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Official Citation: 2025 SHC 328
Court / Jurisdiction: Sindh High Court
Year of Decision: 2025
Decision Date: 2025-03-06
Parties: Khamiso S/o Raju and others vs Mansigno S/o Petho Mal through his L.Rs and others
Ruling Summary: This decision was rendered by the Sindh High Court on 2025-03-06, officially reported as 2025 SHC 328. In this matter between Khamiso S/o Raju and others and Mansigno S/o Petho Mal through his L.Rs and others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2025SHC328
Court Name: Sindh High Court Judge(s): Dr. Syed Fiaz ul Hasan Shah Title:Khamiso S/o Raju and others vs Mansigno S/o Petho Mal through his L.Rs
and others Case No.: Civil Revision Application No.S-60 of 2024 Date of Judgment:2025-03-06 Reported As: 2025 SHC 328 Result: Application Dismissed Judgment
ORDER Dr. Syed Fiaz ul Hasan Shah, J: The Civil Revision Application under section 115 of Civil Procedure Code, is directed against the judgment dated 11.01.2024 and decree dated 17.01.2024 passed by learned Additional District Judge-II, Umerkot whereby the Civil Appeal No.45 of 2023, filed by the respondent No.1 has been allowed and set aside the order dated 22.09.2023 passed by the learned Senior Civil Judge-II, Umerkot on application under Order VII, rule 11(d), C.P.C., in F.C Suit No.124 of 2022 whereby plaint has been rejected. 2. The respondent No.1, Mansingo through his L.Rs, filed suit in the Court of Senior Civil Judge, Umerkot-II against the applicants, asserting that the respondents No.1 and 2/plaintiffs had filed suit No.124/2022 for Specific Performance of Contract and Permanent Injunction against the applicant No.1/defendant No.1 disclosing the facts that their father had purchased the suit land on 17-07-1986 and such agreement was written in presence of witnesses and since then they are in possession of the suit land. It if further stated that father of respondents/plaintiffs during his life time approached the applicant No.1/defendant No.1 for execution of registered sale deed, but the applicants kept on false hopes on the pretext that soon he will execute the sale deed in his favour and such faisla was also taken place before nekmards of locality, where the applicants/defendants excused the delay on the ground of requirement of sale certificate which is pre requisite to execute the sale deed in his favour. Thereafter the applicants/defendants No.1 and 2 have clearly refused to execute the registered sale deed in favour of respondents/plaintiffs and on the contrary started issuing threats to dispossess the respondents/plaintiffs from the suit land. Moreover, the applicant/defendant No.1
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has fraudulently sold out the suit property to applicant/defendant No.2 through registered sale deed. Therefore, the respondents/plaintiffs filed such suit with the following prayers: a. Direct the defendant No.1, to execute the registered sale deed in respect of the suit in favour of the plaintiff and other legal heirs after receiving balance amount and in case of his failure the Nazir or any other official of this Honourable Court may be directed to perform such act on behalf of the defendant No.1. b. Grant permanent injunction against the defendant No.1 to restraining them from sale mortgage disposing, leasing or alienating the suit land to any body else in any manner excerpting the plaintiff over the suit land in any manner by themselves their men, agents, relatives or any other means indirectly. c. Grant permanent injunction against the defendant No.2, restraining them from issuing clearance / sale certificate to the defendant No.1, in respect of suit land and also restrain the defendant No. 3 & 4, from registration the sale deed in respect of the suit land being presented before him by defendant No.1, or by any other persons on behalf of defendant No.1, in any manner directly or indirectly. d. Costs of the suit be warranted to plaintiff. e. Grant any other relief which this Honourable Court may deem fit and proper. 3. The applicant/defendant No.1 filed an application under Order VII, rule 11, C.P.C, which was contested by the respondents/plaintiffs and after hearing the learned counsel for parties; the learned trial court allowed the said application and rejected the plaint in F.C Suit No.124 of 2022, vide order dated 22.09.2023. 4. The respondent No.1 /plaintiff feeling aggrieved with the aforementioned order, had filed Civil Appeal No.45/2023 before the court of learned District Judge, Umerkot who after hearing the parties set aside the order passed by trial court and remanded back for proper adjudication in accordance with law. Consequently, the applicants/defendants has challenged the said order in this civil revision application. 