Legal Principle & Question Decided

Ruling Summary: This decision was rendered by the Lahore High Court on 2024-04-30, officially reported as 2023 SCMR 291. In this matter between Farrukh Shahzad and Maqbool Hussain Awan, 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.

Full Judgment Text & Judicial Ruling

Court Name: Lahore High Court Judge(s): Shujaat Ali Khan Title: Farrukh Shahzad vs Maqbool Hussain Awan Case No.: Civil Revision No. 56505/2022 Date of Judgment:2024-04-30 Reported As: 2024 LHC 1879, PLJ 2025 Lahore 184 Result: Petition Accepted

JUDGMENT

JUDGMENT Shujaat Ali Khan, J: - Through this single judgment, I intend to decide Civil Revision No. 56505/2022 ("this petition") as well as Civil Revision Petitions No. 58038/2022, 58046/2022 and 58055/2022 ("connected Civil Revisions") having commonality of law and facts. 2. Tersely, the factual background of this petition is that Maqbool Hussain Awan (hereinafter to be referred as respondent No.1) filed suit against the petitioner-defendant (Farrukh Shehzad Malik) seeking declaration to the effect that he was owner-in-possession of the properties mentioned in the heading of the plaint whereas Mutations No.2476, 2489, 2894 and 2858 were got attested in favour of the petitioner-defendant as Benamidar. It was also prayed that petitioner-defendant be restrained to further alienate the suit properties and to interfere in his possession. Initially, the suit filed by respondent No.1 was decreed by the learned Civil Judge Class-II, Faisalabad vide ex-parte judgment and decree, dated 02.04.2016, however, on the application of the petitioner-defendant the ex-parte judgment and decree was set aside vide order, dated 17.09.2018 and the petitioner- defendant was allowed to join the proceedings of the suit. After recording evidence of the parties and hearing their respective arguments, the learned Civil Judge, 1st Class, Faisalabad (learned Trial Court) dismissed the suit through judgment and decree dated 12.12.2020 against which respondent No.1 filed appeal in terms of section 96 CPC. Alongwith the said appeal, respondent No.1 also filed an application seeking permission to bring on record certain documents in the shape of additional evidence. The learned Additional District Judge, Faisalabad (the learned Appellate Court) vide judgment, dated 08.09.2022, not only accepted the application of respondent No.1 for placing on record certain documents but also allowed the appeal and while reversing the findings of the learned Trial Court decreed the suit of respondent No.1.

