2013 M L D 1039
[Balochistan]
Before Muhammad Noor Meskanzai and Muhammad Hashim Khan Kakar, JJ
Haji WAHID BAKHSH ---Appellant
Versus
AHMED and 2 others ---Respondents
Regular First Appeal No.6 of 2008, decided on 19th March, 2013.
Qanun -e-Shahadat (10 of 1984) ---
----Arts. 72, 78, & 79 -Civil Procedure Code (V of 1908), O.VII, R.2 ---Proof of document ---
Author of the document despite being alive was not produced nor any plausible reason for his
non-production was offered ---Document in question was liable to be registered and for want of
registration such document did not operate to create, extinguish any right ---Document in original
was neither tendered in evidence nor produced on record and only a photo copy was available
which neit her could have been tendered in evidence nor could be taken into consideration ---
Evidence and the contents of the plaint were irreconcilable in nature and ran contrary to each
other ---No misreading or non -reading of evidence having been noticed, appeal was dismissed
with costs.
Arther Victor for Appellant.
Zahoor Ahmed Baloch for Respondents.
Date of hearing: 12th November, 2012.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. ---Instant appeal is directed against the
judgment and decree dated 20th October, 2007 passed by the Senior Civil Judge, Gwadar,
whereby the suit filed by the appellant against the respondents for recovery of Rs.1,000,000
(Rupees Ten lacs) was dismissed.
2. The brief facts, relevant for the disposal of instant appeal are that the appellant/plaintiff
instituted a suit against respondent/defendants for recovery of Rs.1,000,000 initially in the court
of Qazi, Gwadar. It was averred in the plaint that respondents Nos. 2 and 3 owed Rs.1,000,000
towards plaintiff on account of purch ase of a 'Launch' to the tune of Rs.800,000 (Eight lacs) and
further Rs.200,000 (Rupees two lacs) cash were given to them. It was further stated in the plaint
that vide agreement dated 1st July, 1997, the respondent No.1 stood surety for respondents Nos.2
and 3 and undertook that in case they failed to make payment of the said amount, he would pay
the same. It was further agreed that he will handover his two shops situated at Shahi Bazar
Gwadar to the plaintiff in lieu of said amount. As the respondents Nos . 2 and 3 failed to make
payment within the stipulated period, as such the defendant No.1 handed over both the shops to
plaintiff and the same are in plaintiff's possession for the last five years and the plaintiff is
receiving rent from the tenants. It wa s also mentioned in the plaint that one Sahib Khatoon (sister
of respondent No.1) filed a suit for legacy in respect of the shops in question, thus the plaintiff
approached to defendant No.4 for payment of Rs.1,000,000 but he flatly refused to make
payment .
3. The respondent No.1/defendant No.1 contested the suit by way of filing written
statement, however, the respondents/defendants Nos. 2 and 3 did not turn up, as such were
proceeded against ex parte. The learned trial court out of pleadings of the part ies framed
following issues: --
4. Thereafter, the parties were directed to adduce evidence in support of their respective
claims, whereupon plaintiff produced five P.Ws. besides recording his own statement. In rebuttal
the respondent No.1 adduced three D Ws and the defendant himself appeared in the witness box.
The learned Qazi Gwadar after hearing the parties and evaluating the evidence decreed the suit
vide judgment and decree dated 16th August, 2003. The respondent No.1 feeling aggrieved of
the judgment and decree referred to hereinabove preferred an appeal before the Majlis -e-Shoora,
Mekran at Turbat, which too was dismissed. The respondent No.1 dissatisfied with both the
judgments and decrees filed R.S.A. No.1 of 2006 before this Court. This Court vide
judgment/decree dated 28th June, 2006 accepted the RSA and set aside the judgments/ decrees
dated 16th August, 2003 and 20th March, 2004 respectively passed by the Qazi, Gwadar and
Majlis -e-Shoora, Mekran at Turbat and remanded the case to the trial Court for re -writing of the
judgment keeping in view the provisions of Order XX Rule 5, C.P.C. In the meantime, the Court
of Qazi, Gwadar was succeeded by Senior Civil Judge, as such, the latter vide judgment and
decree dated 20th October, 2007 dismissed the su it, hence instant appeal.
Learned counsel for the appellant argued that the appellant has fully proved his case by
producing trustworthy and confidence inspiring evidence but the learned trial Court without
properly appreciating the material available on record illegally and unlawfully dismissed the suit.
