1986 PLP 288 (CLC)

(3)??????? Whether Kara son of Suleman had given the Pan Cabin to Jumma son of Suleman on contract basis at Rs.100 per month? If so, to what effect?" In my opinion in the circumstances of the case issue No. 1 would be decisive because if the tenancy in favour of Kara could be established then the question of determining the relationship between Kara and Jumma would arise otherwise as held by the learned Civil Judge in his judgment, dated 27‑10‑1979 the plaintiff would be non‑suited and disposal of other issues would become of secondary importance. The parties proceeded to lead evidence and one of the plaintiffs namely Hussain son of Kara was examined on behalf of the plaintiffs. He orally claimed tenancy of the premises under Hawabai in favour of his father Kara and in support of this statement produced two rent receipts Exhs. 2 and

3. Exh. 2 is purported to be a receipt issued in favour of Kara by the previous landlord Rehman Bhai and Exh. 3, dated 7‑3‑1963 is a receipt issued by the rent collector of Hawabai respondent No. 6 in this revision and defendant No. 3 in the suit. The electric bills Exhs. 4 and 5 for the months of July, 1955 and May, 1955, respectively issued by K . E. S. C . in favour of Kara were also produced. The defendants also led evidence in support of the claim for independent tenancy. No documentary evidence of any kind was produced, but Mst. Sakina applicant examined herself. Two witnesses Abdullah and Naseeruddin who are the neighbours were also examined. As no importance has been attached to this oral evidence, perhaps on the concept that when there is a word against word and oath against oath, the rule of prudence should be to rely on the documentary evidence. I would not discuss this evidence in revisional jurisdiction. The learned Civil Judge scrutinized the documentary evidence which as detailed above consisted of two rent receipts, two electric bills from the K .E. S . C . and last but not the least the statement of the landlady herself admitting the tenancy of Kara This evidence could not carry conviction with the learned Judge with the result that the suit was dismissed. The consideration which weighed with the learned Judge to eliminate the written statement of the landlady from consideration was that this written statement was not a substantive evidence for the reasons that Hawabai was not examined in the case, and what to say about the contents even her signatures on this document were no proved. The two receipts relied upon by the tenants in support of the tenancy were also excluded because the executant of the these receipt; were never produced and they were not proved. The plaintiffs filed appeal against this judgment and decree an the appeal has been allowed by the learned Vth Additional District Judge. The reasons for disagreement with the views of the learned trial Judge are given in paras. 9 and 11 of the judgment under appeal. I must say that the criticism of the reasonings or want of reasoning in the judgment of the trial Court in the impugned order may t appropriate but, the fact remains that conclusions drawn by the learned appellate Court and the findings recorded in the appellate judgment are also not weighty enough to tilt the scales in favour of the plaintiff The proposition that pleadings of parties filed in a case are not to be treated as substantive evidence is by now fully established. Averments made in pleadings carry no weight until the author personal turns up to support them and more important offers himself for cross examination by the adversary. In this view of the matter the written statement of defendant No. 3 Hawabai could not be utilised by the respondent /plaintiff as he had failed to examine the author of the written statement namely, Mst Hawabai. In this connection reliance may be placed on a judgment of the Supreme Court reported as Khair-ul-?Nisa v. Malik Muhammad Ishaque in P L D 1972 S C

25. The facts of this case were that a suit for specific performance was filed by an earlier purchaser against the seller and the subsequent purchaser claiming enforcement of the earlier contract of sale in favour of the plaintiff. The defence raised by the subsequent purchaser in the written statement was that he was "transferee for value who has paid his money in good faith and without notice of the original contract" and as such was covered by the exception of section 27 of the Specific Relief Act and the rule of specific performance of the earlier contract could not be enforced against him. Unfortunately during the pendency of the suit this purchaser died and could not turn up to record his evidence in support of his contentions in the written statement. His statement was ignored and rejected from consideration and the contentions raised by the advocate for the said defendant were disposed of by the Court with the following observations. I would reproduce these observations in extenso:‑ "Raja Muhammad Anwar, learned counsel for the appellants, has contended that the deceased had denied the facturn of the notice in the written statement and this should be considered as evidence 1n the case under section 32 of the Evidence Act. The contention of the learned counsel is not well‑founded. Written statements cannot be the exhibits in the case without the person who filed the same being examined in the Court. The statement made in the written statement are not on oath. They are only verified and, therefore, they cannot be treated as evidence in the case. This view finds support from the case of J.B. Ross & Co. v. C.R. Seriven and others A I R 1917 Cal. 269(2) and Muhammad Siddique v. Bhupendra Narayan Roy Chowdhry P L D 1962 Dacca

