Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: GULZAR HUSSAIN VS Respondent: BUSHRA BEGUM
1988 C L C 1920
1988 C L C 1920
[Lahore]
Before Akhtar Hasan, J
GULZAR HUSSAIN‑‑Petitioner
versus
BUSHRA BEGUM‑‑Respondent
Civil Revision No.183/D of 1988, decided on 2nd April, 1988.
Civil Procedure Code (V of 1908)‑‑
‑‑‑0. XVII, R. 3 & S. 115‑‑Evidence Act (I of 1872), Chap. V‑ Revision‑‑Closure of evidence‑‑Documentary evidence‑‑Question whether respondent's evidence, due to absence of rebuttal, sufficed to grant her the decree related to appraisal of evidence which was not the job of High Court in revision‑‑Impugned judgment, however, suffered from the defect apparent upon face of it that District Judge assumed it to .be a family case remarking that he was not bound by technicalities of Evidence Act and document accepted by him as a piece of evidence without observance of technicalities was not relied upon by respondent nor formally tendered in evidence‑‑Such assumption was misconceived, instead it was regular civil suit in which formalities like reliance on or proof of documents were essential Impression entertained by District Judge about the nature of suit precluded him from applying his mind to consider propriety or otherwise of closing petitioner's evidence under 0. XVII, R . 3, C . P. C.‑‑Total absence of discussion on this respect in impugned judgment, held, spoke for itself and being a patent illegality had to be remanded Impugned judgment and decree set aside and case remanded to First Appellate Court for fresh decision.
Arshad Mahmood for Petitioner. Muhammad Nasrullah Waraich for Respondent.
ORDER
It is pointed out, particularly from pars, 7 of the impugned judgment, that the lower appellate Court wrongly assumed that the appeal' arose out of a Family Case and that the technicalities of the Evidence Act did not apply. The suit related to dowry and was not included in the Schedule attached to the Family Courts Act, 1964. It had to be tried as a regular civil suit. Counsel claimed that this element misdirected the entire thinking of the learned Additional District Judge and that otherwise there was every possibility of his having accepted the contention that closure of the petitioner's evidence was harsh. Such closure is allowable when C.P.C. applies but not in a case where it does not apply: Since it was thought that the matter before him related to a Family Case, the learned Additional District Judge happened to form a firm opinion that technicalities at least of the Evidence Act did not apply.
2. Mr. Waraich for the respondent submitted in reply that the observation being not much accurate may be scored out of consideration and that the decision of the revision may be given on the remaining evidence. He emphasised that due to closure of the petitioner's evidence, there was no rebuttal whatsoever and that the testimony of a couple of witnesses examined by the respondent lady amply proved her case.
3. Whether the respondent's evidence, due to absence of rebuttal sufficed to grant her the decree, relates to appraisal of evidence which is not the job of the High Court in revision. It has essentially to be done by either the trial Court or the Court of first appeal. However, the judgment suffers from the defect apparent upon the! face of it that the learned Additional District Judge assumed it to be~ a family case remarking that he was not bound by technicalities of the Evidence Act. The list which was accepted as a piece of evidence without observance of those technicalities was not relied upon by the respondent, nor formally tendered in evidence as an exhibited document, but it seemed to have tilted the thinking of the learned Additional District Judge. The only reason to accept it was that in a Family Case the provisions of the Evidence Act etc. did not apply. This assumption was misconceived; instead it was a regular civil suit in which formalities like reliance on or proof of documents were essential. The impression entertained by the learned Additional District Judge about the nature of the suit precluded him from applying his mind to consider propriety or otherwise of closing the petitioner's evidence under Order XVII, Rule 3, C.P.C. had he realised that it was a regular suit, he would have certainly thought twice to see if the petitioner's evidence had been properly closed. Total absence of discussion on this aspect in the impugned judgment speaks for itself and being a patent illegality has to be remedied.
4. As a result the revision petition is allowed, the impugned judgment and decree are set aside and the case is remanded to the lower appellate Court for fresh decision.
S . Q . / G‑138/ L Petition allowed.