2014 PLP 711 (CLC)

Laws Cited

Representation

• ----S.12---Civil Procedure Code (V of 1908), O.XVI, R.1---Constitution of Pakistan, Art.199---Constitutional petition---Suit for specific performance to sell---List of witnesses---Additional evidence---Defendant moved an application to file list of witnesses including one advocate who was Notary Public---Application was dismissed by Trial Court but Lower Appellate Court, in exercise of revisional jurisdiction, allowed defendant to file list of witnesses---Validity---Notary Public having attested documents could go to the roots of entire controversy between the parties---Allowing such witness was necessary and indispensable for a just and fair decision of a case on its merits---Such was done in the interest of justice and to avoid miscarriage of justice---Lower Appellate Court had rightly exercised jurisdiction vested in it and there was no infirmity or illegality in the order---Petition was dismissed in circumstances.
• Muhammad Arshad Awan for Petitioner.
• Mushtaq Ahmad Kashmiri for Respondent No.2.
• 2. Brief facts of the case are that petitioner filed a suit for specific performance on the basis of agreement to sell dated 15-2-1997 in respect of land measuring 278 Kanals, 4 Marlas situated in Chak No.6 Rakh Dulewala, Tehsil Darya Khan, District Bakhar. Contesting written statement was filed by respondent No.2 and from the pleadings of the parties issues were framed. Petitioner produced four witnesses apart from documentary evidence Exh.P-1 to Exh.P-11 and concluded his evidence on 23-11-2006. Thereafter, respondent No.2 was directed to produce his evidence on 2-12-2006. On his request the case was adjourned to 21-12-2006 with last opportunity for producing the evidence but on the said date, respondent did not produce any evidence and submitted an application for permission to submit list of witnesses and also summon Malik Rabnawaz Awan, Advocate through Court as a witness. The case was adjourned to 5-1-2007 for reply and arguments on the application filed by the respondent. Petitioner did not file reply on the said date and his right was closed resulting in acceptance of application on 5-1-2007. Against the said order, civil revision was filed which was accepted and the impugned order was set aside on 16-5-2008. Aggrieved of the said order, Writ Petition No.24732 of 2009 was filed. This Court vide order dated 4-6-2010 held that question regarding materiality of the witness and stage of proceedings is not before this Court, so the matter cannot be decided. On the ground of fairness it remanded the case with a direction that application of the respondent for summoning a new witness should be decided afresh keeping in view the stage of the proceedings and relevancy of that evidence to the issue in dispute. Respondent (Khan Ameer Khan) on account of delay was burdened with costs amounting to Rs.2000.
• 3. The trial Court after hearing the parties dismissed the application for cancellation of list of witnesses and summoning of witness Malik Rabnawaz Awan on 2-7-2010. Against the said order, Civil Revision was filed by respondent (Khan Ameer Khan) and the Revisional Court held that the trial Court did not consider materiality of the witness for fair adjudication of the case on merit, therefore, the order dated 2-7-2010 was set aside on 27-8-2010 allowing application for summoning Malik Rabnawaz Awan, Advocate as witness. Hence, this writ petition.
• 4. It was contended by the petitioner's counsel that order dated 27-8-2010 is in violation of the provisions of Order XVI, Rule 1, C.P.C. as admittedly the agreement to sell and receipt were produced at the time of filing of the suit and the said documents also were duly exhibited but respondent never moved any application for amending the list of witnesses. Malik Rabnawaz Awan, Advocate could have been produced by the respondent and no permission for summoning was required from the Court. The application is mala fide and meant to delay the matter. Respondent produced two witnesses during the pendency of the writ petition before this Court and did not reserve any right to produce Malik Rabnawaz Awan Advocate as witness at the time of closing evidence on 11-4-2009. In order to prove the agreement to sell, the necessary witnesses are its scribe or marginal witnesses, Malik Rabnawaz Awan Advocate is not in the category as aforesaid, therefore, his evidence is not material for the just and fair decision of the controversy on its merits. Placed reliance on the cases reported as Mst. Musarat Bibi and 2 others v. Tariq Mehmood Tariq (1999 SCMR 799) "Filing of list of witnesses within statutory period of seven days sine qua non for the progress of suit in Court---Provisions of Order XVI, Rule 1, C.P.C. did not fall within purview of "sheer technicalities" but were strictly in accordance with the principle of natural justice that a party should have knowledge of witnesses of its rival so as to enable same to test veracity of those witnesses and prepare cross-examination in advance", Ejaz Muhammad Khan and others v. Sahib Bibi through Shahzad Khan and others (1996 SCMR 598) "additional evidence sought to be produced by petitioners was not adduced during pendency of the suit---Provisions of Order XLI, Rule 27, C.P.C. although empowers Court to receive additional evidence in appropriate cases yet on account of lack of vigilance on the part of the petitioner which lasted for years together, Appellate Court could not exercise its powers under Order XLI, Rule 27, C.P.C. in favour of the petitioners---Possibility of fabrication of document sought to be produced by the petitioners as additional evidence or making of any alteration or interpolation therein during the said period of seven years could not be ruled out completely", Muhammad Siddique v. Abdul Khaliq and 28 others (PLD 2000 SC (AJ&K) 20) "Policy of law laid down in Order XLI, Rule 27, C.P.C. appeared to be not to allow additional evidence to fill up lacunas---Appellate Court could only allow additional evidence if Court itself so felt that judgment could not be pronounced without it".
• 5. Conversely, learned counsel for the respondent argued that this Court while remanding the case in its order dated 4-6-2010 had an insight on the closing statement for recording of evidence of the respondent dated 11-4-2009 but despite that had directed the trial Court to decide the application afresh keeping in view the stage of the proceedings and the relevancy of that evidence to the issue in dispute. It was also argued that Malik Rabnawaz Awan, Advocate who attested the agreement to sell was not a Notary Public at the relevant time. The orders passed by the Revisional Court were in line with the directions passed in writ petition while remanding the case. Reliance was placed on the case reported as Anwar Ahmad v. Mst. Nafis Bano through LRs. 2005 SCMR 152 "Article 78----Production and exhibition of a document----Held: Non-production of Notary Public as attesting witness, to prove the contents of a document was held to be fatal to the case---Further held: Mere non-objecting of such fact at the relevant time would not render the document as proved".
• 7. Respondent alleged that the petitioner prepared forged and fictitious agreement to sell and receipt which admittedly was attested by Malik Rabnawaz Awan, Advocate as Notary Public, the said witness was not produced by the petitioner. It was argued that Malik Rabnawaz Awan did not possess license of Notary Public at the relevant time. The said witness was intentionally withheld so that during cross-examination truth may not surface. As valuable rights of the parties are involved and the authenticity/genuineness of the two documents i.e. agreement to sell and receipt of earnest money, the production of the Notary Public as a witness for just and fair conclusion of the trial would be indispensable. This Court while remanding the case had also burdened the respondent with costs of Rs.2000 for causing delay in the trial. The case is at evidence stage, producing the Notary Public will not delay the case further but would be helpful for the trial Court in order to sift the evidence in the light of the documents under-challenge at the time of pronouncement of judgment. This Court while passing remand order had observed the materiality of the witness and the stage of the proceedings on the ground of fairness.

Headnotes / Summary

Judgment & Decree