643. It was held in the former case as under:‑ 'A verification is required with a view of discourage, if not to prevent, the institution of false suits; the Legislature never contemplated that verified statements should be treated as evidence on behalf of a plaintiff against a defendant. The inference may legitimately be drawn from the language used in section 191 read with section 193, I.P.C., that a verified/ statement would not be 'evidence' but for the special provision of section 191 which has been enacted for a special purpose:‑ In the latter case it was held that written statement cannot be an exhibit if defendant dies without being examined. The learned counsel for the appellants was unable to cite any authority in support of his contention that the written statement is an evidence in the case. In view of this the denial by deceased Muhammad Hussain Shah in the written statement is of no avail and cannot be of any assistance in the discharge of the onus which lay on the appellants to prove that the deceased was a transferee for valuable consideration in good faith and without notice " There is a recent decision of this Court in support of this view and it is reported in 1984 C L C

243. This was again a IInd Appeal arising c t of a suit for specific performance in which the plea of purchase of the property for value without notice for good consideration was raised and for similar reasons rejected with the following observations:‑ "So far as the allegations of fraud, misrepresentation and undue influence are concerned, the burden to prove the allegations was squarely on respondent No. 1 but he did not step into the? witness‑box to prove these allcgati0ns nor did he examine any witness in support of the allegations. A mere plea in the statement without proof is of no avail to a party unless it is specifically or by neccssary implication admitted. In the present case the statement was not verified on Oath and, therefore, it could not be treated as evidence and it could not have been accepted. If any authority is needed reference may be made to a decision of the Supreme Court in Mst Khair‑ul‑Nisa and 6 others v. Malik Muhammad Ishaque and 2 others P L D 1972 S C 25, wherein the rule was stated by Waheeduddin Ahmed, J. in the following words: 'The statements made in the written statement are not on oath. They are only verified and. therefore, they cannot be treated as evidence in the case.' An extract from a Calcutta case was also reproduced which is as follows:‑ "That written statement cannot be exhibit if defendant dies without being examined." Unfortunately the learned Vth Additional District Judge has casually touched this point and has failed to apply his mind to the question of admissibility of the assertions made in the written statement on account of the inherent defect that the author of this written statement had never turned up to support this written statement. Now the only evidence that remains debatable is Exh. 3 purporting to be the rent receipt issued by the attorney or Rent Collector of landlady Mst. Hawabai. It is admitted position that the executant of this receipt has not been summoned to prove that the receipt was signed by him and moreso that he was signing the receipt and accepting the rental amount under authority of the landlady Mst. Hawabai. One has to think twice before agreeing to the genuine existence of this document (Exh. 3) which was allegedly executed by the attorney as long before as 7‑3‑1963 and was produced in Court in a suit filed in 1969 after about 6 or 7 years of its execution. Specially when there are no other receipts in favour of the plaintiff either issued by the previous landlord Rehmanbhai or the present landlady Mst. Hawabai during all this period of time and no explanation is forthcoming for their being none one should be doubly cautious. In this background I have to examine the contention of the learned counsel for the respondents that as no objection was taken at the time when this receipt was offered in Court, the formal proof should be dispensed with and this Exh. 3 should be accepted in its entirety without any hitch or hesitation. For this the learned counsel relies on a case reported in P L D 1969 S C 136 Malik Din and another v. Muhammad Aslam. In this case Hamoodur Rahman, J. has made the following observations:‑ "With regard to