2007 SCMR 564

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Nasir-ul-Mulk, JJ

FAZAL-UR-REHMAN and others----Appellants

Versus

Begum SUGHRA HAQ----Respondent

Civil Appeal No.925 of 2002, decided on 6th December, 2006.

(On appeal from the judgment, of the Lahore High Court, Lahore, dated 20-12-
2001, passed in Civil Revision No.3420 of 1994).

(a) Contract Act (IX of 1872)---

----S. 62---Specific Relief Act (I of 1877), S.12---Constitution of Pakistan (1973),

Art.185(3)---Leave to appeal was granted by Supreme Court to consider; whether
there was novation of contract, by virtue of letters exchanged between the parties
subsequent to execution of original contract, whether original contract stood
altered and was no more capable of specific performance, and what was the
impact of subsequent sale by vendors in favour of another person, after novation
of contract in favour of plaintiff's son.

(b) Contract Act (IX of 1872)---

----S. 62---Specific Relief Act (I of 1877), S.12---Civil Procedure Code (V of 1908),

O.XIII, R.2---Specific performance of agreement to sell---Novation of contract---
Applicability---Change of name of vendee---Plea not raised in written
statement---Effect---Subsequent to execution of agreement to sell, plaintiff wrote
a letter to vendor for execution of sale-deed in favour of her son---Initially,
vendor agreed to execute the sale-deed in favour of son of plaintiff but instead he
sold the property to another person---Suit filed by. plaintiff was decreed by Trial
Court in her favour, which judgment and decree was maintained by lower
Appellate Court as well as by High Court---Plea raised by vendor and
subsequent vendee was that original contract was no longer capable of being
specifically performed on account of its novation---Validity---Nothing was on
record to show that son of plaintiff had become privy to the arrangement of his
being substituted as vendee---Substitution in original agreement of son of
plaintiff as vendee could not have been brought about without his being party to
new arrangement---Terms of agreement between plaintiff and vendor, even as
regards the vendee, remained unaltered---No novation of contract had taken
place---Since defendants had not, explicitly or by necessary implication, pleaded
novation of contract in written statement, such defence was deemed to have been
abandoned in view of O.XIII, R.2, C.P.C.---Appeal was dismissed.

Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965
SC 690; Almas Ahmad Faiz v. Secretary, Government of the Punjab Housing and
Physical Planning Development, Lahore and another 2006 SCMR 783; Gulzar
Khan v. Mst. Shahzad Bibi and another PLD 1974 SC 204; Amir Abdullah Khan
and others v. Col. Muhammad Attaullah Khan PLD 1990 SC 972; Mrs. Mussarat
Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189; Tarinikamal v.
Perfulla Kumar AIR 1979 SC 1165; Zulqarnain and 2 others v. Surbuland Khan
and another 2004 SCMR 1084; Nooruddin and others v. Mst. Amiran Bibi and
others PLD 1996 SC 825; Banque Indosuez v. Banking Tribunal for Sindh and
Balochistan and others 1994 CLC 2272 and National Bank of' Pakistan v. Shogan
Int. (Pvt.) Ltd. and others 2005 CLC 1207 ref.
Page No. 1 of 1
Hamid Khan, Advocate Supreme Court for Appellants.

Najmul Hassan Kazmi, Advocate Supreme Court for Respondent.

Gul Zarin Kiyani, Advocate Supreme Court with M.A. Zaidi, Advocate-on-
Record for Respondent No. 1 (iii).

Date of hearing: 6th December, 2006.

JUDGMENT

NASIR-UL-MULK, J.--- This appeal, filed by the Fazal-ur-Rehman and 2 others,

by leave of the Court, is directed against the judgment of the Lahore High Court
of 20-12-2001, dismissing the appellants civil revision against the concurrent
.findings of the two Courts in a suit for specific performance of contract decreed
by the trial Court in favour of the plaintiff/respondent, Mst. Sughra Haq, on 19-
3-1990 and upheld in appeal by the Additional District Judge, Lahore on 14-6-
1994.

2. The material facts gathered from the record are that the plaintiff Mst. Sughra
Haq had on 6-1-1983 entered into agreement with Sh. Abdur Rehman,
predecessor-in-interest of the appellants Nos.1 and 2, through appellant No. 1,
his General Attorney, for the purchase of the suit property for a sum of Rs.90,000,
out of which Rs.10,000 was paid as earnest money and the balance payable up to
30-6-1983 upon execution of the sale-deed. The agreement stipulated that failure
to pay the balance amount by due date would result in the forfeiture of the
earnest money. By mutual agreement the date of payment and the execution of
the sale-deed was extended to 31-8-1983, after the plaintiff had paid another sum
of Rs.15,000 to the vendor. The vendor however, on 8-9-1983, by registered deed
sold the suit property to appellant No.3, impelling the plaintiff to file a suit for
specific performance of the agreement dated 6-1-1983. The vendor and the
subsequent vendee by their separate written statements resisted the suit, the
vendor pleading breach of contract by the plaintiff, alleging that whereas the
vendor was ready and willing to per for his part of the contract the plaintiff was
unwilling to execute her part of the bargain. After settling issues and recording
evidence the suit of the plaintiff was decreed, the trial Court holding that the
plaintiff was both ready and willing to pay the suit standing amount and execute
the sale-deed on the due date. This finding was upheld by the appellate and the
High Court. It may be noted that after tiling the suit the plaintiff had deposited
the balance sale consideration with the trial Court.

3. At the hearing of the civil revision by the High Court and the petition for leave
to appeal in this Court an argument was advanced for the appellants that since
the parties had agreed to the substitution of the plaintiff by her son Fayaz-ul-Haq
as vendee the sale contract was novated and thus, incapable of specific
performance in view of section 62 of the Contract Act. Though the argument
before this Court was refuted on behalf of the plaintiff, mainly on the ground
that the plea of novation of contract was never raised before the trial Court, leave
was granted to consider inter ilia:--

"(i) Whether there was novation of contract, by virtue of letters exchanged

between the parties subsequent to the execution of the original contract?

(ii) Whether the original contract stood altered and was no more capable of
specific performance? and

(iii) What is the legal impact of subsequent sale by vendors in favour of

petitioner No.3, after novation of contract in favour of respondent's son Fayaz-ul-
Haq?"
Page No. 2 of 1
4. Mr. Hamid Khan, Advocate Supreme Court entered appearance for the
appellants, Mr. Najamul Hassan Kazmi, Advocate Supreme Court appeared for
the plaintiff respondent Mst. Sughra Haq, and Mr. Gul Zarin Kiyani, Advocate
Supreme Court for the plaintiff's son Fayaz-ul-Haq.

5. The learned counsel for the appellants confined his submissions(Nasir-ul-

Mulk, J) to the question formulated in the leave granting order and in that
context referred to, besides other documents, the letters dated 23-8-1983 by the
plaintiff to the vendor and the latter's response of 25-8-1983. The proposal made
by the plaintiff to execute the sale-deed in favour of the plaintiff's son, Fayaz-ul-
Haq instead of the plaintiff was accepted by the vendor. The learned counsel
thus, contended that this substitution of the vendee agreed to by the parties
amounted to novation of contract. Reading out the provision of section 62 of the
Contract Act, it was argued that the original contract was no longer capable of
being specifically performed on account of its novation. When confronted, the
learned counsel conceded that the plea of novation of contract was neither taken
up in the written statements by either of the defendants and consequently no
issue was framed thereon. He however, contended that being a pure question of
law the appellants were entitled to urge the same before the High Court and this
Court, when from the facts on record novation of contract is determinable. In
support of his submissions the learned counsel placed reliance on Haji Abdullah
Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690, Almas
Ahmad Faiz v. Secretary, Government of the Punjab Housing and Physical
Planning Development, Lahore and another 2006 SCMR 783, Gulzar Khan v.
Mst. Shahzad Bibi and another PLD 1974 SC 204, Audi Abdullah Khan and
others v. Col. Muhammad Attaullah Khan PLD 1990 SC 972, Mrs. Mussarat
Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189, Tarinikamal v.
Perfulla Kumar AIR 1979 SC 1165, Zulgarnain and 2 others v. Surbuland Khan
and another 2004 SCMR 1084, Nooruddin and others v. Mst. Amiran Bibi and
others PLD 1996 SC 825, Banque Indosuez v. Banking Tribunal for Sindh and
Balochistan and others 1994 CLC 2272 and National Bank of Pakistan v. Shogan
Int. (Pvt.) Ltd. and others 2005 CLC 1207.

6. The learned counsel for the plaintiff respondent seriously disputed the
assertion on behalf of the appellant that there was novation of contract. It was
contended that the replacement of the plaintiff's son in her place as vendee in the
sale-deed to be executed was only variation of a term of contract and not
novation as the other terms remains unchanged. In this context reliance was
placed on Zulgamain and 2 others v. Surbuland Khan and another 2004 SCMR
1084, also cited on behalf of the appellants. Referring to the application made by
the vendor dated 28-8-1983 to the Sub-Registrar, Lahore Cantt. alleging
unwillingness of the plaintiff to execute the sale-deed, learned counsel pointed
out that the vendor had mentioned the plaintiff and not her son as the vendee.
The main stay of the argument of the learned counsel for the respondent
however, was the appellant's failure to take the plea of novation of contract
before the trial as well as Appellate Court. Referring to rules 1 and 5 of Order
XIII of C.P.C., it was contended that a defendant is precluded from pressing a
defence not specifically pleaded in the written statement. Mr. Gul Zarin Kiyani,
Advocate Supreme Court endorsing the above arguments added that there was
no novation of contract as the plaintiff's son never became privy to the
arrangement of his replacement as a vendee.

7. Since the learned counsel for the appellants confined his argument to the
question of novation of contract we would attend only to the questions
formulated in the leave granting order. Admittedly the plea was not taken up in
the written statement by the appellants and consequently no issue was framed
thereon. Obviously neither any evidence was recorded on the question nor any
finding given by the trial Court or the Appellate Court. The defence was taken
up for the first time at the hearing of civil revision before the High Court and
Page No. 3 of 1
then before this Court at the time of hearing of the petition for leave to appeal.
The first question formulated in the leave granting order calls for factual
determination of' whether the exchange of letters between the parties subsequent
to the execution of the original sale-deed amounted to novation of contract. True
that by letter, dated 23-8-1983, which finds mentioned in the plaint, the plaintiff
had proposed to the vendor that her son be recorded as vendee in the registered
sale-deed. This proposal was accepted by the vendor by letter, dated 25-8-1983. It
was in view of this agreement between the parties on change in the original sale-
deed that it is being urged on behalf of the appellants that its novation had taken
place. There are however, three other documents which show that both the
parties had subsequent to the exchange of the said letters treated the plaintiff and
not her son as vendee. Two of these are applications dated 28-8-1983 and 31-8-
1983 addressed by the vendor to the Sub-Registrar, Lahore Cantt. recording his
willingness to execute the register sale-deed in favour of the plaintiff. A similar
application dated 31-8-1983 was made by the plaintiff to the Sub-Registrar,
Lahore Cantt. showing her preparedness to conclude the sale and complaining
that the vendor is backing out. In all the three documents the plaintiff and not
her son was mentioned as a vendee. Additionally there is nothing on the record
to show that Fayaz-ul-Haq had become privy to the arrangement of his being
substituted as vendee7''The substitution in the original agreement of Fayaz-ul-
Haq as vendee could not have been brought about without his being party to the
new arrangement. Thus, the terms of the agreement dated 6-1-1983 even as
regards the vendee remained unaltered. We, therefore, hold that no novation of
contract had taken place. In view of this finding the other two question
formulated in the leave granting order do not require determination.

8. Furthermore we also agree with the contention raised on behalf of the

respondent that since the appellants had not explicitly or by necessary
implication pleaded novation of contract in the written statement such defence is
deemed to have been abandoned in view of rule 2 of Order XIII, C.P.C.

9. For the foregoing reasons we find no merit in this appeal and the same is
dismissed with no order as to costs.

M.H./F-29/SC Appeal dismissed.

Page No. 4 of 1
2005 S C M R 152

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Sardar Muhammad Raza
Khan, JJ

ANWAR AHMAD---Appellant

Versus

Mst. NAFIS BANO through Legal Heirs---Respondents

Civil Appeal No. 1599 of 1995, decided on 8th September, 2004.

(On appeal against the judgment, dated 10-10-1993 passed by High Court of Sindh,
Karachi in H.C.A. 19 of 1985).

Per Iftikhar Muhammad Chaudhry, J.-----

(a) Civil Procedure Code (V of 1908)---

----O. XIII, R. 2---Documentary evidence---Non-filing of documents along with plaint---

Effect---Such non-filing has never been considered fatal in view of provisions of O.XIII,
R.2 C.P.C. which empowers the Court to receive documentary evidence during the trial.

(b) Evidence---

---- Documentary evidence---Objection not raised at the time of recording of evidence---

Effect---When no objection was raised on the documents and the same were allowed to
be brought on record by the Court, on objection at a subsequent stage, such documentary
evidence could not be discarded.

Mangibai Gulab Chand and another v. Sughanchand Bhikamchand and others PLD 1948
PC 168; Dr. Ilyas Dobash v. Muhammad Iqbal PLD 1960 (W.P.) Lah. 1112; Amir
Muhammad Hussain Shah v. Aswal Hussain Shah PLD 1966 (W.P.) Pesh. 113; Umar
Hayat v. Naik Alam PLD 1977 AJ&K 78; Sheikhupura Central Cooperative Batik Ltd. v.
Tawakal Ullah PLD 1977 Lah. 763; Muhammad Hussain v. Ghulam Ali PLD 1977 Kar.
285; Gulzar Hussain v. Abdul Rehman 1985 SCMR 301; National Bank of Pakistan v.
Sayed Mir 1987 CLC 1103, Muhammad Aslam v. Mst. Sardar Begum alias Noior Nishan
1989 SCMR 704, Muhammad Unees v. Ghulam Hassan 1990 MLD 219 ref.
Per Iftikhar Muhammad Chaudhry, J. [Minority view]---

Qanun-e-Shahadat (10 of 1984)-----

----Arts. 72 & 161---Specific Relief Act (I of 1877), S.12--- Specific performance of

agreement to sell---Forged document---Proof---Recalling of witness by Court in absence
of his counsel---Concurrent findings of fact by two Benches of High Court---Plaintiff
filed suit for specific performance of agreement to sell and relied upon receipts of
payment of consideration money to defendant---Signatures of defendant upon the receipts
were sent to Handwriting Expert for comparison who gave his report in favour of the
plaintiff---High Court, in exercise of original civil jurisdiction, had found one of the
receipts to be tampered with chemical action and after completion of trial and before
pronouncement of judgment, the Court recorded the statement of plaintiff to ascertain the
manipulation on the receipt and disbelieved the document---Suit was dismissed by the
High Court and the judgment' and decree were maintained by Division Bench of High
Court in exercise of appellate jurisdiction---Plea- raised by the plaintiff was that High
Court could not record the statement of plaintiff in absence of his counsel ---Validity--
High Court was seized of the matter concerning civil rights of the parties in respect of
disputed property, therefore, before forming a view concerning technical matters, which
essentially had caused prejudice to the plaintiff, the Court should have summoned both
the sides through their counsel and then had ascertained the status of the disputed receipt
in their presence after obtaining expert opinion and determining the responsibility of the
Page No. 1 of 1
person responsible for tampering / manipulating the document, if it was so, its fate should
have been decided in accordance with law---Division Bench of High Court in exercise of
appellate jurisdiction, did not attend to such important aspect of the case and had
endorsed the judgment of Single Judge without assigning any cogent reason---Supreme
Court set aside the judgments passed by two Benches of High Court and remanded the
case to High Court for re-examining the disputed receipt in presence of both the sides
with the aid of expert evidence to ascertain its validity and then to dispose of the matter
having taken into consideration oral and documentary evidence, adduced by both the
parties---Appeal was allowed.

Abdul Ahad Khan v. Muhammad Yasin and others PLD 1984 SC 200 ref.

Per Rana Bhagwandas, J. [Majority view]-----

(c) Specific Relief Act (I of 1877)-----

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts.72 & 161---Specific performance of

agreement to sell---Receipt of payment of consideration amount---Onus to prove---Re-
examination of witness---Concurrent findings of fact by two Benches of High Court---
Disputed property was owned by defendant and plaintiff was tenant therein---After filing
of ejectment petition by defendant, the plaintiff filed the present suit for specific
performance of agreement to sell---Receipt for payment of sale consideration had
overwriting and seemed to be manipulated document--High Court in exercise of original
civil jurisdiction, disbelieved the receipt and dismissed the suit---Division Bench of High
Court maintained the judgment and decree passed by the Single Judge of High Court---
Plea raised by the plaintiff was that Single Judge of High Court could not reexamine the
plaintiff in absence of his counsel after completion of trial--Validity---Nothing was wrong
on the part of Single Judge of High Court who noticed traces of writing with ink on the
original document having been removed by chemical action and typing out the substance
on the receipt leaving the signatures of the defendant intact---After noticing such
discrepancy, the Judge in Chambers of High Court had called upon the plaintiff to appear
before him when he was confronted with the document---Plaintiff was unable to explain
the traces of writing with ink on the document, except saying that it was given to him by
the vendor and he had produced the same in rent proceedings against him---Court was
always competent to examine and re-examine a witness in terms of Art. 161 of Qanun-e-
Shahadat, 1984, to satisfy its conscience to find out the truth or otherwise of a statement
or a document---Even without calling the plaintiff to explain the discrepancy, the Court
was competent to look into the document and to comment upon its true nature or
otherwise, as, such power was inherent in every Court, much more the High Court---
Plaintiff was at liberty to avail of services of his Advocate while appearing for further
evidence and there was no restriction against legal assistance---Supreme Court did not
find any exceptional circumstances to believe that in the face of ejectment proceedings, in
which evidence of the parties was duly recorded, defendant (landlady) would venture to
transfer her right, interest and title to the property in favour of plaintiff (tenant) without
resolving controversy in ejectment proceedings---Findings of fact concurrently recorded
by two Benches of High Court were founded on correct, careful and conscious
application of mind and did not suffer from any legal infirmity warranting interference by
Supreme Court in exercise of Constitutional jurisdiction---Such concurrent findings did
not, suffer from misconception of law or perversity of reasoning or gross misreading /
non-consideration of any material piece of evidence---Judges of High Court in exercise of
original as well as appellate jurisdiction, on assessment of evidence, had found plaintiff
not entitled to discretionary relief of specific performance, which did not warrant any
interference by Supreme Court---Appeal was dismissed.

