Civil Procechire,. 1908 remandect.the -matter .baCk to the trial. 
 
Paragraph 2 of the :impugned jUdgernent:.Observed that 'the LOCal 
. Commissioner �perform his job.. honestly. The-evidence:  
recorded and documents received, by the .Local. Commissioner were. 
not in accordance with law. Consequently,..the Revision waS•alloWe 
and judgements and d.ecree:of.learned trial. Coutt.;  as �
by.- 
the :Appellate cutirt; were Set.aside.i: suit..instityted. an .behalf �
. 
,11177Tr...?!.." 
IN THE SUPREME COURT OF PAKISTAN  
(Appellate Jurisdietion) 
PRESENT:  
jUSTICE.MUSHIR-ALA: 
WIR.-.JUSTICE AMIN-Ub-DIN KHAN 
.140.5 IQ OF 2019:. 
(Against the jiadgrherii dated'05:12:2018 passed by 
Lahore High Court Lahore hi C 
2 144/ 2013). 
• . 
I7a.F.46an NakVa.,•4 �
....Petitioner( 
VERSUS 
Alta Muhammad (deedj•liki,•LRs �
...RespOndent(4 
For the Petitioner(S): �
Ch. NUsrat Jayed. Bajwa, ASQ 
• Syed:Rifagal: Hussain Shah; AOR 
For Respondents �
Masood �ASC, 
Date of Hearing:. � 01..0.1,2,02:1 
ORDER 
MUSHIR �
 j.---- The •Petitioner has impugned:: the judgment 
dated 05.12.2018;.  pasgect-iby learned -Bench: of • Lahol-e High ::CoUrt;,' 
LahOrce; iii C.R.21441 .U-13, • Whereby,. the learned ReViSional COUrt, 
• 
in consideration of -the: fact that the learned Trial Court has neither 
recorded the evidence itself, nor Made: a memorandiun of the 
substance ..of..what each••Witness deposed, under .h S own hand.. and 
signature as mandated in terms of Rule 8 of Order XVII1 of Code of 
1;1I191i'itlimit;Hrdrim �
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CP 5 UV L9 
petitioner will depth .to be pending before the learned.Ctuil:court,:who 
will eicantine the.'witneesSes of the partieS himself as decide'..-t 
sante afresh," keepinOn iiiew the mandate of Order XX rule 5 C.PC" 
Th6 learned Ounstl for the Petitioner contends that t 
unpugned judgment.  Tis based...on::,:the.::a.asuroption and :: supposItion,: 
-nett::iBeriCli' .-asSurned 'in .,pitra.:f?:_,.! that .1!!the.-4p44...' 
COritil*SiOttei diet not 7et1ot-11v 1:11.4. jp12 henestly, whO:.cluring. 
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.,C.-OminatOrt - recorded:sppy of rei 40s tptaqk against the gist :c.1.0461.1. „ 
as substance of `their=  examination in chief Although, neitherSpeci 
objections. Wer e. raised:during ,entr.se.  of 'trial nor;  it. was agitated in 
ivil..Revissi'on.:inhand, ":The observation inade in the ':judgment that 
I was persuaded that some wrong for some ulterior motiaef with 
collusiveness:was committed," 'remains unsubstantiated. In'additiOn':,  
to the InisappreciatiOn rule 8 of order XVIII CPC, it was also urged''. 
that impugned judgment based on: SurmiSes and conjectures on 
extraneous considerations which are not substantiated from the.  
record, 
was argued with great vehemence, by the learne 
Counsel for the Petitioner that, the learned. bench of the -:high :coptf 
erred to rely,  on. Ordei° �
Rule 8 CPC to discard the entire 
evidence recorded by :Consent of the partieS through' . 6C 
COnnnisSione.r. I was c.ontended that evidence was recorded in 
. 
. • ....accordapce with :foxy . .y... t �
;:.Cotrinn$sioner: :Neither: .11*.  
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Respondent objected to the appointment of Local' CommisSioner, 
showed.-any.reservation.as  I:6 conduct of the.Cuirunissioner or on. the . 
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report it 
COMinisSione !'s reportAt Was.argded that the learned .bench grossly 
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Court to state its decision on each issue. 
provided. Tor Under they C,ode4 �
normal circumstances; the 
evidence of a witness is, to he recorded by.  a judge, in open Courts,.. 
 
