Syed GHULAM MOHY-UD-DIN SHAH Versus GHULAM RAZA

Through this single order, I propose to dispose of Civil Revisions Nos. 120 of 2001, 121 of 2001 and 122 of 2001. In view of the importance of question involved, the same are admitted to regular hearing and are being disposed of as Pacca cases.

2. Leaving aside all unnecessary details of the factual background of the cases necessary facts for the disposal of these petitions are that respondent filed three separate suits against the petitioners for declaration and in the alternative, a prayer for specific performance of agreement in the respective cases was also, made, The suits were contested by the present petitioners, which were ultimately dismissed by the learned trial Court vide judgment and decree dated 9-3-1994. This judgment and decree was assailed through three separate appeals by the respondent. The learned Appellate Court after hearing the arguments of the parties, remanded the case to the learned trial Court with the following observation:----------

"'Hence respectfully relying upon the rules laid down in authorities referred to by learned counsel for the appellant plaintiff, the appeals in hand are accepted. Resultantly the impugned judgments and decrees are set aside and the cases remanded to learned trial Court, with a direction to obtain replication from the appellant-plaintiff, collect pleadings of parties in distinct issues and then to redispose of the cases in accordance with law. "

3. Learned counsel for the petitioner contends that oral evidence of the respondent was closed on 9-3-1988, while he closed his documentary evidence on. 5-5-1988. Thereafter, the petitioner concluded their evidence on 12-6-1993 and ultimately, the suits were dismissed on 9-3-1994. The appeals were filed by the respondent on 7-4-1994, which remained pending for quite some time when on 4-5-2000, arguments were heard, in one of the cases titled as "Ghulam Raza v. Ghulam Muhayyudin" and the case was adjourned alongwith other cases. Whereafter; on 18-5-2000, the respondent filed an application before the learned Appellate Court that since the evidence was not properly recorded in all the individual cases separately, therefore, the case requires to be remanded for de novo trial. Thereafter, the learned Additional District Judge, vide his order dated 13-6-2000, remanded the case with the direction noted above.

4. The contention being raised through the above narration of facts is that since 9-3-1988, when the respondent started his evidence till 18-5-2000, over a period of more than 12 years, the respondent never raised any objection with respect to the mode of recording of evidence to the three suits. It was only after hearing of arguments in one of the appeals that he came up with a-new plea/objection with respect to the mode of recording of evidence in all the cases. It is further added that if respondent had felt any prejudice by the mode of recording of evidence at any stage then he should have moved at the relevant time i.e. when his evidence was being recorded or when the petitioner's evidence was being recorded and if not at that stage at least, this objection could have been raised in the memorandum of appeal. Therefore, at this stage, it cannot be said that any prejudice was caused to the respondent due to the mode adopted by the learned trial Court regarding recording of evidence. Relies on 1980 SCMR 879, PLD 1994 Supreme Court 865 and 1989 CLC 1651.

5. On the other hand, learned counsel for the respondent has seriously objected to the hearing of these cases as pacca cases as according to him he was only prepared with the cases to be heard at a motion stage.

6. I have heard this case for more than one hour. Learned counsel for the respondents was given opportunity to argue the case as he pleased. It was only when, I started dictating the order, that this objection was raised by the learned counsel for the respondent. He has no further argument to add except the following.

7. Learned counsel for the respondent on merits submits that in all the three cases, the land is different, the transactions were different, the amount paid and the balance amount to be paid are different, evidence in all these cases are also different and agreement to sell are also different, in all the three cases. It is further argued that some time, the evidence was recorded by the learned trial Judge in one case and reproduced by his Reader in other cases, while at a later occasion the evidence was recorded in another case and reproduced in the remaining cases. He has also highlighted the deficiency in the recording of evidence as observed by the learned Appellate Court. It is also pointed out that while reproducing evidence, recorded by the learned Judge in one case, by his Reader in other cases, some blanks were left by the Reader which were later on filled by the learned Presiding Officer with his own pen and with a different ink at a later stage. 1t is finally submitted that the case-law referred by the learned counsel for the petitioner is not applicable to the instant case. In those cases the transactions were common while in the instant case they have much difference among them.

8. I have considered the arguments of the learned counsel for the parties.

9. Admittedly, the respondent started his evidence on 9-3-1988. When his evidence was being recorded whether rightly or wrongly, he never pointed out to the learned trial Court that the procedure being adopted is prejudicial to his rights nor he raised any objection when the evidence of the petitioner was being recorded. If he had any prejudice then it was incumbent upon him to raise such objection at a relevant time. He did not even bother to raise this objection in his memo. of appeal. A procedural defect if not raised at a relevant time before the relevant Court looses its significance at a later stage. Learned counsel for the respondent has not been able to point out any specific prejudice caused to his case even now. The law referred by the learned counsel for the petitioner is absolutely applicable in the facts and circumstances of the case. In the cited judgment, the objection was raised after a period of three years, which the Hon'ble Supreme Court held to be a delayed objection, while in the instant case, the objection was raised for the first time after 12 years. The other aspect of the matter is that the procedure adopted by the learned trial Court was in a way consented by the respondent himself, therefore, at this stage, he cannot be permitted to raise this objection and set aside the whole exercise carried out by the trial Court to conclude the trial and start a de novo trial. However, it is made clear that'if any practical difficulty arises during the hearing of the appeals, the aggrieved party may make an appropriate application in. that regard and the learned Appellate Court shall dispose of the same in accordance with law.

10. With the above observation, all these civil revisions are allowed, the impugned judgment and decree dated 13-6-2000 is set aside. The appeals filed by respondent shall be deemed to be pending before the learned District Judge and the same shall be either disposed of by the learned District Judge himself or he may entrust the same to any other Additional District Judge who is competent to hear such appeals. No order as to costs.

H.B.T./G-261/L Revisions allowed