P L D 1996 Supreme Court 267 (PLP)

SAIDUZZAMAN SIDDIQUI, J.‑‑The appellant has filed the above direct appeal before this Court under Article 185(2)(d) of the Constitution of Islamic Republic of Pakistan to call in question the judgment and decree dated' 20‑12‑1993 passed in R.S.A. No.9 of 1990 by a learned Judge in Chambers of Lahore High Court, Rawalpindi Bench. The learned counsel for the respondent No. 1 has raised a preliminary objection regarding maintainability of the appeal on the ground that it is barred by time. In reply to the preliminary objection of respondent No. 1, the appellant has filed an application praying for condonation of delay of one day in presenting the above appeal. Condonation of delay of one day is sought on the following ground:‑‑ "(2) That 14‑2‑1994 was 3rd day of Ramzan. Before Ramzan, the time for filing was 3‑30 p.m. ‑However, it appears that the Supreme Court decided to reduce the filing time to 1‑30 p.m. in Ramzan. The learned counsel for the applicant and the Advocate‑on‑Record were not aware of this change, the Advocate‑on‑Record took the appeal to the Deputy Registrar for filing at 2‑30 p.m. presuming that the time for filing the appeal is 3‑30 p.m. However, the Deputy Registrar refused to receive the appeal and informed the Advocate‑on‑Record that time for filing the appeal in Ramzan is 1‑30 p.m. and that he will receive the appeal next day before 1‑30 p.m." The impugned judgment in the case was announced on 20‑12‑1993. The appellant applied for certified copy of judgment on the same day, which was granted on 15‑1‑1994. The appellant in his application for condonation of delay has stated that his A.O.R. presented the appeal in the office of this Court on 14‑1‑1994 which was the last day of limitation, at 2‑30 p.m. but the same was not accepted by the Deputy Registrar. for the reason that the office time for filing of fresh cases which was up to 3‑30 p.m. was changed to 1‑30 p.m. on account of Ramzan. Therefore, the appeal was presented on 15‑1‑1994. The respondent No.1 in reply to the application of appellant for condonation of delay has not denied the change in the timing of office of this Court due to Ramzan but stated that the affidavit of A.O.R. in the appeal was sworn on 15‑1‑1994 which shows that the appeal was not ready for filing oir.14‑1‑1994. We are not impressed by the contention of respondent No.l. If the r office time was changed and the appeal was refused to be accepted by the concerned officer on 14‑1‑1995, it was natural the affidavit could not have been verified on 14‑1‑1995. The. fact that ,the affidavit of A.O.R. was verified on 15‑1‑1995 lends support to the contention of appellant that the office did not accept the appeal on 14‑1‑1994 due to change in the office timing on account of Raman. We may, however, add here that where limitation for performance of an act expires on a specified date, the act can be performed at any time before the expiry of that date. Therefore, the presentation of appeal in the present case before expiry of 14‑1‑1995 was a valid presentation and the Deputy Registrar a was not justified in declining to accept the same. We are, accordingly, of the view that the non‑presentation of appeal on 14‑1‑1995, was for the reasons beyond control of appellant and condone one day's delay in presentation of the above appeal on the ground stated above. The dispute in the above appeal relates to a Havali, situated on Khasra No.859, Gharbi Mohallah, Fateh Jang, measuring about I Kanal, 2 Marlas (hereinafter to be called as 'the ' Havali' only for the sake of convenience), owned by respondent No.2. Respondent No.2 agreed to sell the Havali to appellant for a consideration of Rs. 1,08,000 under an agreement to sell dated 16‑12‑1986. Respondent No.2 received a sum of Rs.18,000 at the time of execution of agreement of sale agreeing to receive the balance of the sale consideration amounting to Rs.90,000 at the time of registration of sale‑deed which was agreed to be executed in the first week of April 1987. Respondent No.2, however, sold the Havali to respondent No.1 for Rs.1,32,000 through a sale‑deed executed on 17‑2‑1987. The appellant having come to know about the sale of the Havali by respondent No.2 in favour of respondent No.1, instituted Civil Suit No.99 of 1987 (new No.380 of 1989) on 7‑3‑1987. The suit was resisted by the respondents and on the basis of the pleadings of the parties following issues were framed:‑‑ (1) Whether this suit has been wrongly valued for purposes of court‑fee and jurisdiction, if so, what is the correct valuation? OPD (2) Whether the plaintiff cancelled the agreement dated 16‑12‑1986 of his own accord and received back the earnest money of Rs. 18,000? OPD. (3) Whether the defendant No.2 is a bona fide purchaser for value without notice of the property in dispute, if so, its effect? OPD. (4) Whether the defendant No.2 has effected improvements worth Rs.32,556 on the property in dispute, if so its effect? (5) Whether the plaintiff is entitled to a decree for specific performance of .the contract, dated 16‑12‑1986, if so, on what terms and conditions? OPD. (6) Relief. Issues Nos. I to 3 were decided in favour of appellant. Under Issue No.3 the trial Court held that respondent No.1 failed to prove that any improvement in the Havali was effected by him after its sale in his favour. It was further held by the trial Court that, even if any improvement was made by respondent No. I in the Havali after its sale in his favour, he was not entitled to claim any compensation for the same as he had the notice of earlier agreement of sale in favour of appellant. The suit for specific performance was, accordingly, decreed in favour of appellant on, payment of balance of sale consideration of Rs. 90,

