2010 C L C 1434
[Quetta]
Before Syeda Tahira Safdar, J
JALIL KHAN DOTANI ---Petitioner
Versus
DAWOOD AHMED and others ---Respondents
Civil Revisions Nos.450 and 451 of 2007, decided on 23rd February, 2010.
Specific Relief Act (I of 1877) ---
---S s . 42 & 54 -Qanun -e-Shahadat (10 of 1984), Arts.74, 75, 76, 77 & 78 -Suit for specific
performance of agreement and permanent injunction -Production of secondary evidence -Revision
petition -Application of the plaintiff for producing secondary evidence had been rejected by the
Trial Court -Plaintiff in the present case had relied on agreement of sale which allegedly was
executed between him and the defendant in respect of property in question -Plaintiff had
contended that original agreement of sale had be en lost and despite his efforts, same was not
traced out and he intended to prove the same through secondary evidence -Validity -Under Art.76
of Qanun -e-Shahadat, 1984, if an original document had been lost, evidence could be produced
to prove its existence and contents, however, in the present case the plaintiff had filed application
for production of secondary evidence after more than two years since the document was lost -
Plaintiff had to establish execution and existence of agreement in question between th e parties at
first instance, whereafter he had to establish his assertion that the document in question had been
lost without his fault, which made him entitled to produce secondary evidence in respect of the
same -Trial Court had come to the correct conclu sion which needed no interference -Plaintiff
having failed to make out any case in his favour, his revision petition was dismissed.
Rauf Ahmed Hashmi for Petitioner (in both petitions).
Tahir Ahmed Dar in person (in both petitions).
Date of hearin g: 27th October, 2009.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J .---Through this order I intend to dispose of Civil
Revision Petition No.450 of 2007 titled as Jalil Khan Dotani v. Dawood Ahmed and others and
Civil Revision Petition No.451 of 2007 titled a s Jalil Khan Dotani v. Tahir Ahmed Dar, whereby
the petitioner has sought setting aside of impugned orders dated 18 -9-2007 in civil suits filed by
him and the contesting respondent against each other, whereby his applications for producing
secondary eviden ce had been rejected by the trial Court. As matters in issue in both the orders
are the same, thus in order to avoid any conflicting order both the petitions are decided with this
common order.
The petitioner sought setting aside of impugned orders which are contrary to facts and law, the
agreement in question was executed between him and respondent Tahir Ahmed Dar, which was
misplaced and despite efforts the same was not traced out. In the circumstances opportunity was
required to be given to him for pro ducing secondary evidence, which was declined by the trial
court without any cogent reason and justification. As per provisions of Article 76 of Qanoon -e-
Shahadat Order, 1984 production of secondary evidence was requested, which was required to be
consider ed on its own merits, which was not done by the trial Court. Despite existence of
sufficient cause and reason opportunity way, not provided to him to produce document in
question through secondary evidence. He has prayed or setting aside of impugned orders dated
18-9-2007 and allowing him to produce and prove the sale agreement through secondary
evidence.
Learned counsel for the parties are heard, while record is perused. As per counsel for the
petitioner the trial Court failed to observe Articles -77 and 78 of Qanoon -e-Shahadat Order, 1984
while in reply of the same it is contention of contesting respondent that the petitioner never
produced the sale agreement in the trial Court, nor the same was called by the court during
course of trial. Further, after a period of two years the petitioners intimated the court about lost
of document only to linger on the case. It is further his contention that existing of document is to
be proved at first instance, whereafter, secondary evidence can be allowed.
The perus al of record reveals that the petitioner filed a suit for specific performance of
agreement dated 30 -10-2003 allegedly executed between him and respondents/defendants in
respect of property consisting of a house and four shops situated at Basant Singh Stre et, Mission
Road, Quetta, and permanent injunction for restraining the respondents/defendants from making
interference in his possession. The suit was contested by respondent No.13/defendant No.12 -A
(Tahir Ahmed Dar), who in his written statement strongly denied execution of sale agreement
and contended that the document in question is a forged one bearing his forged signature thereon.
