3o Yrs old document, presumption,,,,, 2007 Y L R 1835 [Peshawar] Before Ijaz-ul-Hassan Khan, J WAZIR and others---Petitioners Versus JALAT KHAN and others---Respondents Civil Revision No.425 of 2005, decided on 12th February, 2007. (a) Specific Relief Act (I of 1877)--- ----S. 42---Civil Procedure Code (V of 1908), O.XLI, R.31 & S.115---Suit for .declaration---Suit had been concurrently decreed by the Trial Court and Appellate Court---Validity---Courts below had adverted to every aspect of the case and rightly decided issues agitated and rendered a reasoned judgment which was not open to exception---Counsel for defendants had not been able to prove that impugned judgments were the result of misreading and non-reading of evidence or suffered from illegality or material irregularity---Both courts below had given exhaustive judgments after due appraisal of evidence on the file and after discussing all the pros and cons of the case---No legal defect existed in judgments of the courts below, which were in consonance with the evidence on the file---Judgment of the courts below were neither tainted with any illegality or irregularity nor were fanciful or arbitrary---No interference, in circumstances was called for by the High Court---Courts below had scanned the entire evidence in its true perspective and no material piece of evidence was left unnoticed by the courts below---Counsel for defendants could neither point out as to which issue was not properly framed nor he could point out any material portion of evidence which was overlooked or misread by the courts below---Provisions of O.XLI, R.31, C.P.C., were not found to have been violated in the case---Parties were fully alive to the controversy involved and they were given reasonable opportunity to produce evidence in support of their respective contentions---Conclusion of fact arrived at concurrently by both the courts below, being not open to challenge in revision, revision being bereft of merit, was dismissed. Muhammad Durwaish v. Haji Muhammad Hussain alias Haji Gul and 7 others 1999 CLC 106 and Muhammad Rafiq and others v. Muhammad Ali and others 2004 SCMR 704 rel. (b) Civil Procedure Code (V of 1908)--- ----O. XIV, R.3---Framing of issues---Issues were to be framed on the basis of material enumerated in R.3 of O.XIV, C.P. C., with regard to the material proposition of law or facts; distinct and separate issues were to be framed for each proposition in dispute--It was duty of the Judge himself to frame proper issues, so that the parties could know the controversy, the disputed fact on which evidence was to be led; and to enable an effective judgment to be rendered, but where the parties were not satisfied, it was their duty to get proper issues framed. Mir Afzal and 2 others v. Muhammad Raza Khan and 13 others 1990 CLC 1617; Fazal Muhammad Bhatti v. Mst. Saeeda Akhtar and 2 others 1993 SCMR 2018 and Kaura and others v. Allah Ditta and others 2000 CLC 1018 rel. (c) Qanun-e-Shahadat (10 of 1984)--- ----Art. 100---Presumption as to documents thirty years old---Discretion under Art.100 of Qanun-e-Shahadat, 1984, should be exercised judicially that the Court could refuse to raise presumption where it had reasons to believe that documents which were claimed to be 30 years old were fabricated and suspicious. Lutufur Rehman and others v. Zahoor and others 1999 SCJ 433 and Shafiqunnisa v. Shabar Ali Khan 30 IA 217 ref. (d) Civil Procedure Code (V of 1908)--- ----O.XLI, R.31---Judgment of Appellate Court---Contents of---Appellate judgment should state the points arising for determination, its decision thereon and reasons for its decision---It was necessary for the Appellate Court to record the points for determination, so that it could be determined whether the Court had dealt with all the points---Appellate Court must state its reasons for the decision---Provisions of O.XLI, R.31, C.P.C., were mandatory. (e) Civil Procedure Code (V of 1908)--- ----O. XLI, Rr.25 & 27---Remand of case and production of further evidence---Appellate and revisional Court was always empowered to remand the case in terms of O.XLI, R.25, C.P.C., but that discretionary power was to be used in exceptional situation and if the parties had led evidence with regard to the particular point and the Court of first instance, by giving specific finding on the said point, decided same in the light of evidence available on record, remand of case in appeal or revision was not proper exercise of jurisdiction---Powers under O.XLI, R.27, C.P.C. were to be exercised only if the Court would consider that it would not be able to pronounce judgment without further evidence---Said provision could not be used for the benefit of a party which had not been vigilant enough to see that no weaknesses were left in its case---Power to order remand, was no doubt wide, but it should be exercised only in those cases wherein omission of a party was accidental---Party could not be allowed to adduce evidence to do away with the weakness that existed in its case. Ashiq Ali v. Zameer Fatima PLD 2004 SC 10 ref. Syed Zafar Abbas Zaidi for Petitioners. Nasir Khalil for Respondents. Date of hearing: 18th January, 2007. JUDGMENT IJAZ-UL-HASSAN KHAN, J.