under his own hand, .;superintendence; and/or linger 1.4io personal 
direction6, The evidence of a withesa is 'taken orally- in .open. �
in 
9"Code Civil Proeedure; i908 
3. Section5, Order. 00eXVI, xvw, XXVI.CPC 
4  See Order �
CPC in oivil:eases and Section 353 .to 365 Cr:P..a in ,Criitinal 
cases 
5  • Rule 4 cq. Order kylII QPC 
6  Rule 41 87?  5 oi Order XViII.CpC 
.9. 
.• C;;P.51.0./.  l9• 
erred. �
.00nclude.:that.: for • the non:-compliatice of the 1noted 
provisions ap.4 :•1114grnepto.•the 
�
.of the: :loWe �
ar.ce 
• 
rendered of no legal consequence, It .was.  MSc; arguedlhat t e-
learned Rev siorial Court failed. to exercise its:jurisdiction and decide 
the matter; on meritS.,  
The learned 'edithael for the Respondent 'suppbrte 
impugned Judgment, :.On our query,:. h101 CandidlY • conceded :.that, 
Local CoMinissioner. 'Was appointed by.  consent,  of the Parties. He • 
alsb concedes that.ho'ohjeetion'as-to the conduct:arid/or MantieP 
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which the evidence was recorded by the Local Cominissiori.er' w 
raised before the learned Trial Court, the learned Appellate Court, or 
even in the Revision before the learned High court. Learned... counsel. 
 
; 
for- the:ReSpondent � .to .d.eindiastrate.  that '-a.14y. 
.was caused to. the Respondent by rccording.and receiVing.evi.  ence,. 
tin otigh Localdoquilipsipiner. 
• Arginnents heard �
. .   ;perused. tne ..recdrd: 
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°Cofii t, 
 
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under the Code, subject to such term's and condition., as maY. e: 
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prescribed3, may appoint:a Commission
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o t
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a person, make• 
local trnfeatigatitiri, take accounts, and/Or: .make - partition-. 
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• 
elaborate manner and procedUre in record evidence by 0:•COtirt 
CP'51.0/12. 
the presence and Under' the personal direction an d superintendeiriCe‘o 
the judge?'. The: COUrt ordinal* records the deposition of a.witnesS 
in Writing in question arid.anstjer foiin, but` in that of a riartative,.. 
generally in the •vernacular.language of the Court, or in Enl liSh,.. 
read. over to the WitneSS'after which any discrepancies or error(s). are:. 
• corrected:befOreSigningiO: 
6. �here are tWo situations that are contemPlated oder 
the Code, where it as not necessary to take the evidence of a witness 
verbatiin; in kvriting.but.the judge'is reqiiired to aMake 'rnemorandta : 
of the, Substance . of iOhcit �
witnessdePosei.e afi ie. eXaMination.... 
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.of each witness proceeds: One such situation that is provided. Wiz, 
where 'the epidence'ts not. taken down in Writing by the Judye',91 
Secondly ill. unappealable Casesio: Every mernoranduin so , made 
forMs part:  ofr,the,recordli:' �
Cases 'where a judge:.. is, unable.: 
prepare such memorandiun,:hp ;i0: 47equired to recomi.,::reasoas for: the 
sarneP,.:On examining the scheme of Order XVIII. CPC, and other. 
enabling provisions of the. Cade, it is clear that where :the verbatim
evidence is being s.:recorded in writing, there.: is no neceSsl :,of 
 
