2013 PLP 1473 (CLC)

CH. MUHAMMAD IBRAHIM ZIA, J.

This appeal is addressed against the judgment and decree of the High Court dated 14-5-2011, whereby the learned High Court while accepting the appeal filed by respondent No.1, vacated the judgment and decree passed by the Additional District Judge, Muzaffarabad.

2. Necessary facts forming the background of the appeal are that plaintiff-respondent No.1 filed a suit for recovery of Rs.5,98,517/- in the Court of Additional District Judge, Muzaffarabad against the defendant- appellant. It is alleged in the plaint that a contract for extraction of timber was agreed upon between the contesting parties on 1-7-1992. A separate agreement was also executed by the plaintiff with the defendant- appellant on 9-1-1994 and thereafter, the plaintiff-respondent carried out the contract according to its conditions. The officials of AKLASC failed to make payment after work done which is Rs.5,98,517/-. The failure of defendant-appellant in payment culminated into litigation between the parties. The suit was resisted by the defendant-appellant by filing written statement in which the claim of respondent-plaintiff was denied. The learned Additional District Judge Muzaffarabad, after recording evidence, dismissed the suit vide judgment and decree dated 27-2-2008. The plaintiff-respondent challenged the judgment and decree of Additional District Judge Muzaffarabad by way of appeal in the High Court on 18-4-2008. The learned Chief Justice High Court, on 4-2-2011, appointed a Commission for reaching at the proper and just conclusion regarding claim of the plaintiff- respondent. The Conservator Forest Department, Muzaffarabad, was appointed as Commission who submitted his report on 29-3-2011. The copy of report was handed over to the representative of AKLASC Perokar ( ). On 9-5-2011, the statement of Conservator Forest Muzafarabad (Commission) has also been recorded in the Court. The Manager Operations, AKLASC cross-examined the witnesses but nothing could be discovered to nullify the report of Commission. Consequently, the learned Chief Justice High Court, accepted the appeal and vacated the judgment of the Additional District Judge Muzaffarabad vide impugned judgment and decree dated 14-5-2011, declaring the respondent-plaintiff entitled to a decree for payment of Rs.5,98,517/-. The defendant-appellant has challenged the propriety of the judgment and decree of the High Court, through the instant appeal before this Court.

3. Raja Muhammad Arif Khan Rathore, Advocate, the learned counsel for the appellant, after narrating relevant facts of the case, seriously objected to the impugned judgment and decree on the ground that the same suffer from illegality, misreading and non-reading of evidence. He further submitted that the learned High Court has recorded the additional evidence without any legal justification, hence, this piece of additional evidence is neither admissible nor it can be relied upon for decreeing the suit. He further submitted that the plaintiff-respondent has failed to establish any valid agreement among the contestant parties, therefore, without proof of any valid undertaking, he is debarred from puffing any claim against the appellant. He further submitted that according to celebrated principle of law, the burden of proof was upon the plaintiff-respondent whereas in the instant case, he has badly failed to discharge the same, hence, the suit has wrongly been decreed in his favour. He further submitted that if for the sake of arguments, the report of the Commission is treated admissible in evidence, even then, the claim of the plaintiff-respondent is only proved to the extent of Rs.63,628/- for extraction and transportation of timber and Rs.1,35,000/- for construction of road, hence, the decree passed by the High Court is against the record which is not sustainable.

4. Conversely, respondent, Abdul Rehman, personally appeared and submitted that he is a pauper person and is unable to engage a counsel. He has briefly stated the facts and vehemently contended that he carried out the work in the forest under the lease, according to a valid undertaking and agreement with AKLASC authorities. He submitted that this fact has also been admitted by the defendant-appellant. He further argued that recording of additional evidence is just for satisfaction of the Court. An official of the Forest Department was deputed by the High Court as a Commission who was neither in control of the plaintiff-respondent nor he has any interest common with him rather his interest was common with the defendant-appellant. He has submitted the report which has been admitted in evidence by the High Court and the defendant-appellant has failed to point out any material dent in the report despite availing opportunity of cross- examining the Commission. He further submitted that he has been forced to approach the Court and has suffered a lot due to such prolonged litigation. He submitted that the decree should be modified and he should also be awarded the interest on the decreetal amount for the period spend in the litigation.

5. We have paid our utmost attention to the arguments of the learned counsel for the defendants- appellant, the plaintiff-respondent in person and also gone through the record of the case. A perusal of record reveals that the fact of extraction of timber from compartment No.8, Bandi, Tehsil Authmaqam, by the AKLASC, through contractor is admitted. The plaintiff-respondent's claim regarding extraction of timber and its transportation is not disputed. The disputed fact only is that whether there was any contract or undertaking between the contestant parties. One of the defendants, Muhammad Shafique, contractor, admitted the suit of plaintiff-respondent in his pleadings. The plaintiff produced Meer Abdul Rehman as a witness and also got recorded his own statement in support of his claim. These witnesses in their depositions have fully supported the averments of the plaint.