(d) Qanun-e-Shahadat (10 of 1984)---

----Arts. 72, 117 & 120---Execution of document---Onus to prove--Plaintiff had pleaded

part payment to defendant towards sale consideration and appended copy of a receipt---
Defendant expressly disputed the receipt, asserting in her written statement that the
receipt was a forged and fabricated document---Effect---Incumbent upon the plaintiff to
prove due execution of the document.

(e) Qanun-e-Shahadat (10 of 1984)-----

Page No. 2 of 1
----Art. 161---Re-examining of witness---Powers of Trial Court--Principles---Trial Court
after completion of trial and before pronouncing of judgment had called the plaintiff to
explain manipulation found over a receipt produced by him---Validity---Court was
always competent to examine and re-examine a witness in terms of Art.161 of Qanun-
eShahadat, 1984, to satisfy its conscience to find out the truth or otherwise of a statement
or a document---Even without calling the plaintiff to explain the discrepancy, the Court
was competent to look into the document and to comment upon its true nature or
otherwise, as such power was inherent in every Court, much more the High Court.

(f) Qanun-e-Shahadat (10 of 1984)-----

----Arts. 72 & 78---Execution of document---Proof---Death of witness--Secondary

evidence, non-production of---Failure to raise objection at the time of producing disputed
document in evidence---Plaintiff relied upon a document attested by Notary Public--
-Plaintiff could not produce Notary Public due to his being dead, neither any other
witness was produced during the trial as secondary evidence---Validity---Non-production
of Notary Public to prove the contents of the document was fatal to the case of plaintiff
with legal consequence that the recitals of the document could not be proved in terms of
Art.78 of Qanun-e-Shahadat, 1984---Mere statement of the plaintiff regarding death of
witness would not exonerate the plaintiff from his legal obligation to prove the contents
of a disputed document---Fact regarding death of Notary Public should have been
pleaded before Trial Court and having established non-availability of the witness by
reason of his death, steps should have been taken to adduce secondary evidence with
leave of Trial Court---Simply because no objection was raised to the production of
document would not render the document as proved.

Muhammad Yusuf v. S.M. Ayub PLD 1973 SC 160; Allah Dad v. S.M. Khan 1989 CLC
2289; President of Pakistan v. Ms. Benazir Bhutto 1992 MLD 383; Muhammad Anwar v.
Muhammad Ismail 1992 MLD 860; Ghulam Nabi v. Muhammad Yusuf 1993 CLC 314;
Nazir Ahmad v. Muhammad Rafique 1997 CLC 257; Nazeer Ahmad v. Abdul Hameed
Khan 2001 YLR 2145; Abdul Hameed v. Muhammad Iqbal 2002 YLR 2772; Thakurdas
v. Topandas AIR 1929 Sindh 217 and Ghansham Singh v. Muhammad Yacoob AIR 1933
Sindh 257 ref.

(g) Specific Relief Act (I of 1877)---

----S. 12---Specific performance of agreement/contract ---Relief--Scope---Grant of

specific performance is always discretionary and the Court is not always bound to decree
specific performance, even in a case where the contract is proved---Such discretion,
however, must be exercised judiciously and not arbitrarily.

Arif Shah v. Abdul Hakeem Qureshi PLD 1991 SC 905; Mussarat Shaukat Ali v. Safia
Khatoon 1994 SCMR 2189 and Amina Bibi v. Mudassar Aziz PLD 2003 SC 430 ref.

(h) Civil Procedure Code (V of 1908)---

----S. 100---Constitution of Pakistan (1973), Art. 185--- Second appeal--Re-appraisal of

evidence---Supreme Court, jurisdiction of ---Principles--Appeal before Supreme Court in
nature of second appeal is not open to Supreme Court to re-appraise and re-evaluate the
merits of evidence, which have been properly and carefully analyzed by the High Court.

(i) Civil Procedure Code (V of 1908)---

----O. XLI, R.23---Remand of case---Object---Remand of case can only be ordered when

it becomes absolutely necessary and inevitable in view of insufficient or inconclusive
evidence on record.

Per Sardar Muhammad Raza Khan, J. [Majority view]-----

(j) Qanun-e-Shahadat (10 of 1984)-----

Page No. 3 of 1
----Art. 72---Execution of document---Objection to admissibility of document---Failure
to raise objection at the time of producing disputed document in evidence---Disputed
document was relied upon by plaintiff---Defendant did not raise any objection to the
document at the time when it was tendered in evidence before Trial Court ---Effect---Non
raising of objection at initial stage did not militate against a party not raising objection at
first instance---Such objections were material only when certain documents or material
was downright inadmissible in evidence and when such document could not even be
placed on record--Non-objection at the first stage merely justified the physical placement
of a document on record but did not at all tantamount to admitting the contents, truth or
genuineness of such document which remained always to be proved independent of such
admission.

(k) Qanun-e-Shahadat (10 of 1984)---

----Art. 161---Re-examining of witness---Powers of Trial Court---Scope--Court has

unfettered and absolute power to call or recall a witness at any stage in order to get the
things explained or get the doubt removed.

(l) Specific Relief Act (I of 1877)---

----S. 12---Specific performance of agreement/contract---Relief--Scope---Relief of

specific performance of contract is purely a discretionary relief---Such relief is denied at
times even if the agreement is proved, when in the circumstances, the Court is of the view
that the grant of such relief would not meet the ends of justice.

(m) Qanun-e-Shahadat (10 of 1984)---

----Art. 61---Handwriting Expert---Opinion---Scope---Evidence of Handwriting Expert is

always considered to be a weak type of evidence---In presence of overwhelming
evidence, oral, documentary as well as circumstantial, it would be futile to examine the
Expert---Even if examined, it would not outweigh the available evidence.

Syed Sharif-ud-Din Pirzada, Senior Advocate Supreme Court and Mehr Khan Malik,
Advocate-on-Record for Appellant.

Gulzarin Kiani, Advocate Supreme Court, Samad Mehmood, Advocate Supreme Court
and Raja Abdul Ghafoor, Advocate-on-Record for Respondents.

Dates of hearing: 13th to 15th April, 2004.

JUDGMENT

IFTIKHAR MUHAMMAD CHAUDHRY, J.---This appeal by leave of the Court is

directed against the judgment, dated 10th October, 1993 passed by learned Division
Bench of the High .Court of Sindh Karachi, whereby H.C.A. No. 19 of 1985 filed by
appellant has been dismissed.

2. Precisely stating the facts of the case are that appellant filed a suit before the High
Court of Sindh, Karachi, for specific performance of an agreement allegedly executed by
him with the respondent in response to an offer by respondent for sale of House bearing
No.20, Delhi Cooperative Housing Society Ltd., Shaheed-e-Millat Road, Karachi, for
Rs.90,000 in the year 1971 and she has received Rs.60,000 towards sale consideration. As
the respondent failed to complete the transaction by executing the sale-deed, therefore,
appellant instituted a civil suit against her for specific performance.

3. Respondent in her written statement vehemently denied the claim of appellant on the
averments that she never intended or agreed to sell her house to appellant. Acceptance of
Rs.60,000 towards the sale of her house and execution of receipt in respect thereof was
denied by contending that receipt dated 7th June, 1971 is a forged, fabricated document.
It was further mentioned therein that appellant is tenant in the premises in dispute at
monthly rental of Rs.850. As he has committed default in the payment of rent and an
amount of Rs.13,500 is outstanding against him, therefore, ejectment proceedings were
initiated on 27th May, 1971, on the ground of subletting, unauthorized construction as
Page No. 4 of 1
well as default in the payment of monthly rent. The civil suit based on forged, fictitious
documents has been filed as a counterblast to ejectment proceedings.

4. It is important to note that respondent also filed a civil suit for declaration being
No.913/1972 seeking cancellation of receipt of Rs.60,000 dated 7th June, 1971 as well as
agreement or any other document, pertaining to agreement to sell lying in the
possession/control of the appellant (defendant), alleged to have been executed by the
respondent/plaintiff to be forged, fraudulent, deceptive, inoperative and not binding upon
her or her legal heirs or successors and by means of injunction defendant/appellant was
sought to be restrained permanently from not using these documents, pertaining to the
transfer of the house to him and to pass a decree to that effect accordingly or pass any
other order in favour of the plaintiff/respondent, which the Court deems fit and proper.
The suit was contested ,by the appellant vide written statement dated 27th October, 1972,
wherein it was specifically stated that plaintiff/respondent has received from
defendant/appellant a sum of Rs:61,000 and agreed to receive the balance of Rs.29,000
on the date of registration of sale-deed but as she committed unreasonable delay in
performing her part of contract, therefore, the defendant/appellant having left with no
option, sent notice dated 25th March, 1972 to the plaintiff/respondent through his
Advocate requiring her to perform the said agreement but the plaintiff/respondent failed
to execute the conveyance deed as he required. In the written statement, appellant had
also explained that the respondent/plaintiff executed receipt on 18th April, 1971 for
Rs.50,000, acknowledging the sale of the said house. Later on, she executed another
receipt of Rs.60,000 including the amount received by her subsequently but despite of it,
failed to perform her part of obligation. The suit filed by the respondent/plaintiff
remained pending on the file of Senior Civil Judge, Karachi (East) who dismissed it on
24th July, 1975 for non-prosecution. The respondent/plaintiff submitted an application
under Order IX, rule 9 read with section 151, C.P.C. for restoration of the suit but it was
also dismissed in default on 20th December, 1975. Thereafter, no further proceedings
were taken up for restoration of the suit, as such order of the dismissal of the suit dated
24th July, 1975 has achieved finality.

5. Learned trial Court framed following issues with the consent of the parties, reflecting
from respective pleadings on 13th November, 1972 and subsequent thereto on 21st
March, 1989, three additional issues were also framed on the application of the
appellant:---

(1) Is the valuation arbitrary and the, court-fee paid thereon inadequate? If so its
effect.

(2) Is the claim of the plaintiff based on forged fabricated documents also
inadmissible in law and has the plaintiff any cause of action?

(3) Is the suit with mala fide motives or is as a counterblast to the ejectment
proceedings bearing Case No.1389/1971? If so its effect.

(4) Has the defendant ever agreed to sell the house in dispute and received any
Earnest Money from the defendant? Has the plaintiff any title in the suit property?

(5) What is the effect of the plaintiff being a tenant of the defendant at Rs.850 per
month under an agreement of lease and of the failure on his part to pay the monthly rent?

(6) Has the defendant constructed this bungalow for her support in the retired life of
her husband and has she any benefit :n the sale of the bungalow in dispute?

(7) Is the suit mala fide, frivolous and vexatious and is the defendant entitled to
special cost performance?

(8) Whether the plaintiff is entitled to specific performance?

(9) Whether the defendant agreed to sell to the plaintiff the property in dispute for a
total consideration of Rs.90,000 and has received from the plaintiff a sum of Rs.61,000
towards the sale consideration.

Page No. 5 of 1
(10) Whether the plaintiff has made any improvement in the property in suit, and if so,
what is its effect?

6. The appellant appeared as his own witness arid supported to his case as it was set up in
the plaint. He also produced following documents:---

(1) Exh.6/1. Receipt of Rs.15,000 given by the respondent under her signature on
2nd February; 1971 in presence of Abdus Salam.

(2) Exh.6/2. Receipt of Rs.50,000 dated 18th April, 1971 brought by the appellant to
respondent including the amount mentioned in Exh. 6/1 (ibid), duly signed by the
respondent.

(3) Exh. 6/3. Letter dated 13th May, 1971 send by appellant/ plaintiff to the
respondent/defendant, mentioning therein the details of transaction between the parties in
respect of the sale of the house.

(4) Exh.6/4. Receipt amounting to Rs.10,000 dated 7th June, 1971, which also
acknowledges that respondent has received Rs.60,000 from the appellant.

(5) Exh.6/5. Photostat copy of the crossed cheque amounting to Rs.1,000 dated 7th
July, 1971, drawn in favour of the respondent and handed it over to Mr. Haider, husband
of respondent having endorsement on its backside i.e. on account of their Bungalow
No.20, Delhi Cooperative Housing Society, Karachi.

(6) Exh.6/6. Certified copy, of the order, dated 29th November, 1978 in 2nd Appeal
No. 185 of 1976 in pursuance whereof Rs.29,000 deposited by the appellant in the High
Court being balance amount of sale consideration.

(7) Exh.6/7. Certified copy of the application under Order XXIII, rule 3, C.P.C. filed
in 2nd Appeal No. 185/1976, on the basis of which order dated 29th November, 1978 was
passed.

(8) Exh.6/8. Certified copy of letter dated 8th July, 1971 under registered cover, sent
by the appellant to the respondent.

(9) Exh.6/9 Acknowledgement card relating to Exh.6/8.

(10) Exh.6/10. The statement of the respondent given by her in Rent Case No.
1389/1971, admitting receipt of letters Exh.6/3 and Exh 6/8 referred to hereinabove.

(11) Exh.6/11. Certified copy of the plaint in Suit No.913 of 1972 filed by respondent
for cancellation of documents (reference of which had already been made in para supra).

(12) Exh.6/12. Notice dated 25th March, 1972 send by appellant to defendant prior to
filing of suit for specific performance.

(13) Exh.6/13. Certified copy of the tenancy agreement, dated 1-5-1967 executed
between the parties.

(14) Exh.6/14. Statement of appellant before the Rent Controller in ejectment

proceedings instituted by the respondent.

(15) Exhs.6/15 and 6/16. Copy of notice dated 5-5-1971 sent by the defendant to
appellant and its acknowledgement card respectively.

(16) Exh. 6/17. Photostat copy of reply of notice dated 1-6-1971 by Mr. Raza Hussain
Haidri, Advocate on behalf of the appellant, addressed to Mr. Mohi-ud-Din Ahmed,
Advocate, in response to the notice dated 5th May, 1971.

It is pertinent to mention here that documents Exhs.6/1, 6/2, 6/4, 6/8 and 6/9 were
produced from the record of Rent Case No. 1389 of 1971, which had been summoned by

Page No. 6 of 1
the Court and the photostat copies whereof were kept in the said file and originals were
retained in the civil suit file lying in the safe custody of the Court.

8. Besides above evidence, appellant produced:---

(i) P.W. Khurshid Ahmed, Handwriting Expert. He has examined documents

Exhs.6/1, 6/2 and 6/4, after preparing their Photostat copies from original documents,
vide report Exh.7/1, according to which the admitted document i.e. Vakalatnama' signed
by the respondent and the questioned documents bears the signatures of the same person.

(ii) P.W. Abdus Salam stated that in his presence, the respondent present in Court and
the appellant were having some talks in relation to the purchase of house in which the
appellant was residing and in his presence, a bargain struck between the parties for the
sale of the house in question for Rs.80,000 or Rs.85,000 and in his presence a sum of
Rs.15,000 in cash was paid by the appellant to the respondent.

(iii) P.W. Syed Mazhar Hussain, being representative of the Bank, produced Exh.
10/1, letter of the Bank regarding Cheque No.UC-599526 dated 9th July, 1971 (Exh.6/5)
original of which could not be produced as it pertains to United Bank Ltd. relating to 10
years back transaction. It is noteworthy that learned counsel for respondent admitted
contents of Exh.6/5 with the endorsement on its backside, therefore, learned counsel for
appellant did not insist for the production of original cheque.

9. Mst. Nafees Bano respondent entered into witness-box as her own witness and stated
that appellant was paying some times Rs.200 and some time Rs.300 and on receipt of the
rent of the entire month, she used to issue receipt to him. She alleged that since January,
1970, he did not pay the rent and an amount of Rs.13,400 was due against him, therefore,
she filed a Rent Case No.1389/1971 before the Rent Controller on 27th May, 1971. In the
written statement appellant had taken the plea that he had purchased the house from her
but she denied the transaction of selling the house to appellant as according to her no
negotiations took place between her and appellant/plaintiff at any time, regarding the sale
of her property. On having seen receipt Exhs.6/1, 6/2, and 6/4, she denied her signatures
on them. She further stated that in pursuance of these documents, no amount was
received by her, however, the receipt of amount of Rs.1,000 by means of a. cheque was
admitted by her but with the explanation that appellant came to her house and gave a
cheque to her when her husband was also present and payment of Rs.1,000 was made to
her by the appellant/plaintiff on account of rent and he told her at that time that he will
gradually liquidate the arrears of rent through instalments. In cross-examination, she
denied her signature on ' Vakalatnama' by stating that she cannot say whether these are
her signatures. Copy of the ' Vakalatnama' was marked as Exh.9/5, whereas she admitted
her signature on the written statement Exh.2. Later on when the ' Vakalatnama' executed
by her in favour of Mr. Fazal Bhoy, Advocate was shown to her, she admitted her
signature on it. She also admitted her signature on Pxhs.9/6 and 9/7 i.e. C.M.A. No.4569
of 1976 and appended affidavit therewith to support its contents. She produced following
documents:---

(a) Exh.6/15 Notice sent to the appellant.

(b) Exh.6/17 Photostat copy of reply given by the Advocate of appellant in pursuance
of Exh.6/15.

10. The respondent besides her own statement, did not produce any other evidence.

11. It is most important to note that after completion of recording of evidence and hearing
of arguments the judgment was reserved by the learned Single Judge of the High Court
but surprisingly thereafter appellant was re-called and was examined by the Court in
absence of his counsel. His deposition so recorded reads as under thus:---

"The receipt Exhibit 6/2 was given to me by Mst. Nafis Bano. It was already typed when
it was brought to me. I see Exhibit 6/4 and I say this was prepared in the City Court. I can
see the traces of ink on the receipt Exhibit 6/2 but at the time I produced in the Court I
did not see them. At the time exhibit 6/2 was given to me it did not have the traces of ink
and it was in perfect order. I produced this receipt exhibit 6/2 before the Rent Controller
Page No. 7 of 1
in rent proceedings in 1972. This receipt ever since it was given to me by Mst. Nafis
Bano remained in my possession [rest of the portion is torn] and I produce it in Court."

