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Petitioner: Muhammad Amir and another VS Respondent: Zahid Hussain and another
Court Name: Lahore High Court Judge(s): Rasaal Hasan Syed Title: Muhammad Amir and another vs Zahid Hussain and another Case No.: C.R. No.68059 of 2019 Date of Judgment:2022-04-08 Reported As: 2022 LHC 2669 Result: Petition Dismissed
JUDGMENT
JUDGMENT Rasaal Hasan Syed, J. C.M. No.1-C of 2022 This miscellaneous application has been filed for permission to adduce additional evidence. It is prayed that Asghar Ali, one of the marginal witnesses to the disputed agreement of sale who was earlier not produced during the trial of the case, may be allowed to be produced and his statement be recorded as additional evidence at this stage. 2. Petitioners in the instant application after narrating the facts, allege that the evidence produced in the suit was sufficient to prove their case and that the case needs to be decided on preponderance of evidence and also that the prudent conclusion from the evidence could only be in their favour as the petitioners in their own perception had produced all the material evidence to prove and establish their case. Regarding Asghar Ali it was alleged that he could not be produced during the trial as he was out of reach and contact of petitioners and that he was a permanent resident of district Bahawalnagar and had abandoned the petitioners in the year 2001 and that the petitioners could not trace him. It is asserted that the learned Addl. District Judge dismissed the suit while accepting the appeal of respondents on inter alia the ground that the petitioners had not produced the other attesting witness and from this it was presumed that if the witness had been produced he would have deposed against the petitioners and that though the suit of the petitioners was decreed by the Trial Court on the existing evidence; yet the appeal was accepted and decree was set aside in appeal and that the petitioners now seek permission to produce Asghar Ali in evidence by way of additional evidence. 3. Under Order XLI, Rule 27, C.P.C. the Appellate Court has the discretion to allow the additional evidence if the court from whose decree the appeal was preferred had refused to admit the evidence which ought to have been admitted or where the Appellate Court itself is satisfied that the additional evidence could not be produced before
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the Trial Court for reasons beyond the control of the party or that the Appellate Court itself requires such evidence as to enable it to pronounce judgment. In the instant case the suit was filed on 12.7.2005, it remained pending for about ten years before the civil court; the petitioners were allowed full opportunity to produce evidence who opted to produce oral and documentary evidence as was deemed necessary and, thereafter, they closed their evidence. After closure of their evidence, respondents' evidence was recorded and the suit was finally decided by the learned Civil Judge on 22.6.2015. During the trial that lasted ten years approximately, it was never claimed that Asghar Ali was not traceable or that the petitioners could not contact him or that they intended to summon Asghar Ali as a witness and that the process of the court be issued for the said purpose. To the contrary the petitioners felt confident and certain in their own perception that the evidence produced by them was sufficient to prove their case for grant of decree. 4. The judgment and decree passed by the Trial Court was challenged in appeal, which too remained pending for approximately for four years. Neither during the pendency of the suit nor during the pendency of the appeal, any request for production of Asghar Ali as a witness was ever made before the Trial Court or the Appellate Court despite the fact that one of the grounds raised in the appeal to challenge the validity of judgment of the Trial Court was that the mandatory evidence was not produced, material witnesses were withheld and that the case otherwise could not be established by any credible evidence. The appeal was allowed on 08.8.2019 whereafter the instant civil revision was filed which has been pending for more than three years . Even in the grounds of revision petition, the petitioners did not express any desire or intention to produce Asghar Ali as a witness nor did they feel the necessity of production of such evidence in the case. To the contrary the stance throughout was that the rule of preponderance of evidence should have been followed and considering the rule the petitioners had allegedly made out the case for the relief and that the suit could not be dismissed due to non-production of second marginal witness. In the course of lengthy hearing of this revision petition, the respondents amongst other points had been stressing the effect of non-production of Asghar Ali as a witness yet the petitioners continued with their stance that the rule of preponderance of evidence