000. Respondent No. 1 filed appeal against the judgment and decree of the trial Court before the District Judge Attock, which was dismissed. Respondent No. I then preferred R. S.A. No. 9 of 1990 which was allowed by a learned Judge in Chambers, through the impugned judgment,, against which the above direct appeal has been filed. The learned Judge in Chambers reversed the concurrent findings of the two Courts below under issue No.3 and consequently, the judgment and decree passed in favour of appellant was set aside. It is well‑settled law that the second appellate Court cannot interfere with concurrent findings of fact recorded by the Courts below simply on the ground that on reappraisal another view of the evidence is possible. The concurrent findings of fact recorded by the Courts below can be interfered with by the second appellate Court only on grounds of misreading of evidence, non‑consideration of any material piece of evidence or perverse appreciation of the evidence on record. The appellant in support of issue No.3 examined himself and Muhammad Siddique (P.W.2). The statement of appellant and Muhammad Siddique (P.W.2), that respondent No.1 had approached the appellant/plaintiff to sell one portion of the Havali to which the appellant replied that he would consider the offer after registration of sale‑deed in his favour, was believed by the trial Court which found Muhammad Siddique (P.W.2) a reliable and independent witness. It was also held by the trial Court that respondent No. 1, after purchase of the Havali trespassed over the property and threw away some goods belonging to appellant lying there but crush stone belonging to appellant was still lying there. The first appellate Court while agreeing with the above conclusions of trial Court under issue No.3 further observed that it was admitted before the Court that the respondent No. I and appellant lived in the same town, where such transactions are known to everybody. The learned Judge in Chambers while reversing the concurrent findings of the two Courts below under issue No.3 observed as follows:‑‑ "In order to prove his knowledge the plaintiff has produced Muhammad Safdar as P.W. I who is scribe of the agreement for sale dated 16‑12 1986 has stated nothing with the factum of knowledge of the agreement for sale by the subsequent purchaser. P.W.2 Muhammad Siddiq has stated that in his presence the plaintiff was approached by Khan Bahadur and had asked him to sell half of the Haveli to him whereupon he had told that he will tell after consultation. In cross‑examination the witness has stated that the above conversation took place one year and two months earlier to the making of his statement which was recorded on 10‑7‑1988. Calculating the period of time as deposed by this witness the said conversation is proved to have taken place much after the date of purchase of the property in question by the appellant hence the statement on the face of it is proved to be false. Similarly Muhammad Amin P.W.3 has stated that in presence of Muhammad Siddiq witness, the appellant had approached him that he should give some share in the disputed property to him whereupon he replied that as the registered deed has not been executed in his name, therefore, after the property is transferred in his name he will give a reply. This statement is contradictory to the statement made by P.W.2 referred to above, and, therefore, cannot be relied upon, even otherwise this is a statement on oath versus the statement on oath made by the appellant. Hence is of not of much evidentiary value. There is absolutely no other evidence on the record on the basis whereof it could be said that the appellant had the knowledge of the previous agreement for sale. " The above analysis of the evidence on record by the learned Judge in Chambers, is just another view of the evidence taken by him. This analysis on evidence does not reveal any misreading or perversity in appreciation of the evidence by the trial Court or the first appellate Court. The learned Judge in Chambers discarded the evidence of P.W.2 Muhammad Siddique as false on the I ground that this witness in his cross‑examination stated that the conversation between appellant and respondent No. I wherein respondent No. I had asked the appellant to convey half of the Havali had taken place 1 year and two months earlier. The learned Judge, accordingly, calculated the period of I year and 2 months from the date of examination of this witness in Court and held that according to his calculation the, conversation