---Saifur Rehman and others, plaintiffs, instituted suit on 20-11-2003 in the Court of Senior Civil Judge, Peshawar, against Wazir and others, defendants for declaration to the effect that plaintiffs were owners in possession of a portion of suit house by virtue of inheritance of their predecessor-in-interest late Asghar Khan, original owner of suit house and defendant No.1 had no justification to sell the same in favour of defendants Nos.2 and 3 without consent and permission of the plaintiffs. It was also averred that sale, if any, was fictitious and bogus and ineffective on the rights of the plaintiffs. In the alternative, plaintiffs also sought possession of suit house by partition. The plaintiffs further prayed for grant of permanent injunction restraining the defendants to transfer or alienate the house in suit in any manner. 2. The suit was resisted on all grounds, legal as well as factual. The claim of the plaintiffs was denied and Dilbar Khan, son of late Asghar Khan, was alleged to have transferred the suit house in favour of his wife Mst. Mustafa Jana on the basis of Will dated 10-11-1996. In view of the divergent pleadings of the parties, following issues were framed for trial:-- ISSUES (1) Whether plaintiffs have got no cause of action? (2) Whether house in dispute was given to Dilbar Khan by his father Asghar Khan and Dilbar Khan has given it to Mst. Mustafa Jana vide Will deed dated 10-11-1996? (3) Whether the suit is time-barred? (4) Whether the original owner Mst. Mustafa Jana has not been made party since she is necessary party, therefore, the suit is liable to be dismissed for non-joinder of necessary parties? (5) Whether pedigree table annexed with plaint is incorrect? (6) Whether this Court has got jurisdiction? (7) Whether plaintiffs are entitled to the decree as prayed for? (8) Relief. 3. At the conclusion of trial, learned Civil Judge, Peshawar, accepted the claim of the plaintiffs and allowed suit vide judgment and decree dated 19-6-2004. An appeal was preferred thereagainst which did not succeed. The same was dismissed by learned Additional District Judge, Peshawar vide judgment dated 4-1-2005. Feeling aggrieved, the petitioners have filed instant, civil revision under section 115, C.P.C. which is before me for consideration. 4. Syed Zafar Abbas Zaidi, Advocate appearing on behalf of the petitioners vehemently contended that both the judgments and decrees passed by the learned Civil Judge and the learned Additional District Judge are tainted with illegality of misreading of evidence and suffer from the defect of material irregularity, those, run counter to the evidence on file, as such, are not sustainable at law in spite of being concurrent. The learned counsel added that deed/Will (Exh.P.W. 1/3) dated 10-1-1930 was 30 years old and in view of Article 100 of Qanun-e-Shahadat Order, 1984 presumption of truthfulness is attached to such-like documents. The learned counsel also contended that issues framed in this case do not fully reflect the pleadings of the parties and an important issue, regarding limitation, has been omitted which has seriously prejudiced the cause of the petitioners. The learned counsel also ontended that mandatory provisions of Order XLI, rule 31, C.P.C. have not been substantially complied with which has resulted in manifest injustice. Concluding the arguments, learned counsel for the petitioners prayed for remand of the case to the Court below for de novo trial. To substantiate the contentions, reliance was placed on Muhammad Durwaish v. Haji Muhammad Hussain alias Haji Gul and 7 others (1999 CLC 106). 