2025 PLP 107 (CLC)

MOHAMMAD ABDUR RAHMAN, J.

The Petitioner maintains this Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 as against the Order dated 15 January 2021 passed by the VIth Additional District and Sessions Judge Karachi (Central) in Family Appeal No. 85 of 2020 which upheld the Judgement and Decree each dated 16 October 2020 passed by the XVIth Civil and Family Judge Karachi (Central) in Family Suit No. 143 of 2018 in respect of the return of certain items of gold to the Respondent No. 1 which was in the possession of the Petitioner after their marriage had ended.

2. The Petitioner was married to the Respondent No. 1 on 16 October 2015 and from which wedlock two children namely Minor H and Minor A were born. The marriage was not a happy one and which resulted in the Respondent No. 1 separating from the Petitioner and whereafter the Petitioner divorced the Respondent No.

1. The Respondent No. 1 thereafter maintained Family Suit No. 143 of 2018 before the XVIth Civil and Family Judge Karachi (Central) seeking: (i) her dower of Rs. 25,000; (ii) recovery of her personal documents which were in the custody of the Petitioner; and (iii) a direction to the Petitioner to return various items that were comprised in the dowry of the Respondent No. 1 along with gold jewelry and ornaments or in the alternative a direction to the Petitioner to pay a sum of Rs. 400,000 and provide gold ornaments of an equal value.

3. The matter was heard by the XVIth Civil and Family Judge Karachi (Central) who on 16 October 2020 was pleased to pass a Judgment and Decree directing that: (i) the Respondent No. 1 was entitled to receive Rs. 25,000 as her dower; (ii) the Respondent No. 1 having been handed over all dowery articles that were in the custody of the Petitioner, the Respondent No. 1 was now only entitled to two tolas of good which had not been returned by the Petitioner or a sum of Rs.150,000 in lieu thereof.

4. The Petitioner was aggrieved by Judgement and Decree each dated 16 October 2020 passed by the XVIth Civil and Family Judge Karachi (Central) in Family Suit No. 143 of 2018 and maintained Family Appeal No. 85 of 2020 before the VIth Additional District Judge Karachi (Central) as against the Judgement and Decree each dated 16 October 2020 passed by the XVIth Civil and Family Judge Karachi (Central) in Family Suit No. 143 of 2018. It seems that during those arguments on that Appeal, the counsel for the Petitioner conceded that the Petitioner had retained one gold set belonging to the Respondent No.1 and had on behalf of the Petitioner requested for time to return that gold jewelry set . Against this concession, the Respondent No. 1 agreed to give three month s time to the Petitioner to return the gold jewelry set and the settlement in terms was recorded by the VIth Additional District Judge Karachi (Central) on 15 January 2021 in Family Appeal No. 85 of 2020.

5. The Petitioner has now appeared and challenged the settlement recorded in the Order dated 15 January 2021 passed by the VIth Additional District and Sessions Judge Karachi (Central) in Family Appeal No. 85 of 2020 and had contended that his counsel didn t have the authority to pass such an order and also that he was not able to comply with the order on account of financial constraints. The Counsel for the Respondent No. 1 stated that the Order dated 15 January 2021 passed by the VIth Additional District and Sessions Judge Karachi (Central) in Family Appeal No. 85 of 2020 was a consent order and could not be assailed in this Petition. Both of them did not rely on any case law in support of their contentions.

6. I have heard the Petitioner and the Counsel for the Respondent No. 1 and have perused the record. In the decision reported as Amanullah Soomro v. P.I.A. through Managing Director/Chairman and another1 the Supreme Court of Pakistan has held that: Indeed Mr. Palejo also urged that litigants should not be penalized for negligence of counsel. While the argument at first sight might be attractive on a moral plain what is overlooked is whether any justification exists for depriving the opposite part of legal rights acquired owing to negligence of the petitioner or counsel retained by him? Indeed the right to recover the amount of wrongful loss caused on account of negligence is always available to a party. The record should that the petitioner himself has made an application to a statutory body regulating the conduct of advocates. In any event we are clearly of the view that undue indulgence granted by courts would only multiply such problems. It is apparent that the Petitioner s counsel had, as recorded in the Order dated 15 January 2021 passed by the VIth Additional District and Sessions Judge Karachi (Central) in Family Appeal No. 85 of 2020, conceded to the settlement on behalf of the Petitioner. To my mind as the Order dated 15 January 2021 passed by the VIth Additional District and Sessions Judge Karachi (Central) in Family Appeal No. 85 of 2020 simply records a settlement it would amount to a consent order and the implementation of which is now being delayed by the Petitioner through maintaining this Petition. As it is the Petitioner s contention that his advocate was not instructed to make such a settlement as recorded in the Order dated 15 January 2021 passed by the VIth Additional District and Sessions Judge Karachi (Central) in Family Appeal No. 85 of 2020, then clearly his remedy is against his counsel and not by way of a Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. Either way, the Respondent No. 1 should not be prejudiced for diligently proceeding in this matter. The Petition must therefore fail.

