Mistake in Evidence can be ractified

 PLJ 2013 Lahore 633

Present: Abdus Sattar Asghar, J.

KAMEER and another--Appellants

versus

ABDUL MAJEED--Respondent

R.S.A. No. 145 of 2004, heard on 25.2.2013.

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

----Arts. 70 & 71--Oral evidence--Onus probandi--There is no cavil to proposition that in terms of Art. 70 of Q.S.O. all facts except contents of documents might be proved by oral evidence--Art. 71 of Order, 1984 contemplates that oral evidence must, in all cases whatever be directed.        [P. 635] A

Evidence--

----Agreement to sell--It is well established principle of law of evidence that a person can tell a lie but document cannot. [P. 636] B

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

----O. VI, R. 17--Oral agreement to sell--Divergent pleading--Application for amendment was allowed--Proposed amendment was not likely to change nature of suit--After demise of predecessor, appellant resiled and refused perform agreement--Documentary account--Respondent was under heavy burden to prove alleged factum of oral agreement to sell between parties which he could not establish through reliable ocular or documentary.     [Pp. 636 & 637] C

Error of Law--

----Court commits an error if it acts contrary to law--Validity--If a Court acts contrary to law, it acts without jurisdiction and its order to that extent is nullity--It is bounden duty of Court to decide controversy between the parties on basis of evidence on record which is legally admissible--A decision based on mistaken assumption and misreading or non-reading of evidence falls within ambit of an error of law.       [P. 637] D

Mr. Shahid Qayyum Chaudhry, Advocate for Appellants.

Mr. Inayatullah Chaudhry, Advocate for Respondent.

Date of hearing: 25.2.2013.

Judgment

This Regular Second Appeal is directed against the judgment and decree dated 14.11.2001 passed by learned Civil Judge Depalpur whereby respondent's suit for specific performance was decreed in his favour against the appellants. It also impugns the judgment and decree dated 23.6.2004 passed by the learned Additional District Judge Depalpur whereby appellants' appeal against the judgment and decree of the learned Civil Judge was dismissed.

2.  Brief facts leading to this appeal are that on 31.10.1994 Abdul Majeed respondent lodged a suit for specific performance against the appellants alleging that the appellants and their father namely Hamza jointly owned an area measuring 44 Kanals and 12 Marlas as per record of rights for the year 1992-93 situated in Mauza Ajja Bhutta Tehsil Depalpur; that about 2¬ years back appellants' predecessor namely Hamza orally agreed to sell the suit land in favour of the respondent in consideration of Rs. 3,00,000/-; that the respondent is in possession of the suit land since long however after the agreement to sell he is in possession of the same as owner; that the appellants also received a sum of Rs.50,000/- out of the consideration amount and remaining amount of Rs.2,50,000/- had to be paid at the time of registration of the sale-deed; that after the demise of Hamza appellants refused to complete the sale whereas the respondent was inclined to make the balance payment of Rs.2,50,000/- towards the consideration amount.

3.  The suit was resisted by the appellants by filing contesting written statement on 14.3.1995 contending that the respondent had earlier lodged a suit which was dismissed as withdrawn without seeking permission to file fresh one therefore fresh suit is barred by law. The appellants also contended that neither their predecessor namely Hamza nor they themselves ever entered into any agreement to sell with the respondent. They also denied receipt of any earnest amount of Rs.50,000/- from the respondent. They categorically contended that in fact the suit land devolved upon their mother Mst. Rabiah Bibi real sister of the respondent as inheritance from her father; that the suit land was in joint Khata of Mst. Rabiah Bibi and the respondent; that the respondent cultivating the suit land has been paying share in produce to Mst. Rabiah Bibi; that after the demise of Mst. Rabiah Bibi the respondent out of greed is declining the appellants' co-sharership.

