2016 PLP 322 (CLC)

CH. MUHAMMAD MASOOD JAHANGIR, J.

The concise facts of the case are that the respondent/plaintiff instituted a suit for recovery of Rs.25000/- as compensation for the damage allegedly caused to his crop. The said suit was contested by the petitioners/defendants with the assertion that they had never made any loss to the crop of the respondent/plaintiff. The learned trial court put the parties into the trial while framing the issues, collected the stock of evidence adduced by the parties and after appreciating the material available on record dismissed the suit vide judgment and decree dated 14.5.2008. Feeling dissatisfied, the respondent/plaintiff preferred appeal before the learned lower appellate court, who accepted the same vide impugned judgment and decree dated 23.10.2009 and decreed the suit while setting aside the judgment and decree passed by the learned trial court, hence this civil revision.

2. Arguments heard. Record perused.

3. The possession of the respondent over the suit property as well as its cultivation by him was admitted on the record and basic grouse to be resolved is whether the crop of the respondent/plaintiff was damaged by the petitioners/defendants or not. It is significant to note that in the plaint neither the specific time nor the names of persons, who witnessed the said occurrence is mentioned to prove that when and before whom the defendants damaged the crop of the plaintiff/respondent. Even the registration number of the tractor whereby the crop was damaged through ploughing has also not been disclosed in the contents of the plaint. To prove the said stance, the respondent/plaintiff himself appeared as PW1 and produced his real son as PW

2. None other independent witness was brought into the witness box by the respondent/plaintiff to prove his stance. The contradictions on major points in the statements of both the PWs are flouting on the surface of record. In cross-examination, plaintiff (PW-1) deposed that when his crop was damaged, he alongwith his two sons and one un-known servant was present there and the petitioners/defendants took two to three hours to damage the crop. He further deposed that no one informed them that the defendants/petitioners were damaging their crop and they themselves went there on their car, but details regarding their servant as well as car could not be disclosed by him. The statement-in-chief of PW-1 is also silent to the extent that occurrence of aerial firing was also committed by the defendants. On the other hand, Ghazanfar son of the respondent while appearing as PW-2 deposed that when the crop was being damaged, some other persons of their party were also present there, who had informed them regarding the occurrence; that the firing was also made by the persons details whereof could not be disclosed by him; and that Munawar had also witnessed the occurrence, but neither said Munawar nor any other employee, who allegedly witnessed the occurrence was produced. The details of the said persons also could not be disclosed and even no other independent witness was brought into the witness box to substantiate the version of the respondent. It is the quality of the evidence, which is to be considered by a court while deciding a lis. Evidence/statement of a witness only matters when he deposes correctly, truly and categorically, but his statement is to be ignored from the consideration, if he shows ignorance about the material facts or withholds the truth and makes a shaky, mysterious, vague or contradictory statement. The onus probandi was on the shoulders of the plaintiff/respondent to prove his case positively, but he failed to discharge the same by producing convincing and independent evidence. He cannot be benefitted by the weaknesses of the case of petitioner/defendant, if any. The question of disproof or rebuttal will come only when the plaintiff has, by positive evidence, established his case, but when the plaintiff failed to prove his case, then the defendant is not obliged to lead any evidence. The learned lower appellate court without discussing the evidence of PW-1 and PW-2 has discarded the eminent reasons recorded by the learned trial court through judgment and decree dated 14.5.2008 and passed the impugned judgment and decree on erroneous premises, which cannot be sustained in the eye of law.

4. Sequel of the above discussion is that the instant civil revision is accepted, the impugned judgment and decree dared 23.10.2009 passed by the learned lower appellate court is hereby set aside and consequently the judgment and decree dated 14.5.2008 rendered by the learned trial court whereby the suit filed by the respondent/plaintiff was dismissed, is restored. SL/G-46/L Revision accepted.