the first contention, it will be sufficient to state that the objection regarding the defect, if any, in the method of proof of the document, cannot be raised at this stage. For, the document was admitted into evidence, without any objection, in the trial Court. It is now well‑settled that an objection, as to the formality of proof, must be taken at the earliest stage and if it has not been taken then, it cannot be allowed to be taken at the appellate stage.; On the other hand the learned counsel for the appellant basing his objection to the admissibility of this document on section 67 of the Evidence Act, has also relied on a case Khan Muhammad Yusuf Khan Khattak v. S. M. Ayub and 2 others P L D 1973 S C 160, particularly the observations of Sajjad Ahmad. J. wherein the law was stated as follows: ‑ "When I say that the document Exh. P.E. is unproved, 1 have in mind the mandatory provisions of section 67 of the Evidence Act, which lay down that 'if a document is alleged to be signed or written wholly or in part by any person. the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his hand?writing'. If' the case of the respondent was that the appellant had signed the original of Exh.P.E. or the certificate appended to it, it must have been proved that it was in the appellant's handwriting for which no effort whatsoever was made. In the case of Bengal Friends & Co. v. Gour Benode Saha & Co. PLD 1969 S C 477 this Court had expressed itself on this point as follows: ‑ 'Documents which are not copies of judicial record, should not be received in evidence without proof of signatures and handwriting of persons alleged to have signed or written them.' I am of the view that even if such documents are brought on record and exhibited without objection they remain on the record as exhibits' and faithful copies of the contents of the original but they cannot be treated as evidence of the original having been signed and written by the persons who purport to have written or signed them unless the writing or the signature of that person is proved in terms of the mandatory provisions of section 67 of the Evidence Act. If instead of the copy Exh.P.E. the original form 'E' which formed the primary evidence, had been exhibited on the record without proving as to who was its author can it be argued that by merely exhibiting it, the document should be taken for granted as bearing the signature of the appellant without proof that in fact it was written and signed by him. The onus obviously lay on the respondent to prove this fact and his failure to prove it did not cast any responsibility on the appellant to negatively disprove it. On the view that I have taken regarding the suspicious authorship of form 'E' (Exh.P.E.) and that it was not proved to be in the handwriting of the appellant, as required by law, it is not necessary to examine the contention that it contains an admission on the part of the appellant that he had functioned as the Managing Director of the K.K. & Co. Ltd, up to the 31st of January, 1971, as indicated in this document. However, even if 1 were to assume, without holding, that the document is genuine and that it bore the signature of the appellant, I am of the firm opinion that it could not be used against him as his admission, as he was not confronted with it and was not afforded an opportunity to explain it, as required by section 145 of the Evidence Act. The argument that since he had not denied his signature on that document in the course of his statement before the Election Tribunal, which was made long after the document was exhibited on the record and, therefore. it was not necessary to confront him with it, is of no substance. Needless to mention that the real controversy was not in regard to the signature of the appellant but it was in regard to the alleged admission of the appellant allegedly signed by him as contained in the document Exh.P.E. The appellant's case from the very start was that he had resigned from the directorship on the 10th of December, 1970, and that he ceased to be a director thereafter. This is certainly inconsistent with the respondent's case that he continued to function as the director on the date of filing of the nomination papers. It is also inconsistent with the fact, as stated in Exh. P.E. that he was the Managing Director of the Company according to the state of affairs as on the 31st of December, 1970. The mode of proof of admissions is provided in section 58 of the Evidence Act and also in several scattered provisions of the Civil Procedure Code, such as contained in Order V111, rule 5, Order X rule 1, Order XI, rule 1, Order XI1, Rules 1, 4, 5 And 7, but none of these was invoked by the respondent in proof of Exh. P.E. as an admission. Long before the judgment was pronounced by the Tribunal on the 13th of May, 1972, the appellant had moved an application before it on 28th of February 1972. supported by an affidavit in which he asked for the removal of Exh.P.E. from the evidence on the grounds, inter