making anY ://ierii,oranqi,64 .,Of the. sUl stance of what each Wi 
4s 
deposes.::T4p reebiding of s meinOtandlito of the substanCe o 
evidence rneari& the. essenee, 81.1hatalIPP)  Oi'eert-lXaafihP P.A.Cfer1P4 that 
may be neCeSsary :for tile:jUst determination of the cont covers in. 
7  See Order X RUle 2 Order XVIII Rule 4, 5, 9, and Order XXVI, Rule :CF;O ., 
8  Rule 5 of Order XVilf: 
9  Rule 8 of the Order XVIII 
10  Rule 13 of Order 
u Rule 14 (2) of Ofder . XVIII 
11 of Order XVIII 'cpb 
. �
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CP 510/19 
7. �The manner �
procedure for recording evidence 
through cominission-is elaborately provided for under Order 
CPC. Once th:6 Commission, under the orders of the toUrt, ' 
executed and. 3.e'• evidence �
recorded, -Aide COrtatissioner:Is 
retinal the ,comlnission3:. together, :with his signed repro2:t,':and-,4be  
evidence recorded asper the: direction: and ordei t f.. the, Court. The 
evidence SO:  recorded andjaken by the .Commission, Flab.* 
objections brad deeision of the ebtirt, forms part•of the record; and 
 
to be 'treated and considered as if the evidence has been .reordere 
by :the Cburt• �
n:o.t  
:..appreciate.  the •-acheine .of the provisions of the �
1h.e`E;eaifed 
 
bench of the High Court erred.  to toy on. rule .8-of •Order'XVIII; 
to*discard• the .evidente •reCorded.  through the •Conithission appointed 
by consent Ofthe Pa.t �
Rile .8:of .0.rder )'VIII is not. applicable -•in 
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cases Where th 
-
e eVidence is recorded., under. 41:e:orders of the .Court 
. :through. Commission, Under•-the given facts and circunista:ncea.o  
tlae ..case,e 
ther wo:p. �
justification to .remanti. �
case. t®::. 
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learned •:Trial -.t:ourt'•for•:.dremOvo.  • .trial or • proceeding safreah.. The .:,trial;; 
 
Pourtpudge 2YAay &aloe until (consideration . the. • .'evidence.• 
memorandum .of..evideriee; as•• �
„may be, .either:recorderd.,1*•". 
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the cerwt. its ei f,•• the :predeesSor judge1.5,-..or through.  CominiSSiOn,. 
Once -suCh;.report..of the commissioner, along 2  with. the'evidence-;:po: 
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recorded is la-  ken �
-eeord,-.•It' forms part':.6f the. jaidiCial::-;reet4..d.,,•:, 
and is to he i7ead...atanY•••:hearifig of 'the ,suitI3  and:fOr ;making.any 
order car pkoriounQerfient,of ,Judgment: The provisions .rioted herein.  
is Rule '4 anit.1.0 of 0,r-der xxya.:ropc 
11 Order XVIII and XXVI CPC 
15  Rule 15. of Order XVIII; CpC 
:16  Order XXVI; Rule '7, CPC, 
 
17  Rule 16 (3) and. Rule ri of Order XVIII', CPC 
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a. • . se 
 
17, 
 
W,',"3",,---.'',
":"3griPnrk'.7.PpLiPrrrrigor.spirneRr,A 
CP' 51 0 / 19 
are metre enabling. PrOviPriori; :relating to :a matter of procedlut. and 
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• not affecting the jurisdiation of the: Court. 
8. �Where coUrt, for any reasons; is dissatisfied with 
proceedings of COMmissioneri  there is nothing-  in the Code; Which • 
preVciitS. it froth directing a further :eitqUiry -as it '.1.har ..C1.60,1) f 
.811:bsstitp:ong the:- :cOminisPiOner :andlor•:recalling afid 
witriesS alrea.d.y exa.i-nined.by...the commissioner; Whose deposition 
found to • be illegible;  .arribiguous �
ttnclear, on any Materia 
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particular affeeting the merits ofthe case. A party carinOt 
appeal" the 'cleciSiork of a:  r.eVisional Court for de,--novo trial ad a  
Matter of righ-08'.:. 
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It apPearS that the:learned bench of the ijigiii,Cfati4te 
into error while'conSidering:the implication of 14ile-  8 Of Order .x.\44-.  
CPC and misapplied :ttie same ori:the evidence recorded throtighlhe.  
commission, acting under .section 75-  read with Ord.er • 
appointed by the COurt, 
10, �
It is not always necessary that the. Court -  may.  ~record' 
evidence itself. For A variety of:reasons, it May be recorded, 
 through 
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A Conuni;iSiciri.:19. The -Conit ai.S',a..prificipal 1116 Sr elerci.se p9WerP. 
for Per.sna 
appearance.,Of a. 'witness in frOnt of.:the CoMmissiorr either ant.. cif its 
own accord or on applieation Ofeither party26:1-To*vpr, doeSnot 
bar the Coin I. itself of the 4ithoi-ily to examine the ;witness 
t 
is .,pot satified.. 1- �
Rule 1.6 of:bider XVIII; it is prOliide&thatith.-::.: 
Order...1/1  II; � •.:: • �
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1§Fu,1
'FII 
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21  Order KAU, Rule 17 
. delegate alatheritY;s• :Under �
-75' or brder 
ZIEZaliETE:RiaT.D37.2riemsassamm..: 
UP 510/19 
:.cases Where no appeal: �
the judge may ;merely .:113.a,i<&: 
meinorand:11M. of substance. of...the evidence.: Rule 15 of Qrder..X 
contains a general provision, that a succeeding Judge can.  deal WI 
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any :evidente or merpOrandUrn taken by his predecesSerand:Pricieee 
.with the. trial: 
, proViSiortS: 'of CPC', relating �
an 
attendance,:  examinatioh pf-WitneSses",. and producing 'Of doeurnents 
the penalties imposed On the  witness could he exercised by the 
CommisSioner executing, the order of. the Court is deemed to :Oe,:a 
. 
Civit"Court 22, 
12. �
As noted aboVe, the learned CoupSel for the Respondent 
was net able to ow :That :any. preindice has :been caused l:e..'the 
 
