2005 PLP 463 (YLR)

‑‑‑‑Art.102‑‑‑Contents of document‑‑‑Oral evidence‑‑‑Witness could not be made to depose regarding the contents of a document for the reason that evidence of a document is the document itself. Hafiz Muhammad Naveed Akhtar for Petitioner. On 8‑2‑2003 the respondent filed a suit against the petitioner for possession of the suit property mentioned in the plaint. According to the plaint, the respondent is the owner of the suit house while the petitioner was a tenant under him who kept on paying him rent till August, 1999, but then stopped payment. An ejectment petition was filed which was rejected on the ground that although the respondent is the owner of the house but there is no relationship of landlord and tenant between the parties. It was then stated in the suit that the respondent has taken the plea that there is an agreement to sell in his favour executed by the petitioner. He denied the said claim. In his written statement, the petitioner took the plea that the respondent executed an agreement to sell in favour of the petitioner and received Rs.3,80,000 in presence of witnesses and delivered possession. Since the house was mortgaged with Habib Bank Limited, it was agreed that the sale will be completed after the redemption. Issues were framed. Evidence of the parties was recorded. The learned trial Court decreed the suit on 17‑7‑2004. A learned A.D.J., Multan, dismissed the first appeal filed by the petitioner on 20‑10‑2004.

2. Learned counsel for the petitioner contends that notwithstanding the fact that the original agreement has not been produced or proved, the extract from the register with the Scribe (Exh.D.1) would be admissible in proof of the facts narrated in the written statement. According to the learned counsel, this document was admitted in evidence without any objection.

3. I have gone through the copies of the records, with the assistance of the learned counsel. I have already narrated above in some details the material contents of the pleadings of the parties. The case of the petitioner was that the respondent received the price, executed an agreement in his favour, delivered possession and promised to transfer the house after redemption from Bank. Now, there is no denial that the agreement has not been produced. There is nothing in the written statement for the loss or absence of the agreement. Hussain Bakhsh petitioner appeared as D.W.2 on 28‑4‑2004 and stated as follows:‑‑‑ Now he was confronted and he admitted that he had not stated the said fact in his written statement which, of course, is not there in the written statement. Now Malik Muhammad Afzal respondent appeared as P.W.1 and stated that he had not entered any agreement with the petitioner. He was cross‑examined. He was neither confronted with the said alleged agreement nor with the said fact that the agreement is in his possession or that he has removed the same from the custody of the petitioner by fraud.

4. There is nothing on record to disclose that any effort was made to establish the alleged loss of the so‑called agreement. Certainly, no notice was issued to the respondent at any stage to produce the agreement. There is, of course, no permission on record to lead any secondary evidence and, in fact, no secondary evidence was led.

5. The said extract from the Scribe's register by no means constitute evidence of the agreement. I may here refer to the statement of the Scribe, namely, Muhammad Shafique D.W.1. Now he has also stated that he scribed an agreement. In his cross‑examination, he stated that the agreement regarding which he had made a statement is not before him. He was, thus, made to state the contents of an alleged agreement which though in writing was not produced in Court and was not before the witness. Needless to state that no witness can be made to depose regarding the contents of a document for the reason that evidence of a document is the document itself. Under our law of evidence, the primary evidence of a document is the document itself and only primary evidence is to be led unless and until the secondary evidence is either permissible under the law or is permitted to be produced by Court in accordance with law.

6. This is, of course, a case of no evidence and the suit filed by the respondent who is admittedly the owner of the house for its possession against the petitioner, who admittedly is in possession of the house, has rightly been decreed and decree upheld in appeal. The civil revision is wholly frivolous and is dismissed in limine. M.I./H‑51/L Petition dismissed in limine