P L D 1967 Supreme Court 233 (PLP)

HAMOGDUR RAHMAN, J.‑This appeal, by special leave, arises out of a writ petition file in the High Court of West Pakistan Lahore, for challenging an order of the Rehabilitation Commis sioner, West Pakistan, passed on the 12th of December 1960, in the exercise of his revisional powers. The appellant, who was a displaced person from East ‑Punjab, ‑filed a claim form in Pakistan for the grant of gland in lieu of some 52 acres of land situated in village Hassan Dhut, Tehsil and district Ferozepur, which he claimed to have purchased for 'a sum of Rs. 5,C00 by means of a registered deed of sale executed on the 20th of March 1940, and registered on the 3rd of May 1940. The vendors were the respondent Fateh Muhammad and his nephews, the respondents Muhammad Shafi and Muhammad Sharif, who were heavily in debt and had mortgaged their lands, including the lands transferred by the deed, to various persons. The ‑ sale was for the purpose of redeeming these mortgagees and, therefore, the consideration for the sale was to be paid as follows:‑ Rs. "(a) Deed and registration expenses 100 (b) Paid in cash for house‑hold needs 140 (c) Paid to the mortgagee Muhammad Ali 2,600 (d) Paid to the mortgagee Nawab of Mamdot 2,000 (e) Paid to the mortgagee Gul Muhammad 160". These mortgages had all been duly entered in the revenue records. The appellant, therefore, after redeeming the mortgages applied for mutating the lands of the deed in his name but this could not be done, as in the meantime a suit for pre‑emption was filed by some of the co‑owners of the vendors. This suit was ultimately dismissed and then the appellant transferred 131 acres out of these lands to his wife in settlement of her dower. Thereafter, another suit was filed by an uncle of the respon dent Fateh Muhammad for a declaration that the sale was without consideration or legal necessity and that it did not affect his reversionary rights. This suit was also dismissed on the 31st of March 1944. In the meantime, the appellant purchased another 16 acres of. land from the same vendors in the same village. Litigations started in connection with these transactions as well and its mutation was also opposed. Ultimately all the disputes, it appears, were referred to the arbitration of one Ch. Nawab Din son of Ch. Sher Muhammad. Before the latter, it is alleged, the appellant at first appeared and made a statement but subsequently withdrew the same and refused to take any further part in the arbitration proceeding. The arbitrator, however, on the 25th of February, 1947, made an ex parte award holding that the transac tions were in reality mortgages and, therefore, the mortgagors should have the right to take ack these lands by redeeming them during "namani 1947" (15th May to 15th June, 1947). This award was made on the 25th of February, 1947, and was registered with the Sub‑Registrar of 17erozepur on the 4th of March, 1947, and it is now said by the respondents Nos. 1 to 3 that for this reason the sales in favour of the appellant were never entered in the revenue records of Ferozepur. The parties to the sale and the mortgages, however, on coming over to Pakistan after 15th of August, 1947, claimed lands in lieu thereof according to the entries in the Revenue Records in India and the deed of sale. Thus Fateh Muhammad claimed on the basis of his ownership entries, the original mortgagees on the basis of their mortgagee rights and the appellant on the basis of his registered deed of sale. The vendors and the mortgagees obtained allotments against their claims as verified by the Central Record Office on the basis of the entries in the Jamabandis of Hassan Dhut village received from India but the claim ‑of. the appellant was returned without verification. He, therefore, applied to the Officer on Special Duty, Central Record Office, Lahore, to sanction the mutation in his favour, as it could not be sanctioned in India due to litigations and communal disturbances. This was recommended by the Officer on Special Duty (Land) and the Additional Rehabilitation Commissioner provisionally approved the mutation "subject to .confirmation about the correctness of the claim from the Indian Dominion." On the basis of this approval lands were also allotted to the appellant in village Garjakh, Tehsil and district Gujranwala, in satisfaction of his claim for 52 acres. This order, it is alleged, was passed ex parte without any notice to the respondents Nos. 1 to 3 and in these proceedings the appellant did not disclose anything about the arbitration or the award. On the 9th of July 1956, however, the respondent Fateh Muhammad applied for the cancellation of the appellant's claim on the ground that in the year 1947 one Nawab Din had been appointed arbitrator to decide the disputes in respect‑ of these very lands and he had awarded that the purported sales of the lands were to be treated as mortgages and that this award had been actually registered with the Sub‑Registrar