Resocederit, rattier the comMission :wa.s.. consti.tuted by consent' 
the :parties. Iincler the. giVen facts arid "cinchrrista.nces : niceases, 
wl-tere evidence is reCoreled• through Cominissioxi, Rule .8 .0f Order 
is hot attracted. -As regard.  evidentiary value 
documents exhibited " and produced before the Loe 
Comtnissionst23  it is for the :learned �
"oust and the ..Appellate:: 
court that has tO eXamine:'and :appreciate ta eVidetitiOrk..valAce, and 
admissibility): �
otherWise and the revisional court;  may see 
.exercise of. jurisdiction �
:accordance with �
parameters, The 
evidentiary value and admissibility can also.be examined further by: .:: : 
 
the appellate ' Cdtirt in case: it is wrongly adMitted or appfeciatect 
within the 'oet:  parameters, of :16.W.' In this:view of the Matter, the 
impugned judgment cannot be.sUstaihed. 
22  See Ruls  16 to .113 of OiC1er_XXVi CPO 
is Qa.rilin-e-ShdhadatUrderi -1984; Section 91. 
incitiired.'froin
— both the counsels •ag•-•-t0 .whefic: 
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matte17'was. reinanded. by ..t; .1--fightourt.to -the 'learned WO taint 
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-0a.S. r..pliett'ithat:the Matter: wa& remandedo. 08',12.204; 
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Alinnst.0i.o. • yeatS‘: haVe'relapised, �eVideriCe...cOUld �
hay 
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been reCorded.-and case could have , been decided., It 
 
that ..the e :case, is • still- pending .on.,. account 
jUrisdietion/Cciurt �
Pindi;Bhattiari. to LahOre 
• 
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• matter:could-not b.e.proceecled... 
Accordingly �
t e .6aSe has net been. proceeded'. • 
decided:. by'the learned -trial Court, thei:record and proceedingS iyrth:e • 
edurt May be remitted-r- back: to the'iparned �
000i7 
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impugned judgment s :set' �
Civil; Revision No. ,'"11-4~ X1.3 tithe 
 
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Motiamirtacideceaedj:th.toitgh-L:R: etc. .14s: .Fictsaaii, Nerukez1. 
shall be deerned to be pending before the learned High :Court. 
Subject Civil Revision . shall...he. heard' arid cleCided oil. rilelits strictly 
..in-accordance.Nvitill4w. ifter-dijc notice to the parties. 
The- instant 
AVO. petitidn is 0611'i/cited: ih o appeal- anc 
 
allowed in the terins noted:above. 
ISIAlviABAD . 
't: JanlJaty,: 2021 
Approved for Reporting 
. • 
is stoted.6.t 
of : transfer: 
thetefor,. -.t.