It is his further contention that the petitioner/plaintiff illegally, unauthorizedly and by force came
into possession of r esidential portion of property in question after breaking and removing the
locks. Further the property in question is joint property of him and remaining respondents, who
are his mother, brothers and sisters. The perusal of record further reveals that the contesting
respondent Tahir Ahmed Dar filed a suit for Declaration, permanent injunction and possession
against the petitioner in respect of property in question; Which is pending before the same court.
While both the cases were ordered to be consolidated and proceedings are held jointly before the
trial court. It is further apparent from the record that in both the cases die petitioner filed
applications with contention that the original sale agreement was in his custody which was lost
when he brought the same for production before the court. It is further his contention that he
made efforts to trace out the original document, but failed, while photocopy of the document had
already been annexed with the plaint and filed in the court. It is further asserted that in same
respect he got published advertisement in newspapers dated 9 -4-2005 and 11 -4-2005. In the
circumstances he prayed that he be allowed to prove the sale agreement through secondary
evidence. The applications were contested by respondent (Tahir A hmed Dar). The learned trial
Court through orders made on 18 -9-2007 dismissed die applications being without merits, as no
sufficient proof for lost of document has been produced. These orders are presently impugned
before this court.
In present case the petitioner relied on an agreement which was allegedly executed between him
and contesting respondent (Tahir Ahmed Dar) in respect of sale of property in question. From
perusal of record it is evident that the petitioner claims to be in possession of origi nal agreement
in question. Thus as per relevant law he was required to produce the original of the same before
the trial Court to bring it on record. As per Article 75 of Qanoon -e-Shahadat Order 1984,
document must be proved by primary evidence with some e xceptions as mentioned in this Order.
In present case it is contended by the petitioner that the document in question has been lost from
his custody and despite efforts the same is not traced out, which he intends to prove through
secondary evidence. Artic le-76 of Qanoon -e-Shahadat Order 1984 describes instances whereby
secondary evidence can be given about existence, conditions or contents of a document. Clause -c
of Article 76 of Qanoon -e-Shahadat Order is relevant, which speaks is under: --
"76 ……………………… …………….
(a) ……………………………………..
(b)………………………………………
(c) When the original has been destroyed or lost, or when the party offering evidence of
its contents cannot, for any reason not arising from his own default or neglect, produce it
in reasonable time. "
Thus as per the same if an original document has been lost secondary evidence can be produced
to prove its existence and contents. In present case as per petitioner the document was lost from
his possession, while he immediately effect advertisements i n same respect in newspapers i.e.
daily Ba -Khabar and Daily Mashriq. The petitioner has placed on record both these
advertisements, which reveals that the advertisements were made in Daily Ba -Khabar on
9.4.2005 and in Daily Mashriq on 11 -4-2005, which show s that the said document was allegedly
lost in year 2005, while as per his own showing he filed applications before the trial court for
allowing him to prove the sale agreement through secondary evidence on 11 -6-2007 meaning
thereby that he approached and intimated the trial court about lost of the document after lapse of
more than 2 years. Copy of the said application is present on record, which reveals that the
petitioner has not disclosed any reason about said delay. It is further apparent from the recor d
that the issues were already framed by the trial court on 18 -12-2004, while the case was pending
for adjudication and recording of evidence of petitioner during all these years. In case such
incident was happened the petitioner may have intimated the cou rt at relevant time, but he has
not done so, nor he has assigned any reason for such a delay. It has been rightly held by die
learned trial Court that merely giving reference to advertisement in newspapers is not a sufficient
proof for lost of document.
From perusal of pleadings of the parties it is apparent that there is assertion from die side of the
petitioner about execution of document in question which is specifically denied by the other
party i.e. contesting respondent. Thus in the circumstances th e petitioner has to establish
execution and existence of agreement in question between the parties at first instance,
whereafter, he (petitioner) has to establish his assertion that the document in question has been
lost without his fault, which makes him entitled to produce secondary evidence in respect of die
same. The learned trial Court has come to the correct conclusion, which need not to be
interfered.
In view of above discussion, the petitioner has failed to make out any case in his favour,
therefo re, the Civil Revision Petition No.450 of 2007 titled as Jalil Khan Dotani v. Dawood
Ahmed and others and Civil Revision Petition No.451 of 2007 titled as Jalil Khan Dotani v.
Tahir Ahmed Dar are hereby dismissed being without merits.
No order as to cost s.
H.B.T./43/Q Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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