5. While opposing the aforesaid contentions, of the learned counsel for the petitioners and supporting the impugned conclusion of the Courts below, Mr. Nasir Khan Khalil, Advocate, appearing on behalf of the respondents, contended that no illegality, arbitrariness or fancifulness could be pointed out in the judgments passed by the Courts below and the conclusion of facts arrived concurrently by both the lower Courts is not open to challenge in civil revision particularly when no specific misreading and non-reading of evidence has been pointed out. Reliance in this regard was placed on Muhammad Rafiq and others v. Muhammad Ali and others (2004 SCMR 704) Supreme Court of Pakistan). 6. Upon the examination of the impugned judgments I find that the Courts below adverted to every aspect and rightly decided the issues agitated and rendered a reasoned judgment which is not open to exception. Learned counsel for the petitioners has not been able to prove that the impugned judgments are the result of misreading and non-reading of evidence or suffer from illegality or material irregularity. Both the Courts below have given exhaustive judgments after due appraisal of evidence on the file and after discussing all the pros and cons of the case. There appears to be no legal defect in their judgments, which are in consonance with the evidence on the file. Judgments of the Courts below are neither tainted with any illegality or irregularity nor are fanciful or arbitrary, thus for the reasons discussed above, no interference is called for by this Court. Nothing could be .pinpointed effectively and convincingly which may persuade me to disagree with the concurrent findings of the Courts below on Issues Nos.1, 2, 3, 4, 7 and 8 passed on a due appreciation of law and facts. No material piece of evidence was unnoticed by the learned Civil Judge as well as learned Additional District Judge. They have scanned the entire evidence in true perspective and their findings cannot be termed either perverse or arbitrary. Findings on the said issues being concurrent finding of fact supported by the evidence are immune from further scrutiny in a petition filed under section 115, C.P.C. 7. Learned counsel could neither point out as to which issue was not properly framed nor he could draw my attention to any material portion of evidence which was overlooked or misread by the Courts below. Neither there appears to be any misreading of evidence nor any material piece of evidence appears to have been overlooked by the Courts below. 8. Needless to emphasize that issues are to be framed on the basis of material enumerated in rule 3 of Order XIV, with regard to the material proposition of law or facts distinct and separate issues are to be framed for each proposition in dispute. It is the duty of the Judge himself to frame proper issues, so that the parties may know the controversy, the disputed fact on which evidence is to be led and to enable an effective judgment to be rendered but where the parties are not satisfied, it is their duty c to get proper issues framed. The appellant during the trial has not objected to the framing of the proper issues. The appellant was duty bound to apply to the trial Court for this purpose and in case of failure would have challenged the order before the next higher Court or at least should have raised this objection in the memorandum of their appeal before the lower appellate Court and the appellant if he failed to raise the objection in the trial Court or in the lower Appellate Court, this objection now at this stage, cannot be raised. In this context reference can be made to the case of Mir Afzal and 2 others v. Muhammad Raza Khan and 13 others 1990 CLC 1617. The other aspect of the case is that mere omission to frame issues by itself would not be fatal where substantial justice has been done. Where the parties have been aware of the points requiring determination, and had led evidence and the matter had been decided by the Court, in that case the decision rendered by the Court would not be illegal. Reliance in this context can be placed to the case of Fazal Muhammad Bhatti v. Mst. Saeeda Akhtar and 2 others 1993 SCMR 2018 and also a judgment in the case of Kaura and others v. Allah Ditta and others 2000 CLC 1018; Mst. Sughran Bibi alias Mehran Bibi v. Asghar Khan and another 1988 SCMR 4. 