of the provisions of the Code of Civil Procedure and Evidence Act which were applicable to this region, and consequently the entire proceedings stood vitiated.

5. Mr. Muftakhairuddin, learned counsel for the respondents, contended that as these grounds had not been raised in the appeal before the Majlis‑i-Shoora, or even in the memorandum of appeal, filed here, the same could not be taken up in the arguments. In support of his contention, he referred to the case of Dost Muhammad and another v. Rais Satik and another (P L D 1962 Quetta 82). I am afraid there is no force in the contention, in view of the case of Haji Abdullah Khan and others v. Nisar Muhammad Khan and others (P L D 1965 S C 690), wherein it was observed that "it may be pointed out that it is the duty of the Court itself to apply the law. A party is not bound to engage a counsel. Whatever law becomes applicable on the admitted, or proved facts law has to be given effect to whether or not it has been relied upon by a party. Of course we are referring here to proceedings before original and appellate Courts and not to revisional Courts whose jurisdiction to interfere is determined by the statute that creates the jurisdiction. . . It is true that a pure question of law means a question which not only does not require any investigation into facts, but which could not have been met by a plea of fact if raised at the proper stage and ordinarily it will be a good argument as against face being a plea of law that it could have been met by an allegation of fact---------------

6. As the point involved, was of considerable importance, and as I wag informed that the Qazis, who were trying civil suits in Kalat Division, were rather indifferent in regard to the application of the provisions of the Civil Procedure Code, I had called upon Mr. S. H. Jaferi to appear as amicus curiae, and he hoe been of so much assistance in spite of a very short notice indeed.

7. It is an admitted position that Kalat, one of the acceding States, became incorporated in the erstwhile Province of West Pakistan on the 14th of October 1955 by the Establishment of West Pakistan Act, 1955. To bring about the unification of the laws applying to the various regions which were integrated into the Province of West Pakistan, the Central Laws (Statute Reforms) Ordinance XXI of l9co was promulgated on the 9th June 1960: As a result of this, the Code of Civil Procedure, 1908 was extended to apply to the whole of the Province. However, the Dastur‑ul‑Amal Diwani, Kalat, had not been expressly repealed as it did not appear in the First Schedule in section 2 of the Ordinance, with the result that the local law stood repealed only so far as it corresponded to the provisions of the Central Act of Ordinance, and the established jurisdiction, practices and procedures, etc., were to continue in force. It was held in the case of Dost Muhammad and another v. Rais Satik and another : "On the view we have taken of the effect of the promulgation of Ordinance XXI of 1960, it is clear to us that from the date of promulgation of the Ordinance those provisions of the Dastur‑ul‑Amal Diwani which corresponded to the provisions of the Code of Civil Procedure of 1908 stood repealed, and instead, the relevant provisions of the Code of Civil Procedure came into force." The same view was taken in the case of Mir Said Muhammad and another v. Mir Chakar and 6 others (P L D 1973 Quetta 43). It was observed therein that "It will therefore be more appropriate to say that if, subject‑wise, the same field is covered by the provisions contained in Dastur‑ul‑Amal Diwani and the Code of Civil Procedure, 1908, the latter law to that extent will repeal the former and the re‑enacted procedural law, in the former areas of Kalat would be Code of Civil Procedure, 1908, plus Dastur‑ul‑Amal Diwani but minus its such provisions, which have parallel in the Code of Civil Procedure". The hearing of the suit and the examination of the witnesses had therefore to be in accordance with Order XVIII of the Code of Civil Procedure.

8. We, however, find that the learned Qazi had recorded a joint statement of the respondents before the issues were framed. It is not known whether the statement made by one of the respondents came to be adopted by the other; was made partly by one and partly by the other, or whether it was a prepared text read by the two of them. Manifestly, it was something uncommon. The same day, the learned Qazi recorded the statement of the C appellant. That would approximate with the procedure under Order X, rule 2. However, even there, the object of the examination under the rule would be to ascertain the matter in dispute and not to take evidence. It is not a substitute for a regular examination on oath or to suppress the ordinary procedure at the trial as prescribed in Order XVIII, C. P. C. It was held in the case of Manmohandas and others v. Mt. Ramdei and another (AIR 1931FP C 175), that " . . . . this power is intended to be used by the judge only when he finds it necessary to obtain from such party information on any material questions relating to the suit and ought not to be employed so as to supersede the ordinary procedure at trial as prescribed in Order XVIII". The same view was taken in the case of Vasumal Valiram v. Karamchand Manghanmal and others (A I R 1911 Sind 41).

9. The position therefore that emerges is that the respondents and the appellant were not examined at the trial at all, and even the witnesses on their behalf went away without any cross‑examination by the opposite‑party. There is nothing to indicate that the other party did not want to cross‑examine the witnesses. This is clearly borne out from the record.

10. The Evidence Act also has been made applicable to this region as is to be found from Schedule II of Ordinance XXI of 1960, referred to earlier. According to section 138 of the Evidence Act "Witnesses shall be first examined‑in‑chief, then (if the adverse party so desires) cross‑examined, then (if the party calling him so desires) re‑examined". The very purpose of the cross‑examination is to challenge the veracity of the witnesses and it is an axiomatic principle of law that where no opportunity to cross examine the opponent is given his evidence would be inadmissible. Otherwise too, the main witnesses in the case would have been the respondents and the appellant himself, and their evidence has not been recorded at all, as was enjoined under Order XVIII of the Code of Civil Procedure.

11. Mr. Muftakhairuddin, learned counsel for the respondents, however, referred to the case of Rais Dur Muhammad and another v. Takari Abdul Hamid and 8 others (P L D 1971 Quetta 93). Apart from the fact, that the view taken in the case was not approved in the Full Bench case referred to earlier, the point involved there, was whether the Shariat could substitute customary right pleaded in the ease. That will hardly have any relevance.

12. I am clearly of the opinion that the adjudication of the suit was in flagrant disregard of the provisions of the Code of Civil Procedure and the Evidence Act, and therefore the entire proceedings stood vitiated. That will react on the appellate judgment as well. On this view of the matter, I will refrain from considering the other contentions raised.

13. I will, therefore, set aside the judgment and decree, and remand the case to the learned Qazi of Bhag for a fresh decision in accordance with the provisions of the Code of Civil Procedure, 1908. The costs to abide the event.

S. A. H Appeal accepted. Case remanded