4.  Arguments heard. Record perused.

5.  Record reveals that after framing of issues on the basis of divergent pleadings of the parties respondent concluded his evidence on 11.1.1996. Appellants concluded their evidence on 8.11.2000. Thereafter on 22.11.2000 the respondent lodged an application under Order VI, Rule 17 of the Code of Civil Procedure 1908 seeking amendment in the plaint in order to incorporate the word `defendants' in Paras No. 2 and 3 of the plaint in order to assert that the defendants and their predecessor agreed to sell the suit land in his favour and also received a sum of Rs.50,000/- as advance money out of consideration amount. Proposed amendment was resisted by the appellants. However, learned trial Court allowed the application for amendment vide order dated 25.4.2001 while making observation that the proposed amendment is not likely to change the nature of the suit. It is astonishing that the appellants did not question the vires of the order dated 25.4.2001 before the appellate Court. However perusal of the issues framed by the learned trial Court even before amendment in the plaint transpires that Issue No. 4 was constituted in the manner that respondent's plea against the appellants stood sufficiently covered. It may be expedient to reproduce hereunder the pivotal Issue No. 4 which reads below:

"Issue No. 4. Whether the oral agreement to sell between the parties in respect of the land in dispute was arrived at for a consideration of Rs.3,00,000/- and the defendants received Rs.50,000/- in advance and delivered the possession to the plaintiff? OPP."

5.  Onus probandi of above Issue No. 4 was upon the respondent. There is no cavil to the proposition that in terms of Article 70 of the Qanun-e-Shahadat Order, 1984 all facts except the contents of documents may be proved by oral evidence. Article 71 of the Order ibid contemplates that oral evidence must, in all cases whatever, be direct.

6.  Abdul Majeed respondent while appearing in the witness-box as PW-1 stated that Ameer Hamza was owner of 44 Kanals and 12 Marlas of land in Mauza Ajja Bhutta who has died and his succession has devolved upon the appellants; that Ameer Hamza before 6 months of his death had agreed to sell the suit land in his favour in consideration of Rs.3,00,000/- and that he had paid advance sum of Rs.50,000/- in front of Muhammad Hussain Pattidar, Qamar Hussain and Ahmad Khan Lambardar and that appellants were also accompanying their father at that time. Bare reading of the above statement of Abdul Majeed respondent transpires that he has not stated that the appellants had entered into an agreement to sell their share in the land measuring 44 Kanals 12 Marlas or that he had paid any earnest money of Rs.50,000/- to the appellants.

7.  Respondent also produced Qamar Din as PW-2 who stated that the appellants are sons of his sister-in-law (Sali) and that appellants in possession had agreed to sell their land situated in Mauza Ajja Bhutta; that the respondent had paid Rs.50,000/- to the father of the appellants; that after the demise of Hamza appellants resiled and refused to perform the agreement. Statement of Qamar (PW-2) transpires that he neither stated that Hamza had entered into an agreement to sell the suit land with Abdul Majeed nor uttered that Muhammad Hussain PW-3 was present there. Respondent has also produced Muhammad Hussain as PW-3 who in his statement has not mentioned about the presence of Qamar Din PW-2 at the time of alleged agreement to sell between the parties.

8.  Both Qamar Din PW-2 and Muhammad Hussain PW-3 have also miserably failed to state that on what date or in which year parties had entered into an agreement to sell. Both also did not state that how much time had passed since the alleged agreement to sell between the parties. Even the respondent in his plaint has not named them as witness to the impugned agreement to sell. Suit for specific performance was lodged by the respondent on 9.5.2001. Before filing this suit he had also lodged a suit for permanent injunction against the appellants on 6.7.1994, copy whereof is available on the record as Exh.D/5. In the said suit respondent categorically asserted that Ameer Hamza died four months back and that the appellants and their predecessor namely Hamza had agreed to sell the suit land with the respondent in consideration of Rs.3,00,000/- about two years back meaning thereby the impugned agreement to sell between the parties was made about one year and 8 months before the demise of Hamza. Contrary to the above, while appearing in the witness-box as PW-1 in the suit for specific performance the respondent categorically stated that Ameer Hamza entered into the impugned agreement to sell with him 6 months before his demise. It is well established principle of law of evidence that a person can tell a lie but the documents cannot.

