2015 PLP 152 (MLD)

AMIN-UD-DIN KHAN, J.

With the concurrence of learned counsel for the parties, this case is being decided as 'Pacca Case'.

2. Through this writ petition, petitioners have challenged the order dated 3-3-2011 passed by learned Civil Judge 1st Class, Kasur, whereby two applications, one for summoning of witnesses and the other for comparison of thumb impression of defendant No.1, filed by the petitioners-plaintiffs were dismissed. They have also challenged the order dated 23-8-2012 passed by learned Addl: District Judge, Kasur, whereby the revision petition filed by them was dismissed.

3. The facts in brief are that the petitioners-plaintiffs filed a suit for specific performance on 27-11-2006 with regard to the suit property fully described in the headnote of plaint on the basis that they entered into an agreement to sell with regard to suit property owned by defendant No.1 through his Attorney, defendant No.2. The written statement was filed. The defendant No.1 has denied the power of attorney in favour of defendant No.2, who filed a consenting written statement. Learned trial court on 4-11-2009 framed issues. Subsequently issue No.4-A was framed on 4-3-2010. As per learned counsel for the respondents that the language of issue No.4-A as well as its onus was challenged before the revisional court, where the plaintiffs failed. The record shows that plaintiff produced their oral evidence on 24-4-2010 and completed the affirmative evidence on 29-9-2010. The defendants produced their oral evidence on 27-10-2010 and completed their evidence on 14-1-2011.

4. The case of petitioners is that they have filed the above mentioned two applications at the time of rebuttal evidence but learned counsel for the respondents has stated that even after the close of right to produce rebuttal evidence of petitioners-plaintiffs, these applications were filed. As there is no record on the file to see whether the applications were filed at the time of rebuttal or after the close of rebuttal evidence, therefore presuming the applications to have been filed at the time of rebuttal evidence I am going to decide the same.

5. I have noticed that learned trial court has observed that the names of witnesses sought to be summoned, have not been mentioned in the list of witnesses and as the alleged witnesses are not residing within the territorial jurisdiction of trial court, therefore even without mentioning their names in the list of witnesses they cannot be summoned. The main pivotal question determinable by the trial court, revisional court and agitated before this court is, whether the plaintiffs can be permitted to produce evidence on the issue, the onus of which was upon them at the time of rebuttal evidence. Learned counsel for the petitioners has stated that even after the close of evidence of defendants, it is the right of plaintiffs to produce rebuttal evidence upon all the issues. He has based his claim on the fact that when defendant No.1 appeared as a witness and denied from his thumb impression upon the power of attorney (Ex.P-4), therefore it became necessary for the plaintiffs-petitioners to move the trial court for permission to produce the witnesses in order to get comparison of signature/thumb impression by the Finger Expert. The issue No.4-A is reproduced as under:-- "Issue No.4-A-Whether the alleged power of attorney/deed dated 3-5-2003 and 15-4-2004 are genuine, legal and valid? OPP" The onus of this issue was upon the plaintiffs-petitioners, who were bound to produce affirmative evidence to prove the execution of this document. As in the pleadings this document was denied by defendant No.1 and there was a specific issue on this point, the onus of which was upon the plaintiffs-petitioners to prove the valid execution of power of attorney in favour of defendant No.2, therefore they cannot be allowed to produce affirmative evidence after the close of defendants' evidence i.e. at the time of their right to produce rebuttal evidence. Learned counsel for the petitioners-plaintiffs has relied upon Order XVIII Rule 1, 2 and 3 of the C.P.C. and Article 130 of Qanun-e-Shahadat Order, 1984. There is no cavil to these rules with regard to right to begin but the procedure provided under the C.P.C. as well as Article 130 of Qanun-e-Shahadat Order, 1984 certainly go against the case of petitioners-plaintiffs. All these provisions show that right to begin is with the plaintiff, who is bound to lead evidence on the issues, the onus of which is upon him and he can reserve only the right to produce evidence with regard to the issues, which onus is upon the other side. Admittedly, the onus to prove issue No.4-A was upon the plaintiffs-petitioners and they cannot claim to lead evidence upon this issue when they have earlier produced the evidence in rebuttal. I have noticed that both the courts below have minutely scrutinized the facts of case and reached to a right conclusion. The case law relied by learned counsel for the petitioners "2001 MLD 2012 Lahore (Fazal Muhammad and others v. Mst. Zainab Bibi and others) and Air Punjab and Haryana 210 (Smt. Jaswant Kaur and another v. Devinder Singh and others)" go against the petitioners-plaintiffs. The case law relied by leaned counsel for the respondents "1987 CLC 101 (Murid Hussain v. Muhammad Lal), 1979 CLC 491 (Alhaj Khalil Ahmad v. The Australasia Bank Ltd. Lahore and another) and PLD 1992 Lahore 92 (Naseer Ahmed v. District Judge, Multan and 4 others)" are fully applicable to the facts of this case.

6. For invoking constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners are bound to show any jurisdictional defect in the impugned orders passed by both the courts below but I have seen no any infirmity or illegality in the orders passed by two courts below. In these circumstances, the instant writ petition fails and the same is hereby dismissed. KMZ/A-2/L Petition dismissed.