Mst. SHARMAN BIBI And Others vs MAHBOOB ALI And Another
This matter concerns appeals against a High Court order that remanded a case to the District Judge for re-evaluation of evidence, specifically regarding the admissibility of a pedigree-table (Ex.P.3). The core legal question was whether the High Court correctly held that the objection regarding the mode of proof of the pedigree-table had been waived by the appellants due to their failure to raise it before the Trial Court. The Supreme Court examined the record and found that, contrary to the High Court's finding, the appellants had indeed raised a timely objection to the document's admissibility when it was tendered in evidence. Consequently, the Supreme Court held that the High Court's premise—that the objection was not taken and thus waived—was factually incorrect and against the record. The Court set aside the High Court's order and remanded the case back to the High Court for a fresh decision on the appeals, establishing the principle that an appellate court must accurately verify the record regarding whether objections to the admissibility of evidence were raised at the trial stage before concluding that such objections were waived.
- Can an appellate court conclude that an objection to the mode of proof of a document was waived if the record shows the objection was raised at the trial stage?
- Is a finding by the High Court that is contrary to the trial record sustainable in appeal?
- Section 78(6), Evidence Act 1872
ORDER
1. ABDUL QADEER CHAUDHRY, J.---This order will dispose of the appeals as common questions of facts and law are involved in them.
2. Leave to appeal was granted to consider the contention of the appellants that the objection with regard to Ex.P.3 was not only with regard to the mode of proof of the document but to its admissibility in evidence.
3. The facts, in brief, are that the respondents-plaintiffs filed separate suits for possession in the Court of Civil !Fudge, Wazirabad in respect of land in dispute. The trial Court decreed both the suits in favour of the respondents/plaintiffs. The appeals filed before the learned District Judge, Gujranwala, were accepted on the ground that the pedigree-table Ex.P/3 was not admissible in evidence as required under section 78 subsection (6) of the Evidence Act. The respondents went in appeals before the High Court. The learned High Court accepted both the appeals and remanded the case to the District Judge for deciding the appeals afresh after re-evaluating the entire evidence.
4. Learned counsel for the appellants referred to Para 7 of the judgment of the High Court wherein it has been observed that: "I am inclined to hold that objection as to the mode of proof of Ex.P/3 not having been taken before the Trial Court, must be deemed to have been waived. The learned District Judge was wrong in excluding it from consideration on the ground that it had not been formally proved in accordance with the provisions of subsection (6) of Section 78 of the Act."
5. We have examined the record and from the perusal of the record it is clear that an objection had been taken by the appellants at the time of tendering pedigree-table (Ex.P.3) in evidence.
6. Therefore, the finding of the learned High Court that no objection was taken is incorrect and is against the record. We, therefore, accept these appeals, set aside the orders of the High Court and remand the case to it to decide the appeals afresh. There will be no order as to costs.