referred by the witness had taken place much after the sale of property in favour of respondent No. 1, and therefore, the statement made by the witness was false. Firstly the witnesses did not state the period which has elapsed between the date the conversation took place between respondent No. 1 and the appellant and the date of his examination in Court with any exactitude, His reply to the question put in cross‑examination was The above statement only, show an approximate assessment of time which has passed between the date of conversation and his examination in Court. The learned Judge, therefore, was not justified on the basis of this statement of P.W.2 to conclude that the conversation referred by the witnesses had taken place after the sale of the Haveli in favour of respondent No. 1, and therefore, the witness was not telling the truth. While judging a witness as truthful or otherwise, the whole of the statement of the witness is to be taken into consideration by the Court. Each and every contradiction in evidence does not reduce the intrinsic value of the evidence. Some contradictions in the evidence are natural variation which may result due to factors, such as considerable passage of time between the happening of an event and the examination of witness in Court, the mental capacity and capability of the witness to remember minute details of the incident, the age on the witness and of course general tendencies on the part of witness to exaggerate' while deposing in Court. All these factors are to be kept in view by the Court while analysing the evidence of the witness. It is not correct to pick out a particular sentence in the evidence of a witness and then to condemn him on that basis alone. If the evidence of the witness as a whole is found consistent in material details and the demeanour of witness is confidence inspiring then notwithstanding minor and insignificant discrepancies in the evidence which may be the result of natural variation for factors already mentioned by us earlier, the Court may rely on the evidence of such witness. It may also be kept in view that unlike a criminal case where prosecution is required to establish its case beyond all reasonable doubts against an accused and the burden of proof in the case throughout remains on the prosecution, in a civil suit the plaintiff succeeds or loses on the basis of preponderance of evidence in the case and burden of proof in the case may also shift during the course of proceedings from the plaintiff to the defendant depending on the circumstances of the case. Apart from it, the observation of the trial Court with regard to the demeanour of a witness and the quality of his evidence is not to be lightly interfered with by the appellate Court as the trial Court has the opportunity of watching the demeanour of the witness in the witness‑box which is not available to an appellate Court. If the Court accepted the evidence of a witness as confidence inspiring and truthful, the appellate Courts could not discard the evidence of such witness as false merely on the ground of existence of some discrepancies or contradictions in the evidence of that witness, unless the contradictions and discrepancies pointed out by the appellate Court were firstly, overlooked by the trial Court and secondly, these contradictions were of such nature that they destroyed the intrinsic value of the evidence. These considerations would weigh more heavily,, in cases where the second appellate Court interferes with the evidence accepted and relied by the two Courts below concurrently. In the case before us, the reasons given but the learned Judge in Chambers in disbelieving the evidence of witnesses was not in accordance with the accepted principles of appreciation of evidence by a second appellate Court The veracity and truthfulness of P.W.2 could not be adjudged by the learned Judge in Chambers through mathematical calculations of the period which passed between the happening of the event and the examination of witness in Court on the basis of the approximate period mentioned by the witness in his evidence The learned Judge should have considered the whole of the statement of P.W.2 and then pointed out the inherent defect in his evidence which destroyed the intrinsic value of his evidence. Mere disagreement with the conclusion of the Courts below on a question of fact, without referring to the inherent weakness in the process of reasoning adopted by them, was not a sufficient ground to justify interference with the concurrent findings of fact recorded by the two Courts below, by a second appellate Court. As the two Courts below had neither committed any misreading of the evidence on record, nor the appreciation of evidence by them produced any error of law justifying interference by the second appellate Court, the reversal of the concurrent findings of the Courts below under issue No.3 by the learned Judge in Chambers was not sustainable in law. We, accordingly, allow the appeal, set aside the impugned judgment and restore the judgment and decree of the Appellate Court. The parties will bear their respective costs. A.A./M‑3207/S Appeal Accepted.