1995SCMR1237 (PLP)

NASIM HASAN SHAH, J. ‑‑This is a direct appeal to this Court against the judgment dated 20‑5‑1982 passed by a learned Single Judge of the Lahore High Court in R.SA. No.134 of 1988. The facts which form the background to this appeal are given in sufficient detail by the High Court and stated briefly are as follows:-- The suit land belonged to Sardar Khan deceased who allegedly executed an agreement, dated the 13th of February, 1978 to sell it in favour of the respondent Chiragh Muhammad for a sum of Rs.1,20,000 against a down payment of Rs.59,000 vide receipt of even date, agreement to execute a formal sale‑deed by the 25th of March, 1978. The sale was subject to a previous mortgage for a sum of Rs.8,000 which allegedly had to be adjusted by the respondent. Unfortunately Sardar Khan died on the 7th of March, 1978, whereafter his successors denied the existence of the agreement or the receipt of earnest amount by him and, therefore, the respondent filed the present suit against them. Herein he alleged that he had lost the original agreement as also the receipt while coming to Katcheri for filing the present suit and that he had already lodged a report on the 11th of April, 1978, with the police in regard to their loss. The appellants denied the alleged agreement as also receipt of the earnest amount. According to them, the so‑called documents were all fake and that the plea of their loss was equally a connection. They assailed the correctness of the copies of the excerpts of the registers maintained by Scribe and the Notary Public. Appropriate issues arising out of the pleading of the parties were framed by the trial Court; the crucial issues being issue Nos.2 and 8 which read as follows: (2) Whether the father of the defendants executed any agreement to sell in favour of the plaintiff on 13‑2‑1978 for a consideration of 'Rs.1.20,000 ? OPP (8) If Issue No.2 is decided in favour of the plaintiff, whether the plaintiff is entitled to specific performance of the contract ? If so, on what terms ? OPP At the trial, the respondent did not produce the original of the agreement or the receipt on the plea that they had been lost. He sought to produce secondary evidence in relation to them, which was opposed by the appellants herein on the plea that the plaintiff should first establish loss of the documents before he could be permitted to lead secondary evidence thereof. The learned trial Court, however, allowed the plaintiff to lead secondary evidence vide order dated 27‑5‑1979. This order was questioned through a revision petition which was disposed of as follows: "Learned counsel for the petitioners (appellants herein) contends that plaintiff have first to prove the loss of the document and only then he could be allowed to produce secondary evidence. This plea is not acceptable because evidence of loss of document and its secondary evidence can be produced simultaneously but the former has to precede the later. At the time of decision of the case the Court has to see as to whether loss has been proved or not. If the loss is not proved secondary evidence would become valueless." The revision was dismissed vide order dated 31‑7‑1979 with these observations. Accordingly, secondary evidence was received and the suit decreed. On appeal, the learned Additional District Judge held that as the plaintiff had not proved the loss of the original documents, reliance on the secondary evidence was not possible. In this connection, he observed: "The only evidence as to loss of documents is the photocopy of the raput dated 11‑8‑1978 Exh.D

2. The respondent admits to have lodged it at Police Station, Samundari which inter alia reads that: `On 9‑4‑1979 he was coming from his village Karadads, Chak No.226/GB to Samundari, Court on a bus for filing the suit, when the agreement dated 13‑2‑1978 got lost during transit: This piece of evidence is contradicted not only by Iqbal Muhammad, Petition‑Writer (P.W.2) but also by the respondent himself when he appeared in the witness‑box as P.Ws. Copies of extracts from the registers of the Petition‑Writer and Notary Public Exh. P.1 and Exh.P.3, respectively were obtained by Chiragh Muhammad from Iqbal Muhammad, Petition‑Writer and Ishaq Sabir, Notary Public on 18‑3‑1978. Chiragh Muhammad admitted that original agreement was not in his custody when he obtained copies Exh.P.l and Exh.P.3. Following words of the respondent reproduced in verbatim fully convey the sense: It is not understandable that which document did he lose on 9‑4‑1978, raput of which was being made by him at the police station on 11‑4‑1978. The plaint and for that matter, the respondent himself are silent as to when the loss of the document was reported." And expressed his conclusion as follows: "I am, therefore, positive that the evidence regarding loss of original agreement is absolutely