P L D 2021 Balochistan 211
Before Abdul Hameed Baloch, J
DIRECTOR GENERAL, PROVINCIAL DISASTER MANAGEMENT AUTHORITY
(PDMA), BALOCHISTAN and others ---Petitioners
Versus
AMIRULLAH and others ---Respondents
Civil Revisions Nos. 315 and 317 of 2020, decided on 23rd June, 2020.
(a) Specific Relief Act (I of 1877)---
----S. 42 ---Qanun -e-Shahadat (10 of 1984), Art. 75--- Proof of documents by primary
evidence--- Photocopy--- Suit for declaration ---Scope ---Plaintiffs filed suit for declaration and
recovery o f compensation with the averment that due to earthquake their district was
seriously affected, pursuant to which the government through a notification had categorized the affectees in four categories such as totally collapsed house, unrepairable damaged house, repairable damaged house and minor damaged house and that the plaintiffs' houses were totally collapsed but they were not compensated accordingly---Trial Court decreed the suit ---
Appellate Court partly allowed the appeal ---Validity ---Local Commission had reported that
the plaintiffs' houses had collapsed and were unrepairable ---Report of Local Commission
was not disputed ---Defendants had not filed objection on report of Local Commission---
Defendants in their written statement had stated that the survey was conducted by the Army
but none from the Army was examined nor was the original survey report exhibited ---Mere
tendering of photocopy of report had no legal value ---Judgment passed by Trial Court was
upheld and that of Appellate Court was set aside.
National Bank of Pakistan, Shahrah- e-Quaid -e-Azam Lahore v. Messrs Ch. Auto and
Tools Agency PLD 2001 Lah. 133 and Mst. Razia Ahmed's case PLD 2000 Kar. 288 rel.
(b) Civil Procedure Code (V of 1908) ---
----O. XXVI, R. 2 ---Order for Commission--- Purpose ---Scope---Purpose of appointment of
Local Commission is to elucidate any matter in dispute.
(c) Qanun -e-Shahadat (10 of 1984) ---
----Arts. 75 & 74--- Proof of documents by primary evidence ---Secondary evidence ---Scope --
-Under Art. 75 of Qanun- e-Shahadat, 1984, the document must be proved by primary
evidence--- Certified copy of a document would be considered on secondary evidence as
contained in Art. 74(1) of Qanun- e-Shahadat, 1984.
(d) Qanun -e-Shahadat (10 of 1984) ---
----Art. 75 ---Proof of documents by primary evidence--- Photocopy--- Scope ---Document
should be primary evidence, the secondary evidence can be produced when the original was
non- existent or lost--- Where the party has not proved the loss of original evidence the
secondary evidence has no value.
(e) Pl eadings ---
----Written statement cannot be considered as evidence.
Ayub Tareen, A.A.G. for Petitioner and Respondents Nos. 9 to 11 (in C.R. No. 315 of
2020).
Adnan Ejaz and Tahir Baloch for Private Respondents (in C.R. No. 315 of 2020).
Adnan Ejaz and Tahir Baloch for Petitioners (in C.R. No. 317 of 2020).
Ayub Tareen, A.A.G. for Respondents (in C.R. No. 317 of 2020).
Date of hearing: 17th June, 2020.
JUDGMENT
ABDUL HAMEED BALOCH, J. ---Through this common judgment I intend to
dispose of Civil Revision Petitions Nos. 215 and 217 of 2020, as both are arising out of the Civil Suit filed by the plaintiffs for "Declaration, and Recovery of Earthquake Compensation
for each plaintiff" before the Civil Judge, Ziarat ("the trial court") with the following prayers:
a) Declare that the plaintiffs are owners of houses totally comprised of 31 rooms situated
at Killi Qadi- Kach, Tehsil and District Ziarat.
b) Declare that according to the report of local commission the houses of plaintiffs were totally collapsed and not suitable for living in earthquake which came on night falling between 28th and 29th October, 2008 as such the plaintiffs are entitled to receive compensation amount of Rs.350,000/ - each being in category "A".
c) Direct the defendants to make paymen t of compensation amount of Rs.350,000/ - to
each plaintiff.
d) Any other relief which this Hon'ble Court may deem fit and proper in the circumstances of the case is also solicited.
2. Brief facts of the case are that the plaintiffs filed a civil suit for "Declaration, and
Recovery of Earthquake Compensation for each plaintiff" before the trial court with the averments that due to earthquake between the night of 28th, 29th October, 2008, the District Ziarat had seriously been affected, pursuant to which the government through a notification
categorized the affectees as under:
i. Category "A" totally collapsed house (Compensation 350,000/ -).
ii. Category "B" unrepairable damaged house (Rs.350,000/ -)
iii. Category "C" Repairable damaged house (Rs.50,000/ -)
iv. Category "D" minor damaged house (Rs.15,000/ -).
That due to the said earthquake the plaintiffs' houses were also totally collapsed,
therefore the same were shown to the survey team but in the list of affectees, their names
were excluded, as such the plaintiffs being aggrieved filed the referred suit with the prayer as
mentioned above.