should be followed and that the judgment of the Appellate Court could not sustain. Even in the present application the petitioners have tried to shift the onus upon the Appellate Court by asserting that they were "taken by surprise" when one of the grounds that prevailed with the Appellate Court was that the mandatory requirement of Article 79 of Qanun-e-Shahadat Order, 1984 was not complied with. Ground "(b)" of the application is as follows: "b. That the learned Court of Appeal has dismissed the suit of the Petitioners on the ground that the Petitioners have not produced the other attesting witness leading the court to presume that had he been so produced, he would have deposed against the Petitioners. The learned court of Appeal has based the Impugned Judgment and Decree dated 08.08.2019 on wrong application of principles of appreciation of evidence while administering justice on civil side. It is cardinal principle of law that appreciation of evidence in civil cases is based upon the concept of preponderance of probabilities. The normal rule which governs the civil proceedings is that a fact can be said to be established if it is provided by preponderance of probabilities. This is for the reason that under Qanun-e- Shahadat, 1984, a fact is said to be proved when the court either believes it to exist or consider its existence so probable that a prudent man ought under the circumstances of a particular case, to act upon the supposition that it exists. Article 2(4) is reproduced verbatim for ready reference. "A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists." 5. In "Ejaz Muhammad Khan and others v. Mst. Sahib Bibi trough Shahzad Khan and others" (1996 SCMR 598) it was observed to the effect that no doubt Order XLI, Rule 27, C.P.C. empowered the Appellate Court to receive additional evidence in appropriate cases but lack of vigilance on the part of petitioners of years rendered it an unfit case for the exercise of such power in their favour. In the said case the total duration period of inaction on the part of the petitioner was about seven years wherein it could not be explained as to why the steps to produce the evidence in question were not taken for so many years and the order of declining permission under Rule 27 of
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Order XLI, C.P.C. was affirmed. In "Shtamand and others v. Zahir Shah and others" (2005 SCMR 348) it was observed that parties could not be allowed to fill up lacunas in evidence at appellate stage and that if there was no explanation for the inordinate delay except that the application could be accepted by imposing costs, there was no tenable justification for permission to adduce evidence: "We have carefully examined the contentions as agitated on behalf of petitioners in the light of provisions as contained in Order 41, rule 27, C.P.C. It is worth mentioning that the suit was filed on 6-6 1994 and proper opportunity of hearing to lead evidence was afforded to the petitioners, who woke up from a deep slumber after nine years and moved an application for additional evidence. Mr.Fateh Muhammad Khan, learned Advocate Supreme Court when asked pointedly that why the application for additional evidence was moved with inordinate delay, no satisfactory answer could be given except that the application could have been accepted by imposing cost. We have gone through the judgment of the learned Trial Court which is indicative of the fact that the sale- deed (Exh.P.W.2/1) dated 23-1-1932 has been taken into consideration and discarded for the reason that it had no nexus with the property in-question which was not mentioned therein. In such view of the matter the question as to whether the sale-deed was registered or otherwise, would have no substantial bearing on the merits of the case. In fact the petitioners want to fill in the gaps and lacunas at appellate stage which could not have been done by invocation of the provisions as contained in Order 41, rule, 27, C.P.C. The application for additional evidence cannot be allowed on flimsy grounds and the Courts below were justified in refusing to allow production of additional evidence at Appellate stage in absence of any reasonable justification which is lacking in this case. In this regard we are fortified by the dictum laid down in cases titled Rehmatullah v. Fazal Baqi 1998 SCMR 670, Mad Ajab v. Awal Badshah 1984 SCMR 440, Nazeef v. Abdul Ghaffar PLD 1966 SC 267 and Parsotim Thakur v. Lal Mohar Thakur AIR 1931 PC 143." 