2013 PLP 955 (MLD)

AMIN-UD-DIN KHAN, J.

Through this civil revision, the petitioner has challenged the judgment and decree dated 8-12-2000 passed by the District Judge, Rahim Yar Khan, whereby the appeal filed by the respondent was accepted and the judgment and decree dated 24-2-1994 passed by the Civil Judge, Rahim Yar Khan decreeing the suit for specific performance filed by the petitioner was set aside.

2. Briefly, the facts of this case are that petitioner-plaintiff on 26-7-1990 filed a suit for specific performance on the basis of an agreement to sell dated 10-6-1984. The written statement was filed, wherein the execution of any agreement between the parties was denied. The possession on a part of land of plaintiff was said to be as a tenant under the defendant. Out of the divergent pleadings of the parties, the trial court framed issues and invited the parties to adduce their respective evidence. Both the parties adduced their oral as well as documentary evidence. The trial court vide judgment and decree dated 24-2-1994 decreed the suit in favour of petitioner-plaintiff. An appeal was filed by the respondent-defendant, which was accepted on 19-5-1995, whereby the case was remanded to the trial court with a direction that thumb impression on the alleged agreement to sell (Exh.P-1) be got compared with the admitted thumb impression of defendant by the Expert. Against that remand order F.A.O No.37 of 1995 was filed before this Court, which was allowed on 15-6-1999. The remand order was set aside but the appellate court was directed to decide the application under Order XLI, Rule 27 of the CPC as well as the appeal. Thereafter the District Judge allowed the application under Order XLI, Rule 27 of the C.P.C. vide order dated 13-4-2000 and sent the sample of thumb impression of the defendant on Exh.P-1 with his admitted thumb impressions for comparison to the Chief Finger Print Expert, Punjab Lahore. The report dated 19-9-2000 was submitted before the court along with the photocopy of enlarge of admitted thumb impressions of defendant. The Expert was summoned and his statement was recorded as D.W-2 on 29-11-2000 and he was duly cross-examined by the counsel for the plaintiff. According to the report as mark 'A' on receipt dated 10-6-1984 (Exh.P-1), the thumb impression is different from the right and left thumb impression of Khan Muhammad on the sample papers. The appeal was accepted by the first appellate court vide judgment and decree dated 8-12-2000 and judgment and decree passed by the trial court decreeing the suit, was set aside. Hence, this civil revision.

3. Learned counsel for the petitioner states that on 1-12-2000 the petitioner moved an application that he be allowed to produce an Expert in rebuttal of the additional evidence produced by the defendant, which was disallowed by the first appellate court; that right to rebut the additional evidence was to be granted to the petitioner, Further states that he has produced sufficient evidence to prove Exh.P-1, therefore, the findings recorded by the trial court on the basis of available evidence while decreeing the suit were quite in accordance with law; that the first appellate court has without any need allowed the application filed under Order XLI, Rule 27 of the C.P.C. by the defendant, as there was no need to further record the evidence when sufficient evidence was available on the file. Lastly states that the petitioner should have been given an opportunity to rebut the report and evidence of Finger Print Expert.

4. On the other hand, learned counsel for the respondent-defendant states that the order on application under Order XLI Rule 27 of the C.P.C. was absolutely in accordance with law; that the first appellate court felt the necessity of Expert opinion, therefore, allowed the application for additional evidence. Further states that the suit was filed six years after the alleged agreement to sell, therefore, it was clearly time barred; that the alleged agreement to sell (Exh.P-1) is on a plane paper, so the plaintiff-petitioner was required to prove the agreement, specially the date of its execution when it was not on any stamp paper. It has been further argued that even the court can compare thumb impression upon the alleged document with the admitted thumb impressions, therefore, the first appellate court has itself compared the thumb impression with the thumb impression on Exh.P-1 and then felt the necessity to send it for the opinion of Finger Print Expert. Learned counsel further states that as the report of Expert is available on the file and counsel for the plaintiff cross-examined the Expert, when appeared as D.W-2 and he faced lengthy cross-examination, therefore, there is no need to further allow the petitioner-plaintiff to produce rebuttal evidence of this witness.

5. I have heard the learned counsel for the parties at full length and also gone through the record with their able assistance.

6. From the careful scanning of record I have observed that the petitioner-plaintiff has not appended with this civil revision the photographic enlarges marked as A/1, X/1 and Y/1, which was the part of this file. Under section 115 of the C.P.C. the petitioner is bound to annex with the civil revision, the pleadings, the evidence oral as well as documentary and the judgments/decrees of the courts below. The important portion of Exh.P-1 has not been appended with this civil revision which will go against the petitioner. Even on the basis of non filing of the requisite record, the civil revision can be dismissed but I am not going to dismiss the same on this score because a very lengthy history is attached with this case being second round of litigation between the parties before this Court.

7. The contention of learned counsel for the petitioner-plaintiff is that right to rebut the additional evidence should have been given to the petitioner. In the circumstances of this case I do not agree with it on the basis that the report of Finger Print Expert is an opinion. It is not binding upon the Court and further, when the Expert appeared before the court and faced lengthy cross-examination by the counsel for the petitioner-plaintiff, so after that there was no necessity to further allow the petitioner to produce any other Expert to give a report in rebuttal of report as Exh.D-3 on the file. When counsel for the petitioner-plaintiff failed to achieve anything in, cross-examination from the statement of Expert, how it can be presumed that the petitioner will get a report of Finger Print Expert against the earlier report of Expert and he has also not given the name of Expert in his application. In this eventuality, when nothing has been gained by the petitioner-plaintiff in cross-examination, therefore, there is no necessity to give him an opportunity to produce another Expert to rebut the evidence of Expert produced in the court. I have noticed that the alleged agreement to sell is unilateral by the defendant allegedly in favour of plaintiff, which does not contain thumb impression or signature of plaintiff. In my view, it does not constitute a valid contract because offer and acceptance when reduced into writing and one of the parties to the contract does not sign or thumb mark the same, how it can be termed as a valid contact enforceable by the law. It is also a fatal defect. Moreover, the alleged agreement to sell (Exh.P-1) is on a simple paper of some diary. It is not on a stamp paper. It was to be impounded by the court when presented in evidence without stamp duty, therefore, it has a little evidentiary value.

8. In the light of what has been discussed above, the petitioner has not appended all the required documents which certainly go against him. Learned counsel for the petitioner failed to show any misreading, non reading or jurisdictional defect in the findings recorded by the first appellate courts. In this view of the matter, the instant civil revision being devoid of any merits is dismissed with costs. SAK/F-23/L Revision dismissed.