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 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 excise 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)-----

----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)-----

----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 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.

(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 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 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 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 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 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 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.

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 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 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 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

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 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.

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 (‫ﺎﻠﺑ ﻥﺎﮕﻠ ﻪﺟﻭﺑ ﻊﻴﺑ‬
‫ )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 (‫ )ﺬ ﻰﮕﻣ ﻉﺭﺍﺰﻣ ﺎﻠﺑ ﻥﺎﮕﻠ ﻪﺟﻭﺑ ﻊﻴﺑ‬and 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
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 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 (‫)ﻥﻜﺎﺴ ﻪﻬﻴ ﺮﺎﮑﻠﻴﺧﺪﺭﻴﻏ‬. 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 (‫)ﻉﺭﺍﺰﻣ ﺎﻠﺑ ﻥﺎﮕﻠ ﺟﻭﺑﻪ ﻊﻴﺑ‬. 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 (‫ﺎﻠﺑ ﻥﺎﮕﻠ ﻪﺟﻭﺑ ﻊﻴﺑ‬
‫)ﻰﮕﻣﺬ ﻉﺭﺍﺰﻣ‬. 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 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 (‫)ﻉﺭﺍﺰﻣ ﺎﻠﺑ ﻥﺎﮕﻠ ﻪﺟﻭﺑ ﻊﻴﺑ‬.

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
(‫)ﺎﻠﺑ ﻥﺎﮕﻠ ﺖﻴﻜﻟﻣﺭﻴﻮﺼﺗﻠﺎﺑ‬. 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 (‫)ﺎﻠﺑ ﻥﺎﮕﻠ ﻪﺟﻭﺑ ﻪﺗﺸﺭ ﻯﺭﺍﺩ‬, 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 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.

1999 SCMR 951

[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 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 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.

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 in
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 in
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 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.

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.

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.

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 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.

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.

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.

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.

Datc 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 parties,
adjourned 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.

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 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.

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 nut 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.

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.
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.

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 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.

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.
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.
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.