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3. The facts, as gleaned out from Civil Revision No.58038/2022 (one of the connected Civil Revision Petitions), are that respondent No.1 filed suit against the petitioner-defendant (Amir Ishaq Malik) seeking declaration to the effect that he was owner-in-possession of the properties mentioned in the heading of the plaint whereas Mutations No.2888, 2893, 2900, 2940, 2477 and 2991 were got attested in favour of the petitioner-defendant as Benamidar. It was also prayed that petitioner- defendant be restrained to further alienate the suit properties and to interfere in his possession. Initially, the suit filed by respondent No.1 was decreed by the learned Civil Judge, Faisalabad vide ex-parte judgment and decree, dated 02.04.2016, however, the ex-parte judgment and decree was set aside vide order, dated 17.09.2018 and the petitioner-defendant was allowed to join the proceedings of the suit. After recording evidence of the parties and hearing their respective contentions, the learned Trial Court dismissed the suit through judgment and decree, dated 12.12.2020, against which respondent No.1 filed appeal under section 96 CPC. Alongwith the said appeal, respondent No.1 also filed an application seeking permission to bring on record certain documents in the shape of additional evidence. The learned Appellate Court vide judgment, dated 08.09.2022 not only accepted the application of respondent No.1 for placing on record certain documents but also allowed the appeal and while reversing the findings of the learned Trial Court decreed the suit of respondent No.1. 4. Insofar as factual edifice of connected Civil Revision No.58046/2022 is concerned, respondent No.1 filed suit against the petitioner-defendant (Zain Malik) seeking declaration to the effect that he was owner-in-possession of the properties mentioned in the heading of the plaint whereas Mutations No.2488, 2859, 2892, 2947, 2973, 2989, 2985, and 2977 were got attested in favour of the petitioner-defendant as Benamidar. It was also prayed that petitioner-defendant be permanently restrained to further alienate the suit properties and to interfere in his possession. Initially, the suit filed by respondent No.1 was decreed by the learned Civil Judge, Faisalabad vide ex-parte judgment and decree, dated 02.04.2016. Respondent No.1, in the first instance, got transferred the suit land in his name in execution of ex-parte judgment and decree and subsequently transferred the same in the name of respondents No.2 to 5, as a result they were impleaded as party in the proceedings. Later on, the ex-parte judgment and decree was set aside by the learned Civil Judge vide order, dated 17.09.2018 and the petitioner-defendant was allowed to join the proceedings of the suit. After recording evidence of the parties and hearing their respective pleas, the learned Trial Court dismissed the suit through judgment and decree, dated 12.12.2020, against which respondent No.1 filed appeal under section 96 CPC. Alongwith the said appeal, respondent No.1 also filed an application seeking permission to bring on record certain documents in the shape of additional evidence. The learned Appellate Court vide judgment & decree, dated 08.09.2022, not only accepted the application of respondent No.1 for placing on record certain documents as additional evidence but also allowed the appeal and while reversing the findings of the trial court decreed the suit of respondent No.1. 5. Now coming to factual narration of connected Civil Revision No.58055/2022, I have noted that respondent No.1 filed suit against the petitioner-defendant (Salman Ahmed Khan) seeking declaration to the effect that he was owner-in-possession of the properties mentioned in the heading of the plaint whereas Mutations No.2884, 2970, 2482 and 2493 were got attested in favour of the petitioner-defendant as Benamidar. It was also prayed that petitioner-defendant be permanently restrained to further alienate the suit properties and to interfere in his possession. Initially, the suit filed by respondent No.1 was decreed by the learned Civil Judge, Faisalabad vide ex-parte judgment and decree, dated 02.04.2016. Respondent No.1, firstly got transferred the suit land in his name in execution of ex-parte judgment and decree and subsequently transferred the same in the name of respondents No.2 to 5, as a result they were impleaded as party in the proceedings. Later on, the ex-parte judgment and decree was set aside by the learned Civil Judge

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vide order, dated 17.09.2018 and the petitioner-defendant was allowed to join the proceedings of the suit. After recording evidence of the parties and hearing their respective contentions, the learned Trial Court dismissed the suit through judgment and decree, dated 12.12.2020, against which respondent No.1 filed appeal. Alongwith the said appeal, respondent No.1 also filed an application seeking permission to bring on record certain documents in the shape of additional evidence. The learned Appellate Court vide judgment & decree, dated 08.09.2022, not only accepted the application of respondent No.1 for placing on record certain documents but also allowed the appeal and while reversing the findings of the trial court decreed the suit of respondent No.1. 6. The submissions made by the learned counsel for the petitioners-defendants at the bar and those contained in the paper-book, submitted by him during arguments, can be summed up in the words that that the plaints of the suits filed by respondent No.1 were deficient in respect of necessary details which fact escaped notice of learned Appellate Court hence, its decisions are not sustainable; that applications filed by respondent No.1 under Order XLI rule 27 CPC could not be allowed as no party can be permitted to make up deficiencies in its case, under the garb of additional evidence, at the appellate stage; that well-reasoned judgment of the learned Trial Court was reversed by the learned Appellate Court in a casual manner; that when the documents were neither exhibited before the learned Appellate Court, as per law, nor the petitioners-defendants were allowed to impeach the authenticity of the said documents, same could not be read in evidence while deciding the appeals filed by respondent No.1; that suits of respondent No.1 could not be decreed in presence of equivocal statement of PW-1 that he did not know the petitioners- defendants; that the motive for benami transactions, given by respondent No.1 in his plaints, was the tax-evasion, which being an offence, could not be treated as valid one; that documents tendered during statement of the counsel cannot be read while deciding lis between the parties; that the learned Appellate Court failed to appreciate that necessary ingredients of a benami transaction were missing in the suits filed by respondent No.1, thus, his appeals could not be allowed; that when the agreements, express or implied, between petitioners-defendants and respondent No.1 regarding benami transaction were not proved, the suits of the latter could not be decreed; that the learned Appellate Court failed to appreciate that the evidence led by petitioners- defendants was sufficient to believe that they were the real owners and that the petitioners- defendants are going to initiate criminal proceedings against respondent No.1. To fortify his contentions, learned counsel has relied upon the cases reported as Muhammad Yousaf and others v. Muhammad Ishaq Rana (deceased) through LRs and others (2023 SCMR 572), Muhammad Mumtaz Shah (deceased) through LRs. and others v. Ghulam Hussain Shah (deceased) through LRs. and others (2023 SCMR 1155), Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs and others (PLD 2021 SC 715), Muhammad Siddique v. Gul Nawaz and others (2021 SCMR 1480), 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), Niaz Rasool through Muhammad Bilal v. Mst. PARVEEN IKRAM and others (2013 SCMR 397), Ghulam Murtaza v. Mst. Asia Bibi and others (PLD 2010 SC 569), Syed Muhammad Hassan Shah and others v. Mst. Binat-e-Fatima and another (PLD 2008 SC 564), Muhammad Feroze and others v. Muhammad Jamaat Ali (2006 SCMR 1304), Shtamand and others v. Zahir Shah and others (2005 SCMR 348), Muhammad Yousaf v. Mst. Maqsooda Anjum and others (2004 SCMR 1049), Rehmatullah v. Fazal Baqi and another (1998 SCMR 670), Muhammad Amir v. Khan Bahadur and another (PLD 1996 SC 267), Muhammad Sajjad Hussain v. Muhammad Anwar Hussain (1991 SCMR 703), Nazir Ahmad and 3 others v. Mushtaq Ahmad and another (1988 SCMR 1653), MAD AJAB and others v. Awal Badshah (1984 SCMR 440), Abdur Rehman and others v. Abdul Qadir and others (PLJ 1999 SC (AJ&K) 1), Izat Ali