12. The learned Single Judge in Chambers of the High Court vide judgment, dated 5th
August, 1984, after having reproduced the statement of appellant alone and without
considering the other evidence available on record particularly Handwriting Expert
evidence and statement of Abdus Salam concluded that appellant failed to make out a
case for grant of decree. Synopsis of the judgment are as follows:----

(a) The above evidence produced by the plaintiff to prove agreement of sale between
him and defendant does not inspire any confidence at all.

(b) The plaintiff made no mention of the documents Exhs.6/1 and 6/2 in his plaint
which was filed in this Court after about a year of the filing of the rent case against him
although these documents were admittedly of great importance and relevance to the
plaintiff's case.

(c) The notice served upon defendant by plaintiff Exh.6/2 stating therein that in
February, 1971 the defendant agreed to sale her house for Rs.90,000, makes no mention
of the receipts dated 2nd February, 1971 and 18th April, 1971.

(d) The defendant served the plaintiff with a legal notice dated 5th May, 1971
Exh.6/15 after the alleged execution of receipts dated 22nd February, 1971 and 18th
April, 1971 in which she categorically stated that the plaintiff was defaulter in payment of
rent amounting to Rs.13,500 and threatened to take ejectment proceedings against him.
This letter was duly received by plaintiff on 15th May, 1971 according to postal
acknowledgement card Exh.6/16. The plaintiff when confronted with these documents
falsely stated that he did not remember if he received this notice. When he was shown
reply of his counsel Raza Haideri Advocate, dated 1st July, 1971 to the notice dated 5th
May, 1971, he stated that he did not remember if it was sent on his behalf and on his
instructions. In the reply of notice there is no mention of either any agreement of sale
between the parties or the receipts dated 2nd February, 1971 or 18th April, 1971. Had
there been any truth in the case set up by the plaintiff now, these facts must have been
mentioned in the letter dated 1st June, 1971 .....

While going through record of the case I noticed that Exh.6/2 was previously written in
hand with ink but the writing was removed by chemical action and thereafter the subject-
matter was typed on it .....

The plaintiff was questioned by me about Exh.6/2 when I recalled him for examination,
he admitted traces of handwriting on document but was unable to explain the same.

The circumstances of the case fully support the contention of defendant that these
receipts were forged by the plaintiff.

(e) The plaintiff has also not been able to show that he possessed the means, to pay
the amount allegedly shown to have been paid on 2nd February, 1971 and 18th April,
1971. In cross-examination he was unable to give the dates of payment of these amounts.
In these circumstances, I am not prepared to place any reliance on documents Exhs.6/1
and Exh.6/2.

(f) So far as the document Exh.6/4 is concerned, the same also cannot be accepted in
the circumstances of the case.

(g) The circumstances of the case clearly indicates that the three documents Exh.6/1,
6/2 and 6/4 have been forged and fabricated by plaintiff for the purposes of the present
suit. The receipt Exh.6/4, is allegedly attested by a Notary Public Mr. Aziz-ul-Hassan and
the plaintiff also stated in his evidence that this was prepared in the City Courts. This
attesting witness of Exh.6/4 was not examined by the plaintiff although defendant denied
its execution in her written statement. I, therefore, hold that the plaintiff has failed to
prove the agreement of sale between him and defendant in respect of suit property. I also
hold that documents Exhs.6/1, 6/2 and 6/4 were not executed by defendant and are forged
documents and the present suit has been filed by the plaintiff as a counterblast to the
Page No. 8 of 1
ejectment proceedings instituted against him by the defendant. I also hold that the
defendant never agreed to sell the property in suit, to the plaintiff and received no money
towards the sale price.

13. Against the judgment/decree passed by the learned Single Judge of the High Court,
appellant preferred appeal before the Division Bench of the High Court, which has been
dismissed vide judgment dated 10th October, 1993.

14. Learned counsel appearing for appellant contended that:---

(1) The learned trial Court has no justification in holding that documents Exhs.6/1
and 6/2 as well as Exh.6/4 were forged in view of the report (Exh.7/1) of Handwriting
Expert P.W. Khurshid Ahmed Qureshi.

(2) Recalling and examining the appellant by the Court, after completion of
recording of evidence to ascertain the authenticity of Exh.6/2 was unwarranted.

(3) The trial Court was bound to decide the fate of the case on taking into
consideration total evidence, both oral and documentary, produced by the appellant,
particularly Exhs.6/1, 6/2 as well as Exhs.6/3, 6/4 and 6/8 and non-suiting the appellant
merely for the reason that Exh.6/2 bears traces is against the canon of justice.

15. On the other hand learned counsel appearing for respondent contended that:---

(i) The plaint does not find mention about receipts Exhs.6/1 and 6/2, inasmuch as
when the appellant served notice upon respondent Exh.6/12 dated 25th March, 1972, no
reference of these receipts was made.

(ii) Before instituting ejectment proceedings respondent gave notice to appellant

Exh.6/15 dated 5th May, 1971, which was duly received by him as per acknowledgment
card Exh.6/ 16 and reply to it was given by the respondent through his counsel on 1st
June, 1971, wherein nothing was mentioned in respect of these receipts nor about the sale
agreement between the parties, therefore, legally in escapable conclusion would be that as
these documents were forged later on, therefore, their reference was not made in the
plaint, otherwise, there was no point in not making reference of Exhs.6/1 and 6/2 in letter
dated 1st June, 1971 as well as in plaint.

(iii) The Courts are required to decide the cases on the basis of pleadings of the
parties and since both the receipts i.e. Exhs.6/1 and 6/2 were not mentioned in the paint,
therefore, neither the respondent had an occasion to file its reply nor the Court was under
obligation to give effect to these documents.

(iv) The Civil Courts are always empowered to examine either of the party to
ascertain correct facts of the case as in the case in hand, on having seen marks of traces
on Exh.6/2, the Court examined the appellant who admitted traces on Exh.6/2 himself,
therefore, learned Single Judge rightly formed opinion that Exh.6/2 is the result of
manipulation, etc.

16. We have heard learned counsel for the parties in support of their respective
contentions. It may be noted that learned Single Judge has non-suited the appellant
mainly stamping the documents Exhs.6/1, 6/2 and 6/4 as forged one. As far as Exh.6/4
document dated 7th June, 1971 is concerned, reference of it has been made by the
appellant in the plaint. In this document instead of making reference of earlier receipt i.e.
Exhs.6/1 and 6/2 dated 2nd February, 1971 and 18th April, 1971, respectively, it has been
mentioned that the respondent received Rs.60,000 collectively from the appellant from
time to time towards the sale consideration of the house and executed receipt Exh.6/4
dated 7th June, 1971. Contents whereof are reproduced herein below for convenience:---

"I, Mst. Nafis Bano wife of S.W. Hyder received so far time to time from Mr. Anwar
Ahmad son of Mr. Muhammad Ahmad residing at 20, D.C.H.S., Karachi, a sum of
Rs.60,000 (Rupees sixty thousand only) out of Rs.90,000 (Rupees ninety thousand only)
towards the total consideration of sale to him of my Bungalow No.20, D.C.H.S., Karachi,
which I have agreed to sell to him. The above amount is including the amount which I
Page No. 9 of 1
and my husband has been receiving time to time and the balance of Rs.30,000 (Rupees
thirty thousand only), will be paid to me in fully and final settlement of sale of the said
house by the purchaser Mr. Anwar Ahmed at the time of execution of the Sale-deed and
all the taxes and dues will be cleared by me or the amount of the taxes and dues may be
deducted from the balance amount.

All the papers concerning with the bungalow will be transferred to Mr. Anwar Ahmad.

---------------

Dated the 7th June, 1971.

17. Learned Single Judge in Chambers of the High Court disbelieved this document for
one of the major reason that the Notary Public who has attested it was not produced. It is
most important to note that such objection was not raised when learned trial Court
exhibited it after taking it out from the file of rent case. In this context it is to be noted
that the Notary Public Syed Aziz-ul-Hassan, who has attested the document, had died in
the meantime as learned counsel for appellant informed during arguments under
instruction.

18. A perusal of above document Exh.6/4 indicates clear and unambiguous intention of
the respondent to sell the house in dispute to appellant for a sale consideration of
Rs.90,000 out of which she had received Rs.60,000 leaving the balance of Rs.30,000. It is
worth mentioning that after the execution of Exh.6/4 respondent had received Rs.1,000
through cheque dated 7th July, 1971, thus leaving the balance of Rs.29,000 payable by
appellant to her. It is to be noted with significance that the backside of the cheque bears
endorsement to the effect "on account of their Bungalow No.20, Delhi Cooperative
Housing Society, Karachi". The execution of this cheque is not disputed but the claim of
the respondent is that the amount of Rs.1,000 was given to her towards the rent
outstanding against appellant. Perhaps her this statement is not correct because in the
ejectment application dated 27th May, 1971, she clearly mentioned that the rent for the
last about 16 months from 1st July, 1970 to 30th April, 1970 [correct date should 30th
April, 1971] has not been paid. If position is so then there was no occasion to pay the rent
by appellant to respondent on 7th July, 1971. These facts are being pointed out to show
that the learned Single Judge in Chambers of the High Court did not take into
consideration this important document at all which essentially has caused prejudice to the
case of appellant.

It is equally important to not that besides Exhs.6/1, 6/2 and 6/4 appellant also produced
two another important documents i.e. Exh.6/3 a letter dated 13th May, 1997, sent by him
to the respondent mentioning therein the details of the transaction between the parties in
respect of sale of the house as well as Exh.6/8 i.e. certified copy of the letter dated 8th
July, 1971, calling upon the respondent to execute sale-deed in his favour, after receiving
balance of Rs.20,000. Receipt of both these documents had been admitted categorically
by the respondent in cross examination. These documents were also very important for
the decision of the case as they make reference in respect of the transactions which had
taken place between the appellant and respondents regarding the sale of the house in
dispute. It may be noted that under the law such correspondence between the parties is
admissible as it has been held in the case of Abdul Ahad Khan v. Muhammad Yasin and
others PLD 1984 SC 200.

19. It is to be observed that learned Single Judge in Chambers of the High Court
disbelieved Exhs.6/1 and 6/2 for number of reasons including the one that the appellant in
the suit for specific performance had not mentioned in respect of both these receipts,
therefore, presumption would be that they were forged by the appellant, to substantiate
his claim. It is true that prior to filing of the plaint when the landlord was about to initiate
ejectment proceedings against appellant, she gave a legal notice to him Exh.6/15 on 5th
May, 1971, which was received by appellant vide Exh.6/16 and in the reply dated 1st
June, 1971, categorically reference of these two receipts was made. However, a perusal of
the reply Exh.6/17, issued by Mr. Raza Hussain Haideri, Advocate reveals that "notice
has been sent to appellant because he has already sent a letter to respondent before this
notice and this is the offshoot of his letter". It would not be out of context to note here
that the respondent sent a notice dated 5th May; 1971 to the respondent whereas prior to
Page No. 10 of 1
it in between the days of the notice i.e. 5th May, 1971 and its reply 1st June, 1971, on
30th May, 1971, appellant already sent a letter Exh.6/3 reference of which had already
been made herein, above wherein details, in respect of sale of her house, have been
mentioned, including the amount till then received by the respondent. Thus, assertion of
the learned trial Judge that the appellant had not referred to the earlier correspondence
between the parties in respect of the receipt Exhs.6/1 and 6/2 is not correct. Although in
the plaint dated 25th May, 1972, as it has been discussed hereinabove, the appellant had
taken the plea that from time to time, the respondent had been receiving different
amounts from the appellant and till the execution of Exh.6/4 dated 7th June, 1971, sum of
Rs.60,000 had been paid.

20. As far as non-filing of documents along with plaint is concerned it has never .been
considered fatal in view of provisions of Order XIII, rule 2, C.P.C. which empowers the
Court to receive documentary evidence during the trial. As it has been pointed out
hereinabove that indirectly Exhs.6/1 and 6/2 dated 2nd February, 1971 and 18th April,
1971 find mention in the plaint with reference to Exh.6/4. In addition to it when both
these receipts were proved during the trial, no objection was raised by the respondent or
her counsel in this behalf and all these documents were allowed to be brought on record
by the Court, B therefore, in view of settled principle of law that on an objection at a
subsequent stage, such documentary evidence cannot be discarded. Reference in this
context may be made to Mangibai Gulab Chand and another v. Sughanchand
Bhikamchand and others PLD 1948 PC 168, Dr. Ilyas Dobash v. Muhammad Iqbal PLD
1960 (W.P.) Lah. 1112, Amir Muhammad Hussain Shah v. Aswal Hussain Shah PLD
1966 (W.P.) Pesh. 1.13, Umar Hayat v: Naik Alam PLD 1977 AJ&K 78, Sheikhupura
Central Cooperative Bank Ltd. v. Tawakkal Ullah PLD 1977 Lah. 763, Muhammad
Hussain v. Ghulam Ali PLD 1977 Kar. 285, Gulzar Hussain v. Abdul Rehman 1985
SCMR 301, National Bank of Pakistan v. Sayed Mir 1987 CLC 1103, Muhammad Aslam
v. Mst. Sardar Begum alias Noior Nishan 1989 SCMR 704, Muhammad Unees v.
Ghulam Hassan 1990 MLD 219. Relevant para from the judgment in the case of
Muhammad Aslam (ibid) is reproduced hereinbelow:---

Taking up the second submission, it is correct that this document was not relied upon in
the plaint nor was it filed in Court before the trial but was produced at the time of
recording the evidence nonetheless the fact remains that it was brought on record without
any objection from the appellants. Thus they waived the objection. Therefore, the second
submission also has no force.

Following the dictum laid down in above judgments, it can safely be held that without
prejudice to the case of any of the parties about non-filing of Exhs.6/1 and 6/2, it is held
that 'since both these documents were produced at the time of recording of evidence and
they were brought on record without any objection, thus learned Single Judge in
Chambers of the High Court may have not non-suited the appellant for such reason.

21. It may also be borne in mind that all the five documents i.e. Exhs.6/1, 6/2, 6/3, 6/4
and 6/8 have furnished important evidence in favour of appellant, therefore, the trial
Court had legal obligation to consider them same strictly in accordance with law. But
unfortunately as far as documents Exhs.6/3, 6/4 and 6/8 are concerned, they were not
considered at all in their real perspective by the learned High Court whereas the
document Exhs.6/1 and 6/2 have been disbelieved on account of non-mentioning of their
existence in the reply of notice dated 1st June, 1971 sent by appellant to respondent in
response to notice dated 5th May, 1971 before the institution of the suit as well as in the
plaint. Thus it is held that reasons assigned for not accepting these documents are not
sustainable in the eye of law.

As far as Exh.6/2 is concerned it has been rejected for an additional reason that during the
course of hearing learned trial Judge noticed certain manipulations on it and according to
his opinion, "he has noticed that Exh.6/2 was previously written in hand with ink but the
writing was removed by chemical action and thereafter the subject-matter was typed on
it". In this context; learned Single Judge failed to take into consideration that this
document along with other documents, referred to hereinbefore particularly Exhs.6/1 and
6/4 were in the custody of the Court i.e. originally on the file of Rent Controller in the
Rent Case No. 1389/ 1971, where they were filed by the appellant along with written
statement submitted by him to contest the ejectment proceedings and thereafter they were
Page No. 11 of 1
transferred on the file of Suit No. 18 of 1972 which has given rise to instant proceedings.
Exh.6/2 was admitted on record by Mr. Justice Nasir Aslam Zahid (as he then was) while
recording the statement of appellant on 19th January, 1982 but he did not notice traces on
it. Neither the respondent herself through her counsel raised any objection in this behalf
when it was being exhibited nor at a subsequent stage when with the consent of parties
counsel, same was examined by the Handwriting Expert P.W. Khurshid Ahmad. As such
it is not understandable that as to how all of sudden it occurred to .the learned Single
Judge, after completion of trial before the pronouncement of the judgment to record the
statement of appellant to ascertain as to whether it has traces or not and he disbelieved it
by forming his own an opinion that with chemical action manipulation has been done on
it. In our opinion the document should have been taken to be a valid one firstly in view of
the evidence of Handwriting Expert P.W. Khurshid Ahmed who in his report Exh.7/1 has
opined that the question signature on this document is similar to the admitted signature of
the respondent. Though this witness was cross-examined thoroughly but nothing was
brought on record with regard to tampering/manipulation of the document; secondly it
was in the safe custody of the Court, therefore, appellant cannot be blamed that with
some chemical action previous handwriting has been removed and fresh matter has been
typed on it. Be that as it may, as the learned Single Judge was seized with the matter
concerning civil rights of the parties in respect of the disputed property, therefore, before
forming a view concerning technical maters, which essentially has caused prejudice to
appellant, he may have summoned both the sides through their counsel and then had
ascertained the status of the document Exh.6/2 in their presence after obtaining expert
opinion and determining the responsibility of the person responsible for tampering/
manipulating the document, if it was so, its fate should have been decided in accordance
with law. Similarly, learned Appellate Court did not attend to this most important aspect
of the case and has endorsed the judgment of the learned Single Judge without assigning
any cogent reason.

22. In such view of the matter, we are of the opinion that in the interest of justice and to
safeguard the interest of both the sides, it would be appropriate to remand the case to the
learned Single Judge of the High Court of Sindh, Karachi for re-examining Exh.6/2 in
presence of both the sides with the aid of expert evidence to ascertain its validity and then
to dispose of the matter expeditiously on having taken into consideration; oral and
documentary evidence, adduced by both the parties, as far as, possible within a period of
six months, as dispute is lingering between the parties since long. Similarly if the appeal
is filed by any of the aggrieved party before the Division Bench of the High Court, it will
also be decided expeditiously as far as possible within a period of three months
preferably from the date of filing of appeal.