9.  Perusal of the impugned judgment dated 14.11.2001 passed by the learned trial Court transpires that the learned trial Court appears much impressed from a suggestion made by the appellants to Abdul Majeed respondent during cross-examination that he has been asking Hamza and the appellants to take money and give the land as the same is legacy of his father. It is astonishing that the learned trial Court miserably failed to appreciate the evidence in true perception with reference to the context. Before the said suggestion it was admitted by him that the suit land was part of joint Khata and mother of the appellants had not got it partitioned. The above referred suggestion fails to indicate any agreement to sell between the parties. Needless to say that the respondent was under heavy burden to prove the alleged factum of oral agreement to sell between the parties which he could not establish through reliable ocular or documentary account. It is therefore obvious that the learned trial Court highly misconceived the above noted suggestion. Findings of the learned trial Court on Issue No. 4 based on misreading and non-reading of evidence therefore being against law and facts are untenable. Learned appellate Court also fell in grave error by maintaining the erroneous findings of the learned trial Court on this issue.

10.  It is pertinent to mention that the Court commits an error if it acts contrary to law. The term `law' refers not only to statutory law but also general principles of law. If a Court acts contrary to law, it acts without jurisdiction and its order to that extent is nullity. It is bounden duty of the Court to decide the controversy between the parties on the basis of evidence on the record which is legally admissible. A decision based on mistaken assumption and misreading or non-reading of evidence, falls within the ambit of an error of law. In this case concurrent findings of both the learned Courts below therefore based on erroneous reasoning, and misreading and non-reading of the evidence are untenable and liable to set aside.

11.  For the above reasons, the appeal is accepted, judgments and decrees of both Courts below are set aside and the respondent's suit for possession is dismissed with costs.

(R.A.)  Appeal accepted

Re-Examination of Witness under Article 133

 PLJ 2015 Peshawar 353

Present: Muhammad Ghazanfar Khan, J.

MUHAMMAD RAUF--Petitioner

versus

SAEED AHMAD--Respondent

C.R. No. 45-D of 2015, decided on 28.4.2015.

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

----Art. 133--Order of examination of witness--Clerical mistake--Application for correction--No provision to record evidence of witness as Court witness--Validity--Witness who has been examined in Court can be re-examined under Art. 133 of Qanun-e-Shahadat Order, 1984.                                 [P. 354] A & B

M/s. Muhammad Wahid Anjum and Kamran Hayat Miankhel, Advocates for Petitioner.

Mr. Muhammad Ayaz Chaudhry, Advocate for Respondent.

Date of hearing: 28.4.2015.

Judgment

Through the instant revision petition the learned counsel for the petitioner has challenged the validity and propriety of order dated 10.02.2015 passed by learned Civil Judge-VII D.I.Khan vide which the Court has passed an order for recording the statement of steno of the Court and Muhammad Zahid as CW.

2.  Briefly stated facts of the case are that the PW Zahid has already been examined by the Court as PW-10, he while deposing in the Court has shown time as 11 O'clock on which the plaintiffs moved an application for correction of time instead of 11 O'clock to 9 O'clock as according to him it was a clerical mistake. This case has a chequered history as at preliminary stage this case has come twice to the High Court. Both times order of trial Court was set aside and guideline was provided but once again the trial Court repeated the mistake by allowing examination of Muhammad Zahid as CW whereas he has already been examined as PW-10 in the main suit. The scheme of Qanun-e-Shahadat Order, 1984, as envisaged in Article 132 is:

132. Examination-in-chief, etc.--(1) The examination of a witness by the party who calls him shall be called, his examination-in-chief.

(2)      The examination of a witness by the adverse party shall be called his cross-examination.

(3)      The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called, his re-examination.

3.  Similarly, details of order of examination of witness has been given in Article 133 of the Order ibid, in the present case the witness who has been examined in the Court can be re-examined under Article 133 of Qanun-e-Shahadat Order, 1984. However, there is no provision to record evidence of such witness as Court witness. In this respect the order impugned herein is without any lawful justification which is set aside. However, the Court if deems appropriate may re-examine the witness as envisaged under Article 133 of Qanun-e-Shahadat Order, 1984. In that situation the counsel for opponent party shall have right to cross-examine this witness. As a result this civil revision is allowed, judgment/order dated 10.02.2015 passed by learned Civil Judge-VII D.I.Khan is hereby set aside and case is remanded back to trial Court to comply the above said direction. C.M. No. 41-D/2015 has become infructuous and disposed of accordingly.

(R.A.)  Case remanded

Clerical Mistake in Evidence

 PLJ 2016 Cr.C. (Lahore) 439

[Multan Bench Multan]

Present: Qazi Muhammad Amin Ahmed, J.

