2006 PLP 659 (SCMR)

RANA BHAGWANDAS, J.

Petitioners seek leave to appeal against Sindh High Court judgment, dated 7-3-2002 passed in Civil Revision Application No.245 of 1998 setting aside the Appellate Court's judgment of reversal of judgment and decree passed by the trial Court in Suit No.177 of 1996 brought by respondent No.1 against the petitioners and others.

2. Dispute between the parties relates to ten acres of land situated in district Thatta which was granted to respondent No.1 on Harap conditions. In the earlier round of litigation, the petitioners struggled for the allotment and transfer of the land in their favour before the Revenue hierarcy but having failed, agreed W purchase the said land from respondent No.1 for a sum of Rs.2,20,000 vide registered sale-deed dated 29-9-1994.

3. Respondent No.1, however, later filed Suit No.177 of 1996 for declaration, cancellation of sale-deed and entries in the record of tights in favour of the petitioners, and permanent' injunction impugning the execution of the above said sale-deed before the Civil Court at Thatta. The suit was contested by the petitioners. Ultimately the trial Court decreed the suit as prayed for vide judgment and decree dated 6-8-1998. In Civil Appeal No.29 of 1998 preferred by the petitioners the judgment and decree of the trial Court was set aside and the suit was dismissed. Appellate Court's judgment gave rise to civil revision application at the behest of respondent No.1 which has been allowed vide judgment dated 7-3-2002, hence, this petition. 3-A. Mr. Akhtar Hussain, learned Advocate Supreme Court for the petitioner contended that respondent No.1 had failed to establish by independent evidence that the sale-deed purportedly executed by him in favour of petitioners was forged and manipulated; that presumption of correctness as to execution of a document is attached to the documents registered under the Registration Act, 1908; that respondent No.1 did not appear himself for his evidence before the trial Court and the suit was filed through his brother-attorney who appeared at the trial of the suit but did not adduce in evidence the German Passport purportedly held by the respondent No.1. Photo copy of Passport, however, finds mention in the judgment of the trial Court. Submission of the learned counsel is that the German Passport held by respondent No.1 was never produced and exhibited in evidence and attested copies of the German Passport along with three other documents were placed on record for the first time before the High Court along with an application under Order LXI, rule 27, C.P.C. which was granted without an opportunity of hearing to the petitioners and allowed subject to all just exceptions. It is submitted that the petitioners came to know about production of such documents before the High Court for the first time on 21-2-2001 when they took serious exception to the ex parte order allowing the documents and resisted the production thereof. They also moved C.M.A. No.562 of 2001 for recall of the ex parte order, dated 3-2-1999 allowing additional evidence without notice and opportunity of hearing to the petitioners which was listed for hearing before the High Court on a number of hearings but not disposed of. It is inter alia contended that the documents per se were not admissible in evidence without proof as there was no proper attestation by the Consular/Agent for Pakistan in Germany and original whereof were not placed on record.

4. After hearing learned counsel for the petitioners we grant leave' to consider inter alia the following questions of law:-- (i) Whether learned Single Judge in the High Court exceeded its jurisdiction by allowing additional evidence without affording and opportunity of hearing to the petitioners and if so whether the petitioners were seriously prejudiced by consideration of such evidence? (ii) Whether foreign public documents, not proved in evidence in terms of Article 89(5) of the schedule to the Qanun-e-Shahadat Order, could be legally relied upon? And (iii) Whether the learned Judge of the High Court was competent to compare the signature of the respondent No.1 on photo copy of his National Identity Card issued in 1974 with his signatures on photo copy of the Passport and the impugned sale-deed? C.M.A. No.22-K of 2003 Subject to notice, operation of the impugned judgment is suspended till the decision of the appeal. S.A.K./S-291/SC??????????????????????????????????????????????????????????????????????????????? Leave granted.