PLJ 2020 Lahore 386
Present: Muhammad Ameer Bhatti, J.
MUHAMMAD TUFAIL etc.--Appellants
versus
MUHAMMAD ASHIQ--Respondent
R.S.A. No. 163 of 2011, heard on 20.11.2019.
Civil Procedure Code, 1908 (V of 1908)--
----S. 100 & O.XLI R. 27(1)(b)--Specific Relief Act, (I of 1877), S. 12--Suit for specific performance--Dismissed--Appeal--Dismissed--Agreement to sell--Non-production of second marginal witness--Legal obligation--Deficiency in evidence--Challenge to--Production of less number of marginal witnesses of oral/written agreement is fatal--To produce required number of witnesses in evidence to prove verbal/written agreement for financial liability or further obligation is legal obligation and mandate of law whereas non-fulfilment thereof has obvious result of claim submitted by party because deficiency in this regard on part of one party creates a reasonable right in favour of other side, which cannot be taken away by providing opportunity to indolent at subsequent stage of suit proceedings i.e. appellate stage to fill-up lacuna in their evidence as it is not meant for removing deficiency in evidence of any party--It is not case of appellants that their second marginal witness was not available at time of trial of suit but it was alleged in their application filed first time before first appellate Court that at trial stage witness on account of threat extended by other side refused to appear/give evidence but this stance carries no weight being not plausible as required by law--Record of trial Court is also silent qua efforts made by appellants for production of that witness during trial--Obviously, it was a sheer negligence, inadvertence and mistaken legal advice or act and omission on part of appellants, thus, said lacuna could not be allowed to be filled in by invoking provisions of Order XLI Rule 27(1)(b), C.P.C.--I do not find any reason to permit appellants to produce second marginal witness at this stage, therefore, considering this deficiency sufficiently fatal to their case, this second appeal is dismissed being devoid of merit considering judgments impugned passed by Courts below inconsonance with law and facts--No order as to costs--Appeal was dismissed. [Pp. 391 & 392] B, C, D & E
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Arts. 17 & 79--Financial liability--Missing of any condition mentioned in Article 17 of Order, 1984, excludes instrument from purview of “within meaning of law” and likewise production of less number of marginal witness eliminates document from sanction of proved document as envisaged by Article 79 of Order, 1984, which forces production of at least two witnesses to prove existence and contents of verbal/written agreement in wake of fact that matter creating financial liability or future obligation requires to be attested by at least two witnesses and producing of them to record their testimony is mandatory otherwise exclusion from consideration is obvious. [P. 391] A
Mian Shahid Mahmood, Advocate for Appellants.
Ms. Kishwar Naheed and Malik Saqib Sarfraz, Advocates for Respondent.
Date of hearing: 20.11.2019.
Judgment
Suit for specific performance regarding agreement to sell on account of its non-fulfilment in terms mentioned therein, instituted by the appellants, was dismissed by the learned trial Court vide judgment and decree dated 25.09.2010 and appeal whereof along with application under Order XLI rule 27, C.P.C. for production of additional evidence was dismissed by the learned first appellate Court vide impugned judgment & decree dated 19.07.2011; hence, this second appeal.
2. Suffice to mention that the suit for specific performance of agreement to sell purportedly executed between the parties regarding the land measuring 04-kanals 09-marlas on account of its non-performance constrained the present appellants to bring a suit for its enforcement, which was contested by the respondent and considering the divergent pleadings necessary issues were condensed enabling the parties to lead their evidence to substantiate their contents of pleadings.
3. The learned trial Court concluded the proceedings into dismissal of suit holding that non-production of second marginal witness mandatory to prove the factum of agreement to sell was incurable defect in evidence of the plaintiffs necessitating to dismiss the suit. Appeal was preferred, however, during pendency thereof, an application for production of second marginal witness was also filed, which was discouraged by the learned first appellate Court in its impugned judgment declaring the same result as concluded by the learned trial Court.
4. It is admitted by the learned counsel for the appellants that there is no cavil to the settled principle of law that production of two marginal witnesses to prove the factum of agreement to sell was mandatory and deficiency in this regard left no room for the plaintiffs-appellants to think about any success. Therefore, they at the appellate stage filed the application for production of the said second marginal witness of the purported agreement to sell but same was rejected despite the fact that clause (b) of sub-rule (1) of Rule 27 of Order XLI, C.P.C. does permit the learned first appellate Court to grant this permission in order to reach on just conclusion. Non-exercise of that provided power is a material illegality and irregularity permitting this Court to interfere while exercising the power provided under Section 100, C.P.C. He also contended that if his application is allowed, in that eventuality his case could have been considered on merits because the Courts below have dismissed appellants’ suit and appeal on account of deficiency of evidence/non-production of second marginal witness. To substantiate his contention that the permission for production of evidence at appellate stage was within the domain of the appellate Court, the learned counsel has placed reliance on law laid down by Hon’ble Supreme Court in the cases reported as Ghulam Ahmad Chaudhry v. Akbar Hussain through Legal Heirs and another (PLD 2002 Supreme Court 615), Ghulam Zohra and 8 others v. Nazar Hussain through Legal Heirs (2007 SCMR 1117), Syed Muhammad Hassan Shah and others v. Mst. Binat-e-Fatima and another (PLD 2008 Supreme Court 564), Muhammad Azam v. Muhammad Abdullah through L.Rs. (2009 SCMR 326), Syed Sharif ul Hassan through L.Rs. v. Hafiz Muhammad Amin and others (2012 SCMR 1258) and Commissioner Multan Division, Multan and others v. Muhammad Hussain and others (2015 SCMR 58).