10. For the foregoing reasons the Petitioner having maintained this Petition against an Order dated 15 January 2021 passed by the VIth Additional District and Sessions Judge Karachi (Central) in Family Appeal No. 85 of 2020 recording a settlement as between the Petitioner and the Respondent No. 1 is misconceived and is therefore dismissed along with all listed applications with no order as to costs. SA/M-13/Sindh Petition dismissed. *** 2025 C L C 228 [Lahore] Before Sultan Tanvir Ahmad, J MUHAMMAD KHAN deceased through L.Rs.

Petitioner Versus MUHAMMAD AKRAM

Respondent Civil Revision No. 1750 of 2015, heard on 9th October, 2024. (a) Specific Relief Act (I of 1877)

Ss.42, 39

Civil Procedure Code (V of 1908), O.VI, R.4

Suit for declaration and cancellation of mutation

Sale mutation

Proof

Non-mentioning of particular/details of fraud

Admission as to execution of mutation

Discrepancy in evidence as to accrual of cause of action

Absence of prosecution witnesses at the time of proceedings of mutation

Predecessor-in-interest of petitioners/plaintiff had never denied the execution of mutation passed on his statement and in the presence of those who had signed the mutation

Consideration was paid for the total property, which was subject matter of the mutation

PW.1 deposed that he gained the knowledge about eight years after the mutation

PW.1 and PW.2 in their examination-in-chief did not state particular manners and mode of fraud and in their cross-examination they admitted that they were not present at the time of proceedings of mutation, thus, most part of their statements were comprised of hearsay evidence

There was discrepancy about the period of accrual of cause of action in the statement of PW.2 and in the plaint

Civil revision was dismissed, in circumstances. (b) Qanun-e-Shahadat (10 of 1984)

Arts.49, 70, 72, 91, 92 129

Mutation

Onus to proof

Oral and documentary evidence

Preference

Scope

Presumption of genuineness attached to documentary evidence

Scope

Once a document has been proved in accordance with law, the genuineness of its contents could be presumed and the rule that the "document speaks for itself' (acta probant sese ipsa) could be deployed

Rationale behind the presumptions attached to written documents stem out of both principles as well as policy

Presumptions are a matter of principle because written documents are, by their very nature, to be accorded a higher degree of credibility as opposed to oral evidence; otherwise, it would bring uncertainty and chaos if written documents (and valuable rights, if any, attached to them) are allowed to be set aside on the basis of oral evidence. Muhammad Mumtaz Shah (deceased) through LRs. and others v. Ghulam Hussain Shah (deceased) through LRs. and others 2023 SCMR 1155 rel. (c) Qanun-e-Shahadat (10 of 1984)

Arts. 17, 72 81

Punjab Land Revenue Act (XVII of 1967), S.42(7)

Transfer of Property Act (V of 1882), S.54

Mutation

Proof

Execution of mutation not denied by its executant

Requirement of production of attesting witnesses of mutation

Scope

Execution of the mutation was not denied by the plaintiff/executant himself, thus, examination of attesting witness was not fatal

Best evidence about the contents of a document is the document itself. Muhammad Afzal (Decd.) through LRs. and others v. Muhammad Bashir and anothers 2020 SCMR 197; Abdul Aziz v. Abdul Hameed (deceased) through LRs. 2022 SCMR 842 and Amjad Ikram v. Mst. Asiya Kausar and 2 others 2015 SCMR 1 rel. Ch. Muhammad Rafique Warraich for Petitioner. Ch. Irshad Ullah Chattha for Respondent. Date of hearing: 9th October, 2024. JUDGMENT SULTAN TANVIR AHMAD, J

The predecessor of the revision-petitioner (Muhammad Khan) instituted Civil Suit No. 187/364 dated 25.09.2002 with the averment that in mutation No. 6431 dated 30.08.1993 (the mutation ) 09 marlas property as detailed in the suit (the suit property ) out of the total land measuring 04 kanal 13 marla, has been incorporated by way of fraud by the respondent in collusion with the revenue officials. The suit was contested and out of divergent pleadings the following issues were framed:-

1. Whether the defendant with mala fide intention got attested the mutation No. 6431, dated 30.08.1993, by including 09 marlas of plaintiff s residential house situated in khawat No. 615/881 ? OPP

2. Whether the instant suit is not proceed able in its present form? OPD

3. Whether the plaintiff has no locus-standi to file this suit? OPD

4. Whether the plaintiff is estopped by his words and conduct? OPD

5. Whether the instant suit is frivolous and vexatious? OPD

6. Whether the instant suit is liable to be dismissed due to misjoinder and non-joinder of parties? OPD

7. Whether the instant suit does not lie? OPD

8. Relief?

2. The parties led their respective evidence. The learned trial Court decreed the suit vide judgment and decree dated 01.03.2010. The respondent preferred Civil Appeal No. 120 / 227 of 2010/14, which was allowed by the learned Appellate Court vide judgment and decree dated 27.03.2015 and while setting-aside the findings of the learned trial Court the suit has been dismissed. Being dissatisfied from the same, present civil revision has been instituted.