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v. Muhammad Ashfaq and others (2022 CLC 2090), Mst. SHAHEENA BIBI v. SHAUKAT ALI and others (2020 MLD 1279), Ghulam Haider v. Ghulam Qadir (2019 CLC 770), Abdul Majeed through Legal Heirs v. Abdul Rasheed and others (PLD 2016 Lahore 383), Abdul Haq v. Mst. Mughalani and 10 others (PLJ 1999 Lahore 1071), Muhammad Younus and 2 others v. Abdul Ghaffar and others (1998 MLD 1622) and Rahim Bakhsh and another v. Civil Judge, Lodhran and 3 others (1985 CLC 387), Nedumkandathil Koyakutty v. Kunhali and others (AIR (33) 1946 Madras 203), Parawa Sangappa and others v. Rayangouda Chandramappa (AIR 1939 Bombay 401), K.M. Srinivasam Pillai v. Y.P.R.L.Alagappa Chettiar and another (AIR 1938 Madras 372), Shadi Ram v. Mst. Atri and another (AIR 1936 Lahore 933) and Surendrakumar Chaudhury and others v. Gangachandra Chaudhury and others (AIR 1934 Calcutta 627). 7. On the other hand, learned counsel appearing on behalf of respondent No.1, while defending the impugned judgments and decrees passed by the learned Appellate Court, argues that since not only consideration amount was paid by his client but also agreements to sell were executed in his favour, the learned Appellate Court has committed no illegality while declaring the petitioners- defendants as benamidars; that presence of son of respondent No.1, at the time of attestation of subject mutations, speaks loud about the fact that petitioners-defendants were just benamidars; that non-participation of the petitioners-defendants in the alienation proceedings at any stage stands proof of the fact that they were not the real owners rather they were just benamidars; that possession of respondent No.1 over the suit properties renders it crystal clear that he is the real owner; that non-participation of the petitioners-defendants during alienation proceedings and their non-appearance in person, during proceedings before the courts, affirms that they were alien to the sale transactions; that when the findings of the learned Trial Court were based upon suppositions, no illegality has been committed by the learned Appellate Court while reversing the same; that though question of limitation was not raised by the petitioners-defendants but the learned Trial Court unnecessarily framed Issue on the said point; that as public documents were brought on record by respondent No.1, in the shape of additional evidence, no illegality was committed by the learned Appellate Court while allowing applications for additional evidence; that non-judicial approach on the part of the learned Trial Court is evinced from the fact that it relied upon Khasra Girdawaris for the year 2020 to believe that petitioners-defendants were in possession of the suit properties despite knowing the fact that the same having been prepared during pendency of the suits were inconsequential upon the rights of the parties and that when the petitioners-defendants failed to rebut the claim of respondent No.1 that major chunk of consideration amount was paid by him through his bank account, he was rightly declared to be the real owner by learned Appellate Court. 8. Since respondents No.2 to 5 in Civil Revision Nos.58046 & 58055 of 2022 did not enter appearance despite their service through substituted means by way of proclamation in Daily Jang Lahore, dated 13.03.2024, they were proceeded against ex-parte through orders, dated 01.04.2024, passed in the said petitions. 9. I have heard learned counsel for the parties at considerable length and have also gone through the documents, annexed with these petitions, as well as the case-law, cited at the bar. 10. It is admitted position that respondent No.1 alongwith his appeals filed applications under Order XLI rule 27 CPC seeking permission to place on record certain documents in the shape of additional evidence. For convenience of reference, one of the said applications, filed by respondent No.1 in his appeal, subject matter of this petition, is reproduced herein below:- IN THE COURT OF DISTRICT JUDGE, FAISALABAD Maqbool Hussain Versus Farrukh Shahzad Malik PETITION UNDER ORDER 41 RULE 27 OF CPC FOR PLACING ON RECORD THE FOLLOWING DOCUMENT AND EXHIBITION THERETO.