23. Learned counsel for the parties have also addressed arguments on other points
involved in this case but as the case is being remanded, therefore, it is considered
appropriate not to dilate upon those questions at this stage.

Thus for the foregoing reasons, appeal is allowed, impugned judgment dated 10th
October 1993 is set aside and case is remanded to the learned Single Judge of High Court
of Sindh for decision afresh in view of the observations made hereinabove. Parties are
left to bear their own costs.

(Sd.) Iftikhar Muhammad Chaudhry

Judge

I have appended my separate note.

(Sd.) Rana Bhagwandas

Judge

Separate note appended.

(Sd.).Sardar Muhammad Raza Khan

Judge.
Page No. 12 of 1
RANA BHAGWANDAS, J.---

24. I have had. the privilege of perusing the proposed judgment authored by my reverend
brother Iftikhar Muhammad Chaudhry, J. I am, however, unable to concur with the
conclusions drawn in the proposed judgment for a variety of reasons.

25. In the instant appeal, learned Judge in Chambers of the High Court as well as
Division Bench of the High Court, on a careful and well considered appreciation of oral
as well as documentary evidence, have non-suited the appellant expressing the view that
the suit filed by him against the respondent was brought as a counterblast to the ejectment
proceedings initiated against him by the landlady/vendor. It is not denied that the
appellant had the notice of ejectment proceedings before the so-called acknowledgement
receipt Exh.6/4 dated 7-6-1971, heavily relied upon by him in support of his case, which
undoubtedly does not refer to the alleged payments made by him through earlier disputed
acknowledgement receipts Exhs.6/1 and 6/2; dated 2-2-1971 and 18-4-1971 respectively.
These documents, including Exh.6/4, were found to be forged and fabricated by the trial
Court and findings affirmed in appeal by Division Bench of the High Court for valid and
sound reasons. In my opinion, it is hard to take any exception to the opinion formed by
learned Single Judge, who had the privilege of examining the documents thoroughly and
at great length. It is inconceivable that the appellant, being under threat of eviction from
the suit premises on the ground of default in payment of rent, would part with huge
amount of Rs.60,000 in part performance of an agreement relating to the sale of the suit
property, without the threat of impending ejectment being dropped. It is equally difficult
to hold that during the pendency of the ejectment proceedings, landlady would enter into
an agreement for sale of the property with his tenant, receive sizeable part consideration
and at the same time pursue her remedy before the Rent Controller for ejectment of the
appellant, which was allowed. However, in the appeal, preferred by the appellant against
the ejectment, order was set aside by the High Court and eviction case was decided in his
favour. The matter did not end here and the landlady invoked the jurisdiction of this
Court by instituting Civil Petition for Leave to Appeal No.76-K of 1995, which is still
pending. Its hearing was deferred by a Bench of this Court in view of pendency of Civil
Petition for Leave to Appeal No.78-K of 1994, in which leave to appeal was granted to
the appellant and registered as the instant appeal. I do not find any exceptional
circumstance, to believe that in the face of ejectment proceedings, in which evidence of
the parties was duly recorded, landlady would venture to transfer her right, interest and
title to the property in favour of the tenant without resolving the controversy in ejectment
proceedings. Findings of fact concurrently recorded by two different Benches of the High
Court, in my view, are founded on correct, careful and conscious application of mind and
do not suffer from any legal infirmity warranting interference by this Court in the
exercise of Constitutional jurisdiction. Even otherwise, it has not been shown that such
findings suffer from misconception of law or perversity of reasoning or gross
misreading/non consideration of any material piece of evidence.

26. Learned Senior Advocate Supreme Court for the appellant strenuously contended that
no adverse inference can be drawn against the appellant for not filing two receipts for
payment of earnest money and part payment towards the sale consideration along with
the plaint, as, such documents can always be produced in evidence with the leave of, the
Court provided such payment has been pleaded and the documents are otherwise
relevant. Such payments and acknowledgements were evidently not pleaded, therefore,
these cannot be allowed to be introduced in evidence. The fact remains that on close
scrutiny of evidence, learned trial Court was persuaded to discard these documents as
forged and fabricated. It may not be out of context to observe that in paragraph 2 of the
plaint appellant had pleaded past payment of Rs.60,000 to the respondent towards sale
consideration and appended a copy of receipt dated 7-6-1971, which was expressly
disputed in the written statement, clearly asserting that the said receipt was a forged and
fabricated document. It was, therefore, imperative and incumbent upon F the appellant to
prove due execution of this document. Appellant, in his evidence, stated that first
payment towards the sale consideration was made by him in presence of Mr. Abdus
Salam on 2-2-1971 to the respondent to the tune of Rs.15,000 and for the first time, he
claimed that a receipt therefor was duly issued by the respondent, which was produced as
Exh.6/1. Appellant also claimed that further payment was made by him to the respondent
towards the sale consideration and, by 18-4-1971, total amount of Rs.50,000 had been
Page No. 13 of 1
paid by him to the respondent, including the amount mentioned in Exh.6/1. He produced
second receipt Exh.6/2. The conclusion drawn by learned Single Judge and affirmed by
the Division Bench of the High Court that both the documents as well as Exh.6/4 were
patently forged and fabricated documents is further strengthened by the circumstance
that, before institution of rent case, respondent-vendor had issued a legal notice to the
appellant but strange enough in his reply to the said notice he neither mentioned any
contract of sale nor payment of part consideration or execution of acknowledgment
receipts by the vendor. From the evidence of the appellant, it appears that initially the sale
consideration was agreed to be Rs.85,000 on 2-2-1971 but it was raised to Rs.90,000 after
a few months. He could not say whether this was done in June, 1971. Be that as it may,
fact remains that payment of Rs.35,000 was not made by him in a lump sum but on
different dates between 2-2-1971 to 18-4-1971 whereas balance amount of Rs.10,000 out
of Rs.60,000 was paid by him in cash in lump sum to the respondent on 7-6-1971. There
was exchange of legal notices and correspondence between the parties before the
institution of the suit but admitted position is that ejectment proceedings were instituted
before filing of the suit for specific performance by him. The filing of suit for specific
performance as a counterblast to the ejectment case in the circumstances seems more
probable.

27. Adverting to the genuineness and due execution of receipt Exh.6/4, dated 7-6-1971, I
find nothing wrong on the part of the learned Single Judge, who noticed traces of writing
with ink on the original document having been removed by chemical action and typing
put the substance on the receipt leaving the signature of the respondent intact. After
noticing such discrepancy, learned Judge had called upon the appellant to appear before
him when he was confronted with the document. Admittedly, he was unable to explain
the traces of writing with ink on the document, except saying that it was given to him by
the vendor and he had produced the same in the rent proceedings against him. Serious
exception was taken by the learned Senior Advocate Supreme Court that the appellant
was called for confrontation with this document in the absence of his counsel but, strictly
speaking, a Court is always competent to examine and re-examine a witness in terms of
Article 161 of Qanun-e-Shahadat, 1984 to satisfy its conscience to find out the truth or
otherwise of a statement or a document. Even without calling the appellant to explain the
discrepancy, I think, the Court was competent to look into the document and to comment
upon its true nature or otherwise, as, such power is inherent in. every Court, much less
the High Court. Furthermore, appellant was at liberty to avail of services of his Advocate
while appearing for further evidence and there was no restriction against legal assistance.

28. Reverting to the production and exhibition of said document, its was incumbent upon
the appellant to examine attesting witness Sye Azizul Hassan Notary Public to prove its
execution, as according to the appellant himself, this document was written in the City
Courts. Non production of this witness to prove the contents of the document was fatal to
the case of the appellant with the legal consequence that the recitals of this document
cannot be said to have been proved in terms of Article 78 of Qanun-e-Shahadat 1984. It
was stated at the Bar that the attesting witness had died before his evidence could be
recorded at the trial but mere statement would not exonerate the appellant of his legal
obligation to prove the contents of a disputed document. This fact should have been
pleaded before the trial Court and having established non availability of the witness by
reason of his death, steps should have been taken to adduce secondary evidence with the
leave of the Court. Simply because no objection was raised to the production of
document would not render the document as proved. There is plethora of case-law on the
subject but for the sake of reference one may refer to Muhammad Yusuf v. S.M. Ayub
PLD 1973 SC 160, Allah Dad v. S.M. Khan 1989 CLC 2289, President of Pakistan v. Ms.
Benazir Bhutto 1992 MLD 383, Muhammad Anwar v. Muhammad Ismail 1992 MLD
860, Ghulam Nabi v. Muhammad Yusuf 1993 CLC 314, Nazir Ahmad v. Muhammad
Rafique 1997 CLC 257, Nazeer Ahmad v. Abdul Hameed Khan 2001 YLR 2145, Abdul
Hameed v. Muhammad Iqbal 2002 YLR 2772, Thakurdas v. Topandas AIR 1929 Sindh
217 and Ghansham Singh v. Muhammad Yacoob AIR 1933 Sindh 257.

29. There is another aspect of the case, which needs serious consideration. Grant of
specific performance is always discretionary and the Court is not always bound to decree
specific performance, even in a case where the contract is proved. Such discretion,
however, must be exercised judiciously and not arbitrarily. Refer Arif Shah v. Abdul
Hakeem Qureshi PLD 1991 SC 905, Mussarat Shaukat Ali v. Safia Khatoon 1994 SCMR
Page No. 14 of 1
2189 and Amina Bibi v. Mudassar Aziz PLD 2003 SC 430. In this appeal, learned Judges
of the High Court, in the exercise of original as well as appellate jurisdiction, on
assessment of the evidence, have found the appellant not entitled to the discretionary
relief of specific performance, which would hardly warrant any interference by this
Court. Even otherwise, present appeal before this Court being in the nature of second
appeal, it is not open to this Court to reappraise and re-evaluate the merits of the
evidence, which has been properly and very carefully analysed by eminent Judges of the
High Court.

30. In the proposed judgment, an impression has been given that the High Court did not
appreciate the evidence on record in its proper perspective and discarded the documents
illegally. In such an eventuality, no occasion of remand of the case would arise and, if we
were to agree with the leading judgment, appeal ought to be allowed rather than the suit
to be remanded to the trial Court. Remand of a case can only be ordered when it becomes
absolutely necessary and inevitable in view of insufficient or inconclusive evidence on
record.

31. For the aforesaid facts and reasons, I am clearly of the view that there is no merit in
this appeal, which must fail and is hereby dismissed with costs.

SARDAR MUHAMMAD RAZA KHAN, J.---

32. I have the privilege of going through the learned discourse of my Honourable
brothers. The difference of opinion has made me more conscious about my responsibility
of arriving at a certain conclusion. I have, therefore, minutely gone through the record
and have examined the evidence of the parties in addition to the attending circumstances
of the case which, at times, speak even louder than the record.

33. The instant suit by Anwar Ahmad appellant for specific performance of contract was
filed in the year 1971 against Nafis Bano, the respondent, who already had initiated
ejectment proceedings on 27-5-1971 against Anwar Ahmad, the tenant on the grounds of
unauthorized construction, subletting and default in payment of rent amounting to
Rs.13,500 which, in the year 1971 was a substantial amount.

34. Apart from that, Nafis Bano had also filed a civil suit for the cancellation of any
agreement to sell, the receipts concerning therewith and any other document so relied
upon, being forged, fictitious and fabricated. The second suit by the lady filed on 9-3-
1972 was dismissed in default on 24-7-1975 the restoration whereof was refused on 20-
12-1975. This background is narrated to impress upon the only fact that the lady having
not persuaded the matter further, is not at all debarred from perpetuating her cause and no
adverse inference can be taken thereby, because, the cause of action remained alive in the
suit of specific performance which the lady had every chance and right to defend with the
same force.

35. In the instant case the trial is conducted by a learned Single Judge of High Court who
gave his finding after thorough appreciation of documentary as well as oral evidence
produced within his view. Such finding dated 5-8-1984 culminating into dismissal of suit
was upheld by a learned Division Bench of the same High Court. This concurrent finding
of fact arrived at by two Courts in succession should not be interfered with by this Court
in second appeal unless there are compelling reasons of grave misreading or non-reading
of evidence resulting into miscarriage of justice. When I examined the evidence on
record, I find myself completely in agreement with the decision arrived at by the trial as
well as by the Appellate Court and thus do firmly believe that the conclusion being
concurrent as well as correct, should not at all be interfered with.

36. It is rightly held, with strict reference to the evidence on record, that the evidence oral
as well as documentary, was not confidence inspiring. That the documents Exh.6/1 and
Exh.6/2 being of utmost significance ought to have been mentioned in and filed along
with the plaint which was filed almost a year after ejectment petition. That the disputed
receipts dated 2-2-1971 and 18-4-1971 were never mentioned by the appellant in his
notice to the defendant preceding the suit. That the agreement as well as receipts in
question were not mentioned by the appellant in his reply through counsel to the notice
dated 5-5-1971 given by the respondent before filing her ejectment petition. That the
Page No. 15 of 1
receipt was first written by hand with ink which was subsequently removed through
chemical process and rewritten through type; which traces of ink underneath were
admitted by the appellant when recalled by the learned trial Court for such examination.
That the appellant despite being in possession of the receipts failed to show the dates of
payment and, lastly, that the Notary Public who had attested the so-called agreement to
sell, apparently being an independent witness, was never examined by the appellant.

37. So far as the non-filing of documents at the proper stage of along with the plaint and
the consequences thereof are concerned, I am of the view that the reasons given in para
26 of the judgment by my Honourable Brother Rana Bhagwandas, J. are akin to the facts
and circumstances of the present case. The notion that the objection was not taken at the
initial stage when the document was being tendered into evidence, is a circumstance that
does not, on merit, militate against a party not raising objection at the first instance. Such
objections are material only when certain documents or material is downright
inadmissible in evidence and when such document cannot even be placed on record. Non
objection at the first stage merely justifies the physical placement of a document on
record but does not at all tantamount to admitting the contents, truth or genuineness of
such document, which, remains always to be proved independent of such admission. In
the instant case, I believe that the appellant has failed to prove the genuineness of the
documents which have rightly been held to be forged, fictitious and fraudulent.

38. Next is the question of placing reliance on the statement of the appellant when he was
recalled to depose in connection with the traces of ink below the writing in type. It is but
a known and consistent principle of law, not so far deviated from, that a' Court has
unfettered and absolute power to call or recall a witness at any stage in order to get the
things explained or get the doubt removed.

39. The objection of the learned counsel that the appellant was examined in the absence
of his counsel is totally unfounded and ridiculous. Was the counsel necessary for
prompting the appellant in the matter? The presence of the counsel would have been
necessary had the opposite party of the appellant been examined in his absence and had
any adverse inference been drawn against the plaintiff from the statement of such
opponent. With regard to his own examination or re-examination, it cannot be said by
him that he was taken by surprise and that there should have been his counsel around to
prompt him? In my view; the appellant was rightly recalled by the trial Court and legally
correct inference was drawn from what he then stated.

40. Lastly, a relief for specific performance of contract is purely a discretionary relief. It
is denied at times even if the agreement is proved, when in the circumstances, the Court
is of the view that the grant of such specific relief would not meet the ends of justice. So
far as this case is concerned, the evidence and the attending circumstances are so strongly
against the appellant that he is not at all entitled to the relief claimed. This by itself is
sufficient for this Court to concurre with the concurrent finding of the two Courts.

41. So far as the evidence of handwriting is concerned, it is always considered to be a

weak type of evidence. In the presence of overwhelming evidence, oral, documentary as
well as circumstantial, it would be futile to examine the expert. Even if examined, it
would not outweigh the available evidence.

42. For what has been discussed above, I hold that there is no merit in the appeal which
requires to be and is hereby dismissed with costs throughout.

ORDER OF THE BENCH

Appeal is dismissed with the majority of two to one with costs.

M.H./A-78/S Appeal dismissed

Page No. 16 of 1
P L D 2003 Supreme Court 410

Present: Rana Bhagwandas and Syed Deedar Hussain Shah, JJ

AMIRZADA KHAN and others---Appellants

Versus

AHMAD NOOR and others---Respondents

Civil Appeal No.607 of 1997, decided on 7th January, 2003.

(On appeal from judgment of Peshawar High Court, Peshawar dated 11-6-1995 passed in
Civil Revision No.67 of 1991).

(a) Specific Relief Act (I of 1877)--

----Ss. 8 & 42---Qanun-e-Shahadat (10 of 1984), Arts. 73, 74 & 100--Registration Act
(XVI of 1908), Ss. 17 & 49---West Pakistan Land Revenue Act (XVII of 1967), S.39---
Transfer of Property Act (VI of 1882), S.53-A--Limitation Act (IX of 1908), Art. 144---
Suit for declaration and possession--Plaintiffs claiming to be owners of suit land having
been purchased by their predecessor-in-interest, prayed for its possession and for
declaration of their title and in alternative having same matured by prescription---Suit
was decreed by Trial Court, but was dismissed by Appellate Court---High Court in
revision set aside judgment of Appellate Court and restored that of Trial Court---
Validity---Important piece of evidence in support of plaintiffs' claim was copy of
unregistered and unstamped agreement to sell---Photo copy of agreement had been
exhibited in evidence without directing production of original document and without
leave of Court to lead secondary evidence after proof of loss or destruction of original
one---Plaintiffs who had not pleaded loss or destruction of original agreement, thus, were
guilty of withholding best available primary evidence---Since contents of such document
purported to transfer absolute ownership of land, same required compulsory registration
irrespective of fact, whether such document was agreement of sale .or sale-deed---Such
document being inadmissible in evidence, no presumption as to its correctness or validity
could arise---Such document lacking necessary particulars in respect of identity of land
and being unregistered would not transfer any valid title in favour of plaintiffs--High
Court, without adverting to such aspect of the case, had proceeded to accept document as
a valid deed of transfer being thirty years old---Such document was executed on 6-10-
1947---Mutation was recorded on 9-2-1957 but was cancelled on 25-2-1957---Suit was
filed on 3-12-1984---Such inordinate delay on plaintiff's part in bringing suit created
doubts about bona tides of their acts and genuineness of their cause---Plaintiffs were not
sure as to which of Khasra numbers was purchased by their 'predecessor--Construction of
shops and production of rent notes executed by tenants was not sufficient to identify
land---Entries in record of rights were showing predecessor of defendants as owners,
whereas predecessor of plaintiffs as tenant-at-will---If possession of plaintiffs was
permissive in nature, then same could not be in their own rights nor adverse to
right/interest of real owners---Plaintiffs or their predecessor had not remained in
possession of land in their own right in pursuance of alleged agreement---No assertion of
open and hostile title adverse to interest of defendants was made---Findings of High
Court affirming that of Trial Court were suffering from serious misconstruction of
evidence and misconception of law as evidence on record had not been appreciated in its
true perspective---Supreme Court accepted appeal, set aside judgments/decrees passed by
Trial Court and High Court and restored judgment/decree passed by Appellate Court.