inconvincing and the abovementioned variation clearly go to show that no such original agreement and receipt were at all in existence, hence its secondary evidence is inadmissible." In spite of the above finding, the learned Additional District Judge went on to examine the value of the secondary evidence which was produced by the plaintiff and came to the conclusion that owing to material contradictions occurring therein the execution of the agreement and the receipt were not proved. He, accordingly, accepted the appeal and set aside the judgment and decree passed by the learned trial Court. On second appeal, the High Court, however, being of the view that the point of secondary evidence due to the loss of the original documents had acquired finality when the revisional Court (Additional District Judge vide order dated 31‑7‑19,79) disallowed the contention of the present appellants in the first round of litigation, proceeded to examine the intrinsic worth of the secondary evidence de novo and held that the contradictions observed by the learned Additional District Judge were of a minor nature. According to the learned Judge in the High Court, the learned Additional District Judge had been influenced by the legal objection in regard to reopening of the point of allowing secondary evidence. He was influenced to the extent of overruling it, and having been influenced more by it, went even to the extent of accepting minor contradictions to rule out the secondary evidence altogether. Thus, the basic reason to interfere with his judgment was his erroneous approach to the aforementioned point of law. In the result, the R.SA. filed by the respondent was accepted, the judgment/decree passed by the learned Additional District Judge were set aside and those of the trial Court restored. We have heard learned counsel for the parties. In our opinion, the High Court fell in error in refusing to examine the question whether the plaintiff had succeeded in establishing the loss of the original documents on the assumption that the point of allowing secondary evidence due to the alleged loss of the original documents had acquired finality when the revisional Court (vide order dated 31‑7‑1979) disallowed the contention of the defendants (appellants herein). A careful perusal of the said order, however, reveals that accordingly thereto only the plea that evidence of the loss of documents should be heard first and if the evidence led establishes the said plea, secondary evidence be allowed to be produced, was rejected. It was held that the loss of the documents and secondary evidence can be produced simultaneously but the former has to precede the latter. It was further observed at the time of decision of the case that the Court has to see as to whether loss has been proved or not. If the loss is not proved secondary evidence would become valueless. The learned Additional District Judge was, therefore, right in holding that the question whether the loss of the documents had been proved by the plaintiff was to be examined first before examining the intrinsic worth of the secondary evidence. The opinion of the High Court that the decision on this question recorded in the earlier round of litigation had acquired finality is undoubtedly correct: But unfortunately the High Court has misconceived the decision that was really given in the said proceedings. Before a finding on the question of the loss of documents was given, it was not possible to go into the value of the secondary evidence. Both the learned trial Court and the first appellate Court (learned Additional District Judge) understood this to be the position and rightly so. The learned trial Court held that the loss of the documents had been proved but the learned Additional Judge on appeal, by giving cogent reasons, disagreed and set aside the said finding. The High Court was wrong in not addressing itself to this question and assuming that it was only concerned with assessing the intrinsic worth of the secondary evidence. Moreover, we consider that its assessment of the "intrinsic worth" of the secondary evidence is not correct and we are inclined to agree with the assessment of the learned Additional District Judge that the material contradictions appearing in the said evidence showed that the case of the plaintiff was doubtful and he had not discharged the onus placed upon him to show that the father of the defendants had, indeed, executed any agreement of sale in favour of the plaintiff on 13‑2‑1978. We hold that the judgment passed by the learned Additional District Judge dated 19‑3‑1988 was correct and the High Court was wrong in setting it aside in second appeal. The result is that this appeal is accepted and allowed. The judgment of the High Court dated 12‑6‑1980 is set aside and the judgment/decree dated 19‑3‑1988 are restored. AA./K‑268/S Appeal accepted.