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1. Copy of plaint titled "Maqbool Hussain Vs. Muhammad Address" pending in the Court of Civil Jude, Kausar (sic); 2. Copy of written statement in suit titled "Maqbool Hussain Vs. Muhammad Address" pending in the Court of Civil Judge Kausar; 3. Copy of agreement dated 30.05.2014 4. Copy of Fard jamabandi pertaining Moza Kalar Kahar Tehsil Kalar Kahar District Chakwal. 5. Sale Deed pertaining to house No.P-32 Rawalpindi. 6. Sale Deed No.4552 dated 30.07.2001; 7. Sale Deed No.3557 dated 26.05.2008; 8. Copy of fard jamabandi pertaining to property situated Chak No.166-P Sadiqabad. 9. Copy of plaint titled "Maqbool Hussain Vs. Ejaz Mehood" along with decree. 10. Copy of plaint titled "Sohail Maqbool Awan Vs. M/s Renaissance Developers Pvt. Ltd. Respectfully Sheweth, 1. That above titled appeal is being filed in this Honourable Court in which no date of hearing has been fixed so far 2. That the contents of the appeal may kindly be read as necessary part of this petition. 3. That petitioner has prima facie a good arguable case. 4. That Trial Court while deciding the fate of case made observation that the petitioner failed to place on record the document regarding their source and funds though the petitioner placed sufficient documents in Trial Court, however, in order meet the observations of Trial Court, the petitioner intends to produce on record the above said document, further, the file is also requiring production of document on record. 5. That affidavit is attached herewith. Prayer In the light of submission made above it is therefore respectfully prayed that by accepting this petition, petitioner be allowed to place and exhibits the documents mentioned in headnote of this petition on record for decision of case on merit. Petitioner Maqbool Hussain Through Counsel: Chaudhry Abdul Majeed Advocate Supreme Court of Pakistan 52, Tamiz-ud-Din Law Chambers, District Courts Faisalabad Mob. 0300-8655064 Verification: Verified on oath at Faisalabad on 03.02.2021 that all the contents of this petition are true and correct to the best of my knowledge. Petitioner A cursory glance over the above quoted application, in particular Para No.4 thereof, shows that the reason for production of additional evidence was mentioned as "meet with the observation of the civil court". There is no cavil with the fact that additional evidence can be allowed to be led even during proceedings before the Apex Court of the country but the conditions precedent for exercise of such power are that the party concerned should establish that reasons for non-production of such evidence, before the court of first instance, were beyond its control and that the same is inevitable for just decision of the lis between the parties. A bird's eye-view of the afore-quoted application brings it to limelight that neither a single word as to the reasons for non-production of said documents, during proceedings before learned Trial Court, has been uttered nor their relevance for just decision of the case has been narrated rather it has been averred that the