Ali Akbar v. Malook 1991 SCMR 829: Sohara v. Muhammad Nawaz 1996 SCMR 1719
and Khanpur v. Muhammad Zarin PLD 1989 SC 485 ref.

(b) Civil Procedure Code (V of 1908)---

----O. XIII, Rr. 3 & 4---Qanun-e-Shahadat (10 of 1984), Arts.73, 74 & 76(c)---Exhibiting
photo copy instead of original document without obtaining leave from Trial Court to lead
secondary evidence after proof of loss or destruction of original one---Effect--
Presumption would be that had same been produced in Court, same would have been
Page No. 1 of 1
unfavourable to plaintiff---Plaintiff, held, was guilty of withholding best available
primary evidence.

(c) Qanun-e-Shahadat (10 of 1984)---

----Arts. 99 & 100---Presumption as to due execution and correctness of document---No

such presumption could be drawn in absence of original document.

(d) Civil Procedure Code (V of 1908)---

----O. XIII, Rr. 1, 2, 3 & 4---Qanun-e-Shahadat (10 of 1984), Arts.78 & 79---Document
placed on record of Trial Court---Neither same tendered in evidence nor proved nor any
reference to them was made in judgments by Trial Court and Appellate Court---Held,
such documents were inherently inadmissible in evidence and could not be validly
considered as a legal piece of evidence without independent proof.

(e) Transfer of Property Act (IV of 1882)---

----S. 53-A---Part performance---Possession of property obtained in part performance of

contract can only be used by defendant as a shield in defence of his right and not as a
weapon of offence.

Ghulam Sakina v. Umar Bakhsh PLD 1964 SC 456; Shamim Akhtar v. Muhammad
Rasheed PLD 1989 SC 575 and Hakmat Khan v. Shams-ur-Rehman 1993 SCMR 428 rel.

(f) Adverse possession---

----Party claiming ownership of land in his own right as well as maturing of his title by
way of prescription---Effect---Both such claims could not be maintained in law being
mutually destructive and not alternative or reconcilable.

Ghulam Qadir v. Ahmad Yar PLD 1990 SC 1049; Ghulam Hussain v. Iqbal Ahmad PLD
1991 SC 290; Muhammad Akram v. Muhammad Iqbal PLD 1992 SC 438; Akbar v. Gujar
Khan 1998 SCMR 509; Akhtar Begum v. Asad Mumtaz Ali Khan 1999 SCMR 985;
Khuda Bakhsh v. Mureed 1999 SCMR 996 and Abdul Majeed v. Muhammad Subhan
1999 SCMR 1245 ref.

Abdul Sattar Khan Advocate Supreme Court and Muhammad Zahoor Qureshi Azad
Advocate-on-Record for Appellants.

Mian Yunus Shah Senior Advocate Supreme Court and Imtiaz Muhammad Khan,
Advocate-on-Record for Respondents.

Date of hearing: 7th January, 2003.

JUDGMENT

RANA BHAGWANDAS, J.--This appeal by leave of this Court arising out of the
judgment at variance by learned Judge in Chambers of the Peshawar High Court has a
chequered history.

2. Ahmad Noor and others successors-in-interest of deceased-Aziz Noor brought a suit

for declaration against the appellants claiming that they were owners in possession of the
suit land comprising of Khasra numbers 2279 and 2289/1359 or 2278, 2289/1359 Mauza
Rustam, Tehsil and District Mardan measuring 1 Kanal, 4 Marlas and that the entries in
the record of rights in the names of the appellants were illegal and ineffective upon their
rights. As a consequential relief, they prayed for relief of possession, if any part of the
suit land, was not found to be in their possession. Respondents further pleaded for a
decree of declaration of title in the alternative having matured their title by prescription
and extinction of the right of the appellants and for a perpetual injunction restraining the
appellants from interfering with the right title and enjoyment of the suit land.

Page No. 2 of 1
3. Precisely, the case of the respondents was founded on agreement to sell (Exh.P.W.3/2)
purportedly executed by Mir Aftab Khan, predecessor-in-interest of the appellants on 6-
10-1947 transferring a piece of land (without mentioning any Khasra number) measuring
1 Kanal. 4 Marlas with the boundaries mentioned therein for consideration of Rs.368,
which was allegedly paid in kind i.e. commodities and a buffalo. As per averments of the
agreement, possession of the land was handed over to the vendee, who shall be deemed to
be absolute owner of the land divesting the vendor of all his rights therein. It was claimed
in the plaint that consequent upon the aforesaid agreement Aziz Noor remained in
possession of the suit land as owner during his lifetime and, after his death respondents
continued to enjoy the possession thereof. It was pleaded that vendor had assured the
vendee that he had attested a sale mutation in favour of Aziz Noor but the latter being an
old and illiterate person did not have the knowledge of wrong entries in the Revenue
Record. After his death respondents desiring the attestation of inheritance mutation in
their favour came to know from the record that sale mutation by Mir Aftab Khan in
favour of Aziz Noor was not attested and in the record of rights Mir Aftab Khan was
recorded as owner in the column of ownership whereas name of Aziz Noor was
incorporated in the column of cultivator. In support of their plea of possession over the
sail land, they claimed to have constructed many shops over it, which were in occupation
of their tenants. Taking undue advantage of wrong entries in the record the appellants by
force and pressure attempted to transfer the suit land in favour of third parties and were
interfering with the tenants by prompting them to deny the title of the respondents, hence
the suit.

4. The suit was contested by the appellants who emphatically denied the execution of sale
agreement calling it as forged, fake and fraudulent. Furthermore, the agreement being
unregistered and unstamped did not confer any right, title or interest nor did it relate to
the suit land. They asserted that they were in continuous exclusive possession and
enjoyment of the suit land, thus, there was no question of adverse possession of the
respondents therein.

5. After framing issues, recording evidence and hearing parties counsel, learned Civil
Judge-II, Mardan decreed the suit as prayed. In appeal, learned District Judge, Mardan
reversed the findings recorded by the trial Court expressing the view that the
respondents-plaintiffs could not claim adverse possession and at best they could be
treated tenants at will in the facts and circumstances of the case. He found that they were
recorded to be in permissive possession of the land in the Revenue Record, therefore,
they could not claim adversely to the real owners till they parted with the possession of
the land in favour of the appellants as they were inducted as tenants. The Appellate Court
rejected the agreement of sale being unregistered for non-examination the scribe and the
marginal witnesses thereof. In his view, on the basis of entries in the column of
cultivation and Lagan in the Jamabandi Register for the year 1947-48, respondents could
not derive any benefit. Respondents assailed the vires of the Appellate Court judgment in
civil revision before the High Court, which was accepted. Consequently, judgment of the
Appellate Court was set aside while judgment and decree of the trial Court was restored,
leading to this appeal by leave of the Court.

6. Learned Judge in the High Court, through the impugned judgment while reversing the
judgment of the Appellate Court accepted the agreement of sale as sale-deed being more
than 30 years old and valid, in view of the provision of law contained in Article 100 of
the Qanun-e-Shahadat Order, 1984. Learned Judge was also impressed by an application,
letter of Executive Engineer, Buildings and Roads and sanction letter by Deputy
Commissioner, Mansehra permitting construction of building on a piece of land on the
application of Aziz Noor (Exhs.PW-1/1 to PW-1/3). Another circumstance, which found
favour with the learned Judge in Chambers appears to be the entries in the Register
Haqdaran Zamin and Khasra Girdawari for the year 1947-48 (Exh. P.W. 2/6) describing
the land as Banjar Qadeem reflecting name of Aziz Noor in the column of cultivation as
tenant at will and recording his status as ( ‫ )ﻊﻴﺑ ﻪﺟﻭﺑ ﻥﺎﮕﻠ ﺎﻠﺑ ﻉﺭﺍﺰﻣ‬in the column of rent.
Learned Judge also referred to Jamabandi for the year 1951-52 (Exh. PW-2/7) indicating
that 14 Marlas of land was in self-cultivation of the owner while for remaining 10 Marlas
Aziz Noor was shown as (‫)ﺭﺎﮑﻠﻴﺧﺪﺭﻴﻏ‬. In this entry in the column of rent Aziz Noor was
shown as ( ‫ )ﻊﻴﺑ ﻪﺟﻭﺑ ﻥﺎﮕﻠ ﺎﻠﺑ ﻉﺭﺍﺰﻣ ﻰﮕﻣ ﺬ‬and the kind of land as Banjar-Qadeem. Similar
entries in the Jambandai Register for subsequent years were considered as supporting and
corroborative factor. For lack of mutation of the land in suit in favour of Aziz Noor, a
Page No. 3 of 1
reference was made to entry in Column No.4 of Register Haqdaran Zamin, in which Aziz
Noor was described cobbler by caste as (‫ )ﺭﺎﮑﻠﻴﺧﺪ‬and observed that due to ban on transfer
of land in favour of a non-agriculturalist under the provisions of Alienation of Lands Act,
1900, no mutation of sale could be attested in his favour. In the ultimate analysis, learned
Judge discarded the evidence adduced by the appellants and held that respondents were
owners of the land because of the sale-deed in their favour as also on account of adverse
possession for they had remained in its possession for more than prescribed period of
limitation.

7. We have heard learned counsel for the parties at quite some length and very carefully
scanned the relevant evidence on record. In our view, findings of fact recorded by High
Court, affirming the findings of the trial Court suffer from serious misconstruction of
evidence and misconception of law in that the evidence on record has not been correctly
and cautiously appreciated in its true perspective. Important piece of evidence in support
of the respondents' claim is copy of unregistered and unstamped agreement of sale
(Exh.PW-3/2) purportedly executed by appellants predecessor-in-interest in favour of
Aziz Noor. This document was tendered in evidence by Sherzada P.W.3. Its production
was seriously challenged by the appellants on the ground that it was neither duly stamped
nor registered and, therefore, did not transfer any right. Surprisingly, a photocopy of the
document was taken on, record as Exh.PW-3/2, without caring to ask for and directing
production of the original document. There can be no cavil with the proposition that this
deed is not only inadmissible in evidence it does not confer any right, title or interest in
favour of the vendee. Although it is captioned as "agreement of sale" it purports to
transfer absolute right of ownership in a piece of land measuring 1 Kanal, 4 Marlas with
the boundaries incorporated therein for consideration of Rs.368 paid in kind with delivery
of possession to the vendee. Contents of the document tend to transfer absolute
ownership of the land without mentioning any Khasra number, Deh or village of its
location. Authenticity and genuineness of this document was not only challenged in the
written statement by the appellants but also its production in evidence was seriously
objected, which was never decided. In our view, irrespective of the fact whether it be an
agreement of sale or a sale-deed per se, it purports to transfer valuable right in immovable
property exceeding Rs.100, which ought to be properly stamped and registered. In case it
is treated as sale-deed, it required compulsory registration in terms of section 17 of the
Registration Act, 1908 which is badly lacking. It is astonishing to note that all the Courts
below have not adverted to this vital aspect of the case and proceeded to accept the
document as a valid deed of transfer being 30 years old. Question arises as to where is the
original document? After lengthy arguments of the learned counsel, we were inclined to
order the impounding of document and directing the respondents to pay the stamp duty
thereon alongwith penalty within the contemplation of section 35 of the Stamp Act, 1899
but when we examined original record of the trial Court, we were amazed to find that
instead of original document a photostat copy was exhibited in evidence without the
leave of the trial Court to lead secondary evidence, after the proof of loss or destruction
of the original one. Since the respondents did not plead loss or destruction of the original
agreement, we would be legally justified in presuming that they are guilty of withholding
best available primary evidence. We feel, had it been produced in Court, it would perhaps
have been unfavourable to them. Since the original document has not been placed on
record, we are not inclined to pass any order for impounding the same. Assumption of the
trial Court as well as the High Court that the deed of sale being more than 30 years old
was a valid piece of evidence within the contemplation of Article 100 of Qanun-e-
Shahadat Order, appears to be misconceived. Suffice it to observe that the document itself
being inadmissible in evidence, hardly any presumption of correctness or its validity can
be attached to it in the circumstances. In the absence of original document, in our
considered opinion, no presumption of correctness or its due execution can be drawn in
this case.

8. Even otherwise, assuming for the sake of agreement that said document was executed
by Mir Aftab Khan, it would not transfer any valid and marketable title in favour of the
respondents being unregistered and considering also that it did not mention any Khasra
number and Deh or Mouza of its location and. therefore, lacking necessary particulars in
respect of identity of land.

9. There is another aspect of the case. Though the document was, purportedly executed
on 6-10-1947 but mutation in the Register Haqdaran Zamin in favour of Aziz Noor was
Page No. 4 of 1
made by the Patwari for the first time on 9-2-1957 and cancelled by the Tehsildar on 25-
2-1957, suit was, however, filed as late as 3-12-1984. Averments in the plaint do not
clarify as to when did the respondents come to know about the rejection of mutation in
their favour nor did they challenge this entry in the record of rights before the Revenue
Authorities. It was pleaded that taking undue advantage of the entries in the record of
rights, appellants by force and pressure, were attempting to create third party interest and
persuading their tenants to deny their title, there was no supporting evidence on record.
Inordinate delay on the part of the respondents in bringing the suit in 1984 creates serious
doubts about the bona fides of their acts and speaks volumes about the genuineness of
their cause.

10. Adverting to the issue of possession in pursuance of the agreement of sale, there is
absolutely no evidence worth consideration in support of the plea raised by the
respondents. Even from the contents of the plaint, it appears that they were out of
possession otherwise they would not have asked for relief of possession of the suit land,
on the premise that in case a part of the suit land was not found in their possession, they
be granted a decree for possession as a consequential relief to the decree for declaration.
Respondents themselves were not sure as to which of the Khasra numbers was
purportedly purchased by their predecessor-in-interest i.e. Aziz Noor. So-called
agreement of sale does not specify any Khasra number or Deh whereas in the plaint itself
respondents claimed 1 Kanal, 4 Marlas out of two sets of Khasra numbers without
specifying the source or foundation of their claim. Learned High Court quite erroneously
laid much stress on the permission for construction of a building on a plot of land
obtained by Aziz Noor and the rent agreements purportedly executed by some of the
persons as tenants. We are least impressed by both the sets of documents as two letters
pertaining to permission for construction of building do not identify any plot or Khasra
number whereas execution of the rent notes has not been established. In order to establish
the fact of construction of shops on the site. It would be incumbent to identity the
property, which is completely missing in the case in hand. Similarly, acceptance of nine
rent notes and rent agreements in the absence of specific plea and lack of proof would be
uncalled for. This sort of evidence to our mind would not improve the case of the
respondents to establish their possession over the suit land. Even the star witness
Sherzada P.W.3, who appeared as attorney on behalf of the respondents, cursorily stated
that his father had constructed some shops on the suit property for which he had obtained
permission from the Highway Authorities, which were still in possession of respondents.
He did not state that as many as nine shops had been let out on rent during September to
December, 1984 on rent of Rs.15 per month to different tenants. He did not care to
exhibit any of the rent notes or the rent agreements in evidence. Admittedly, none of the
tenants was produced at the trial to substantiate the claim of possession, which found
favour with the High Court. On the face of the record, these documents appear to have
been placed on record before the trial Court but were neither tendered in evidence nor
proved, therefore, these were inherently in admissible and could not be considered as
legal evidence in support of the assertion. It may be observed that there is no reference to
these documents in the judgments of the trial Court as well as the judgment of the
Appellate Court. In law, these documents could not be validly considered as a legal piece
of evidence without independent proof.

11. Adverting to the entries in the Register Haqdaran Zamin for the years 1925-26 to
1940-41 Exhs.PW-2/1 to 2/5, it may be observed that such entries tend to show that Mir
Ghous and Mir Aftab Khan were shown as owners in the column of ownership while
different persons were shown in the column of cultivation. Nature of land is recorded as
Banjar Qadeem. Exh PW-2/6 is an entry in the Register Haqdaran Zamin for the year
1947-48 in which Mir Aftab Khan is recorded as owner of the land and Aziz Noor as (
‫)ﺮﺎﮑﻠﻴﺧﺪﺭﻴﻏ ﻪﻬﻴ ﻥﻜﺎﺴ‬. Khasra number is shown to be 2289/1359/2 measuring 1 Kanal, 4
Marlas. Nature of the land is shown to be Banjar Qadeem. Column of lagan indicates (‫ﻊﻴﺑ‬
‫)ﻪﺟﻭﺑ ﻥﺎﮕﻠ ﺎﻠﺑ ﻉﺭﺍﺰﻣ‬. In the extract from Register Haqdaran Zamin for the year 1951-52 Mir
Aftab is recorded as owner and self-cultivator to the extent 14 Marlas and getting
cultivated remaining 10 Marlas through Aziz Noor recorded as Sakin Deh Ghair
Dakheelkar in the column of cultivation against Khasra Nos.2278, 2279/ 1359. Land has
been shown to be Banjar . Qadeem. In the column relating to Lagan, it is recorded (‫ﻊﻴﺑ‬
‫)ﻪﺟﻭﺑ ﻥﺎﮕﻠ ﺎﻠﺑ ﻉﺭﺍﺰﻣ ﻰﮕﻣﺬ‬. Entries for the years 1955-56, 1959-60 and 1963-64 are to the
same effect except that in the last entry in Column No. 10 relating to conditions i.e.
inheritance mutation on account of death of Mir Aftab Khan has been attested in favour
Page No. 5 of 1
of his legal heirs. In the extract for the year 1967-68 Musamatan Mah Jeenah and other
daughters and sons are recorded as owners but in the column relating to conditions,
daughters are stated to have surrendered their shares in the land in favour of appellants
Amirzada and other male heirs. In the subsequent years appellants names appear in the
column of ownership whereas name of Aziz Noor appears in the column of cultivation as
Ghair Dakheelkar and in the column of lagan (‫)ﻊﻴﺑ ﻪﺟﻭﺑ ﻥﺎﮕﻠ ﺎﻠﺑ ﻉﺭﺍﺰﻣ‬.