5. On the other hand the learned counsels for the respondent contend that the additional evidence cannot be allowed to be produced in routine to remove the lacunas and deficiency in evidence. Aforesaid provision of law also imposes a condition of recording of reasons for grant of permission for production of additional evidence and there is no plausible, substantial cause explained by the appellants for non-production of the second marginal witness at the time of recording of evidence before the learned trial Court. It is further contended that list of witnesses presented by the appellants-plaintiffs after framing the issues does not contain the name of second marginal witness and missing of name of second marginal witness from list of witnesses submitted, by the plaintiffs during trial proceedings makes it clear that till completion of trial plaintiffs did not have any intention to produce him and reason created for non-production of second witness during trial alleged in application for additional evidence has no value and substance because they never claimed intervention/help of the Court during trial proceedings for production of the second marginal witness to prove contents of agreement to sell as required by law. While relying on the judgments reported in Rana Abdul Aleem Khan v. Idara national Industrial Cooperative Finance Corporation Defunct through Chairman Punjab Cooperative Board for Liquidation, Lahore and another (2016 SCMR 2067), Farid Bakhsh v. Jind Wadda and others (2015 SCMR 1044), Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others (PLD 2011 Supreme Court 241), Faiz Bukhsh v. Rabnawaz and others (2017 YLR Note 352), Government of Khyber, Pakhtunkhwa through Secretary, Forest Department v. Devli Kund Forest and others (2011 MLD 1511) and Abdul Aziz v. Meehan Khan (PLD 1979 Baghdad-ul-Jadid 38) it is contended that it is not a fit case for allowing the appellants to fill-up the lacuna in their evidence, therefore, there is no infirmity in the judgment of the learned first appellate Court for its rectification; hence, second appeal is liable to be dismissed.
6. I have heard the learned counsels for the parties and gone through record of the case.
7. In order to appreciate the contentions raised by learned counsels for the parties, reproduction of rule 27 Order XLI, CP.C. is essential as the case revolves around this provision, which is as under:
“27. Production of additional evidence in Appellate Court.--(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if--
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(b) the Appellate Court requires any document to be produced or any witness to be examined to . enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.”
First part of this rule (a) relates to grant of permission to those documents or evidence, which were not permitted by learned trial Court despite availing opportunity before it and this clause does not attract here as appellants did not apply/approach the learned trial Court for production of second marginal witness during trial proceedings and missing of name of the second witness from list of witnesses submitted by the plaintiffs/appellants also had significant bearing upon merits of the case which the plaintiffs/appellants faced dismissal of their suit on account of this deficiency in evidence.
The second part of rule 27(b) enables the appellate Court to entertain the application for production of additional evidence directly/ first time applied for its production provided some substantial cause for its earlier non-production is explained/alleged, meaning thereby that there must be reasonable excuse for non-production of that evidence at the trial stage, additionally that evidence must have been necessary to do the complete justice but it does not mean to permit any party to remove any deficiency in his evidence. This provision does not command to exercise this power for the benefit of a party which has not vigilantly produced the evidence to prove the case inasmuch as it cannot be exercised to remove the weaknesses in evidence of any party.
8. Undeniably the power provided under Order XLI Rule 27, C.P.C. is not unfettered power. The appellate Court should have exercised this discretionary power within the parameters of law enunciated in the said provision of law. Accordingly there is no bar for exercising this power provided circumstances of case do not permit the Court to decide the matter justly and fairly without receiving that evidence which is not the position here in this case.
Since trial of case moves forward and reaches its conclusion following the procedure provided in Civil Procedure Code deviation whereof stipulates obvious results, hence, parties have to move/ perform their duty/obligation accordingly and any of the parties if performs its duty/obligation negligently, it would obviously face the consequences and in such eventuality he cannot be allowed to take advantage of any beneficial provision introduced by law at subsequent stage, which has to be exercised reasonably. Inclusion of this provision extending power to appellate Court under sub-rule (l)(b) of rule 27 of Order XLI, C.P.C. significantly enables the appellate Court to grant permission to produce that piece of evidence which is discovered subsequently or created after completion of trial or was not in possession/reach or available or in [ knowledge despite best effort.
12. Omission to cite second marginal witness to prove the contents of purported agreement to sell and missing of explanation, on behalf of the plaintiffs/appellants at trial level for non- production of that witness is enough to draw the inference against the appellants that if said second marginal witness was produced at the relevant time in the witness box, he would have deposed against appellants’ version as envisaged under Article 129(g) of Qanun-e-Shahadat Order, 1984.
(Y.A.) Appeal dismissed
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