2006 PLP 2689 (YLR)

' C.M. No.44-C of 2000 MUHAMMAD SAIR ALI, J.

Mr. Shaukat Haroon, Advocate, has filed C.M. No.44-C of 2004 along with his own affidavit. He has pleaded as well as urged at the Bar that he was not mentally prepared to comprehend the order passed on 21-1-2004 wherein responsibility was fixed upon him to inform his client of the order and also of the commission proceedings. He secondly stated that the order dated 21-1-2004 was beyond the scope of revision. He thus contended that the revision be heard on merits. I have A heard the learned counsel for the applicant (revision petitioner) as well as the learned counsel for the respondents. 2. 1 believes it is the duty of a counsel to produce his client before the Court as and when it is so directed by the Court. Even otherwise it is well-settled that Court can direct the respective learned counsel to produce any one of the litigants before the Court for any proceedings in the pending case. Furthermore order dated 21-1-2004 is in consonance with the requirements of justice as well as law. A revisional Court, in order to do complete justice, can adopt any legal course for decision of a civil revision. Appointment of a commission to inspect the site for reasons given in order dated 21-1-2004 is within the powers of this Court. Furthermore through an amendment in Order X, rule 1-A has been introduced. Under this rule a Court can adopt any lawful procedure with consent of parties for alternate method of dispute resolution including mediation, conciliation or any other such means and to appoint a commission to take steps necessary for the purposes of case. Under these circumstances, I do not find any merit in this application, which is accordingly dismissed.

3. After dismissal of the application, the learned counsel for the respondent, however, stated that though his client was ready to pay the cost for the commission, yet he has no objection to the decision of this civil revision on merits. Under these circumstances, the civil revision has been decided on merits through a separate judgment. Civil Revision No. 1091-D of 1991 JUDGMENT MUHAMMAD SAIR ALI, J.

To avoid documents dated 2-3-1985 or 2-3-1958 and 10-12-1958 a suit for declaration and perpetual injunction was filed by the respondents against the present petitioner. The respondents apart from seeking a decree for declaration and perpetual injunction also sought a decree for possession of suit-land measuring four Marlas on the ground that the suit-land was never sold by their late father Hassan Din to the petitioner's father Ibrahim and the above referred documents prepared on a stamp paper were forged and fabricated. Through a contesting written statement petitioner contended that his late father had purchased the structure and possession of the suit-land from the father of the respondents and that he was in possession of the suit-land which falls within Shamlat. And that the documents were legal and valid. The learned trial Judge thereupon framed ten issues. Evidence was recorded. The learned Civil Judge, Ferozewala, through judgment and decree dated 17-4-1990, dismissed the suit of the respondents. Appeal filed by the respondents was, however, accepted by the learned Additional District Judge, Sheikhupura through judgment and decree dated 10-4-1991 by which he proceeded to set aside judgment and decree dated 17-4-1990 and decreed the suit of the respondents. Hence the present civil revision.

2. The learned counsel for the petitioner contended that:-- (i) That the impugned judgment of the learned Additional District Judge was not an issue-wise judgment: (ii) Issues Nos-1, 2, 3, 5, 8, 9 and 10 were decided by the learned trial Court for good reasons in favour of the petitioner and findings of learned Additional District Judge were not in accordance with law: (iii) Grounds of respondents appeal before the learned Additional District Judge were also read: (iv) In the plaint decree for possession was sought by the respondents who thus admitting possession of the petitioner, yet in evidence the respondents claimed to be in possession of the suit property: (v) There was no evidence regarding forgery of the stamped document or their purported fabrication after the death of the father of respondents-plaintiff: and (vi) The documents sought to be avoided or revoked were not produced by the respondents-plaintiffs and they also did not adopt the procedures to seek discovery of the original documents, which were admittedly with the petitioner. 2-A. Learned counsel for the respondents supported the impugned judgments and decrees and added that if one part of the proceedings is proved to be true, the other part of the pleadings still held strength and could not be disbelieved. He further stated that through the evidence respondents-plaintiffs had categorically and clearly proved the challenged documents to be forged, fraudulent and fabricated.

