2008 PLP 1681 (CLC)

HAFIZ TARIQ NASIM, J.

Through this single judgment I propose to decide R.S.A. No.27 of 2000 and Civil Revision No.493-D of 2000 as the common question of law and facts is involved.

2. The regular second appeal is filed by the legal heirs of deceased Kh. Ghulam Muhammad son of Mian Haji Siraj Din and civil revision is also filed by the same party against the legal heirs of Muhammad Ismail son of Haji Muhammad Tufail. Facts leading to these cases are that Muhammad Ismail etc. filed a suit for specific performance of contract and Kh. Ghulam Muhammad filed a suit for possession through partition in the Court of learned Civil Judge, 1st Class, Faisalabad. Both the suits were consolidated and were disposed of through a consolidated judgment and decree, dated 15-4-1996 whereby suit for specific performance of contract filed by Muhammad Ismail etc. was dismissed whereas the counter-suit filed by Kh. Ghulam Muhammad etc. against Muhammad Ismail etc. for possession through partition was decreed preliminary appointing Mr. Zubair Naveed, Advocate as Local Commissioner directing him to visit the spot and suggest the modes of partition. Aggrieved by this, Muhammad Ismail etc. filed two Appeals Nos.235/13-99 and 238/13-99 before the learned District Judge, Faisalabad with a request that judgment and decree passed by the learned Civil Judge be set aside and their suit for specific performance of contract be decreed. The learned Additional District Judge, Faisalabad through judgment and decree, dated 20-1-2000 accepted both the appeals filed by Muhammad Ismail etc., set aside the consolidated judgment and decreed the suit of Muhammad Ismail etc. and dismissed the suit filed by Kh. Ghulam Muhammad etc. Aggrieved by this Kh. Ghulam Muhammad etc. filed R.S.A. No.27 of 2000 as well as Civil Revision No.493 of 2000. The learned counsel for the appellants/petitioners submits that the impugned judgment and decree passed by the learned Appellate Court is against law and facts; an outcome of misreading of evidence misinterpretation of documents; wrongly believed the inadmissible, forged and are self-made documents particularly Exhs.P.1 and P.2, rather erroneously appreciating the said documents keeping aside that these documents are a photocopy of the register of the petition-writer. Further submits that the respondents have not produced any receipt of payment and even P.W. was the relevant person who produced the register of the petition-writer meaning thereby that his evidence has no value in the eye of law., Adds that the learned Appellate Court ignored the material fact that the respondents have not produced any witness who deposed that the original documents Exhs.P.1 and P.2 have been lost nor the respondents have got the permission from the learned trial Court for leading secondary evidence, practically where these were inadmissible in evidence and could not be taken as a gospel truth. Further submits that the appellants/petitioners did not sell the suit property and they are still joint owner of 1/3 share of the suit property and even the respondents failed to establish that the predecessor of the appellants/petitioners received the consideration price of share. Adds that the appellants/petitioners produced independent oral evidence and tendered documents Exh.D.1 and marked 1 to 46 in support of their case but the learned Appellate Court ignored these .important documents resulting into serious miscarriage of justice. On the other hand, the learned counsel for the respondents supports the impugned judgment passed by the learned Additional District Judge, Faisalabad.

3. Arguments heard; record perused.

4. Before the learned Civil Judge, both the parties produced their evidence after framing of certain issues and the learned Civil Judge according to his own wisdom decided the case in favour of the present appellants/petitioners, however, the learned Appellate Court while examining the case from all angles recorded certain reasons for setting aside the judgment and decree passed by the learned Civil Judge, Faisalabad.

5. The learned Additional District Judge, Faisalabad practically answered all the questions, which are raised before this Court in explicit manner and minutely attended' the contentions of the appellants/petitioners before him which is reflected from the impugned judgment particularly page 10 mentioning even the fault of the case in the following words: "Main fault in this case against the appellants is that before producing secondary evidence they did not get permission from the Court for the same." The learned Additional District Judge, Faisalabad went to the extent as follows: "The only controversy in this case is whether the predecessor of the respondents namely Kh. Ghulam Muhammad agreed to alienate his property in the name of predecessor of the appellants, mentioned in the suit or not and before executing the said agreement he received price of land as well other prices invested by him in the business. I am of the view that to prove above mentioned fact sufficient evidence in the shape of documents as well as verbal evidence is available in favour of the appellants and specially when the original respondent/ defendant i.e. Kh. Ghulam Muhammad, predecessor of respondents was sued by this plaint in his life time and whole facts and figures were disclosed by the appellants in para. No.3 of their plaint but the said Kh. Ghulam Muhammad deceased intentionally did not controvert the said para. that was very much necessary for him to categorically parawise denied the contents of said para. whereas according to law the defendant should deny the facts by disclosing reasons otherwise law is very much clear that evasive denial of defendant will be presumed as admission, hence I hold that the said Kh. Ghulam Muhammad himself did not controvert the claim of the appellants as narrated in para. No.3 of the plaint and during the pendency of suit till his death he did not make any statement in this connection."

6. During the arguments when the learned counsel for the appellants/petitioners confronts with this finding and also asked him to read para.3 of the plaint as well as to read the reply to para.3 of the plaint, he read the same in open Court and could not controvert the findings recorded by the learned Additional District Judge, Faisalabad.

7. It shall be advantageous to reproduce para.3 of the plaint as well as para.3 of the written statement which are as follows:-

8. After going through this very point no other conclusion can be drawn except that the findings recorded by the learned Additional District Judge, Faisalabad are neither evasive nor an outcome of any misreading/non-reading of evidence based on available record as well as strictly in accordance with law, particularly when there is another aspect of the case that the appellants' counsel recorded his offer before the Court that if one of the respondents namely Muhammad Ilyas controverted their claim on Holy Qur'an they will not pursue their appeal and will be ousted from the Court but the respondent Muhammad Ilyas was called by the Court yesterday who did not accept this offer. In the attending circumstances and particularly keeping in view the law laid down by the Honourable Supreme Court of Pakistan wherein it is held that, "the weightage should always be given to the findings recorded by the lower Appellate Court", I am not inclined to interfere in this matter, accordingly the R.S.A. as well as civil revision are dismissed with no order as to costs. H.B.T./G-31/L Appeal dismissed.