5. Heard the learned counsel for the Respondent No.1 and AAG and perused the record and the impugned order with their assistance. The facts of the case are that a Suit No.124/2022 was filed by the Respondent No.1 seeking specific performance of contract. After service of summon, the Applicant/ Defendant had moved an application under Order VII Rule 11 CPC for rejection of plaint. The learned Trial Court has rejected the plaint by placing reliance on Article 79 of the Qanun-e- Shahadat Order, 1984 on the ground that Agreement filed with plaint is lacking at least two attesting witness and, on the Agreement, only one witness has attested it instead of at least two attested witnesses and according to trial Court, if the suit is try and parties are allowed to adduce evidence, still the agreement cannot be proved. The Respondent No.1/Plaintiff challenged said Order of trial Court, for rejection of plaint, before the Learned Additional District Judge-II, Umerkot. The Appellate Court set aside the Order of trial Court and directed the trial Court to proceed with the suit by holding that even if the agreement is attested by one witness, it can be proved through the scribe and other connected witnesses and requirement of Article 79 of ibid Order would be fulfilled. 6. The Applicant/Defendant being aggrieved with the order of Appellate Court, has preferred this Civil Revision Application under section 115 Civil Procedure Code, 1908. The only question arose before me is as to whether a suit can be dismissed without recording the evidence by invoking Article 17 or 79 of the Qanun-e-Shahadat Order 1984? 7. The difference between the dismissal of suit and rejection of plaint is settled law. At first instance, I would like to examine the Order passed by the trial Court. The trial Court has invoked Order VII Rule 11 (d) CPC and rejected the plaint in suit No.124/2022 by holding that the plaint is barred under Article 79 of the Qanun-e-Shahadat Order,
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1984 as the plaintiff has filed suit for specific performance of contract with one attesting witness only which led to the rejection of plaint. For understanding of legal position, I would refer Order VII Rule 11 CPC: Order - VII 11. Rejection of Plaint: The plaint shall be rejected in the following cases: (a) Where it does not disclose a cause of action. (b) Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, falls to do so; (c) Where the relief claimed is properly valued, but the plaintiff is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) Where the suit appears from the statement in the plaint to be barred by any law. 8. Order VII Rule 11 CPC refer only words the "rejection of plaint in suit" which ought to be applied by trial court having power and jurisdiction to adjudicate the lis and whenever any of the basic ingredients mentioned at (a) to (d) in Order VII Rule 11 CPC are available on examination of plaint including documents attached thereto. In contrast, the "dismissal of suit" connotes that it is a final determination of controversy between the parties. The power and jurisdiction to dismiss the suit can only apply by trial court when the parties have adduced evidence, produced documents on oath and undergone with the test of cross-examination by opposite party and finally fails to clear the test of "prove". 9. Another key difference between the "rejection of plaint in suit" and "dismissal of suit" is that the former keep opens the door for the plaintiff to re-try or re-file or re-institute a fresh suit or, in other words, the plaintiff cannot be precluded to file afresh suit on same cause of action or joinder of new cause of actions, against same parties or include other parties or on same subject-matter or with addition or subtraction of subject-matter where it is possible for him according to situation. In contrast, the later strictly prohibit the plaintiff to institute fresh suit. The plaintiff cannot file fresh suit (case) against the same parties (including legitimate successor in interest or successor in office) or in respect of same subject-matter. The legal position is further tighten on the point of cause of action. In former case, the cause of action may be kept same for the plaintiff or he may join more cause of action to re-agitate or institute suit whilst the later omit the point of cause of action and paved out another way to tackle the cases on examination of earlier subject matter decided either directly or indirectly in previous suit (case) and it can only be invoked when the evidence is recorded, the documents have produced on oath and such document could be read as admissible evidence by trial Court or otherwise while delivering the judgment. However, in both situations law provides statutory remedies against either Order of rejection of plaint in suit or dismissal of suit by way of Judgment. 10. The former is rule of conclusiveness which restrict plaintiff to re-agitate or institute fresh suit and is called as doctrine of res judicata emerged under section 11 Code of Civil Procedure, 1908. For the convenience, I refer provision, which provides: "11. No Court shall try suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation I.- The expression "former suit" shall denote a Suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II.- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as a right of appeal from the decision of such Court.