It was further argued that the learned trial Court misinterpreted the agreement dated 1st July,
1997 which proves that respondents Nos. 2 and 3 purchased the 'Launch' and also received
Rs.200,000 cash from plaintiff and the respondent No.1 stood guarantor. On failure of
respondents Nos.2 and 3 to make the payment, respondent No.1 cleared the outstanding liability
by handing over two shops to the appellant. Learned counsel stressed that the appellant pro duced
tenants of the shops who affirmed before the Court that they have executed affidavit at the behest
of respondent No.1 with regard to regularly paying the rent but the learned trial Court failed to
take into consideration this aspect of the matter. Th e learned counsel next argued that the trial
Court wrongly concluded that agreement dated Ist July, 1997 was not produced by the appellant.
In fact the plaintiff annexed copy of agreement with the very suit and thereafter tendered the
same while recording his own statement, but the trial Court failed to put exhibit thereon. Learned
counsel canvassed that the document was placed on record and was not confronted in any
manner, the learned trial Court ought to have had taken the same into consideration. Learne d
counsel further contended that the witnesses produced by the appellant clearly stated that the
amount was outstanding against the respondent and the respondent No.1 himself too accepted the
responsibility. Lastly the learned counsel prayed for acceptance of appeal and setting aside the
judgment and decree impugned.
On the other hand, the learned counsel for respondent No.1 strenuously opposed the
appeal and supported the judgment impugned. It was argued that the plaintiff badly failed to
prove his case by producing tangible, trustworthy and confidence inspiring evidence. The learned
trial Court after proper appraisal of material available on record, considering all the material and
dilating upon each and every aspect of the case passed a well reasoned j udgment. Learned
counsel for appellant failed to point out any illegality or material irregularity in the judgment
impugned. Learned counsel further argued that the statements of the witnesses were
contradictory to the stand taken by the appellant, as such the suit filed by the appellant could not
have been decreed. Learned counsel laid much stress that the agreement relied upon by the
plaintiff was not exhibited, as such the learned trial Court rightly dismissed the suit filed by the
plaintiff.
5. We hav e considered the arguments advanced by learned counsel for the parties and
perused record of the case. At the very outset it is important to observe that the respondent while
filing written statement specifically raised objection regarding limitation but d espite such
objection no issue was framed by the trial Court. This matter came up before this Court by means
of R.S.A No. 1 of 2006 and this Court while accepting RSA remanded the case to the trial Court
vide judgment and decree dated 28th June, 2007. Oper ative portion of the order is reproduced
herein below: --
"Submissions made by the learned counsel for the appellant considered and impugned
judgment examined. The trial court framed eight issues referred to herein above but no finding
has been recorded on each and every issue. The judgment reflects that all the issues have been
disposed off together, which in our view does no fulfill the requirements of the provisions of
Order XX, Rule 5, C.P.C. Similarly the appellate court without taking note of the ab ove lapse on
the part of trial court did not decide the issues and without formulating of points for
determination dismissed the appeal, whereby the provisions of Order XLI, Rule 31 C.P.C. have
been violated.
Thus taking into consideration the above fac tors we set aside the impugned judgment and
decree dated 16 -8-2003 passed by Qazi Gwadar and judgment and decree dated 20 -3-2001
passed by Majlis -e-Shoora mekran at Turbot and remand the case to the trial, court for re -writing
of judgment, keeping in view the provisions of Order XX, Rule 5, C.P.C."
6. We are not oblivious of the fact that despite objection of limitation in written statement,
issue regarding limitation has not been framed and the legal requirement is that the point of
limitation must be ad hered to by the Courts seized with the matters as contemplated by section 3
of Limitation Act. Since this is the second time the matter has come before this Court and
perhaps in earher round of litigation, the parties remained satisfied with the issues alr eady
framed and this Court remanded the case just for re -writing of the judgment without directing for
framing of issue regarding limitation. Hence, under these circumstances we are constrained to
confine ourselves to the issues already framed. The perusal of the judgment reflects that the trial
Court while dilating upon the matter discussed certain together keeping in view the combined
effect and common impact thereof. The learned counsel for the parties also did not raise any
objection upon the course so adopted, hence we would like to dispose of the matter on the same
pattern by taking the issues jointly as done by the trial court because no prejudice is caused to
either of the party.
7. Though the trial court has disposed of issues Nos. 1 and 6 jointly keeping in view the
effect thereof nevertheless the issue No.1 the burden whereof was upon plaintiff, appears not to
have been proved because the only evidence available on record seems to be the statement of
Haji Usman which is not worth consideration fo r a couple of reasons. Firstly; because this is the
sole evidence and legally to prove a fact pertaining to civil liabilities is required to be proved by
two witnesses and secondly the statement of this witness runs contrary to the contents of the
plaint. Besides, the reasons discussed in detail by the trial court while resolving these issues in
affirmative, we are of the considered opinion that appellant/plaintiff has badly failed to prove the
issue No.1. Since the issue No.1 has been resolved in negative the natural effect thereof would be
that issue No.6 stands proved. Hence, we do not see any plausible reason to up set the findings
recorded by the trial Court.