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subject application was filed to meet with the observation of the learned Trial Court which cannot be considered as valid ground allowing production of additional evidence. The Apex Court of the country in the case of Shamshad Bibi & others v. Riasat Ali & others (PLD 2023 SC 643), while deprecating tendency to permit production of additional evidence in routine, to fill in lacunas in the case of a party, has inter-alia held as under:- "4. The questions that have arisen for our consideration are; whether the High Court, while exercising its revisional powers under section 115 of the C.P.C., was justified in accepting the application under Order XLI, Rule 27 of the C.P.C. and remanding the matter for recording of additional evidence; whether the High Court, in the absence of jurisdiction having been exercised illegally or without material irregularity by the subordinate courts, was justified to allow the revision petition and remand the matter to the trial Court. The powers vested in the High Court under section 115 of the C.P.C. are to be exercised in accordance with the parameters described in clauses (a) to (c) ibid. The revisional powers are meant for correcting errors made by the subordinate courts in the exercise of their jurisdiction. Ordinarily, erroneous decisions of fact are not revisable, except in cases where the decision is based on no evidence or inadmissible evidence and is so perverse that grave injustice would result therefrom. Rule 27 of Order XLI, C.P.C. empowers the appellate Court to allow additional evidence to be adduced, whether oral or documentary, after the recording of reasons. This power is circumscribed by three eventualities described in clauses (a) to (c) i.e. if the court, from whose decree the appeal has been preferred, has refused to admit evidence which ought to have been admitted; the appellate court, on being satisfied that the additional evidence was available but could not be produced before the trial court for reasons beyond the control of the party seeking its production; or the appellate court itself requires any such evidence so as to enable it to pronounce a judgment. Rule 28 of Order XLI describes the procedure for taking additional evidence and provides that the appellate Court may either take such evidence or direct the court from whose decree the appeal is preferred, or any other subordinate court, to take such evidence and to send it when taken to the appellate court. Rule 29 of Order XLI further provides that where additional evidence is directed or allowed to be taken, the appellate court shall specify the points to which evidence is to be confined and record in its proceedings the points so specified...... 5. The power under Order XLI, Rule 27 of the C.P.C. is not intended to be exercised to fill up lacunas, or to make up any deficiency in the case, nor to provide an opportunity to the party to raise a new plea. The power essentially has to be exercised cautiously and sparingly and not to facilitate an indolent litigant. The court, before exercising its jurisdiction of allowing the recording of additional evidence, must be satisfied that the document sought to be adduced in evidence is not of the nature that could be easily fabricated, tampered or manufactured. 6. *****The application was, however, filed before the High Court which was exercising revision powers. The grounds mentioned in the application, filed under Order XLI, Rule 27 of the C.P.C., did not disclose any exceptional circumstance to justify the recording of additional evidence. The grounds were flimsy and appeared to be an attempt to embark upon a fishing or roving inquiry. Moreover, it was not denied that the evidence sought to be recorded as additional evidence at the revision stage was available when the trial was pending but no attempt was made to produce it then. The remanding of the matter and setting aside of the concurrent findings by two competent courts was not in consonance with the legislative intent unambiguously manifest from principles highlighted above." If fate of the order passed by learned Appellate Court permitting respondent No.1 to lead additional evidence, at appellate stage, is seen in the light of afore-referred judgment of the Apex Court of the country it stands established that it violated the settled norms on the subject despite the fact that

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those have binding force upon it in terms of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973. 11. It is pertinent to mention over here that despite addressing the Court at certain length, learned counsel representing respondent No.1 has not been able to convince this Court as to why respondent No.1 did not produce the documents, subject matter of the application for additional evidence, before the learned Trial Court despite the fact that in all the cases he was given two chances to produce evidence viz. firstly during recording of ex-parte evidence and secondly, at the time of recording of evidence of both sides after setting aside of ex-parte judgments & decrees. The law favours the vigilant and not the indolent as held by the Hon'ble Supreme Court in the cases reported as State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others (2012 SCMR 280) and Rehmat Din vs. Mirza Nasir Abbas (2007 SCMR 1560). 12. It is very ironical to note that while allowing applications of respondent No.1, for additional evidence, instead of giving an opportunity to the petitioners-defendants to impeach the authenticity of subject documents, learned Appellate Court proceeded to take the same on record on the day when the main appeal was finally decided which fact also speaks volumes about lack of legal acumen on the part of learned Appellate Court. Had the applications of respondent No.1, for production of additional evidence, been decided through independent orders, the petitioners- defendants would have an opportunity to challenge the same before the higher forum in appropriate proceedings. Moreover, it is well-settled by now that when an application for additional evidence is allowed either the learned Appellate Court can record such evidence by itself or can refer the matter to learned Trial Court for said purpose in terms of Order XLI rule 28 CPC but in the instant matter neither learned Appellate Court recorded the evidence as per guidelines given by Hon'ble Supreme Court of Pakistan through its various pronouncements nor referred the matter to learned Trial Court for the purpose rather took the documents on record without summoning the…

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