3. The defendants Nos.1 and 2 as well as Nos.3 and 4 filed separate written statement
and contested the suit on factual as well as on legal grounds. The learned tria l court framed
the issues. The plaintiffs produced witnesses and got recorded their statements through attorney, while the representative of defendants Nos.1 and 2 and representative of the defendants Nos.3 and 4 produced copies of constitution petition fi led by the plaintiffs before
this court and copies of survey report prepared by the Army. The trial court vide judgment and decree dated 17th August, 2018 decreed the suit. The defendants filed RFA before this court, but due to amendment in the Civil Court Ordinance, the pecuniary jurisdiction of the
District Judge was enhanced, therefore the RFA was transferred to the court of Additional District Judge, Ziarat (the appellate Court), whereby the appeal was partly allowed vide
judgment and decree dated 29th June, 2020, relevant para of the judgment is reproduced as
under:
"In the light of discussion made above, this court is of considered opinion that the impugned judgment and decree dated 17.08.2018; passed by the learned Civil Judge,
Ziarat is fair and jus tified which was upheld with modification to the extent of
compensation amount in respect of respondents/ plaintiffs Nos.2, 3, 4 and 6 to Category "C" instead of category "A". Appeal is disposed off with above modification with no order as to cost. Decree sheet be drawn. Record and proceedings of trial court
along with copy of instant judgment and decree be sent back. The case file after completion be consigned to record."
The petitioner/defendant No.2 being aggrieved of the judgments and decrees of both
the courts below filed Civil Revision Petition No.315 of 2020, while the plaintiffs/petitioners
being aggrieved of the judgment and decree passed by the appellate court filed Civil Revision Petition No.317 of 2020.
5 Heard. Perused the record. The plaintiff s/petitioners claimed compensation,
announced by the defendants in respect of the houses, collapsed during the earthquake came in District Ziarat in the year 2008. The government categorized the affectees as category A, B, C and D. The plaintiffs produced witnesses. All the witnesses are unison in respect of collapsing of the houses of the plaintiff's. PW -5 Masood Ahmed Dotani deposed that on
13.10.2009 this court appointed him and Deputy Commissioner Ziarat as Local Commissioner for ascertaining losses occ urred to the inhabitants of District Ziarat. The
witnesses further stated that he along with Deputy Commissioner Ziarat (defendant No.3) inspected the effected houses of the plaintiffs and prepared report. He produced report as
Mark 5/A and Mark 5/B. The w itnesses stated that the houses of the plaintiffs have been
collapsed and were unrepairable. The report of the local commission has not been disputed.
The defendants/petitioners have not filed objection on report of Local Commission. Meaning thereby they admitted the contents of report. The report has been signed by the PW -5 and
Deputy Commissioner (Defendant No.3), meaning thereby the Deputy Commissioner
admitted the fact that the houses of the plaintiffs had been collapsed or unrepairable. The
report has been prepared by the order of this court. The plaintiffs' witnesses unanimously
stated that the houses of the plaintiffs had collapsed while the defendants on one hand denied the ownership of the houses of plaintiffs and on the other hand stated that the plaintiffs received the compensation amount as per prescribed category. The plaintiffs proved that they were the owners of the houses, which were collapsed due to earthquake. The statement of PW-5 contained the details of collapsed houses of the plaintiffs. It would be relevant to
reproduce Order XXVI, Rule 9, C.P.C. as under:
9. In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market -
value of any property, or the amount or any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court: Provided that, where the [Provinc ial Government] has made rules as to the persons to whom such
commission shall be issued, the Court shall be bound by such rules.
6. The purpose of appointment of local commissioner is to elucidate any matter in
dispute. Meaning thereby the local commissio ner was appointed to get certain explanation
and clarification regarding the matter in conflict. The report of local commissioner and evidence taking by him during investigation is evidence. Under Sub- Rule (2) of Rule 10 of
Order XXVI, C.P.C. the report an d deposition of commission is to be evidence in the suit. It
would not be irrelevant to reproduce sub- rule (2) of Rule 10, C.P.C. as under: --
(2) The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the
manner in which he has made the investigation.
7 . The defendants have not objected the report of local commissioner. Subsequent
objection is liable to be overruled. In Mst. Razia Ahmed's Case PLD 2000 Kar. 288, it was held that "Where none of the parties had raised objection to the report of Local Commissioner, the same was accepted accordingly." Reliance is also placed on the case of National Bank of Pakistan, Shahrah- e-Quaid -e-Azam Lahore v. Messrs Ch. Auto a nd Tools
Agency PLD 2001 Lah. 133, whereby it has been held as under:
"It is ordained in Rule 10 of Order XXVI, C.P.C. that the report of the local commissioner shall be evidence in the suit and shall also form part of the record. In the absence of any ob jection to the report of the local commissioners by the decree -
holder, the same had been rightly upheld by the learned Banking Court. In the circumstances, the learned counsel for the appellant has failed to point out any
vitiative infirmity in the impugne d judgment of the Banking Court."
8. The record reveals that the defendants produced DW -1 representative of
petitioner/defendant and DW- 2 representative of defendant No.3. They produced photocopies
of Constitution Petition and report of Army, the defendant s in written statement stated that
the survey was conducted by the Army but none from the army officer/official was examined
nor original report was exhibited. Mere tendering photocopy of report has no legal value cannot be ruled upon. Under Article 75 of the Qanun- e-Shahadat Order, 1984 the document
must be proved by primary evidence except in the cases hereinafter mentioned. The certified copy of a document would be considered on secondary evidence as contained in Article 74(1)
of Qanun- e-Shahadat Order, 1984. It is settled principle of law that the document should be
primary evidence, the secondary evidence can be produced when the original was not existed
or lost. Where the party has not proved the loss of original evidence the secondary evidence has no value. The defendant has produced original documents as such the report has no legal value. The defendants have failed to prove their contention. The written statement cannot be considered as evidence.
In view of above discussion, the Civil Revision Petit ion No.315 of 2020 is dismissed,
whereas the Civil Revision Petition No.317 of 2020 is accepted, the judgment and decree dated 20 June, 2020, passed by the Additional District Judge, Ziarat are set -aside, while the
judgment and decree dated 17th August, 20 17, passed by the Civil Judge, Ziarat are hereby
upheld.
SA/132/Bal. Order accordingly.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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