2005 PLP 356 (CLC)

(3) Whether the suit has not been correctly valued? OPD (4) Whether the plaintiffs have no cause of action? OPD (5) Whether the plaintiffs have not come to the Court with clean hands? OPD (6) Whether the suit is time‑barred? OPD (7) Whether the defendants are entitled to special costs under section 35‑A, C.P.C.? If so, to what extent and effect? OPD (8) Relief. Evidence of the parties was recorded. Vide, judgment and decree, dated 22‑10‑1984, the learned trial Court decreed the suit of the petitioners. The respondents filed first appeal which was heard by a learned Additional District Judge, Layyah, who allowed the same and dismissed the suit of the petitioners vide his judgment and decree dated 16-12-1984.

2. Learned counsel for the petitioners contends that the learned Additional District Judge has acted without jurisdiction, while setting aside the judgment and decree of the learned trial Court. According to the learned counsel, the original power of attorney was never produced and since no permission was obtained to leased secondary evidence, the learned Additional District Judge has proceeded to hold the said document to be valid when the said document was not even produced, Further contends that respondent No. proceeded to sell the lane to" his own sons, several of whom were minors. The contends that there is no evidence or even a plea that the petitioners were consulted before the respondent No.1. had proceeded to sell the land to the said persons. He relied upon Muhammad and others v. Pir Muhammad and another 1997 SCMR 1811. Learned counsel for the respondents, on the other hand, argues that execution of the documents was not disputed and as such, non‑production of the original document would be of no legal effect. Regarding the sale, he says that only some of the vendees were No and, as such prior consultation was not necessary.

3. I have gone through the copies of the record with the assistance of the learned counsel for the parties.

4. I do find that the original power of attorney, in dispute, has not been produced. There is no reason forthcoming on the record and even the learned counsel for the respondents is silent as to why the original document was not produced. Now, there was a definite dispute regarding the execution of said power of attorney between the parties. This being so, the document went out of the pale of public document as per Article 85(5) of the Qanun‑e‑Shahadat Order, 1984. The document had to be proved or produced by primary evidence which was the document itself. Now, Ghulam Haider, one of the respondents appeared as P.W.3 to state that no power of attorney was given to the respondent No.

1. He was subjected to cross‑examination and it is but apparent on the record that he was not confronted with the‑document said to have been executed by the witness. The learned Additional District Judge has, therefore, tried to play Hamlet without the Hamlet.

5. The second contention of the learned counsel also has force. Respondents Nos. 7 to 13 are admittedly the sons of respondent No.1 and out of these respondents, respondents Nos. 8 to 13 are minors. Amongst other vendees is Malik Sajawal as well, who has tried to support the case of the respondents in the witness‑box. The fact remains that the ultimate beneficiary of the sale‑deed is respondent No.1. There is nothing on record to suggest that he consulted the alleged donors before entering into said transaction. Now, I may note here that the respondents were fully aware of the said factual and legal position emerging from the record. During the course of evidence, it was sought to be stated that the consideration amount was paid to the donors even before the execution and registration of the power of attorney. This, however, is not the plea of respondent No.1 in the written statement.

6. The learned Additional District Judge has also very conveniently brushed aside the fact that one of the donors namely Mst Subai (the name of the lady recorded in the copy of power of attorney is Mst. Pathani), had died, long before the execution of the sale‑deed by respondent No.1. According to him, since the other donors were her legal representatives the said factum would of no relevance. I am afraid, the said reasoning is perverse.

7. For what has been stated above, I do not find that the learned Additional District Judge has acted with material irregularity in the exercise of his jurisdiction, while passing the impugned judgment and decree. This civil revision is accordingly allowed. The impugned judgment and decree dated 16‑12‑1984 of the learned Additional District Judge is set aside and that of the learned trial Court dated 22‑10‑1984, decreeing the suit of the petitioners is restored with costs throughout. M.I./R‑101/L Order accordingly.