EJAZ--Petitioner

versus

STATE and 10 others--Respondents

Crl. Rev. No. 146 of 2015, heard on 15.10.2015

Dispensation of Criminal Justice--

----Scope--Adversial in nature--Clerical mistake--Rectification--Prosecution can, however, dislodge that presumption of innocence on strength of evidence to be adduced in accordance with rules of procedure--Trial of an accused is to be conducted in accord with commands of procedure; it must be least embarrassing to accused’ enabling him to conveniently and comfortably meet prosecution half way--Without being hyper-technical rules of procedure are to be faithfully followed as these constitute an integral part of due process of law which is inexorably annexed with procedural fairness.                                                             [P. 441] A

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

----Art. 133(3)--Evidence in criminal trial--Cross-examination--Rectification--Evidence in a criminal trial is to be recorded in a manner provided under Art. 133 of Q.S.O. which permits re-examination only in relation to explanation of matters referred to in cross-examination or with a new matter by permission of Court--Provisions of Art. 133(3) cannot be invoked for rectification of an alleged error as no such rectification is contemplated thereunder and instead at most an explanation may be solicited from a witness with regard to his deposition in cross-examination.   [P. 441] B

Ch. Saeed Ahmad Farrukh, Advocate for Petitioner.

Mirza Abid Majeed, DPG for State.

Mr. Shakil Javed Ch., Advocate for Respondents.

Date of hearing: 15.10.2015

Judgment

The petitioner, accompanied by his co-accused, is confronting indictment of homicide before a learned Addl. Sessions Judge at Chichawatni. One of the prosecution witnesses Manzoor Ahmad appeared as PW-3 and stated on oath that within his view Riaz, co-accused made two fire shots which hit Abdul Razzaq deceased on his back; this statement was made on 25-2-2015. On 31-3-2015, Manzoor Ahmad, PW-3 moved an application that injuries assigned to Riaz accused were in fact attributed by him to Ejaz, petitioner, however, due to clerical mistake, name of Ejaz found mention in the record; rectification was prayed for, contested by the petitioner, however, learned trial Judge vide impugned order dated 17-4-2015 recorded statement of Manzoor Ahmad (PW-3) afresh and thereby allowed him to rectify the alleged error through his re-examination. The defence, asked to cross-examine the witness, requested for adjournment to challenge the vires of re-examination in the High Court was declined with a forfeiture of right to cross-examination.

2.  Learned counsel for the petitioner contends that there was no occasion for the learned trial Judge to allow re-examination of Manzoor Ahmad (PW-3) on a belatedly made request and that after taking such a drastic step to the detriment of the petitioner facing a charge which may entail ultimate sentence, a reasonable opportunity ought to have been afforded to challenge the vires of impugned action before the High Court. Contrarily, the learned counsel for the complainant has defended the impugned order on the ground that it was a clerical error, rectification whereof is in consonance with the case set up by the complainant on the day one.

3.  Heard. Record perused.

4.  Our system of dispensation of criminal justice is adversarial in nature, casting primary responsibility on the prosecution to drive home charge beyond a shadow of doubt against the accused, who would confront indictment under a presumption of innocence. The prosecution can, however, dislodge this presumption of innocence on the strength of evidence to be adduced in accordance with the rules of procedure. Trial of an accused is to be conducted in accord with the commands of procedure; it must be least embarrassing to the accused’ enabling him to conveniently and comfortably meet the prosecution half way. Without being hyper-technical the rules of procedure are to be faithfully followed as these constitute an integral part of Due Process of law which is inexorably annexed with procedural fairness. Procedural safeguards are essential to procedural fairness.

