GHULAM MUSTAFA Versus ABDUL MALIK

ORDER

SYED ASGHAR HAIDER, J.--- The single order shall decide Civil Revision No.1670 of 2006 titled Ghulam Mustafa and another v. Abdul Malik, Civil Revision No.1671 of 2006 titled Muhammad Saleem v. Abdul Malik, Civil Revision No.1672 of 2006 titled Sabir Ali v. Abdul Malik and Civil Revision No.1673 of 2006 titled Zulfiqar Ali v. Abdul Malik wherein facts stated and cause of action are almost similar.

2. The plaintiff pre-emptor/respondent filed a suit for possession through pre-emption of the disputed land, the suit was contested by the present petitioners/defendants by filing written statement, of the divergent pleadings of the parties issues were framed, whereafter the plaintiff as well as the defendants were directed to produce their witnesses, and their evidence, was duly recorded, however the statement of witnesses (P. W.5 and P. W.6) and also of D. W.1 and D. W.2 were not recorded by the trial Court itself but were ordered to be recorded by the Reader. Thereafter the suit was decreed by the trial Court. Aggrieved thereof appeal was filed, it was also dismissed. Hence the present petitions.

3. The learned counsel for the petitioners inter alia contended that the evidence of plaintiff's witness P.W.5 and P.W.6 was recorded by the Reader of the Court and not by the trial court itself. Likewise the evidence of D.W.1 and D.W.2 was also recorded by the Reader and not by the court itself, this is violative of the provisions contained in Order XVIII, Rules 8 and 14, C.P.C. hence this illegality vitiates the trial.

4. The learned counsel for the respondent contested the assertions but stated that the evidence of P.W.5 and P.W.6 and D.W.1 and D.W.2, was no doubt got recorded by the Reader, but this technical flaw was rectified, when the court itself gave a certificate to this effect, thus ii there was any illegality it stood cured and cannot now be made basis to vitiate the trial

5. I have heard the learned counsel for the parties and with their assistance perused the testimony of P.W.5, P.W.6 and also D.W.1 and D.W.2.

6. It stands proved on record that testimony of P.W.5 and P.W.6 and also of D.W.1 and D.W.2 was got recorded by the Reader and not by the court itself. It also has been admitted that evidence was got recorded in one suit only and was thereafter copied in all the other suits. Order XVIII contemplates that if evidence is not taken down in writing by the Judge, he shall be bound as the examination of each witness proceeds to make a memorandum of the substance of what each witness deposes, and such memorandum shall be written by the Judge and shall form part of the record. This provision is mandatory and is required to be strictly adhered to and followed, the enactment has been incorporated, so, that the Judge should be cognizant of the testimony made by the witnesses, to obviate any chance of misconstruing or misinterpreting it. In furtherance thereto Rule 14 of Order XVIII contemplates that if the Judge is unable to make a memorandum as required by this Order, he shall cause reasons" of such inability to be recorded and shall cause the memorandum to be made in writing from his dictation in open Court. Order XVIII, Rule 14(2) thereafter provides that the memorandum, so made shall form part of the record, therefrom, this provision makes it imperative, incumbent and binding upon the court to record reasons for its inability to make a memorandum and till the needful is not done, the same cannot be treated to form part of record. Thus it is absolutely clear and unambiguous, that provisions of Order XVIII, Rule 8 and Order XVIII, rule 14, C.P.C. have to be complied with, completely and adhered to as mandated, because if needful is not done, the same cannot be treated to be part of the record. Though the Civil Procedure Code, 1908, contains both substantive and 'procedural enactments, and the present matter prima facie falls into the ambit of procedural enactment, but the provision assumes and wears the mantle, of substantive law, because a specific penalty is provided for non-compliance. In the present matter the provision were not adhered to, therefore, the testimony of these witnesses could not have been treated to form part of record. But it was so done, thus evidence was misread. ?????????

7. The contention of the learned counsel that putting a certificate at the end of testimony of P.W.6 by the court "dictated by me" is substantial compliance of the stated provisions is incorrect, because the order contains no reasons, as contemplated by law. It, therefore, is overruled.

8. Resultantly these petitions are allowed, the impugned judgments and decrees are set aside, the trial court is directed to record afresh evidence of P.W.5 and P.W.6 and also D.W.1 and D.W.2. Thereafter it shall proceed to decide the suit on merits in accordance with law, as expeditiously as possible, but not later than six months from the date, the parties appear before it.

M.H./G-85/L ?????????????????????????????????????????????????????????????????????????????????????????????????? Case reamded.