3. I have heard the learned counsel for the parties and with their assistance have re-examined the pleadings of the parties as well as the evidence on record. I am conscious of the fact that a revisional Court should not ordinarily re-examine the evidence on record. However, in the present case the Court exercised its power of examination for the reasons that the learned Courts below rendered judgments at variance and placed different interpretations to the statements of witnesses.

4. Respondents-plaintiffs based their suit on the following pleadings:-- (i) Documents dated 2-3-1985 or 2-3-1958 and 10-12-1958 were forged and fabricated and the same were prepared by the petitioner after the death of the vendor Hassan Din, i.e., the predecessor in-interest of the respondent-plaintiffs; and (ii) The respondents-plaintiffs were not in possession of the suit-land , where for they sought decree for possession as well along with ,decree for declaration and , rpetual njunction. In contesting pleadings, petitioner claimed that document to be legal and valid and pleaded that the possession and Malbah over the suit-land (admittedly Shamlat) was transferred by late father of the respondent-plaintiffs to his late father Ibrahim and since then they were in possession of the , suit property. ???????????

5. Liaqat Ali respondent appeared as P.W.3. He deposed that the plaintiffs were owners in possession of the suit-land and that the stamped documents were forged and fabricated and his father never put his thumb-impressions on the said documents. The case of the plaintiffs-respondents thus hinged upon the question as to whether the documents referred to in the plaint were forged or not and who was in possession of the suit-land under the said document. It goes without saying that existence of document dated 2-3-1958 (wrongly mentioned in the heading of the plaint as 2-3-1985) and documents dated 10-12-1958 were not denied. In fact existence of the above documents was clearly, concisely and categorically admitted by the respondents-plaintiffs. By seeking decree for possession of the suit-land, respondents-plaintiffs also admitted to be out of possession and also admitted the petitioner to be in possession of the suit-land. It was for the plaintiffs to prove the said document as forged and fabrication of the same by the petitioner or his father after the death of their late father Hassan Din. The learned trial Court, therefore, framed issue No.9 and validly placed the onus of proof upon the respondents-plaintiffs. To discharge the onus Liaqat Ali, plaintiff, appeared as P.W.3 and produced P.W.1 and P.W.2. All of them generally and baldly made depositions that the documents were forged and Hassan Din did not put his thumb-impressions thereupon.

6. The above documents were, however, not produced or tendered in evidence. As the respondents-plaintiffs sought a decree against documents dated 2-3-1958 or 2-3-1985 and 10-12-1958, it was their duty to either produce the documents or to seek their production. The learned counsel for the respondents-plaintiffs stated that original was admittedly with the petitioner-defendant where for they could not have produced the said document. This, however, did not absolve the respondents-plaintiffs of their responsibility to seek production of the said document, in evidence to enable the Court to determine their -genuineness. They could have sought discovery of the documents or produced secondary evidence thereof if petitioner-defendant had refused to produce the said documents upon discovery order. Since documents in question were not produced and were also not sought to be produced, by the respondent-plaintiffs, therefore, they obviously failed to discharge the onus of Issue No.9 in proving documents to be forged, fabricated and ineffective. Mere statement that the documents were not made by their predecessor-in-interest was not enough to disprove the alleged forgery unless the documents were produced and examined by the Court.

7. Furthermore respondents-plaintiffs developed the case in their plaint that the petitioner-defendant was in possession of the suit property under the above referred documents and sought a decree for possession thereof. The respondent-plaintiff changed their case in evidence as well as in the appeal filed by them before the learned first appellate Court. In his evidence as G P.W.3 plaintiff categorically deposed that he was in possession of the suit-land. In the memo. of appeal also respondents asserted their possession. It has not been explained in the evidence as to how did they come into possession of the suit-land after admitting in the plaint that they were not in possession. This was a major contradiction and departure from the plaint.

8. The suit-land was admittedly Shamlat land where for possession hereupon would have determined the status of the rights of the parties. Respondents-plaintiffs contradicted their pleadings through their evidence and the memo. of appeal. They thus deprived themselves of the equitable and legal assistance of the Court. The learned Additional District Judge did not apply his mind to above facts and reasons.

9. In view thereof, the impugned judgment and decree dated 10-4-1991 passed by the learned Additional District Judge is set aside and the judgment and decree dated 17-4-1990 of the learned Civil Judge is restored. This civil revision is accepted in above terms with no order as to costs. M.I./M-136/L? ???????????? Petition accepted.