alia, that 'although he had been cross‑examined at length by the petitioner's counsel, neither the original Form 'E' nor its exhibited copy P.E. was ever shown to him, nor was he confronted with the same. " The point of admissibility of Exh. 3 which is the only document on which the two learned counsels have enthusiastically advanced' their arguments is a very sensitive and debatable issue and I cannot resolve the controversy in favour of the respondent merely on the technical merit of the argument that although the document was not proved, according to the provisions of the Evidence Act, it should be taken to be proved for the reason that while this was being tabled in evidence the learned counsel for the defendant was not vigilant enough to object to its admissibility and on account of his failure to do so it should be accepted as conclusive evidence of its execution and contents. Even if this receipt is taken into consideration, in my opinion it would not change the situation. This solitary piece of evidence (Exh.3) claimed to have been executed by attorney of the landlady cannot inspire confidence in favour of the plaintiff /respondent to such a degree as to dislocate and dispossess the appellant from the premises which they are occupying since early sixties. So far as the other documents namely Exh.2, the receipt from the previous landlord and Exhs. 5 and 4, the bills of the K.E.S.C.,I are concerned, their fate will also not be better than the fate of the receipt Exh.3. So far as Exh.2 is concerned, it was objected to at the time of its production and as such remains unproved. So far as Exhs. 5 and 4 are concerned, even if they survive the technical objections they would hardly advance the case of tenancy because the K . E. S. C . may issue such memos. or vouchers in favour of anyone who tenders the money irrespective of the tenderer's rights in the premises. In any event these documents executed by the K . E.S. C . cannot be read to the prejudice of the applicant /defendant, for the simple reason that he is not a party or privy to them. On this. state of facts and with such flimsy and inadequate evidence the learned trial Judge had, in my opinion, rightly non‑suited the plaintiff /respondent.??? Before parting with this case I may observe that this case met with fate of outright dismissal of suit. On account of want of proof of pleas in the written statement of defendant No. 3 and inadmissibility of 3 in evidence This was a case in which the evidence of the landlady could be called for and if she had owned the authorship of the written statement which she had filed, perhaps the fate of the case would have been totally different. This was not done. Even at this stage I was of the view that if I could call for this evidence I would have done so under Order XLI, rule 27 clause 1(b) which is in the following terms: ‑ "(b) If the appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined." But this is a revisional jurisdiction and it is highly debatable whether this power can be exercised by me specially when there is no request for such a relief from either party. The later part of the rule quoted above would show that though the Appellate Court is competent to examine the additional evidence "to enable it to pronounce judgment, or for any other substantial cause" it is nevertheless at the instance of the party in whose favour such additional evidence would be read. The words "the Appellate Court may allow such evidence to be produced or witness to be examined" ought to be given some meaning and the concept of "allowing such evidence to be produced" can only mean that the anxiety for production of additional evidence should originate from the party rather than the Court, and the Court in its discretion and to do complete justice in the case should "allow" such evidence to be brought on the record. There may, however, be cases where the Court itself may feel the absence of some missing link in the chain and allow parties to provide this link to complete the chain. I do not see any such necessity in this case and if I direct the parties to examine the additional evidence it may mean repairing dents and filling the lacuna left by the plaintiff in his case, by supplementing the evidence with additional evidence. As it stands, and after the written statement of the defendant No. 3 and receipt Exh. 3 is excluded from consideration it is a case of no evidence. As such in my opinion the interference by the learned first appellate Court with the findings and conclusion of the learned trial Court was not justified and there was no convincing reason or substantial evidence to establish the tenancy in favour of the respondent /plaintiff. The view taken by the learned Ist Additional District Judge is based on no evidence and cannot be sustained . In the result the revision is allowed and the judgment and decree of the learned Civil Judge is restored. A A .??????????????????????????????????????????????????????????????????????????????????????? Revision allowed.