Evidence in a criminal trial is to be recorded in a manner provided under Article 133 of the Qanun-e-Shahdat Order, 1984 which permits re-examination only in relation to the explanation of matters referred to in cross-examination or with a new matter by the permission of the Court. Provisions of sub-article (3) of Article 133 of the Order ibid cannot be invoked for the rectification of an alleged error as no such rectification is contemplated thereunder and instead at the most an explanation may be solicited from a witness with regard to his deposition in cross-examination. Even for the purposes of an explanation, prosecution is not to be readily obliged to fill up lacunas of its case. No doubt, the Court is vested with vast powers to allow such request, nonetheless, power of this amplitude is to be exercised with circumspection and caution and essentially in order to set the scales of justice in balance and not to bail out one of the parties before the Court. Being a neutral arbiter, Court owes no responsibility either to the prosecution or to the defence. Similarly, there was no occasion for the learned trial Judge to forfeit right of cross-examination with an unseemly haste. An accused, bracing the gallows, must be afforded a reasonable and meaningful opportunity to exclude every hypothesis of his guilt before the noose is cast around his neck. Impugned order dated 17-4-2015 is set aside, consequently proceedings drawn thereunder stand quashed. Revision allowed.

(R.A.)  Revision allowed

Non Production of Second Marginal Witness

 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.

9. Mandate of law regarding instrument of future obligation is to be attested in terms of Article 17 of the Qanum-e-Shahadat Order, 1984 and for its proof Article 79 ibid mandates the production of two attesting witnesses, therefore, it is held that attestation by two witnesses of instrument regarding future obligation was absolute and imperative and to prove production of at least two attesting witnesses to testify its contents was also mandatory/compulsory as per requirement of Article 79 of the “Order, 1984. Therefore, it is held that missing of any condition mentioned in Article 17 of the Order, 1984, excludes the instrument from the purview of “within the meaning of law” and likewise production of less number of marginal witness eliminates the document from sanction of proved document as envisaged by Article 79 of the Order, 1984, which forces production of at least two witnesses to prove the existence and contents of the verbal/written agreement in the wake of the fact that the 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.

10. Production of the less number of marginal witnesses of the oral/written agreement is fatal. To produce required number of witnesses in evidence to prove the verbal/written agreement for financial liability or further obligation is legal obligation and mandate of law whereas non-fulfilment thereof has obvious result , of the claim submitted by the party because deficiency in this regard on the part of one party creates a reasonable right in favour of other side, which cannot be taken away by providing the opportunity to the indolent at subsequent stage of suit proceedings i.e. appellate stage to fill-up the lacuna in their evidence as it is not meant for removing the deficiency in the evidence of any party.

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.

11. It is not the case of appellants that their second marginal witness was not available at the time of trial of suit but it was alleged in their application filed first time before first appellate Court that at trial stage the witness on account of threat extended by the other side refused to appear/give evidence but this stance carries no weight being not plausible as required by law. Significance of non-inclusion of name of the said witness in the list of witnesses cannot be ignored while considering the prayer of production of second marginal witness at appellate stage. Record of the learned trial Court is also silent qua efforts made by appellants for production of that witness during the trial. Obviously, it was a sheer negligence, inadvertence and mistaken legal advice or act and omission on the part of the appellants, thus, the said lacuna could not be allowed to be filled-in by invoking the provisions of Order XLI Rule 27(1)(b), C.P.C.

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.

13. In view of the above, I do not find any reason to permit the appellants to produce the 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 the judgments impugned passed by learned Courts below inconsonance with the law and facts. No order as to costs.

(Y.A.)  Appeal dismissed

Evidence in a Rent Case

PLJ 2012 Islamabad 128

Present: Shaukat Aziz Siddiqui, J.

M/s. KING CLOTHING--Petitioner

versus

MUHABAT KHAN etc.--Respondents

W.P. No. 259 of 2010, decided on 20.12.2011.

Islamabad Rent Restrictions, Ordinance, 2001 (IV of 2001)--

----S. 17(8)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Ejectment petition--Tenant was directed to deposit monthly rent--Ejectment petition was allowed--Challenge to--Direction to make entire payment of outstanding rent--Tenant side was mum and silent--Validity--If any part of testimony of a witness remains unchallenged through cross-examination, said part is tantamount to admission--Petition was dismissed.      [P. 132] A

1991 SCMR 2300, 1992 CLC 807, 1999 CLC 266, 2003 CLC 1294, 1999 YLR 2604, 2001 MLD 1277 & 1992 MLD 810, ref.

Mr. Abdul Rauf Rohaila, Advocate for Petitioner.

Mr. Khalid Zaman, Advocate for Respondent Nos. 1 to 8.

Date of hearing: 20.12.2011.

