1998 PLP 1592 (MLD)

Date of hearing: 6th March, 1997. Brief facts are; a declaratory suit was filed by the respondent in his capacity as a consumer of WAPDA to the effect that the demand raised by the petitioner for a sum of Rs.11,270 as detection bill was not justified on facts. The suit was resisted. Number of issues were framed, arising out of the pleadings of the parties. Respondent-plaintiff examined himself as P.W.1 and tendered in evidence report Exh.Pl while the petitioners examined Muhammad Hussain Line Man as D. W .1 and tendered in evidence checking report Exh. D 1, agreement Exh.D2 and working report Exh.D3.

2. The crucial issue in the case is issue No.4 which reads as under:-- "Whether the impugned bill issued by the defendant in the tune of Rs.11,270 is illegal, void and without lawful authority and the plaintiff is entitled to the declaration and consequential relief as prayed for? OPP" Learned Civil Judge placed reliance on report Exh. P1 to hold that the demand of the petitioner for Rs.11,270 was not sustainable in law. Learned Additional District Judge upheld this view. Besides endorsing the findings of the learned Civil Judge on issue No.4, on the reason mentioned hereinbefore, he also proceeded to observe that the petitioner failed to examine Engineer Muhammad Ali Ghumman to support its plea that the bill in question had been rightly issued to the respondent.

3. It is contended by the learned counsel for the petitioner that the learned Courts below have fallen in error of law in attaching importance to Exh.PI for decreeing his suit. Exh.Pl is a letter issued by Sub-Divisional Officer in respect of checking of meter in question on 21-11-1985 and the observations made about it to the effect that the working position of the meter was found O.K. and the meter cover seal was also found O.K. The scribe of this document was not produced.

4. It is well-settled that a document which is not duly proved cannot be read in evidence even if it be exhibited without objection from the other side. This is exactly what has happened in the instant case. The letter in question (Exh.Pl) did not form part of public record, and therefore, it was necessary for the respondent, who was placing implicit reliance thereupon, to prove his case. to summon the scribe so as to get it proved from him. He failed to do so. The rationale behind production of the scribe of a document is obvious; that scribe on entrance in the witness box while proving the document in question is made available to the opposite party to be cross-examined by it, and thus, the truth is unearthed. In the instant case their scribe not having been procured, Exh.Pl remained unproved, and therefore, it could not be read into evidence. The contents of the document were not gospel truth to be accepted as such by the Trial Court. This document forms the main plank of the case of the respondent. It had to be legally omitted from consideration. The respondent is, thus, left with his own statement which being in the nature of an admission in his favour cannot be relied upon so as to decree his suit particularly so when his deposition is controverted by the statement of the Lineman Muhammad Hussain produced by the petitioner as D.W.1. It is well-settled that a party had to succeed on the strength of his own case and cannot benefit from the weakness of the case of other side. The learned Additional District Judge, therefore, has erred in law in attaching any importance to the omission on the part of the petitioner to produce Engineer Muhammad Ali Ghumman. He has endorsed the view of the learned Civil Judge that the report of this witness Exh.D3 cannot be read into evidence without his appearance in Court to prove the same and yet he impliedly upheld the reliance placed by the learned Civil Judge on the certificate Exh. P1 produced by the respondent without its scribe being put in the witness-box.

5. The upshot of the above discussion is that the respondent/plaintiff has failed to discharge the onus of proof of issue No.4. That being the position his suit merited dismissal. Consequently, this revision petition is accepted and the judgments and decree of both the learned Courts below are set aside. The suit of the respondent is dismissed with no order as to costs. A.A./W-26/L Revision accepted.