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Explanation III.-The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly, or impliedly by the other. Explanation 1V.-Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue -in such suit. Explanation V.-Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused. Explanation VI.-Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the person so litigating." 11. Development of Res Judicata: The doctrine of res judicata is based on the following three maxims: i. 'Nemo debet bis vaxari pro una et eadem cansa' which means none should be vexed twice for the same cause. ii. 'Interest reipublicae ut sit finis litium' which means that it is in the interest of the state that there should be an end to litigation. iii. 'Res judicata pro veritate accipitur' which means that a judicial decision must be accepted as correct. 12. Res Judicata-- Originally, this theoretical mode "res judicata" has its roots in Latin. The word "res" means "thing" and "judicata" means "already decided". Initially, the concept of "Res judicata pro veritate accipitur" which means, a decision of a judicial authority must be duly accepted as correct, is the full maxim which has, over the years, diminished to not more than "res judicata". This notion is called "res judicata" which is widely recognized in legal systems across the continent. 13. The Doctrine of res judicata prohibits the re-litigation of matters which is otherwise already decided by a court. It is a universally recognized legal principle which has emerged from the principles of Roman jurisprudence: "Nemo debet bis vexari pro una et eadem causa"[1] (no one should be tried twice over for the same cause). The perennial debate and decision about nature of legal challenges and nurture of jurisprudence has potentially developed and shaper the jurisprudence of rule of conclusiveness in judgements encapsulated in Section 11 of the Code of Civil procedure 1908. The theory of res judicata is the culmination of the public purpose embodied in the three maxims, and it applies to all judicial processes, civil or criminal. The Supreme Court of India observed that the theory of res judicata is based on justice, equity, and moral conscience.[2] 14. Historical Evolution in Common Law: Historically, there is general understanding amongst scholars that the rule of res judicata has originated from Roman law. However, the Duchess of Kingston is first instance of English Courts which have firstly accepted the rule of res judicata in the sphere of Common law in the case of Duchess of Kingston's case. It has recognized rule of res judicata by Sir William de Grey, C.J., in his decision: "the judgment of a court of concurrent jurisdiction, directly upon the point, is, as a plea, a bar, or as evidence, conclusive between the same parties, upon the same matter, directly in question in another court."[3] 15. This concept and its provision serves as a strong deterrent to re-try or re-agitate any lawsuits or disputes that were previously and conclusively resolved between the same parties under the same title or on same subject-matter. The main goal of "res judicata" is to provide court decisions a sense of finality and certainty in order to prevent protracted litigation and protect parties from being harassed. Furthermore, the "res judicata" has more connotations than just its literal translation. It is not limited to literally meanings but it is also used in modern legal discourse to refer to "claim preclusion", a robust and firm concept that guaranteeing that a judgment's binding or settled disputes impact cannot be raised or re-agitate or re-hear again in subsequent or further
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proceedings. It can understand that the distinction between the dismissal of a suit and the rejection of a plaint is crucial in Code of Civil Procedure, 1908. 16. Turning towards the Order passed by trial Court, the only reason is that plaint has filed for enforcement of contractual obligation and such contract or agreement is attested by only one witness as such it is not fulfilling the requirement of Article 79 of the Qanun-e-Shahadat Order, 1984. To appreciate above excerpt, it would be appropriate to reproduce Article 17 & 79 of the Qanun-e-Shahadat, 1984 and Section 3 of Transfer of Property Act, 1882 hereunder:- Article 79 of the Qanun-e-Shahadat, 1984: 79. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of given Evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied. 17. In the matter related to the "attestation" by witnesses regarding financial or future obligation in respect of movable and immovable properties, the Transfer of Property Act, 1882 defines the word "attestation". The relevant provision is Section 3 of the Transfer of Property Act, 1882 which provides: 3. Interpretation clause. "attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature of mark or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary. On perusal of the Agreement in question, admittedly, it has only signed by one witness. The question of the requisite number of witnesses to prove the execution of a document may be considered from the perspective of Article 17 of the Qanun-e-Shahadat, 1984 which is reproduced hereunder: 17.Competence and number of witnesses. (1) The competence of a person to testify, and the number of witnesses required in any case shall be determined in accordance with the injunctions of Islam as laid down in the Holy Qur'an and Sunnah: (2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law: - (a) in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly; and
(b) in all other matters, the Court may accept, or act on the testimony of one man or one woman or such other evidence as the circumstances of the case may warrant. 18. The expression "shall not be used as evidence" until the requisite number of attesting witnesses have been examined to prove its execution is compulsory procedure framed by the legislature while putting prohibition to consider or use in evidence. The above reason can also be confirmed by various decision rendered by the august Supreme Court of Pakistan. In Nazir Ahmed's case[4]