12. On reappraisal of the entries in the record of rights, we find that even after 1947 Mir
Aftab Khan-predecessor-in-interest of appellants was recorded as owner of the land
throughout whereas Aziz Noor shown as tenant at will i.e. with the permission of the
original owner. We also think that remark in Column No.8 reflecting that the tenant was
not liable to pay any rent on account of purchase would be misleading as such entries
cannot be reconciled with entries as to ownership. Accordingly Aziz Noor could at best
be described as tenant at will and not as occupancy tenant of the land on account of the
purchase. To our mind, it seems that the entries in Column No.8 were recorded in routine
at the instance of the person found at the site claiming to have purchased the land without
any proof of title. This impression also gathers support from the strong circumstance that
the land remained Banjar Qadeem throughout and there was no occasion for sharing rent
with the landlord or the elders of the village as per custom. Learned trial Court as well as
the High Court were swayed away be these entries in favour of predecessor-in-interest of
the respondents while holding that there was a valid transfer of title in favour of Aziz
Noor. The expression "Ghair Dakheelkar" in the column of cultivator clearly tends to
show that Aziz Now was recorded to be in occupation of the land with the permission of
the owner as tenant at will. His possession as such could not be stretched in his favour as
in his own right. If the possession of the respondents was permissive in nature, it could
neither be in their own rights nor adverse to the right of and interest of the real owner.

13. In Ali Akbar v. Malook (1991 SCMR 829), entries in the Revenue Record were to the
effect (‫)ﺖﻴﻜﻟﻣﺭﻴﻮﺼﺗﻠﺑ ﻥﺎﮕﻠ ﺎﻠﺑ‬. It was held that on the Oasis of aforesaid entries a case of
adverse possession was not made out in law by the respondents. In Sohara v. Muhammad
Nawaz (1996 SCMR 1719), where the plaintiff did not claim that he had handed over
possession of the disputed land to the defendants as tenants and entries in the Revenue
Record indicated that the respondents were entered as tenants and not paying any rent, it
was held that the mention of the word tenant was of no consequence and did not affect
the defendant's right to claim ownership of the land through prescription. In Khanpur v.
Muhammad Zarin (PLD 1989 SC 485), where entries in the Revenue Record were to the
effect (‫)ﻯﺭﺍﺩ ﻪﺗﺸﺭ ﻪﺟﻭﺑ ﻥﺎﮕﻠ ﺎﻠﺑ‬, it was held that such entries would not make possession less
permissive. Elaborating the question of adverse possession, it was held that permissive
possession cannot be converted into an adverse possession unless it is proved that the
person in possession asserted an adverse title to the property to the knowledge of true
owner for a period of twelve, years or more. Even non-payment of rent by tenant for
more than twelve years would not per se be sufficient to entitle him to superior right of
ownership. In order to succeed in a claim of adverse possession, tenant is further required
to establish by his conduct that he had given-up the tenancy rights, denied the title of the
owner and openly enjoyed the land in his own right and not as owner's tenant.

14. In view of the aforesaid discussion, we are in no manner of doubt that the respondents
or their predecessor-in-interest did not remain in actual and physical possession of the
land in their own right and there was no assertion of open and hostile title adverse to the
interest of the appellants. Since we have taken the view that the respondents did not
remain to possession of the land in pursuance of the alleged agreement of sale in part
performance thereof, the question of protection of their possession in terms of section 53-
A of the Transfer of Property Act, 1882 would not arise at all. Even otherwise, it is well-
settled principle of law that possession of property obtained in part performance of a
contract can only be used by a defendant as a shield in defence of his right and not as a
weapon of offence as intended in the present case. Principle of law was laid down in
Ghulam Sakina v. Umar Bakhsh (PLD 1964 SC 456), Shamim Akhtar v. Muhammad
Rasheed (PLD 1989 SC 575) and Hikmat Khan v. Shams-ur-Rehman (1993 SCMR 428).

15. In our view, trial Court and the High Court appear to have committed serious error of
law in assuming that the respondents could claim the ownership of the land in their own
right as well as having matured their title by way of prescription. Both the claims are
mutually destructive and not alternative or reconcilable. Both the assertions, in law
Page No. 6 of 1
cannot be maintained, as it would be impossible for a party who pleads that it has a valid
title through purchase and subsequent inheritance to succeed in the alternative on the plea
that the possession being open and hostile, he had matured the title by efflux of time. The
principle of law has been set at rest in Ghulam Qadir v. Ahmad Yar (PLD 1990 SC 1049),
Ghulam Hussain v. Iqbal Ahmad (PLD 1991 SC 290), Muhammad Akram v. Muhammad
Iqbal (PLD 1992 SC 438), Akbar v. Gujar Khan (1998 SCMR 509), Akhtar Begum v.
Asad Mumtaz Ali Khan (1999 SCMR 985), Khuda Bakhsh v. Mureed (1999 SCMR 996)
and Abdul Majeed v. Muhammad Subhan (1999 SCMR 1245).

16. For the aforesaid facts, reasons and circumstances, this appeal must succeed and on
acceptance thereof, judgments and decrees of the trial Court as well as the High Court are
set aside whereas the judgment and decree rendered by Appellate Court restored. No
order as to costs.

S.A.K./A-371/S Appeal accepted.

Page No. 7 of 1
1999SCMR951

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Mamoon Kazi, JJ

RAB NAWAZ and 8 others---Petitioners

versus

MUHAMMAD AMIR and another---Respondents

Civil Petition for Leave to Appeal No.598 of 1997, decided on 29th October, 1998.

(On appeal from the judgment, dated 13-3-1997 of the Lahore High Court, Multan
Bench, Multan, passed in Civil Revision No.600-D of 1995).

(a) Civil Procedure Code (V of 1908)---

----O. XIII, Rr. 1 & 2---Production of documentary evidence at the first hearing---
Exception---Good cause and reasons to the satisfaction of Trial Court for producing
documentary evidence at a subsequent stage of proceedings necessary---Court receiving
any such evidence had to second reasons for so doing---Principles.

Under Rule 1 of Order XIII of the C.P.C., the petitioners were required to have produced
at the first hearing of the suit all the documentary evidence of every description in their
possession or power on which they intended to rely which were already filed in Court.
The only exception is produced in Rule 2 of Order XIII, C.P.C. which lays down that no
documentary evidence in possession or power of any party which should have been but
has not been produced in accordance with the requirement of Rule 1, shall be received at
any subsequent stage of the proceedings unless good cause is shown to the satisfaction of
the Court for non-production thereof and the Court receiving any such evidence shall
record the reasons for so doing. It would, thus, be noticed that a good cause has to be
shown to the satisfaction of the trial Court for non-production of the documents.

(b) Constitution of Pakistan (1973)---

----Art. 185(3)---Petition for leave to appeal---Two Courts below had come to a definite
conclusion on finding of fact---Supreme Court declined interference.

Raja Muhammad Bashir.

Advocate Supreme Court instructed by Mehr Khan Malik, Advocate-on-Record for

Petitioners.

Nemo for Respondent No. 1.

Samad Mehmood, Advocate Supreme Court for Respondent No.2.

Date of hearing: 29th October, 1998.

ORDER

MUHAMMAD BASHIR JEHANGIRI, J.---This petition for leave to appeal is directed

against the judgment and decree, dated 13-3-1997 passed by a learned Single Judge of
Lahore High Court. Multan Bench. dismissing Civil Revision No.600-D of 1995 in
limine.

2. The facts of the case briefly stated in the impugned order are that Muhammad Azam,
predecessor-in-interest of the respondents, was an oustee of Islamabad. He was
accordingly issued an entitlement Certificate against which land was to be allotted to him
in Punjab Muhammad Azam deceased, therefore, allegedly executed a General Power of
Attorney in favour of Haq Nawaz predecessor-in-interest of the petitioners on 2-I 1-1966
Page No. 1 of 1
for the purpose of getting the land allotted and thereafter, to transfer it in favour of any
other person. Muhammad Azam deceased also purportedly entered into an agreement to
sell dated 1-11-1966 for the sale of disputed land in favour of Haq Nawaz for a
consideration of Rs.15,000. It was further alleged that after getting the land allotted. Haq
Nawaz took possession thereof; brought it under cultivation; paid the instalments;
constructed a house thereon; installed a tubewell and, thus incurred a sum of Rs.2,00,000.
In the meantime Muhammad Azam died and the land was mutated in favour of
respondent No. l who had not only backed out of the agreement to sell executed by his
deceased father Muhammad Azam but also wrongfully transferred the land in favour of
defendant No.2 by virtue of registered sale-deed, dated 7-10-1981. Hence, the suit for
specific performance of an agreement to sell against the respondents.

3. The defendants-respondents contested the suit denying not only the execution of
agreement to sell but also the registered General Power of Attorney executed by
Muhammad Azam. In the alternative, it was pleaded by defendants respondents that the
impugned agreement to sell, if any, was violative of the provisions of section 19 of the
Punjab Colonization of Government Lands (Punjab) Act V of 1912. Besides, the claim of
payment of instalments by the petitioners was also repudiated. A number of issues arising
out of the pleadings of the parties were settled the evidence was recorded and the suit was
initially dismissed on 21-10-1995. During the pendency of the appeal before the learned
Additional District Judge, an application under Order XLI, Rule 27, C.P.C. was moved
for permission to adduce additional evidence. The learned Additional District Judge who
was seized of the appeal, vide his judgment, dated 6-2-1991, remanded the case with the
direction to the trial Court to allow the parties to lead further evidence and
simultaneously allowed the petitioners to produce their additional evidence. Both the
parties sought revision of the impugned order of the Appellate Court. The learned Judge
in Chambers of the Lahore High Court accepted the Civil Revision No.97 of 1991, set
aside the order, dated 6-2-1991 and remanded the case to the Appellate Court with a
direction to dispose of the application of the petitioner for permission to lead additional
evidence. In post remand proceedings, the learned Additional District Judge, in his turn
vide hi: Order, dated 13-2-1993, remanded the case to the learned trial Court after (riming
additional Issues Nos.6. 6-A, 6-B, 6-C, 6-D. 6-E and 6-F. The parties adduced Further
evidence before the learned trial Court. After close of the evidence the petitioners filed
another application seeking to adduce additional evidence in the shape of documents. The
learned Civil Judge who was seized of the application at the relevant time vide order,
dated 24-5-1993 dismissed it against which the petitioner filed a Revision Petition but it
was later on dismissed as withdrawn. Ultimately, the learned Civil Judge vide his order,
dated 27-6-1994 non-suited the petitioners which order was affirmed in appeal by the
learned Additional District Judge by virtue of his order, dated 20-6-1995. Even during the
pendency of appeal, it was inter alia, contended that the learned Civil Judge had erred in
law by rejecting their application for additional evidence and simultaneously also filed
still another application under Order XLI, Rule 27, C.P.C. for permission to adduce
additional evidence in the shape of document. This application and the appeal were also
dismissed. The petitioners feeling aggrieved. Cited the Civil Revision, out of which this
petition has arisen.

4. It appears from the record that on behalf of the petitioners it was contended before the
High Court 'that the evidence on record was not correctly appraised by the two Courts
below while non-suiting the petitioners'. The learned Single Judge in the High Court was
taken through the evidence 'in a bid to convince him to arrive at a different conclusion'.
The learned Judge, however, dismissed the civil revision on the following reasoning:--

"I am afraid re-appraisal of evidence is not permissible in revisional jurisdiction. No

misreading or non-reading or evidence could be pointed out so as to justify interference
in these proceedings. Merely because another view of the evidence could be framed is no
ground for substituting the same for that concurrently formed by the two Courts below."

5. Raja Muhammad Bashir, learned Advocate Supreme Court, in support of this petition
contended that the dsmissal of the application for adducing additional evidence, firstly, by
the trial Judge and later on dismissal of another application by the learned Appellate
Court, for adducing additional evidence was suffering from legal infirmity of the kind
warranting interference by the High Court in its revisional jurisdiction. According to the
learned counsel section 19 of the Colonization of Government Lands (Punjab) Act (V of
Page No. 2 of 1
1912) does not at all create a bar against the right of an allottee of land to enter into an
agreement to sell the land after the allottee eventually acquired the proprietary rights in
the land.

6. We have not been impressed by either of these' contentions. Under Rule 1 of Order
XIII of the C.P.C., the petitioners were required to have produced at the first hearing of
the suit all the documentary evidence of every description in their possession or power on
which they intended to rely which were already filed in Court. The only exception is
provided in Rule 2 of Order XIII (ibid), which lays down that no documentary evidence
in possession or power or any party which should have been but has not been produced in
accordance with the requirement of Rule 1, shall be received at any subsequent stage of
the proceedings unless good cause is shown to the satisfaction of the Court for non-
production thereof and the Court receiving any such evidence shall record the reasons for
so doing. It would, thus, be noticed that a good cause has to be shown to the satisfaction
of the trial Court for non-production of the documents. The learned trial Judge has in an
elaborate order, dated 24-5-1993 had come to the conclusion that good cause has not been
shown to his satisfaction for non-production of the documents. This order has been
upheld even in appeal. Even from the perusal of the facts narrated in paragraphs 2 to 4
ante it would be clear that after the case has remained pending in the two Courts below
and the learned High Court over years some document was sought to be produced before
the trial Court without assigning any reason as to why such an unconscionable delay had
taken place in moving the trial Court after the case had been remanded twice to the trial
Court. We find that the order of the learned trial Court duly affirmed by the learned
Appellate Court in declining to allow production the documentary evidence at that
belated stage is not exceptionable on any ground whatsoever. The second contention
raised by the learned counsel and taken note of by us in paragraph 5 ante is equally
untenable. The two Courts below had come to a definite conclusion that the bed-rock of
the petitioners' case, namely execution of the impugned agreement to sell and payment of
sale consideration to the deceased had not been proved. These findings being of fact
cannot be interfered with by this Court at this stage.

7. There is no merit in the petition. The petition is accordingly dismissed.

M.B.A./R-39/S Petition dismissed.

Page No. 3 of 1
1994 S C M R 1945

[Supreme Court of Pakistan]

Present: Shafiur Rahman, Actg. C.J. and Saad Saood Jan, JJ

ALLAH BAKHSH---Petitioner

versus

Mst. FATHE BIBI---Respondent

Civil Petition for Leave to Appeal No. 443-L of 1992, decided on 14th July, 1993.

(From the judgment/order of Lahore High Court, Lahore, dated 5-5-1992 in Civil
Revision No. 2074 of 1991).

Civil Procedure Code (V of 1908)---

----OXIII, R. 2---Constitution of Pakistan (1973), Art. 185(3)---Non-production of

document in question at earliest stage of proceedings on which defendant had not
relied---Order of Trial Court rejecting defendant's prayer to receive document in question,
at belated stage of trial was affirmed in appeal and revision, being in accordance with
provisions of O.XIII, R. 2, C.P.C., could not be termed as illegal---Concurrent finding of
Courts below on question of fact, did not call for interference---Leave to appeal was
refused in circumstances.

S. Abul Aasim Jaferi, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 14th July, 1993.

ORDER

SAAD SAOOD JAN, J: --The dispute in this petition for special leave to appeal relates to
a house situate in Basti Qulwali, Chak Noor Shah. It was purchased by a registered deed
dated 12-8-1981 by the respondent from the three sons of one Allah Ditta. It was in the
possession of the petitioner. On 22-12-1981 the respondent filed a suit for possession of
the house. She stated that the petitioner was living in it as a licensee on account of his
relationship with the vendors for his sister was married to one of them. The suit was
resisted by the petitioner. He alleged that the land underlying the house was purchased by
the father of the vendors but the funds for the same were provided by his own
grandfather. As such the father of the vendors was merely a Benamidar. He also alleged
that the house was initially constructed by his own grandfather and that he had later re-
built it in 1950.

2. The suit was decreed by the trial Court which rejected the plea of the petitioner that he
was m possession of the house as owner in his own right. The petitioner's appeal before
the Additional District Judge and the revision petition before the High Court remained
unsuccessful. He now seeks leave to appeal from this Court.

3. The main grievance of the petitioner before us is that the trial Court has illegally
rejected his prayer for receiving in evidence a document executed by the father of the
vendors wherein he had admitted that he was holding the land merely as a Benamidar on
behalf of the grandfather of the petitioner. It is to be noticed that the petitioner had neither
relied upon this document nor produced it at the earliest stage of the proceedings. In the
circumstances, the order of the trial Court rejecting his prayer to, receive the document in
evidence at a belated stage was just m accordance with the provisions of Rule 2, Order
XIII, Civil Procedure Code. It should, therefore, hardly be described as illegal.

4. After hearing the learned counsel for the petitioner we are not persuaded that the
concurrent findings of the Courts below that the respondent was the rightful owner of the
Page No. 1 of 1
house on the basis of the sale made in her favour by the sons of Allah Ditta suffers from
any illegality. Leave is refused.

AA./A-1117/S Leave refused.

Page No. 2 of 1
1993 S C M R 1079

[Supreme Court of Pakistan]

Present: Muhammad Afzal Zullah, CJ. Saeeduzzaman Siddiqui and Wali Muhammad
Khan, JJ

ILAHI BAKHSH and others---Appellants

versus

FAZAL-UR-REHMAN and others---Respondents

Civil Appeal No.1101 of 1990, decided on 9th January, 1993.