of Ferozepur, on the 4th of April 1947. Fateh Muhammad further claimed that in pursuance of this award he had actually paid off his share of the mortgage money and redeemed his half share. It was for this reason that mutations had never been entered in the Jamabandis in the name of the appellant. The appellant opposed this application and denied that any such award was made. Up to that stage no copy of the award was available and none was filed, but the Rehabilitation Commissioner decided to treat the petition of Fateh Muhammad as a revision and refused to accept the documents of sale produced by the appellant. His claim was, therefore, ordered to be returned to the Central Record Room for cancellation and the lands obtained by him were to be cancelled and made available to other bona fide refugees. Before the Rehabilitation Commissioner the appellant lead, in support of his case, filed a statement of Nawab Din, the alleged arbitrator himself, to prove that he had given no award for the cancellation of the sales but that the arbitration related to a dispute concerning only the subsequent purchase of 16 acres of land and in respect of this the only dispute was as to whether the vendors should be allowed to substitute' the same with other lands. The appellant had also procured affidavits from the respondents Muhammad Shafi and Muhammad Sharif, the nephews of Fateh Muhammad, to support this case, but ultimately, when 'the Rehabilitation Commissioner summoned Muhammad Shafi and Muhammad Sharif to give evidence, they deposed against the appellant and maintained that Nawab Din had in fact been appointed arbitrator by the parties and had given an award restoring the entire lands to the vendors. They further disclosed that the appellant had by promising to return to them the second lot of 16.ac.res induced them to deliver to him the award and other relevant documents and to side with him against their co‑sharer Fateh Muhammad. They also bled a stamped document (Exh. P: A.) by which the appellant had promised to return 16 acres of land to them if he succeeded in the case against Fateh Muhammad. The only evidence as to the contents of the award was that which was furnished by the oral testimony of the said three respondents but the Rehabilitation Commissioner accepted the same and on the basis thereof cancelled the lands allotted to the appellant. This was the order that the appellant sought to challenge by the writ petition in the High Court and at this stage a copy of the registered award, which had been made personally by Ch. Khalilur Rahman, a learned Advocate of the High Court, in his own hand after inspecting the original record at Ferozepur, was produced and accepted by the High Court. The learned Advocate stated from the Bar that he had visited India to obtain a certified copy but the same had been refused by the Indian Authorities in writing, (Exh. D. 1). ‑ He bad thereupon himself inspected the original entry in the register of sale deeds and made a copy in his own hand. The letter refusing to supply certified copies was produced before the Rehabilitation Commissioner also but was filed only in the High Court. Upon the basis of this document a learned Single Judge of the High Court held that the registered deed of sale had been replaced by the award and it was for this reason that entries could not be made in the revenue papers in accordance with the sale deeds prior to partition. This was not a case, therefore, to which paragraph 52 of the Rehabilitation Scheme applied, for, under that paragraph only registered deeds and decrees of Civil Courts, which could not be given effect to in the revenue records "due to the perturbed, conditions prevailing in those areas before the partition", could be dealt with in Pakistan. This was not, however, the case here. In any event, the learned Judge was of the view that the appellant could not be granted any relief, because he had taken up a false stand and all through contended that there had never been any arbitration regarding the sales in dispute. So far as the respondents Muhammad Sharif and Muhammad Shafi were concerned it was urged before the learned Single Judge that the Rehabilitation Commissioner should not have rejected the appellant's claim at any rate to the extent of their shares, for, there was no evidence that they had ever redeemed the mortgages within the time mentioned in the award. The learned Judge, however, declined to pass any order on merits regarding their share, as they had not been made parties to the writ petition, but he observed that "if the law permits", the appellant may, "still approach the Rehabilitation Authorities for entries being 'made in the revenue record in accordance with the award." This order was upheld by a Letters Patent Bench mainly on the ground that since the appellant had not come with clean hands to seek the Extraordinary relief by way of a writ, his writ petition was bound to fail and had been rightly dismissed. Leave was