6. In "Rana Abdul Aleem Khan v. Idara National Industrial Co-Operative Finance Corporation Defunct through Chairman Punjab Cooperative Board for Liquidation, Lahore and another" (2016 SCMR 2067) it was observed to the effect that the provisions of Order XLI, Rule 27, C.P.C. as are available for additional evidence did not impart unfettered power nor did the Appellate Court have the discretion to allow the additional evidence as a matter of choice rather the discretion is structured/limited by the factors enunciated in the said provisions, i.e. where the court from whose decree the appeal had been preferred has refused to admit any evidence which it ought to have been admitted and that the provision does not mean to give a delinquent litigant a chance to make up his omission or fill up the lacunas in his case by way of additional evidence. Material part of the precedent is reproduced as under: "Learned counsel for the petitioner argued that when it is necessary for the Court for the purposes of pronouncing a judgment, there is no bar upon the Court which has a discretion to allow additional evidence and for this to remand the matter. We are afraid that the power under the provisions of Order XLI, Rule 27 of the C.P.C. for allowing additional evidence available is not unfettered nor does the Appellate Court has the discretion to allow additional evidence per its own caprice, rather it (discretion) is structured/limited by the factors enunciated in the said provisions of law i.e., where the Court from whose decree the appeal has been preferred has refused to admit any evidence which it ought to have admit. In this case, the petitioner never moved the Courts below to produce any evidence in the nature of examination of the Postman which was declined; that the Appellate Court requires any document or examination of witnesses enabling it to pronounce its judgment does not mean that the Court shall provide a delinquent with a chance to make up for his omission and fill up the lacuna of his case and allow additional evidence particularly in the circumstances when neither in the grounds of appeal a case for additional evidence has been set out nor any independent formal application has been moved for the purposes of producing additional evidence. It is categorically held in number of judgments including that reported as Muhammad Tariq and others v. Mst. Shamsa Tanveer and others (PLD 2011 SC 151) that, "...such power should not be exercised as a matter of course to favour a delinquent litigant, rather in genuine cases....", and that too within the strict scope of Order XLI, Rule 27 of the C.P.C. We do not find this to be a case falling within the purview of the provision ibid. The judgment reported as Mst. Fazal Jan v. Roshan Din and 2 others (PLD 1992 SC 811) cited by the learned counsel for the petitioner has no bearing on the facts and circumstances of the case
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and, therefore, is inapplicable, Consequently, we do not find any reason to interfere in the impugned judgment. Petition is dismissed accordingly." 7. It is evident from the rule consistently observed in the cases cited supra that the provisions of Order XLI, Rule 27, C.P.C. are discretionary in nature. The discretion has to be exercised within the parameters of the rules and that it does not allow a negligent litigant to make up deficiencies or fill up the lacunas and that for seeking permission the proposed additional evidence shall have been declined by the Trial Court. None of these circumstances obtain in the instant case. 8. In the Trial Court or in the Appellate Court where the matter remained pending collectively for approximately thirteen years no such application was ever filed. Rather the petitioners voluntarily closed their evidence and did not feel the necessity of producing any other evidence including that of Asghar Ali. The appeal was allowed in the year 2015 and one of the factors which were considered in the judgment of the Appellate Court was the effect of non-compliance with Article 79 of the Qanun-e-Shahadat Order, 1984 but despite that the petitioners contested the reasoning of the learned Addl. District Judge in the grounds of the revision petition and insisted that the rule of preponderance of evidence should have been followed and that there was sufficient evidence to affirm the judgment of the Trial Court and that the learned Addl. District Judge, in petitioners' perception, did not act in accordance with the applicable rule. Even in the present application the petitioners are stressing more about their belief that there is sufficient evidence on record to decree the suit and are expressing their surprise to the reasoning that prevailed with the court below little appreciating that the mandatory condition of proving a document under Article 79 of Qanun-e-Shahadat Order, 1984 was the production of marginal witnesses if they are alive. Petitioners at no stage ever claimed lack of contact with the witness nor expressed any inability to produce Asghar Ali as witness rather their case throughout had been that they had produced sufficient evidence for decreeing their suit. In view of the petitioners' own conduct, inaction and act of the delinquency and an attempt to throw the onus upon the Appellate Court, they are not entitled to any indulgence in discretionary jurisdiction. Even otherwise petitioners' plea that the suit was dismissed for only one reason appears to be predicated on misreading of the Appellate