Order

By invoking the constitutional jurisdiction of this Court, petitioner has sought declaration against concurrent findings, to the effect that order dated 20.04.2007 passed by the Rent Controller, Islamabad and order dated 22.12.2009 passed in appeal by the Additional District Judge, Islamabad are illegal against the facts and evidence available on the record, which are liable to be set aside.

2.  Brief facts, as glean out from the writ petition are that Respondent Nos. 1 to 8 are owners/landlords (hereinafter called as landlord) of Shop Nos. 7, 8 and 68-E, PaktelPlaza, Blue Area, Jinnah Avenue, Islamabad (hereinafter called as premises).

3.  Premises were leased out through Deed dated 15.10.2003 to petitioner (hereinafter called as tenant) the period of which expired on 14.10.2005. Landlord of the premises filed ejectment petition u/S. 17 of the Islamabad, Rent Restrictions, Ordinance 2001. In pursuance of process issued, tenant put his appearance and filed reply to the ejectment petition. In light of stance taken by parties, the learned-Rent Controller passed order under Section 17(8) of I.R.R.O whereby tenant was directed to deposit monthly rent @ Rs. 50,820/- starting from October, 2005 up to 19.06.2006. Tenant was further directed to deposit monthly future rent in the Court before 15th of each month.

4.  Out of divergent pleadings of parties, following issues were framed :--

(i)         Whether demised shop is required by the petitioners for their bona fide personal need? OPA

(ii)        Whether the respondent has encroached upon the Verandah in violation of lease agreement and CDA bylaws? OPA

(iii)       Whether the lease agreement has expired on 14.10.2005. If so, its affect? OPA.

(iv)       Whether the respondent failed to hand over the possession of demised shop in spite of legal notice dated 11.07.2005? OPA

(v)        Whether the respondent is liable to be ejected? OPA

(vi)       Whether the petition has been filed with mala fide intention? OPR.

(vii)      Order.

Vide order dated 20.04.2007, ejectment petition was allowed. Feeling aggrieved, tenant preferred an appeal u/S. 21 of I.R.R.O. The learned appellate Court upheld the findings of rent controller, vide impugned judgment dated 22.12.2009.

5.  Perusal of order sheet shows that my learned brother Mr. Justice, Ijaz-ul-Ahsan, J; of Lahore High Court, entertained the writ petition and vide order dated 25.01.2010 directed issuance of pre-admission notice to the respondents/landlord. And vide order of even date passed in C.M. No. 1 of 2010. His Lordship further directed that:--

"Subject to notice and till the next date of hearing, the petitioner shall not be dispossessed. The petitioner shall keep the demised premises intact and shall not cause any damage or destruction of any nature. It is, however, clarified that unless specifically extended, this restraining order shall automatically lapse on the next date of hearing. The petitioner shall deposit the up-to-date agreed rent with the executing Court. This will of course be without prejudice to any legal objections/pleas taken by the respondents regarding default, committed in the past or that may be committed by the petitioner in the future."

6.  Petitioner/tenant moved C.M. No. 420/2010 for seeking permission to place on record documents mentioned in Paragraph No. 3 of C.M. which was allowed vide order dated 5.03.2010. Another C.M. No. 421/2010 was also moved through which ad-interim injunction granted vide order dated 25.01.2010 was directed to be continued till next date of hearing.

7.  On receipt of writ petition from Hon'ble Lahore High Court, Rawalpindi Bench, notices were issued, in response to which parties have put their appearance.

8.  Learned counsel for petitioner submits that learned rent controller and First Appellate Court failed to appreciate the evidence brought on the record and law on the subject, more particularly when landlord was failed to prove his personal bona fide need. On the other hand, learned counsel for landlord/respondents submits that petitioner has no right of audience as in terms of order dated 25.01.2010, no rent has been deposited with the Court and through C.M. No. 420/2010, an effort was made to cover the default. Learned Counsel further states that there is concurrent findings of law and facts recorded by the Courts below; therefore, writ petition is not maintainable. He placed reliance on the cases of Javaid Ahmed Vs. Muhammad Imran Malik (PLD 2011, Islamabad 30) M/s. Zaki-ud-din Siddiqui Vs. ADJ, Islamabad(2011 CLC 652) and Muneer Khan Vs. Uzma Ufaq (2011, CLC 846).