granted in this case to consider whether such an unattested copy made by an Advocate of the Court personally was admissible in evidence and also to consider as to whether a learned Advocate appearing in a case could also competently give evidence therein in favour of his client. Learned counsel appearing in support of this appeal has, of course, contended that the copy of the award was inadmissible in evidence but we are unable to accept this contention, for, under section 65 of the Evidence Act secondary evidence may be given' of the existence, condition or contents of a document when, inter alia, the original has been destroyed or lost or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time. In such a case any secondary evidence of the contents of the documents is admissible and secondary evidence under section 63 of the said Act includes copies made from or compared with, the original and even oral accounts, ' of the contents of a document given by some person who has' himself seen it. In the present case, Exh. D. 1, proved that the Indian Authorities had refused to supply certified copies and the original award was stated by the respondents Muhammad Shah and Muhammad Sharif to have been taken away from them by the appellant himself by trickery. In the circumstances, secondary evidence became clearly admissible and the secondary evidence given in the present case was by the unattested copy which the learned Advocate had himself prepared after personally inspecting the register of sales in the .office of the Sub‑Registrar at Ferozepur. Thus neither the authenticity of this copy nor its admissibility into evidence could be doubted. As for the rule of practice regarding the giving of evidence by an Advocate appearing in a case on behalf of his client we do not consider it necessary to express any view, for, in the present case the statement of the learned Advocate who had made the copy was made from the Bar and not as a witness and the correctness of his statement was not challenged by any body. The learned counsel for the appellant does not even at this stage challenge its correctness. The question does not, therefore, arise, On the merits, however, learned counsel appearing for the appellant has raised three points, namely:‑ (1) that the award could be of no legal effect unless made a rule of Court in accordance with the provisions of the Arbitration Act ; (2) that the award became a nullity with regard at least to the half share of Muhammad Shah and Muhammad Sharif on their own admission that they had not paid off the mortgage money within "namani 1947" ; and (3) that the onus lay on the respondent Fateh Muhammad to prove payment of the award money within the time mentioned in the award and since he had failed to discharge that onus the award was a nullity even so far as his share was concerned. The above were, according to him, the points which had to be decided by the Rehabilitation Commissioner, before the appellant's claim for allotment of land on the basis of the sale deeds could be rejected. In this connection our attention has also been drawn to paragraphs 29 and 52 of Part II of the Punjab Rehabilitation Re Settlement Scheme prepared under section 7 (1) of the Pakistan Rehabilitation Ordinance XIX of 1948. Under paragraph 29 rights are to be given to a claimant in accordance with the entries in the special Jamabandis received from the prescribed areas of India but in a case where hardship is caused by the application of this rule in individual cases reference is to be made to the Rehabilitation Commissioner, presumably for the relaxation thereof. Similarly under paragraph 52 the applications for allotment of land on the basis of registered deeds and decrees of Civil Courts, effect to which had not been given in the revenue record in the prescribed territories in India due to the perturbed conditions prevailing in those areas before Partition, were to be dealt with and decided by the Additional Rehabilitation Commis sioner (Lands), but again an exception is made to meet the cases of other refugee claimants with "similar claims." They too can, if they so desire, also apply to the Additional Rehabilitation Commissioner (Lands) for the adjudication of their claims. It would thus, appear that under either of those paragraphs the appellant could have applied to have his claim adjudicated upon even though his sale was not one which could not be entered in the Jamabandis prepared before partition due to any perturbed condition prevailing at that time. The possibility of his cast falling within the category of "other refugee claimants with similar claims" was not excluded. It could not, therefore, be sail that these paragraphs debarred investigation into his claim on the basis of the copy of the award produced for the first time in the High Court if the same was legally admissible in evidence. It has been contended with some force that since the award itself disclosed that the right of the appellant to claim on