3. Ch. Muhammad Rafique Warraich, learned counsel for the revision-petitioner, has submitted that the judgment of the learned Appellate Court is result of gross misreading of evidence and the well-reasoned judgment of the learned trial Court has been unduly interfered with; that the learned Appellate Court has wrongly shifted the onus of issue No. 2 on the revision-petitioner ignoring that it was for the respondent, being beneficiary, to prove the mutation through coherent evidence and by producing the relevant revenue officials.

4. Conversely, Ch. Irshad Ullah Chattha, learned counsel for the respondent, has vehemently opposed this revision-petition and he has stated that the learned Appellate Court has reached to the correct conclusion; that the execution of the mutation, jalsa aam or attestation in course of normal official duties have never been denied, thus, not producing the revenue officials lost importance. It is stated that even otherwise the revision-petitioner has even failed to discharge the initial burden so that it can be shifted to the other side.

5. Heard. Record has been perused with the able assistance of the learned counsel for the parties.

6. It is trite that once a document has been proved in accordance with law, the genuineness of its contents can be presumed and the rule that the "document speaks for itself" (acta probant sese ipsa) can be deployed. The rationale behind the presumptions attached to written documents stem out of both principle as well as policy. The presumptions are a matter of principle because written documents are, by their very nature, to be accorded a higher degree of credibility as opposed to oral evidence; otherwise, it would bring uncertainty and chaos if written documents (and valuable rights, if any, attached to them) were allowed to be set aside on the basis of oral evidence[1].

7. Reading of the suit reflects that Muhammad Khan, (who passed away during the pendency of the suit,) has never denied that the mutation was passed on his statement and in the presence of those who have signed the mutation (Ex.P-1). The suit property is categorically mentioned in the mutation with reference to its khata number and the consideration was paid for the total property, which is subject matter of the mutation. After the death of Muhammad Khan his son Abdul Razzaq appeared as PW-1 who deposed that they gained the knowledge about eight years after the mutation. In the entire examination-in-chief particular manners and mode of fraud are not stated. He simply deposed that fraud was committed in collusion with the revenue officials. He admitted in his cross-examination that at the time of bargain he was in Rawalpindi. To support him one Muhammad Ali appeared as PW-2 who is admittedly paternal uncle of Abdul Razzaq. He also could not give particulars of fraud in his examination-in-chief. He too admitted during his cross-examination that at the time of proceedings of mutation he was not present, thus, admitted that most of the parts of his statement are comprised of hearsay. In his cross-examination he attempted to develop the case and the answers given by him contradicted the original stance. In response to one of the questions he stated that respondent committed fraud / forgery in the mutation five years prior to filing of suit, when allegedly respondent asked the concerned patwari to enter the suit property in the mutation. This answer perhaps is given without realizing that in the suit it is averred that cause of action accrued a year prior to filing of the suit and the fact deposed as to asking the patwari to enter the suit property in the mutation is not even pleaded.

8. The respondent appeared as DW-1. He also answered few questions adverse to his interest, however, if the evidence is evaluated on the balance of probabilities, the balance tilts in favour of the respondent. So far as the argument regarding failing to produce attesting witness by the respondent-side is concerned, the execution of the mutation is not denied by Muhammad Khan-deceased himself, therefore, examination of attesting witness is not fatal[2]. Even otherwise, the best evidence about the contents of a document is the document itself[3].

9. Lastly, learned counsel for the revision-petitioner took the plea as to the variance in findings of the learned two Courts below. In my reading, judgment of the learned Appellate Court is cogent and based on sound reasons, therefore, it prevails over the findings given by the learned trial Court[4].

10. For what has been discussed above, the present civil revision is dismissed. No order as to costs. SA/M-116/L Revision dismissed. 1 2011 SCMR 1341 [1] Muhammad Mumtaz Shah (deceased) through LRs. and others v. Ghulam Hussain Shah (deceased) through LRs. and others (2023 SCMR 1155) [2] Muhammad Afzal (Decd.) through LRs. and others v. Muhammad Bashir and anothers (2020 SCMR 197). [3] Abdul Aziz v. Abdul Hameed (deceased) through LRs. (2022 SCMR 842). [4] Amjad Ikram v. Mst. Asiya Kausar and 2 others (2015 SCMR 1).