(On appeal from the judgment, dated 29-3-1988 of the Lahore High Court, Multan
Bench, Multan in R.SA. No.69 of 1988).

(a) Punjab Pre-emption Act (I of 1913)---

----S. 15---Constitution of Pakistan (1973), Art. 185 (3)---Suit to enforce right of pre-
emption on basis of plaintiffs being owners in Khata of land in question, and owners of
estate was decreed by Trial Court; judgment and decree of Trial Court was, however,
reversed by Appellate, Court as also by the High Court on the ground that plaintiffs had
failed to prove their alleged superior right inasmuch as, the land on basis of which pre-
emption right was claimed, though owned by the plaintiffs, yet being not assessed to land
revenue, they were not owners of the estate---Plaintiffs assailed such finding being not
tenable, as the factum that no revenue was assessed on account of the fact that the said
land was exempted was not controverted--- Leave to appeal was granted to consider
whether First Appellate Court was justified in reversing the judgment and decree of Trial
Court, which view had been maintained by the High Court.

(b) Punjab Pre-emption Act (I of 1913)---

----S.15---West Pakistan Lard Revenue Act (XVII of 1967), S. 56-A [inserted by Punjab
Land Revenue (Amendment) Act (V of 1976)]---Assessment of land in question, to land
revenue---Proof---Copy of Register Haqdaran which was on record before Courts below
(1974-75) did not clearly show that land in question, was assessed to land revenue---
Copies of record-of-rights prior and subsequent thereto, however, clearly showed that the
land, was assessed to land revenue- --Quality and the nature of land and the use to which
same was being put as also total area, thereof, together with its regional location, would
indicate that land in question, certainly was assessed to land revenue except few Marlas
which might have escaped assessment on account of such area having gone under
Abadi---Even though, levy of land revenue may not have been compulsory, still,
assessment in accordance with the West Pakistan Land Revenue Act, 1967, of the land
revenue and other dues had to be made and was in fact made---Land in question, being
assessed to land revenue, plaintiffs enforcing their right on basis of such land would be
deemed to be the owners, thus entitled to decree for pre-emption.

(c) Civil Procedure Code (V of 1908)---

----OXIII, Rr. 1 & 2---Point regarding assessment of land revenue had not been taken up
by defendants in written statement---Documents showing land in question being assessed
to land revenue, however, had been received and placed on the record of Supreme Court
with permission.

(d) Punjab Pre-emption Act (I of 1913)---

----S. 15---Suit for pre-emption ---Plaintiff, in order to succeed on basis of being owner in
estate, had only to show that he had the requisite qualification of owning particular type
of land in the estate---Plaintiff need not show that he was the owner of the entire
remaining estate.

Page No. 1 of 1
Mian Muhammad Zafar Yasin, Advocate Supreme Court and Ejaz Ahmad Khan,
Advocate-on-Record (absent) for Appellants.

M. Hanif Niazi, Advocate Supreme Court on Court request for Respondents.

Date of hearing: 9th January, 1993.

JUDGMENT

MUHAMMAD AFZAL ZULLAH, C.J.---This appeal through leave of the Court has
arisen out of a pre-emption matter. The order granting leave to appeal reads as follows:---

"Leave to appeal is sought from the judgment dated 29-3-198 passed by a learned Single
Judge of the Lahore High Court in R.S.A. No. 69 of 1988 filed by the petitioners whereby
the appellate Court judgment dated 6-2-1988 was confirmed, dismissing the petitioners'
suit for preemption which was decreed by the trial Court through the judgment dated 6-2-
1985, dismissing the same.

The facts to be noted are that the respondents purchased land measuring 100 Kanals
through a registered sale-deed dated 20-5-1978 from one Zargham Ali. The petitioners
filed a suit for possession by way of pre-emption on the basis of their being owners in
Khata of the suit property and owners of the estate. They also challenged the correctness
of the price shown in the sale-deed. The above suit was resisted by the respondents but
the learned trial Court decreed the same. Against the above judgment and decree, the
respondents filed Civil Appeals Nos. 12-13 of 1986 which were allowed on the ground
that the petitioners failed to prove their alleged superior right. Against the above
judgment and decree, the petitioners filed aforesaid R.S.A. which was dismissed by a
learned Single Judge of the Lahore High Court. The petitioners have, therefore, filed the
present petition.

In support of the above petition, Mian Muhammad Zafar Yasin, learned A.S.C. appearing
for the petitioners, has urged that the ground which found favour with the two Courts
below that the land on the basis of which the pre-emption right was claimed though
owned by the petitioners was not assessed to land revenue and, therefore, they were not
owners of the estate, is not tenable as the factum that no revenue was assessed on account
of the fact that the land was exempted was not controverted.

We are inclined to grant leave to consider the question, whether on the facts of the present
case the learned first appellate Court was justified in reversing the judgment and decree
of the trial Court which (view) has been maintained by the High Court."

The learned counsel have taken us through the various documents representing their
views on possession, in the record of the rights. No doubt copy of Register Haqdaran
which was before the Courts below (1974-75) does not clearly show that the land in
question was assessed to land revenue. The copies of the record-of-rights prior and
subsequent thereto however, clearly show that the land was assessed to land revenue. We
have also noticed that the quality and nature of the land and the use to which it was being
put as well as total area thereof together with its regional location, it would certainly be
assessed to land revenue except of course few Marlas which might have escaped
assessment on account of its having gone under Abadi. The explanation of the learned
counsel for the appellants that Column No.9 which related to the assessment to land
revenue should not and could not have been left blank. May be, as argued by him, it was
an indvertent omission or a misapprehension that after an amendment in the Land
Revenue Act by Act V of 1976 introducing section 56-A; the land in dispute even, though
culturable, did not exceed the limit which would have attracted the levy of land revenue.
In this behalf he argued that even though the levy may not have been compulsory, the
assessment in accordance with the Land Revenue Act, of the land revenue and other dues
had to be made and was in fact made.

The contention of the learned counsel seems to be right because the copies of the Register
Haqdaran 1971 and 1984 which have been brought on record of this Court clearly show
that the land in dispute was assessed to, land revenue. On these findings this appeal
merited to be accepted.
Page No. 2 of 1
However, the respondents being absent and proceeded ex parte we requested Mr. M.
Hanif Niazi, ASC; who was present in connection with another case, to prepare the
appeal and assist us on behalf of the respondents He argued, that Khata number of the
land in dispute is different from the Khata number of the land mentioned in the records of
1971 and 1984. After proper checking we found that the original Khata number was 164
which was later changed to 166 and this position has been correctly represented in the
record. Moreover, the Khasra numbers of the disputed land tally with the Khasra numbers
given in the afore-referred documents which have been relied upon by the learned
counsel for the appellants. Mr. Niazi also pointed out that the documents now relied upon
were not placed before the lower Courts. To support this technical point, he in this behalf
pointed out the provisions contained in Rules 1 and 2 of Order XIII. In this respect it
needs to be pointed out that the respondents/defendants had not taken up the plea in the
written C statement with regard to the point regarding assessment of the land revenue.
Thus the appellants had no notice about the subject-matter of the present discussion nor
there was any issue. In any case the documents have been received and placed on record
of this Court with permission.

Lastly, the learned counsel contended that according to old law of preemption which
would apply to the present case, the appellants should be owners of the estate. He read
out the definition of estate from the Land Revenue Act, 1967 and tried to argue that if the
said definition is applied to the present case, in order to succeed in a pre-emption case the
pre-emptor would have to show that he is the owner of the "entire" estate. We do not
agree with. him. The interpretation of provisions of the Punjab Pre-emption Act is
otherwise; namely, that it would be enough for the plaintiff to show that he has the
required qualification of owning particular type of land in the estate. It would be enough
and it would not be necessary for him to show that he is the owner of the entire remaining
estate.

In the light of the foregoing discussion this appeal is allowed. The judgments of the High
Court and the First Appeal Court are set aside, while the judgment and decree of the trial
Court is restored. There shall be no order as to costs.

We highly appreciate the conduct of Mr. Niazi who while appearing as helper of Court
for justice sake free of charge in Islamic culture of litigation worked with if not more at
least such diligence and zeal which compared well with a fee charged case.

M.B.A./I-168/S Appeal allowed.

Page No. 3 of 1
1990 S C M R 964

Present: Saad Saood Jan and S. Usman Ali Shah, JJ

MUHAMMAD UMAR MIRZA---Petitioner

versus

WARIS IQBAL and others---Respondents

Civil Petition No. 271 of 1989, decided on 18th September, 1989.

(From the judgment dated 31-1-1989 the Lahore High Court, Lahore, in Civil Revision
No. 2064 of 1988).

Civil Procedure Code (V of 1908)---

----O. XIII, R. 2---Constitution of Pakistan (1973), Art. 185(3)---Defendant failing to

produce documents at the first date of hearing of suit---Defendant producing documents
on the date of his evidence but on the objection of plaintiff, Trial Court did not allow
defendant to produce those documents---Defendant's revision petition to call in question
the legality of order of Trial Court was dismissed---Leave to appeal---No documentary
evidence in possession or power of a party which should have been but had not been
produced at the first hearing of suit could be received in evidence under R. 2, Order XIII,
C.P.C. at any subsequent stage of proceedings unless cause was shown to the satisfaction
of Court for the non-production thereof---No satisfactory explanation was given by
defendant as to why he did not produce the documents at the first hearing of suit---Trial
Court's finding was that introduction of documents at the stage of defendant's evidence
would prejudice case of plaintiff---Trial Court had thus not acted arbitrarily in
circumstances---No principle of law having been violated by the Trial Court, case was not
fit for interference by Supreme Court---Leave to appeal was refused.

Iqbal Ahmad v. Khurshid Ahmad 1987 SCMR 744; Umar Hayat v. Naik Alam PLD 1977
Azad J&K 78 and Miss Rakhshanda Aslam v. Nomination Board of Azad Jammu &
Kashmir PLD 1985 A J&K 41 distinguished.

Iqbal Ahmad Qureshi Advocate-on-Record for the Petitioner.

Javed S. Khwaja Advocate, Supreme Court and Ejaz Ahmad Khan Advocate-on-Record
for Respondents.

Date of hearing: 18th September, 1989.

ORDER

SAAD SAOOD JAN, J.---On 29-11-1986 the respondents brought a suit inter alia for
possession of certain properties and cancellation of a partition deed. The suit was resisted
by the petitioner who filed his written statement on 29-10-1987. The trial Court framed a
number of issues arising out of the pleadings of the parties and called upon them to lead
their evidence. The respondents concluded their evidence on 5-3-1988. The trial Court
then fixed 27-3-1988 as the date for recording the evidence of the petitioner. On this date
the petitioner wanted to introduce about 80 documents in evidence. This was objected to
by the respondents on the ground that these had neither been produced nor relied upon
earlier. The learned trial Court upheld the objection with the observation inter alia that the
introduction of the said documents at that stage would prejudice the case of the
respondents. The petitioner filed a revision petition in the High Court to call in question
the legality of the order of the trial Court but it was dismissed. He now seeks leave to
appeal from this Court.

2. Under Rule 2 of Order XIII, Civil Procedure Code, no documentary evidence in

possession or power of a party which should have been but has not been produced at the
first hearing of a suit can be received at any subsequent stage of the proceedings unless
cause is shown to the satisfaction of the Court for the non-production thereof.
Page No. 1 of 1
3. In support of this petition the learned counsel contends that the provisions of this rule
are to be construed liberally and in support of his contention he has referred to Iqbal
Ahmad v. Khurshid Ahmad 1987 SCMR 744, Umar Hayat v. Naik Alam PLD 1977 Azad
J&K 78 and Miss Rakhshanda Aslam v. Nomination Board of Azad Jammu & Kashmir
PLD 1985 Azad J&K 41.

4. There is no satisfactory explanation given by the petitioner why he did not produce the
documents at the first date of hearing of the suit. On the other hand, there is a finding by
the trial Court that the introduction of the documents at the stage that they were being
produced would prejudice the case of the opposite side. In the face of this finding the
authorities cited by the learned counsel for the petitioner become distinguishable and it
cannot be said that in refusing to receive the documents, the trial Court had acted
arbitrarily. Since no principle of law has been violated by the trial Court, it is not a fit
case for interference by this Court. The petition is dismissed.

AA./M-1151/S Petition dismissed.

Page No. 2 of 1
1989 S C M R 1818

Prcsent: Muhammad Afzal Zullah and Usman Ali Shah, JJ

Mst. NASREEN and others--Petitioners

Versus

NAZAR HUSSAIN and others--Respondents

Civil Petition for Leave to Appeal No. 127-R of 1988, decided on 16th May, 1989.

(On appeal from the judgment and order of Lahore High Court, Rawalpindi Bench,
Rawalpindi, dated 6-3-1988, passed in C.R. No. 69/88).

Civil Procedure Code (V of 191181—

-OXIII, R.2 & O.XLIII, R.3--Constitution of Pakistan (1973), Art. 185 (3)-Leave to
appeal granted to consider that for exercise of jurisdiction under O.XIII, R.2, C.P.C. to
examine the nature of documents was a must; that if documents were public documents
of unimpeachable authenticity, their late production wits not a ground under O. XIII, R.
2, C.P.C. and that notice under O. XLIII, R. 3, C.P.C. was not required to be sent to other
party in appeals which did not fall under O. XLI11, C.P.C.

Bashir Ahmad Ansari, Advocate Supreme Court and Khan lmtiaz Muhammad Khan,
Advocate-on-Record for Petitioners.

Ncmo for Respondents.

Date of hearing: 16th May, 1989.

ORDER

USMAN ALI SHAH, J: -Leave to appeal has been sought by the petitioners against the
dismissal of their civil revision by the Lahore High Court, Rawalpindi Bench, arising out
of a declaratory suit for title and confirmation of possession of the disputed land, filed by
the respondent No. 1. The learned trial Judge after framing the issues on the pleadings of
the arties, djourned the proceedings for evidence. Nazar Hussain etc.
plaintiffs/respondents and defendants/petitioners 1-3 concluded their evidence while
defendants 4-11 requested for time to produce some documentary evidence. The learned
Trial Judge observed that the documents in question would be surprise for the other party,
declined to adjourn and closed the evidence vide his order dated 7-9-1986. Appeal of the
petitioners against this order was dismissed by the learned District Judge on 21-1-1988.
Revision petition of the petitioners before the Lahore High Court, Rawalpindi Bench was
also dismissed on 6-3-1988. Hence this petition for leave to appeal.

It was argued by the learned counsel for the petitioners that for exercise of jurisdiction
under Order X111, Rule 2 of the C.P.C., to examine the nature of documents is a must. He
laid emphasis that there is ample law on the point that if documents arc public documents
of unimpeachable authenticity, its late production is not a ground under Order X111, Rule
2 of the C.P.C. He also contended that the learned High Court failed to consider that
notice under Order XLIII, Rule 3 of the CPC wits not required to be sent to the other
party in appeals which did not fall under Order XLIII, CPC.

After hearing the learned counsel for the petitioners, we think that the contentions raised
involve points of law which require consideration of this Court. The petition is converted
into appeal. Security for costs in the sum of Rs.5,(XX). Appeal he fixed on the present
record for final hearing in tune, 1989. No stay of proceedings but final judgment shall not
be announced until the final disposal of the appeal.

M.A.K./N-170/S Leave granted.

Page No. 1 of 1
1987 S C M R 744

Present: Aslam Hussain and Mian Burhanuddin Khan, JJ

IQBAL AHMAD and others--Petitioners

Versus

KHURSHID AHMAD and others--Respondents

Civil Petition for Leave to Appeal No. 961 of 1986, decided on 20th January, 1987.

(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 20-10-
1986. in Regular Second Appeal No. 72 of 1982).

Constitution of Pakistan (1973)-

---Art. 185(3)--Punjab Pre-emption Act (I of 1913), S. 15--West Pakistan Land Revenue

Act (XVII of 1967), S. 44--Civil Procedure Code (V of 1908), S. 100, 0. XIII, R. 2, S.
151 & 0. XLI, R.27--Suit for pre-emption-- Application of plaintiff-respondent for
permission to produce copy of Jamabandi to establish his superior right of pre-emption
rejected by Trial Court as well as Appellate Court--High Court, in second appeal,
allowing plaintiff-respondent to produce such copy of Jamabandi in evidence to prove his
qualification being an owner in the estate--High Court in impugned judgment observing
that authenticity and genuineness of certified copy of Jamabandi, being part of record-of-
rights, was beyond dispute and that it was not understandable why the Trial Court and
Appellate Court below had declined to allow its reception in evidence--Impugned order,
held, was not exceptionable--Leave to appeal refused--Petitioner, could, however, rebut
the evidence produced in said behalf by any cogent evidence and could also challenge the
authenticity of Jambandi.

Ch. Muhammad Hasan, Advocate Supreme Court and Rana Maqbool A. Qadri,
Advocate-on-Record for Petitioners.

Ch. Khalilur Rahman, Senior Advocate Supreme Court and Tanvir Ahmad, Advocate-on-
Record for Respondent No. 1.

Date of hearing: 20th January, 1987.

ORDER

MIAN BURHANUDDIN KHAN, J.-- Plaintiffs /respondents Khurshid Ahmad and Mst.
Hamida Bibi filed a suit for possession by pre-emption regarding land measuring 501
Kanals and 19 Marlas situate in village Bahar, Tehsil and District Sheikhupura which the
petitioners claimed to have purchased vide Mutation No. 140 attested on 30-12-1975.
Before the closure of evidence of the parties, plaintiff /respondent No.1 moved an
application under Order AIII, Rule 2 read with section 151, C.P. C. for permission to
produce copy of Jambandi. The learned trial Court rejected this application vide order
dated 8-5-1979. He then filed an appeal which was rejected by the learned Additional
District Judge per order dated 30-9-1979. This order was not challenged by the plaintiffs/
respondents in any higher forum. Consequently the learned trial Court dismissed the suit.
Plaintiffs/ respondents then filed an appeal before the learned Additional District Judge,
alongwith an application under Order XLI, Rule 27 for permission to produce copy of
Jamabandi to enable them to establish that they were the owners in the estate, and,
therefore, had superior right of pre-emption. This application was rejected by the learned
Additional District Judge. Regular second appeal was then filed in the High Court which
is still pending and a learned single Judge, vide his impugned order dated 20-10-1986,
allowed the plaintiff /respondent to produce in evidence, in second appeal, copy of
Jamabandi to prove his qualification being an owner in the estate.