8. As far as issues Nos. 2 and 7 are concerned, the trial court has resolved both the issues by
taking the same together keeping in view the common impact thereof. In fact both the issues are
offshoot of issue Nos. 1 and 6, and the findings recorded thereon have a great impact on these
issues as well. In order to prove issue No.2 plaintiff produc ed P.W.3 Imam Bakhsh and Raheem
Bakhsh who claimed to have identified their signatures on document, yet have failed to prove the
contents of the documents as the narration of both the P.Ws. run contrary to the agreement.
According to P.W.3 Imam Bakhsh ther e was a dispute of rupees ten lacs among the parties.
Defendant No.1 was owning a debt of Rs.1,00,0000 towards plaintiff who demanded the same
and defendant/respondent No.1 being incapable to make the payment, gave the shops in lieu of
the said amount. He does not state that defendant was surety and on that account he gave the
shops. Secondly the P.W. does not state number of shops nor has given the boundaries in
examination in chief. Further P.W.3 states in reply to question No.2 that.
9. As far as state ment of P.W.4. Raheem Bakhsh son of Sabzal is concerned, according to
his statement he was present in the office of Hassan when a sale deed was executed as Ahmed
had taken a loan of Rs.100,00,00 from Wahid Baksh and in case of non -payment of said loan he
had to transfer ownership of one shop to Wahid Bakhsh. Statement of P.W.4 also runs contrary
to the contents of agreement. Moreover, as per agreement two shops have been given to plaintiff
whereas according to P.W.4 only one shop was given. P.W.4 further st ates that he does not know
the other witnesses of agreement. Besides the author of the document despite being alive was not
produced nor any plausible reason for his non -production was offered. Additionally the
document was liable to be registered and for want of non -registration such document does not
operate to create, extinguish any right. It is important to note that the document in original was
neither tendered in evidence nor produced on record and only a photo state copy is available
which neither co uld have been tendered in evidence nor could be taken into consideration. Since
the plaintiff has failed to prove issue No.2, therefore, issue No.7 automatically stands proved.
Moreover, P.W.3 and P.W.4 have sworn affidavits before the learned Majlis -Shoor a during
pendency of proceedings under section 12(2), C.P.C. with regard to the same subject matter.
Though no question was put to P.W.3 and P.W.4 in comparison with the said affidavits yet the
affidavits have been appended by the plaintiff with the plaint . The trial court in order to arrive at
a just conclusion rightly evaluated both the statements of same person on the same subject and
thus, the statements of P.W.3 and P.W.4 were rejected for viable reasons.
10. Like the above referred issues the remaining issues, i.e. 3, 4, 5 and 8 have also been
resolved together. The over all impact of the evidence produced by the plaintiff is that the
plaintiff has failed to prove the execution of the document plus delivery of possession of the
shops to him. In the plaint though it has been stated that the shops were handed over to plaintiff
but in the same plaint the petitioner stated that the defendant is neither prepared to make the
payment of Rs.1,000,000 nor is ready to give his share of shop to plaintiff. This averment reflects
that the plaintiff has never been delivered to him the possession of shops or he has ever collected
any rent from the tenants. The prayer clause unfolds the very theme and mala fide of the
plaintiff. For the sake of convenience Para No.5 and prayer clause of the suit are reproduced
herein below: --
11. A meaningful analysis of the evidence produced by the plaintiff reflects that the evidence
and the contents of the plaint are irreconcilable in nature and run contrary to each other. W e are
clear in our mind that the trial Court after proper applications of judicial mind and analysis of
evidence has rightly resolved the issues mentioned hereinabove. Perusal of the record further
reflects that the learned trial Court after a thorough exa mination of evidence and by forwarding
cogent, plausible and rational reasons resolved the controversy by dismissing the suit, which do
not call for any interference by this Court, as there is no misreading or non -reading of evidence
nor there is misapprec iation of facts or misapplication of any law.
In the light of above discussion, we are confident to hold that the suit was rightly
dismissed by the trial Court and we see no plausible reason to interfere with the just decision
arrived at by court below, as such; the appeal is dismissed with costs throughout. Decree sheet be
drawn.
AG/36/Q Appeal 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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