9.  I have heard, learned counsel for parties and made perusal of record.

10.  One thing which is floating on the surface of the record is that order dated 25.1.2010 has not been complied, in its letter and spirit. Tenant tried his level best to linger on the proceedings and succeeded in it as period of almost 02 years has elapsed but no rent deposited till todate. Although, stance has been taken through C.M. No. 420 of 2010 that no application was pending with the executing Court, but to my mind it is nothing, except chicanery. In order to show bona fide, petitioner/tenant was required to seek permission to deposit rent in this Court, if any difficulty was ever faced by him.

11.  The High Court, in its constitutional jurisdiction is required to observe demeanour of parties as well, and to satisfy itself whether any litigant, invoked the jurisdiction of the Court with clean hands or stinking approach? Moreover, Court is not to sit as a spectator, if any party tries, to gain undue advantage. In such eventuality it is duty of the Court to provide shield to a victim of such designs. Superior Courts of the country have held time and again that the constitutional jurisdiction is always discretionary, and he who seeks equity must come with clean hands. Following Judgments of apex Court, provide guidance in this regard; Muhammad Saee Vs. Mst. Sharif Elahi and another (2010 SCMR 1358), Tasnim Jalil and others Vs. Deputy Director, A.N.F (2010 SCMR 72) Syed Kamal Shah Vs. Govt. of N.W.F.P (2010 SCMR 1377).

In these circumstances, petitioner/tenant is directed to make entire payment of outstanding rent by 31st. December, 2011 with the Deputy Registrar, Judicial of this Court. If he complies with the order then period of one month commencing from 1st. Jan. to 31st. Jan. 2012 will be available to tenant to vacate the premises and hand over its vacant and peaceful possession to landlords, otherwise landlord shall be at liberty to move an application before the executing Court. (Landlord present in Court has given assent in this regard). The Court shall ensure recovery of possession without notice, and to avoid law and order situation, may take appropriate measures like assistance of police etc.

12.  Even on merits, landlord successfully proved their case on Issue Nos. 1, 2, 3, 4 and 5. For instance, Paragraph No. 3 of the ejectment petition relates to Issue No. 2, which is reproduced hereunder:--

"That the respondent has also included the back veranda with the shops in his occupation by constructing the walls, not only without their permission but against specific instructions and CDA bylaw and has thus prejudice their cause before CDA for completion certificate which is the violation of lease agreement and his possession over the area of veranda is as of illegal occupant/trespasser. His above said action has also impaired materially the utility of the building that is also a violation in the eyes of law."

Petitioner/tenant replied the same with following assertion:--

Abdul Qayyum S/o Sher Bahadar Khan one of landlords appeared as "AW1" and tendered his affidavit "Ex-A1". Contents of Para-3 of his affidavit are provided herein below:--

Entire cross-examination conducted from petitioner/tenant side is mum and silent on this aspect/it is well settled law with the mandate of the dictums of the superior Courts of the country that if any part of testimony of a witness remains unchallenged through cross-examination, said part is tantamount to admission. Reference is made to the cases of Mst. Nur Jehan Begum Vs. Syed Mujtaba Ali Naqvi (1991 SCMR 2300), Mst. Sahab Bibi Vs. Lal (1992 CLC 807), Jan Muhammad Vs. Mulla Abdul Rehman(1999 CLC 266) Abdul Sattar and others Vs. Mst. Sardar Begum (2003 CLC 1294), Ali Yousaf Vs. The State (1999 YLR, 2604) Ghulam Rasool and others Vs. The State (2002 YLR 1996) Muhammad Akram Vs. Muhammad Rauf (2001 MLD 1277) and Arshad Mehmood Siddiqui Vs. Muhammad Haroon, (1992 MLD 810). When confronted about this omission, learned counsel for petitioner frankly conceded that no cross-examination was conducted, so much so, no suggestion is put to "AW-1".

13.  In this view of the matter, it is held that both the Courts below appreciated the evidence in its true perspective which does not call for any inference in the constitutional jurisdiction. The learned counsel for the petitioner failed to point out jurisdictional defect, illegality, non-application of judicial mind and lack of appreciation of material on record, therefore, this writ petition is dismissed.

(R.A.)  Petition dismissed