6. It also reveals from the perusal of record that the statements of the witnesses have been recorded ex parte. The defendant-appellant has not approached the Court for cancellation of the ex parte proceedings, thus, their statements remained unchallenged and unrebutted.

7. It is also not disputed that the defendant-appellant has not produced any sort of evidence to rebut the claim of the plaintiff. During pendency of appeal in the High Court, for the ends of justice, the High Court appointed Kh. Nazir Ahmed, Conservator Forest Department, as a Commission who tendered a detailed report Exh."CA" and also got his own statement recorded in support of his report. The report has been prepared after examining the documentary and recording the oral evidence of the parties. Through this additional evidence, the claim of plaintiff respondent has been fully proved. Even in the cross- examination, the contents of the report of Commission have not been disputed or confronted to the witness for any clarification. Thus, according to the celebrated principle of law, the claim of the plaintiff-respondent has been established. The learned High Court decreed the suit while relying upon the additional evidence recorded before it.

8. In our considered view, no illegality or violation of law has been committed by the High Court in decreeing the suit in favour of the respondent-plaintiff. According to celebrated principle of law, for recording the findings in the civil proceedings, it is not required that the claim should be proved beyond any shadow of doubt like awarding punishment in criminal cases rather it is now almost settled that civil suits have to be decided keeping in view the preponderance of probability appearing from perusal of evidence brought on record. In the instant case, it has been proved that the forest compartment was under the lease of AKLASC. The extraction and transportation of timber and other work carried out by the respondent-plaintiff has also been proved.

9. The main objection of the learned counsel for the appellant regarding the recording of additional evidence by the appellate Court has been seriously attended by us. The statutory provision dealing with the proposition of recording additional evidence is rule 27 of Order XLI of Civil Procedure Code. Clause b, sub-rule (1) of this rule clearly empowers the appellate Court to record the additional evidence for enabling it to pronounce the judgment or for any other substantial cause. The learned Chief Justice High Court has recorded very substantial cause in the interim order for appointing the Commission for the purpose of recording the additional evidence. The apex Court of Pakistan, while dealing with the legal proposition of recording the additional evidence by the appellate Courts has held that these powers can be exercised even suo motu by the Court itself or on the application of any party. It has also been held that while exercising these powers, the appellate Court can also appoint Commissions.

10. The proposition of Commissioner's appointment for spot inspection as additional evidence came before the apex Court of Pakistan in the case titled Sarhad Development Authority through Chairman, Peshawar v. Land Acquisition Collector/Deputy Commissioner Abbottabad and 19 others, reported as [1998 SCMR 730]. In this case, the High Court while hearing the appeal appointed a commission for spot inspection. The apex Court of Pakistan in para 4 of the judgment has observed as under:

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4. It is by now settled proposition that the Courts may, if they deem appropriate, besides other considerations, appoint a Commissioner for inspection of the spot with a view to evaluating the fair compensation particularly for the purposes of finding out its potentiality." In the above referred case, the order of the Court regarding appointment of Commissioner for spot inspection as an additional evidence was upheld by the apex Court with the following observation:

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7. The impugned order was not described to be one under Order XLI, rule 27, C.P.C. If the impugned order conveys an impression that the appointment of the Commissioner for carrying out the specified job was tantamount to allowing the additional evidence still under the circumstances of the case, the learned Judges in the High Court were justified in passing an order for additional evidence within the contemplation of rule 27 of Order XLI, C.P.C., as they had deemed it proper to it. No possible exception can, therefore, be taken to the impugned order which is substantially just and proper."

11. While dealing with the scope of powers of the appellate Court regarding additional evidence, under the statutory provision of rule 27, Order XLI of C.P.C, the apex Court of Pakistan, in the case titled Ghulam Muhammad Chaudhry v. Akbar Hussain through Legal Heirs and another, reported as [PLD 2002 SC 615], observed as under:

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8. Likewise, under the provisions of Order XLI, rule 27, High Court was fully competent to direct additional evidence for a just and proper determination of the issue even without the application by the parties. Power to allow additional evidence is always discretionary in nature and the exercise of discretion would depend on the facts of each case. No doubt as a general rule parties to a lis are not entitled to produce additional evidence but if the Appellate Court requires any document to be produced or any witness to be examined to pronounce judgment or for any other substantial cause, it can always do so after recording reasons. No doubt, learned High Court has not expressed in so many words that evidence of Tassadaq Hussain or for that matter additional evidence by the parties was required for a just decision of the appeal, the very circumstance that the Court passed such orders, would presuppose that presence of the vendor before the Court was found quite necessary and since the case was being remanded for this purpose, parties to the lis are generally allowed an opportunity of adducing further evidence, if so desired. In fact learned High Court has observed that Tasadaq Hussain, alleged son of Akbar Hussain, plaintiff was not impleaded as defendant nor he was summoned by either of the party as a witness. In the opinion of the Bench, he was the most relevant party and a witness, therefore, the impugned judgment was set-aside. This sobservation of the High Court, on the face of the record, is obviously consequential upon the discussion of the evidence and finding on Issues Nos.4 and 6-A by the trial Court in which both the issues and the evidence of the parties have been jumbled-up. In this connection, it may not be out of place to refer the observations of this Court in Fazal Jan v. Roshn Din (PLD 1992 SC 811), which reads as under:

"After hearing the petitioner, at some length, she tried to show her connection through her father directly with Fazal Din. He, it seems was the occupancy tenant. We summoned the record also but it is clear from its examination that the case was badly conducted not only from the petitioner's side but also from the respondent side. All the relevant documents were not brought on record. The trial Court was not denuded of power to summon all the necessary revenue record and also to summon the Patwari so as to supply omissions from both sides. It was also the duty of two higher Appellate Courts. It seems that it was an appropriate case for exercise of power under Order XLI, rule 27, C.P.C. for bringing on record additional evidence. The suo motu exercise of this power would also have been fully justified in the facts and circumstances of the case. This is demonstrated by the fact that petitioner examined two witnesses besides herself to support her claim regarding her possession of the suit land, agreement Exh.P.2 was also placed on record showing that she was in possession of the land which was with one Misri son of Zina Pathan on contract cultivation basis and that he had similarly its possession under her father. P.W.3 Khairullah had supported the petitioner but P.W.2 made a short statement saying that he had earlier made a statement in favour of the petitioner and that he had nothing more to say. As against this, the evidence led from the respondent side is the statement of Mujahid Khan defendant who deposed that he had pre-empted the sale of this land and had obtained pre-emption decree in that behalf. And for this reason only, according to him, the petitioner/plaintiff had no connection with the land".

9. After hearing learned counsel for the parties, at quite some length and evaluating the chequered history of the suit leading to this petition. We are of the considered view that the judicial discretion exercised by the High Court as appellate Court was neither unwarranted nor unjustified in the circumstances. In the facts of the case, when valuable proprietary rights of the respondent (who was out of country for a long period) were extinguished without his consent and permission, it was a fit case for exercise of suo motu jurisdiction by the High Court. In any event, it cannot be said that by remanding the suite High Court acted arbitrarily or without jurisdiction. Submission that the High Court should have decided the appeal an the basis of evidence available on the record, in our view is not weighty in order to persuade us to set-aside the impugned judgment and remand the case for decision afresh." Therefore, the main objection of the learned counsel for the appellant regarding the recording of evidence by the appellate Court, has no legal substance and the same stands repelled.

12. So far as the objection of the counsel for the appellant regarding the decretal amount is concerned, it appears that the learned High Court has not dived deep while determining the decreetal amount. It will be useful to reproduce here the summary of report submitted by the Commission, Exh."CA" which reads as under:

A minute perusal of this piece of evidence reveals that actually the amount of work done determined by the Commission is Rs.63,628/- and while awarding interest at the rate of 10%, per annum, becomes Rs.3,21,321/, The claim of the plaintiff-respondent regarding construction of road amounting to Rs.1,35,000/-, also stands proved. Same like, the Commission has also left open to the discretion of the Court to grant decree in respect of the claim of the plaintiff-respondent as mentioned in para (A) of the summary of the report. The respondent-plaintiff, in his plaint has claimed under items Nos.(iv), (v) and (vi), the different amounts which are:

13. The plaintiff-respondent has made such claims at random without production at any cogent evidence. It is also noticed that all the three items for one or the other way, relate to the same claim and have been bifurcated under different heads. On one hand, in the report of Commission, the proved claim of work done amounts to Rs.63,628/- which has been enhanced by applying 10% cumulative interest per annum and on the other hand, the High Court has also granted the decree of collective amount of Rs.2,55,517/- in shape of bifurcated items discussed hereinabove which amount is actually not the amount of work done but is awarded as compensation under different heads. Therefore, in our view, to this extent, the impugned decree requires modification. The claim of the plaintiff-respondent has been proved to the extent of extraction and transportation of timber amounting to Rs.63,628/- and construction of road as Rs.1,35,000/-, total amount becomes Rs.1,98,628/-

14. As far the matter of granting interest on the amount claimed is concerned, we are not convinced to grant the interest while keeping in view the injunctions of the Holy "Qura'n" and the "Sunnah". Even otherwise, the plaintiff-respondent has claimed the other amount, Rs.2,55,517/- which, in fact is the amount for compensation. According to our reading and opinion, the claim of the plaintiff-respondent regarding items Nos.(v) and (vi), appears to be somewhat exaggerated. Thus, the claim made in the plaint under item No.(iv), the loss for delay and negligence of contestant-appellant is reduced from Rs.42,000/- to Rs.20,000/-, under item No.(v), for the loss due to stoppage of work, the claimed amount of Rs.1,20,000/- is reduced to Rs.20,000/- and same like the costs of Rs.93,517/-, claimed for proceedings is also reduced to Rs.25,000/-. Thus, the decree is modified and granted for a total amount of Rs.2,63,628/-. With these modification, this appeal stands disposed of. SAK/60/SC(AJ&K) Order accordingly.