9. It is by now established that discretion under Article 100 of Qanun-e-Shahadat Order, 1984 should be exercised judicially that the Court could refuse to raise presumption where it has reasons to believe that the documents which were claimed to be 30 years old were fabricated and suspicious. A similar question came up for hearing before the august Supreme Court of Pakistan in Lutufur Rehman and others v. Zahoor and others 1999 SCJ 433 in which it was held:-- Syed Safdar Hussain, learned Advocate-on-Record in support of this petition, contended that under Article 100 of the Qanun-e-Shahadat Order, 1984, the Court may presume that the signatures and every other part of such document which purports to be in the handwriting of any particulars person is in that persons handwriting and in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested, therefore, the learned Single Judge has gone wrong in holding that the execution of the impugned registered deed is not proved. No doubt documents thirty years old, produced from proper custody and otherwise free from suspicion proved themselves and no evidence of the handwriting, signature, sealing or delivery need, in general, be given. The presumption mentioned in Article 100 is, however, permissive and not imperative. Even if a document is 30 years old and is produced from proper custody, the Court is not bound to presume its genuineness. The Article lays down that the Court may presume and not that shall presume a document 30 years old and produced from proper custody to be genuine. It is, therefore, discretionary for the Court to raise or to refuse to raise presumption where it has reasons to believe the document to be a fabrication or mere gave suspicion attaches to it. See Shafiqunnisa v. Shabar Ali Khan 30 IA 217. It is settled law that the effect of presumption may be weakened by circumstances which tend to raise doubts as to the authenticity of a document. 10. Adverting to the objection regarding non-compliance of provisions of Order XLI, rule 31, C.P.C., it needs not emphasis that an. appellate judgment should state the points arising for determination, its decision thereon and the reasons for its decision. It is necessary for the Appellate Court to record the points for determination, so that it can be determined whether the Court has dealt with all the points. The appellate Court must state its reasons for the decision. The provisions of Order XLI, rule 31, C.P.C. are mandatory. 11. The appellate and the revisional Court is always empowered to remand the case in terms of Order XLI, rule 25, C.P.C. but this discretionary power is used only in exceptional situation and if the parties have led evidence with regard to the particular point and the Court of first instance by giving specific finding on the said point decided the same in the light of evidence available on record, the remand of the case in appeal or revision is not proper exercise of jurisdiction. Needless to emphasize that powers under Order XLI, rule 27, C.P.C. are to be exercised only if the Court considers that it would not be able to pronounce judgment without further evidence, and this provision cannot be used for the benefit of a party which has not been vigilant enough to see that no weaknesses are left in its case. The power to order remand is no doubt wide, but it should be exercised only in those cases wherein omission of a party was accidental. A party cannot be allowed to adduced evidence to do away with the weakness that exists in its case. The august Supreme Court of Pakistan in case titled Ashiq Ali v. Zameer Fatima PLD 2004 SC 10, has observed as under:-- It is well settled by now that where the evidence on record is sufficient for the Court concerned to decide the, matter itself, remand should not be ordered and moreso, a Court will not remand a case where the defect is due to the negligence and the default of the party desiring remand. 12. In the instant case, I find that the Appellate Court has fully attended the controversy involved and stated the points arising for determination and its decision thereon. The impugned judgment is in consonance with the material on record and provisions of Order XLI, rule 31, C.P.C. are not found to have been violated in this case. The parties were fully alive to the controversy involved and they were given reasonable opportunity to produce evidence in support of their respective contentions. 13. Having thus examined all aspects of the case, I am of the view that no exception could be taken to the concurrent findings reached by the trial Court as well as the learned appellate Court. The conclusion of fact arrived concurrently by both the lower Courts is not open to challenge in civil revision particularly when no specific misreading and non-reading of evidence has been pointed out. The civil revision is bereft of merit. The same is dismissed with no order as to costs. H.B.T./90/P Revision dismissed.
Posted on: Tue, 25 Mar 2014 11:45:34 +0000
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