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held, that in case of denial of execution of document, the party relying on such document must prove its execution in accordance with the modes of proof as laid down in Qanun-e-Shahadat Order, 1984 and the party is required to observe rule of production of best evidence. In Sheikh Muhammad Muneer's case[5] held that seller denied future obligation to transfer his immovable property and denial of execution of the agreement, it is imperative to upon buyer to prove as per requirement of Article 79 of the Qanun-e-Shahadat, 1984. Similarly, in the case of Farid Bakhsh[6] held as under: - "This Article in clear and unambiguous words provides that a document required to be attested shall not be used as evidence unless two attesting witnesses at least have been called for the purpose of proving its execution. The words "shall not be used as evidence" unmistakably show that such document shall be proved in such and no other manner. The words "two attesting witnesses at least" further show that calling two attesting witnesses for the purpose of proving its execution is a bare minimum. Nothing short of two attesting witnesses if alive and capable of giving evidence can even be imagined for proving its execution. Construing the requirement of the Article as being procedural rather than substantive and equating the testimony of a Scribe with that of an attesting witness would not only defeat the letter and spirit of the Article but reduce the whole exercise of reenacting it to a farce. We, thus, have no doubt in our mind that this Article being mandatory has to be construed and complied with as such. The judgments rendered in the cases of Imtiaz Ahmed v. Ghulam Ali and others and Jameel Ahmed v. Late Safiuddin through Legal Representatives (supra) have therefore no relevance to the case in hand. Reference to the Judgment rendered in the case of Nazir Ahmed v. Muhammad Rafiq (1993 CLC 257) (supra) cannot help the appellant. (Emphasis is added) 19. The trial Court has adopted a preemptive measure and it has rejected the plaint which is contrary to the language of Article 79 of Qanun-e-Shahadat Order, 1984 which does not declare a suit will be barred or in other words it does not preclude the party from filing a suit and whenever a party file a suit while lacking attesting witnesses of the agreement, it cannot fall under Rule 11(d) CPC. Conversely, Article 79 of ibid Order declares that such agreement in the absence of attesting witnesses would be inadmissible evidence and it will not read over by a judge while handing down a Judgment. Another perspective of the very nature of Qanun-e-Shahadat Order, 1984 itself which is a law of evidence that states rules for determining facts in court and this is exactly difference kept by legislatures in their wisdom while comparing definition with Rule 11 (d) of the Order VII of the Code of Civil Procedure, 1908. It has completely backed by Article 2 & 3 of the ibid order. The Article 2 (b) refer to "document" and Article 2(c) refers to "evidence" and are subject to the test of Article 3 of the ibid Order as held in Farman Hussain case[7], the relevant portion is reproduced under: "In this regard, it may be pertinent to observe that section 118 of the Evidence Act, 1872 (now Article 3 of the Qanun-e-Shahadat, 1984 which contains certain additions) (hereinafter referred to as the Act) deals with the question as to who may testify. It provides that all persons shall be competent to testify unless the Court considers that they were prevented from understanding the questions put to them or from giving rational answers to those questions by tender years, extreme old age, disease, whether of body or mind or any other cause of the same kind. The explanation to the above section lays down that a lunatic is competent to testify unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them. In other words, the above provision of the Act makes all persons competent to testify unless the court considers it otherwise on account of above reasons." 20. The deeper understanding constrained me to reach at a conclusion that without arriving at evidence stage and without crossing the different stages of evidence, dependent upon the requirements of Articles 2 and 3 of the Qanun-e- Shahadat Order, 1984, the provision of Article 79 of
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ibid Order cannot be invoked. Article 3 of the Qanoon-e-Shahadat Order, 1984 imposes conditions to testify the persons in relation to matters of fact under inquiry or trial and only such persons are competent to testify, to whom the court considers that they can understand the questions put to them and are able to make rationale answer to such question and possess qualification prescribed by the injunctions of Islam as laid down in Holy Quran and Sunnah, but where such person is not forthcoming, the Court may take evidence of any available witness. For guidance reliance can be placed on Supreme Court decision in case of Khan Mir Daud Khan.[8] It is not permissible for the trial Court to jump straightaway over Article 79 of the ibid Order while bypassing the whole scheme of Qanun-e-Shahadat Order, 1984 which lays down step by step procedure exclusively for recording evidence on facts and issues, interalia, by fixing duties of parties, qualified testimony and focusing on burdens of proofs and following rule of admissibility. 21. The last reason to repudiate the analogy given by the trial Court, in its Order for rejection of plaint, is Article 81 of the Qanun-e-Shahadat Order, 1984. The Article 81 is an exception to the general rule of Article 17 and 79 of ibid Order, that where a document is required by law to be attested, the same cannot be used in evidence unless two attesting witnesses are called for the purposes of proving its execution. For the convenience, I refer Article 81 of the ibid Order which state as: "81. Admission of execution by party to attested document- The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested." The simple reading of Article 81 shows that where the execution of a document is admitted by the executant himself, the examination of attesting witness is not necessary. Hence, the approach of trial Court dealing with Application under Order VII Rule 11 CPC, to accept the pleading of simple denial by the Applicant /Defendant in his written statement is not enough to invoke Article 79 of the ibid Order at that particular stage of suit. There is equally possibility of admission by…
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