2. Leave is now sought by the petitioners on the grounds that no good cause has been
shown by the plaintiff /respondent for permission to produce copy of Jamabandi under
Order XIII, Rule 2, C.P.C.; that the cause shown in the application under the aforesaid
Page No. 1 of 1
order, speaks of gross negligence on the part of the plaintiff /respondent; and that
valuable right had accrued to the vendee and no premium can be allowed on the gross
negligence of a pre-emptor.

3. We have examined the contentions raised by the learned counsel for the petitioners and
gone through the impugned judgment wherein the learned High Court Judge has observed
that the authenticity and genuineness of the certified copy of Jamabandi, which was part
of the record of rights duly prepared according to law by the Government officials, and
which the appellant (respondent herein) wanted to produce to establish his superior right
of pre-emption was beyond dispute; and that it is not understandable why the learned trial
and the appellate Court below declined to allow its reception in evidence. We are of the
view that the impugned order is not exceptionable. However, the petitioner can rebut the
evidence produced in this behalf by any cogent evidence; and can also challenge the
authenticity of the document (Jamabandi), and shall be entitled to produce evidence in
rebuttal. With this observation this petition is dismissed.

S. Q. /I-3/S Petition dismissed.

Page No. 2 of 1
1986 S C M R 439

Present: Aslam Riaz Hussain and Shafiur Rahman, JJ

ZAFAR IQBAL and others--Petitioners

versus

BASHIR AHMAD KHAN and others--Respondents

Civil Petition No. 5 of 1984, decided on 27th February, 1985.

(Against the judgment and order of the Lahore High Court, Multan Bench, dated 22-11-
1983 in C.R. No. 286 of 1983).

Constitution of Pakistan (1973)-

--Art. 185(3)--Civil Procedure Code (V of 1908), O. XIII, r.2-Production of evidence at

late stage--Disallowed by trial Court—Order impugned--Trial Court having rightly
exercised discretion vesting in it in matter of admission of evidence, production of which
was sought at a later stage of proceedings, High Court rightly refused to interfere-Leave
to appeal refused.

High Court Rules and Orders, Vol. I Chap. I, Part G, para.4; Abdul Aziz v. Abdullah and
others P L D 1952 B.J. 1; Haji –Abdullah Khan and others v . Nisar Muhammad Khan
and others P L D 1965 S C 690 ref.

A.K. Dogar, Advocate Supreme Court assisted by Mahmood A. Qureshi, Advocate-on-

Record for Petitioners.

Ch. Qadir Bakhsh, Advocate Supreme Court, Rana M.A. Kadir, Advocate-on-Record for
Respondent No. 1.

ORDER

SHAFIUR RAHMAN, J.--In a pending suit for specific performance of contract for sale
of immovable property instituted on 4-9-1980 an application was filed on 10-3-1983
under Order XI II rule 2, C . P . C . and Order XVIII, rule 2, C.P.C. for producing in
evidence a tape-recorded cassette of conversation between one of the plaintiffs (Zafar
Iqbal) and one of the defendants (Bashir Ahmad Khan). It was refused by the trial Court.
In revision the High Court refused to interfere. Hence this application for leave to appeal.

The learned counsel for the petitioner has advanced a new ground for acceptance of the
application and for challenging its refusal by the two Courts. It is contended that as the
plaintiffs were not called upon in terms of requirement of High Court Rules and Order,
Vol. 1, Chapter 1, Part 'G' to file a list of documents and witness the petitioner could not
in view of the decision in Abdul Aziz v. Abdullah and others PLD 1952 B J 1 be denied
an opportunity of producing evidence. According to the learned counsel it is a pure
question on law which can in terms of Haji Abdullah Khan and others v. Nisar
Muhammad Khan and others P L D 1965 S C 690 be raised in appeal. In addition the
learned counsel contended that the petitioner had a right of rebuttal and he could produce
the evidence on the subject.

Para. 4 of the same Chapter of the High Court Rules and Order provides as follows:-

"4. The above provisions as regards the production of the documents at the initial stage of
a suit are intended to minimise the chances of fabrication of documentary evidence
during the course of the suit as well as to give the earliest possible notice to each party of
the documentary evidence relied upon by the opposite party. These provisions should,
therefore, be strictly observed, and if any document is tendered at a later stage, the Court
should consider carefully the nature of the document sought to be produced (e.g. whether
there is any suspicion about its genuineness or not) and the reasons given for its non-
production at the proper stage, before admitting it. The fact of a document being in
Page No. 1 of 1
possession of a servant or agent of a party on whose behalf it is tendered is not itself a
sufficient reason for allowing the document to be produced after the time prescribed by
Order XIII, rule 1. The Court must always record its reasons for admission of the
document in such case, if it decides to admit it (Order XIII, rule 2)."

The trial Court has in refusing the fresh evidence complied with para. 4. The law cited by
the learned counsel for the petitioner also bears it out that the trial Court has the
discretion in the matter of admission of evidence production of which was sought at a
later stage of the proceedings. That discretion has been exercised for the reasons
recorded. The High Court has not found any defect in it. We do not see how the exercise
of such a discretionary power can be made the subject-matter for further examination in
this Court. Hence leave to appeal is refused.

M. I. Leave refused.

Page No. 2 of 1
1986 S C M R 1684

Present. Nasim Hasan Shah and S. A. Nusrat, JJ

Mst. NAZIR BEGUM--Petitioner

versus

IQBAL HUSSAIN QURESHI and others--Respondents

Civil Petition No. 693 of 1985, decided on 11th November, 1985.

(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 2-4-
1985 passed in Civil Revision No. 56 of 1983/BWP).

Constitution opt Pakistan (1973)--

---Art. 185(3)--Civil Procedure Code (V of 1908), S. 115 & O.XIII, R.2--Petitioner

raising a plea which was clearly inconsistent with course of action earlier chosen by her--
Leave to appeal refused.

1976 S C M R 350 and P L D 1964 Kar. 149 ref.

Ch. Muhammad Hasan, Advocate Supreme Court for Petitioner.

S. Iftikhar Ahmed, Advocate Supreme Court instructed by Mian Ata-ur-Rehman,

Advocate-on-Record for Respondent No.3.

Date of hearing: 11th November, 1985.

ORDER

S.A.NUSRAT, J.--The respondents instituted a suit for possession through pre-emption in

respect of a house situated in Mohallah Qureshian, Bahawalpur which was allegedly sold
through a registered sale-deed by Mst. Noor Bibi on 21-2-1978 to the respondents
/defendants. The respondents/ plaintiffs after closing their evidence applied for the
production of certain documents through an application under section 151, C.P. C. By
another application made under Order XIII, rule 2, C . P. C ., he object of making the
earlier application under section 151, C.P.C. was amplified. The said applications were
allowed by the learned trial Court. The petitioner/ defendant herein challenged the said
order through a revision petition before the High Court which was accepted by order,
dated 23-2-1982 and the case was remanded to the trial Court with a direction to pass a
speaking order. The learned Senior Civil Judge after due consideration rejected both the
applications of the respondents on 19-1-1983. The respondents challenged the said order
before the High Court. The revision was allowed as per impugned judgment and the
respondents were permitted to file the additional documents.

2. The documents sought to be placed on the record were only two, namely, two sale-
deeds, dated 5th December, 1888 and 28-1-1947 executed by Syed Ghulam Ali Shah and
Mufti Ghulam Mustafa, respectively. The first sale-deed was executed in favour of
vendee Allah Dad and second in favour of Mst, Noor Bibi. Both the documents pertained
to the disputed house.

3. The revision petition was contested before the High Court, inter alia, on the ground
that rejection of application under Order XIII, rule 2, C.P.C. did not amount to a case
decided within the meaning of section 115, C.P.C. and the revision was, therefore,
incompetent. The same contention was reiterated before us by the learned counsel for the
petitioner.

4. In deciding the above legal issue reliance was placed by the learned Judge in the High
Court on a decision of this Court reported in 1976 S C M R 350 and a decision of the
Sind High Court reported in P L D 1964 Kar. 149.

Page No. 1 of 1
5. However, for another reason, we are not inclined to examine the above contentions any
further in this case because in the earlier round of litigation, as mentioned above, the
petitioner Mst. Nazir Begum had herself chosen to assail the order of the trial Court
through a revision petition in the High Curt whereupon the case was remanded. The
petitioner had thus succeeded in the matter and was benefited. It does not lie in her own
mouth now to turn round at this stage and raise a plea which is clearly inconsistent with
the course of action earlier chosen by her. On this ground alone leave is refused and the
petition is dismissed.

M.Y.H. Petition dismissed.

Page No. 2 of 1
1986 S C M R 472

Present: Muhammad Afzal Zullah and Shafiur Rahman, JJ

Mian ABDUL GHANI and another--Petitioners

versus

REHMATULLAH SHEIKH--Respondent

Civil Petition No. 1022 of 1984, decided on 7th September, 1985.

(Against judgment and order, dated 9-6-1984 of Lahore High Court Bahawalpur Bench,
Bahawalpur in Civil Revision No. 151 of 1978).

Constitution of Pakistan (1973)--

---Art. 185(3)--Civil Procedure Code (V of 1908), O. XIII, r. 2-Additional evidence--

Permission to lead--Revision against--Order to produce additional evidence--Question,
whether no revision was competent before High Court against order of trial Court
granting permission to lead additional evidence, purely legal one and relating to a
pending matter--Petition converted into appeal.

Muhammad Asghar v. District Judge, Sialkot and 3 others 1984 SCMR 1225 rel.

Sh. Inayat Ali, Advocate Supreme Court (absent) and Sh. Masud Akhtar, Advocate-on-
Record for Petitioners.

M. Ismail, Senior Advocate Supreme Court and Mian Ataur Rahman, Advocate-on-
Record for Respondents.

Date of hearing: 7th September, 1985.

ORDER

SHAFIUR RAHMAN, J.--The petitioner is a pre-emptor in a pending civil suit and seeks
leave to appeal against the judgment of the Lahore High Court, dated 9th of June, 1984
whereby permission granted to produce the copy of a registered deed by way of
additional evidence was recalled on a revision petition filed by the respondents.

The right of pre-emotion claimed by the pre-emptor relates to an urban property and in
order to prove his superior right of preemption, he sought and obtained from the trial
Court the permission on an application under order XIII, rule 2, C.P.C. to produce the
copy of a registered deed in order to show contiguity of his property. The permission was
subject to the payment of Rs.30 as costs with a right to the defendant to produce evidence
in its rebuttal. In the civil revision the High Court interfered with it on the ground that
sufficient cause was not shown for non-production of the document at ail earlier stage.

The learned counsel for the petitioner submitted that in fact no revision petition against
permission to lead additional evidence was at all competent and the discretion exercised
by the trial Court in any case should have been interfered with. The learned counsel has
relied oil the order granting leave to appeal-by this Court in Muhammad Asghar v.
District Judge, Sialkot and 3 others 1984 S C f1 R 1225.

As the question involved is a purely legal one and relates to a pending matter, we convert
this petition into an appeal. Security of Rs.2,500 shall be deposited within one month and
the appeal shall be made ready for hearing within six months after service of notice. To
be heard on tile present record with liberty to the parties to file such additional documents
as they consider necessary.

M.Y.H. Appeal admitted.

Page No. 1 of 1
1982 S C M R 669

Present : Aslam Riaz Hussain, Actg C. J. and Shafi-ur-Rehman, J

KHALILUR RAHMAN--Petitioner

versus

Mst. AZMAT SULTANA ETC.--Respondents

Civil Petition for Special Leave to Appeal No. 755 of 1981, decided on 7th March, 1982.

(Against the order dated 26-4-1981 passed (by the Lahore High Court in Civil Revision
No. 600 of 1980).

Civil Procedure Code (V of 1908)--

--- O. XIII, r. 2--Production of documents.--Refusal--Facts of case calling for

examination of question whether case in circumstances not a "case decided" and whether
High Court- powerless to see magnitude of wrong done to plaintiff -petitioner and
violated relevant principle-Leave to appeal granted.

Malik Habibullah Khan v. Pakistan Cement Industries Limited and others 1969 S C M R
965 ref.

Zakiuddin Pal, Advocate Supreme Court and Kh. Mushtaq Ahmad, Advocate-on-Record
for Petitioner.

Date of hearing: 7th March, 1982.

ORDER

SHAFI-UR-REHMAN, J.-The petitioner-plaintiff seeks leave to appeal against the

judgment of the Lahore High Court dated 26-4-1981 whereby a revision petition filed by
him against the refusal of the trial Court denying to the petitioner the permission to
produce the documents and witnesses at the trial on the ground that as held by this Court
in Malik Habibullah Khan v. Pakistan Cement Industries Limited and others 1969 S C M
R 965, it was not "a case decided" and as such a revision was not competent.

The learned counsel for the petitioner distinguishes the case mentioned above on the
ground that in that case documents which had not been relied upon while filing the suit or
when issues were framed, were not allowed to be produced. In the present case, the
plaintiff petitioner specifically mentioned these documents and relied upon them when he
filed the plaint and the issues have not so far been framed in the case though the suit itself
was instituted in 1975. It is said that the trial Court was possessed of no jurisdiction to
deny the plaintiff's right to produce such evidence as he had relied upon and mentioned at
the time of the filing of the suit itself. It was not a case of producing any additional
evidence. It was on the contrary a case of exercise of right of hearing, of producing such
evidence as was lawfully and at the first opportunity relied upon.

The facts of the case do call for an examination of the question whether in the
circumstances it was not "a case decided" and whether the High Court was powerless to
see the magnitude of the wrong done to the plaintiff petitioner and the principle violated.
Leave to appeal is granted. Rs. 2,500 as security. No interim order meanwhile except that
the judgment finally disposing of the case may not be passed while this petition is
pending. The appeal to be heard on its present record, with liberty to the parties to file
additional documents.

Leave granted.

Page No. 1 of 1
1975 S C M R 254

Present : Salahuddin Ahmad and Muhammad Gul, JJ

Mst. KANEEZ FATIMA-Petitioner

versus

GHULAM MUHAMMAD ETC-Respondents

Civil Petition for Special Leave to Appeal No. 488 of 1974, decided on 28th October
1974.

(On appeal from the judgment and order of the Lahore High Court, dated She 5tb of
February 1974, in R. S. A. No. 117 of 1970).

Civil Procedure Code (V of 19080--

--- O. XIII, r. 2, react with O. XLI, r. 1-Civil appeal-Whether mere omission to file copy
of trial Court's judgment can affect competence of appeal and High Court on second
appeal should permit appellant to put in judgment within a specified time-Leave to appeal
granted to consider question.

Khawaja Mushtaq Ahmad, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 28th October 1974.

ORDER

SALAHUDDIN AHMED, J.-The petitioner has been aggrieved by the dismissal of his
second appeal by the High Court on the ground that the appeal was not accompanied by a
copy of the judgment of the trial Court as required under Order XII1, Rule b., read with
Order XLI, rule 1 of the Code of Civil Procedure. It appears that this omission escaped
the notice of the Bench admitting second appeal to a regular hearing. The omission was
discovered by the learned Single Judge of the High Court before whom the appeal
appeared for a regular hearing. It was, however, then too late to repair the damage as the
time had run out for putting in the copy of the judgment of the trial Court.

It has been contended before us that once the appeal has been admitted to a regular
hearing, the mere omission to fit- a copy of the trial Court's judgment cannot affect the
competence of the appeal, and that the learned Single Judge could and should have
permitted the petitioner to put in the judgment within a specified time.

It appears that for consideration of a similar question leave was granted by this Court in
Civil Petition for Special Leave to Appeal No. 5711 of 1972 on the 12th of July, 1973.
We, accordingly, grant leave to appeal. Security for costs Rs. 1,000, Prayer for stay is
refused.

Leave granted.

Page No. 1 of 1
1969 S C M R 965

Present: Hamoodur Rahman and Muhammad Yaqub Ali, JJ

Nawabzada Malik HABIBULLAH KHAN-Petitioner

versus

THE PAK. CEMENT INDUSTRIES LIMITED AND OTHERS-Respondents

Civil Petition for Special Leave to Appeal No. 375 of 1967, decided on 12th October
1967.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore,
dated the 13th July 1967, in Civil Revision No. 384 of 1967).

Civil Procedure Code (V of 1908)—

---S. 115 & O. XIII, r. 2Party permitted by Court to place on record certain documents
after framing of issues-Such order admitting or declining to admit evidence oral or
documentary not "case decided" so as to attract provisions of S. 115.

Mian Muhammad Shafi, Advocate Supreme Court instructed by Khawaja Mushtaq

Ahmad, Senior Attorney for Petitioner.

Nemo for Respondents.

Date of hearing : 12th October 1967.

ORDER

MUHAMMAD YAQUB ALI, J.-This petition for special leave to appeal is wholly
misconceived. A suit filed by the respondents against the petitioner for a permanent
injunction is pending in the, Court of a Civil Judge in Lahore. After the issues were
framed the respondents were permitted by the trial Judge to place on the record certain
documents against which the petitioner moved the High Court under section 115, C. P. C.
The petition was dismissed as the High Court did not find any material irregularity or
illegality in admitting the documents in evidence.

It is from this order that the petitioner seeks leave to appeal. An order admitting or
declining to admit evidence oral or documentary does not amount to a "case decided"
within the purview of section 115, C. P. C. The High Court could not, therefore, interfere
with the order of the `trial Court in exercise of its revisional jurisdiction. A fortiorari no
appeal from the order of the High Court would lie to this Court.

The petition is dismissed.

Leave refused.

Page No. 1 of 1
From page No. 9.

Page No. 2 of 1