the basis of his sale deeds could be barred only if the mortgages mentioned therein had been redeemed within the time prescribed. The mere proof of the award was not by itself sufficient to dis entitle the appellant from claiming to have mutations entered in ,Pakistan. At any rate, so far as the shares of the nephews of Fateh Muhammad were concerned the Rehabilitation Commissioner had These were matters to which the Rehabilitation Commis sioner had clearly not applied his mind as he had erroneously proceeded on the basis that since the sale was not one to which . the provisions of paragraph 52 of the Punjab Rehabilitation Re Settlement Scheme in terms applied, the presumption of the correct ness of the Jamabandis had not been displaced. This view, as we have indicated earlier, cannot be upheld, for, there is nothing in the scheme which debars the Rehabilitation Commissioner from investigating into and giving effect to claims based on other documents besides sale deeds and decrees of courts. The words "similar claims" in the concluding portion of paragraph 52 of the scheme obviously refer to claims not based on sale deeds and decrees to which effect could not be given in, the Jamabandi Is prior to partition due to the perturbed conditions then‑prevailing. We are of the view, therefore, that there is substance in the contention that the Rehabilitation Commissioner bad due to a misconception as to the scope of his powers not disposed of the application of Fateh Muhammad in accordance with law. Before the Rehabilitation Commissioner could decide .to cancel the allotment in favour of the appellant he had to decide the three points formulated by the learned counsel which have been set out earlier in, this judgment. These were matters within his exclusive jurisdiction no doubt, but it was incumbent upon him to determine them judicially since questions relating to title in land were involved. There was clearly confusion as to the issues in the case and as a result there was no proper adjudication by the Rehabilitation Commissioner. Learned counsel appearing on behalf of the respondents Fateh Muhammad and his nephews has also conceded that the ‑Rehabilitation Commissioner decided without seeing the award and that the High Court should have, after it admitted the award for the first time, sent the case back to the Rehabilitation Com missioner for proper disposal. He has further more found it difficult to maintain that all the questions which fell to be decided in this case had been decided by the Rehabilitation Commissioner, for, there was not only 1he.question of the proof of redemption in terms of the award by the first three respondents but also the question as to who was entitled to claim in respect of the area transferred to his wife by the appellant in lieu of her dower claim. These matters still remain undecided. So far as Fateh Muhammad's own share is concerned, there is only his ipse dixit that he had repaid the mortgage in terms of the award. Whether this should be accepted or not is again a matter for the Rehabilitation Commissioner to decide. The High Court too had, in our view, upheld the order of the Rehabilitation Commissioner upon the erroneous assumption that under the‑Rehabilitation Scheme a claim on the basis of any, 'document of title other than a Jamabandi or a deed or decree could not be verified or accepted, for, otherwise it would have after admitting evidence of the contents of‑the award sent back the case to the Rehabilitation Commissioner to adjudicate upon the claims of the contesting claimants on the basis of the award The Rehabilitation Commissioner had clearly not done so and thus failed to exercise a jurisdiction vested in him. He could have been directed to do so by the High Court in its writ jurisdiction. This was not also a case in which this relief should have been refused on the technical ground that the appellant had not made a candid disclosure of all relevant facts before the High Court, because, in this case the respondent and his mortgagees too had obtained allotments of land by suppressing the true facts. All these questions needed investigation and the ends of justice demanded that a full enquiry should not be shut out on such a technical ground. For these reasons we are of the view that this appeal must be allowed, the orders of the High Court and the Rehabilitation Commissioner set aside and the case remanded back to the Rehabilitation Commissioner for decision, in accordance with law, of the points mentioned earlier in this judgment and for a complete adjudication of the rights of the rival claimants in this case. The orders of High Court and the Rehabilitation Commissioner passed on the 12th December 1960, are accordingly set aside and the case is remanded back to him for disposal in accordance with law and in the light of the observations made in this judgment. The costs of this appeal will be costs in the cause before the Rehabilitation Commissioner. K. B. A. Appeal accepted.