Court's determination wherein many other factors were considered, particularly, the inconsistency in the pleadings and evidence; contradictions in statements of witnesses including the petitioners as P.W.1 and P.W.2 and the conclusions of Appellate Court were based on multiple reasons and correct analysis of the entire evidence on record. Regardless for disposal of this application suffice it to observe that the petitioners' conduct does not justify the indulgence in discretionary jurisdiction and that the preconditions of Order XLI, Rule 27, C.P.C. being non existent, instant C.M. No. 1-C of 2022 being devoid of substance merits to be declined and is accordingly dismissed. Main Case Through this civil revision consolidated judgment dated 08.8.2019 of the learned Addl. District Judge, Lahore is impugned whereby appeals of respondents were allowed, judgment and decree dated 22.6.2015 of the Trial Court was set aside and the suit of the petitioners in result was dismissed. 2. Precisely the facts out of which this revision petition stems are that petitioners instituted a suit for declaration, cancellation of document, possession and permanent injunction against the respondents asserting that petitioner No.1 purchased land measuring 24 kanals and 19 marlas from respondent No.1 through an agreement to sell dated 28.7.1999; the agreed price was Rs. 39,95,000/- out of which Rs.39,90,000/- was allegedly paid at the time of the agreement and balance amount of Rs. 5,000/- was received after few days; two receipts were allegedly executed by respondent No.1 in favour of petitioner No.1 to acknowledge receipt of full amount and handing over of possession of land; an irrevocable general power of attorney was allegedly executed in favour of petitioner No.2 (father of petitioner No.1) for the purpose of transfer of proprietary rights as per demand of petitioner No.1 which was registered as document No. 5290, Book No. 04, volume 1023 dated 02.9.1999; original title document was allegedly handed over to the petitioner No.1; the petitioner No.1 allegedly purchased stamp papers for the execution of sale deed in favour of his mother through petitioner No.2 who obtained "Fard Malkiat" from Patwari Halqa but that due to heavy increase in the prices of suit land respondent No.1 became greedy and acquiring knowledge of the intended execution of sale deed in favour of mother of the petitioner No.1, respondent No.1
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cancelled the general power of attorney vide document No. 3624, bahi No.4, jild No. 48 dated 20.8.2003 registered with the Sub-Registrar Model Town, Lahore. It was petitioners' claim that respondent No.1 along with his daughter sold land to respondent No.2 vide sale deed No. 6036, bahi No.1, jild No. 369 dated 20.7.2004 registered with the Sub-Registrar, Aziz Bhatti Town, Lahore in the month of April 2005 and that in the garb of sale deed respondent No. 2 forcibly took over the possession of 11 kanals and 8 marlas of the land subject matter of agreement to sell in favour of petitioner No.1 and that respondent No.1 having already alienated his land in favour of petitioner No.1 through agreement to sell, two receipts and executed an irrevocable general power of attorney in favour of petitioner No.2, had no authority to either revoke the power of attorney or alienate any portion of the land subject matter of sale agreement nor respondent No.2 had any authority to dispossess petitioner No.1 forcibly from the suit property. In this backdrop a claim for declaration, cancellation, possession and injunction was made. 3. Respondents filed their separate written statements wherein respondent No.1 denied the sale agreement and also the alleged payment of consideration and termed the document as self-concocted; the plea of the petitioner regarding transfer of possession was also denied and it was specifically stated that no agreement to sell was ever executed nor any consideration was received and that the alleged documents were a result of fraud. Respondent No.2 in his response stated that land measuring 19 kanals and 13 marlas in khewat No. 83, khatauni No. 191 situated at Haddbast Mauza Raja Bholay, Tehsil Cantt., District Lahore was purchased from respondent No.1 and his sister through registered sale deed dated 20.7.2004, possession was transferred in his favour and that he was owner in possession thereof in his own right as a lawful purchaser for valuable consideration. 4. Issues were framed and parties produced their oral and documentary evidence; whereafter the learned Civil Judge vide judgment dated 22.6.2015 allowed a decree for recovery of possession of land to the extent of 11 kanals and 8 marlas from respondent No.2. Feeling aggrieved thereof the respondents filed separate appeals which were accepted by the learned Addl. District Judge vide consolidated judgment dated 08.8.2019 in terms whereof the findings of Trial Court as to the agreement of sale and payment of consideration were reversed, the judgment and decree of the trial court was set aside and the suit of petitioners was dismissed; which judgment is now under challenge in the instant revision petition. 5. Learned counsels for the petitioners inter alia argued that the case should have been decided by the appellate court on the basis of preponderance of evidence instead of indulging in technicalities and that collective reading of evidence leads to no other conclusion except that the plea raised by the petitioners was sufficiently established which evidence was ignored or not appreciated correctly, certain admissions on record were unjustifiably omitted from consideration, the findings of the learned Civil Judge were based on correct analysis of evidence which were illegally interfered with in appeal and that the conclusions drawn by the court of appeal were based on misreading and non-reading or misappreciation of evidence on record. In response respondents' learned counsels supported the judgment and reiterated the reasons which prevailed upon the learned Addl. District Judge for reversing the judgment of the Trial Court with the further assertion that the evidence of the parties was correctly appreciated, no misreading could be pointed out which could vitiate the findings and that the petitioner was unable to prove the existence of sale transaction as also the execution of agreement of sale and that the suit was rightly dismissed in appeal which was otherwise not maintainable and that no declaration of title could be claimed on the basis of alleged agreement of sale or the power of attorney which was lawfully cancelled. 6. Due consideration of the facts supra in the light of material documents annexed with this petition shows that the claim of petitioner No. 1 was based on an alleged agreement of sale dated 28.7.1999 in terms whereof it was his case that land measuring 24 kanals and 19 marlas was purchased for consideration of Rs. 39,95,000/-, the total consideration was paid and that a general power of attorney was executed in favour of petitioner No. 2, father of petitioner No.1, which was irrevocable and in terms whereof the petitioner attempted to transfer the property in favour of his mother when the power of attorney was cancelled and respondent No. 1 executed a sale deed in favour of respondent No.2 which was registered as document No. 6036, bahi No.1, jild No. 369 on 20.7.2004 with the office of Sub-Registrar Aziz Bhatti Town, Lahore and that in the garb thereof respondent No. 2 took over the possession of 11 kanals and 8 marlas of property subject matter of the agreement of sale purportedly executed in
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favour of petitioner No.1. Petitioners in this backdrop claim relief of declaration, cancellation of "Abtaal Nama" and sale deed and for possession of the land allegedly taken over by respondent No. 2. The existence of the alleged sale transaction, execution of the agreement, the alleged payment of consideration and also the execution of two receipts, was questioned and disputed by respondent No.1 who categorically took the stance that no such deal was ever made nor possession was ever given or agreement executed, or receipts signed as acknowledgement of payment. As to the power of attorney dated 02.9.1999 which was registered as document No. 5290, book No.4 and volume 1023, the same was statedly cancelled through "Abtaal Nama' bearing document No. 3624, bahi No.4, jild No. 48 dated 20.8.2003 registered with the office of Sub-Registrar Model Town, Lahore. Respondents' stance was that the land was sold by respondent No.1 along with his daughter through sale deed No. 6036, bahi No.1, jild 369 dated 20.7.2004 registered with the office of Sub-Registrar Aziz Bhatti Town, Lahore and that the possession was lawfully delivered to respondent No.2. The allegation of forcible dispossession was also specifically denied. 7. Perusal of the pleadings and evidence reveals that there are lot of inconsistencies in the pleadings and the evidence and also the statement of witnesses inter se. Petitioner No. 1 who was under a heavy onus to prove the execution of agreement and payment of consideration, alleged in paragraph "2" of the plaint that he purchased the land through agreement of sale dated 28.7.1999 for a consideration of Rs.39,95,000/-, out of which Rs. 39,90,000/- were paid at the time of agreement to sell and the balance amount of Rs. 5,000/- was received by defendant No.1 after few days and that defendant No.1 executed two receipts acknowledging the total amount received by him. The pertinent part of paragraph "2" of the plaint reads as follows: "2. That plaintiff No. 1 purchased the land measuring 24 kanals 19 marlas from defendant No.1 through an agreement to sell dated 28.7.1999, out of the above mentioned joint khata whereas defendant No. 1 was owner of total land measuring 26 kanals 18 marlas and the total consideration of amount agreed between the parties was Rs.…
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