2006 PLP 1763 (CLC)

MAULVI ANWARUL HAQ, J.

For the order I propose to pass in this case, I will not be referring to the pleaded facts in much detail. Suffice it to say that on 20-7-1996 respondent No.1 filed a suit against the petitioners and the remaining respondents seeking a declaration that she is the owner in possession of the suit property on the basis of a registered sale-deed, dated 16-8-1979 and subsequent Mutation No.215, attested on 29-5-1982, Mutation No.339 attested on 27-6-1983, Mutation No.629 attested on 10-12-1987, Mutation No.738 attested on 2-8-1989, Mutation No.770 attested on 30-8-1989, Mutation No.424 attested on 25-5-1984 and Mutation No.1001 attested on 31-12-1991 are illegal and void. The suit was contested by the petitioners. Issues were framed; evidence of the parties was recorded. The learned trial Court decreed the suit on 26-9-2000. A first appeal filed by the petitioners has been dismissed by the learned Additional District Judge, Alipur on 20-9-2003. Learned counsel for the contesting plaintiff/ respondent No.1 has put in appearance. The copies of the records are available and both the learned counsel is ready with their arguments. This case is accordingly decided as Pacca Case.

2. Learned counsel for the petitioners contends that the factum of purchase alleged by respondent No.1 has been denied. The original sale-deed has not been produced while the copy whereof has been admitted into evidence despite objections raised by the petitioners. According to the learned counsel the impugned judgments are based on inadmissible evidence and as such are liable to be interfered with under section 115, C.P.C. Learned counsel for the petitioners has sought to argue that one of the defendants had admitted the factum of sale and further that since the document was registered, its certified copy was admissible in evidence per se.

3. I have gone through the copies of the records. I have already noted above that respondent No.1/plaintiff is claiming declaration on the basis of a sale which was stated to have been effected in her favour by means of a registered sale-deed dated 16-8-1979. This fact 'was denied; consequently she was called upon to prove the same. Since I intend to remand this matter, I will not be discussing the evidence recorded. Further it is a matter of record that the copy of the sale-deed was introduced as Exh.P.2 in the statement of Mazhar Hussain, P.W.I. It was promptly objected to by the petitioners that this is not the original document and cannot be admitted in evidence. The learned trial Court observed that the learned counsel for the plaintiff has stated that attesting witnesses have died and the original document has been lost in the course of a flood and thereafter he proceeded to record the further statement of the witness. Now in the impugned judgment, dated 26-9-2000 it has been observed that Exh.P.W.2 is a public document and presumption of truth is attached to it. Similarly the learned Additional District Judge has observed that Exh.P.2 is a certified copy and is admissible per se and also carries presumption of truth.

4. It is but obvious that both the learned Courts below have acted in oblivion of the provisions of Qanun-e-Shahadat Order, 1984. under the law primary evidence has to be produced and in case of a document it is the document itself. In case the document is not available then permission has to be sought in terms of Articles 76 and 77 of the Qanun e-Shahadat Order, 1984 for leading secondary evidence and proving the document accordingly. In the present case nothing of the sought has been done. Needless to state that no presumption of correctness attaches to a registered document once its execution is disputed. Furthermore a registered document ceases to be a public document, the moment dispute arises as to its execution. Reference is made to Article 85(5) of the Qanun-e-Shahadat Order, 1984.

5. Now coming to the said contention of Mirza Aziz Akbar Baig, learned counsel for the plaintiff/respondent, the admission being referred to by him with reference to statements of Muhammad Nawaz petitioner No.6 (as D.W.2) is as follows:-- /aGv^'I`/gidj ( ~L_~~'J~~1(J IA--'A- ., W'/ 1frcr`c) f ~cl'~ t ttsv After completing the cross-examination a request was made that the said question to be asked again from the witness and this request was rejected. I wonder how the said nod referred to by the learned counsel constitute admission which is not available on the record.

6. I, therefore, do find that the learned Courts below have acted without jurisdiction while opting to remain unaware of the legal position as to the admissibility of the Exh.P.2 in evidence and resultantly have proceeded to pass their judgments on the basis of a document which cannot be read in evidence. Even if it was to be pleaded by respondent No.1 that the document has been lost, then an application ought to have been filed seeking permission and it was only upon proof of the facts constituting a valid ground under Article 76 of the Qanun-e-Shahadat Order, 1984, that permission could have been granted to lead the said evidence. The civil revision accordingly is allowed; both the impugned judgments and decrees are set aside. The result would be that the suit shall be deemed to be pending in the Court of Mr. Abdul Majeed, learned Civil Judge 1st Class at Tehsil Alipur. The parties shall appear before the learned trial Court on 11-7-2006. Records will be requisitioned and opportunity will be given to the plaintiff/respondent either to produce original sale-deed being relied upon by her or to file an application on any of the grounds within the meaning of Article 76 of Qanun-e-Shahadat Order, 1984 for permission to lead secondary evidence and further proceedings in the suit be taken and the suit be decided accordingly. No orders as to costs. A copy of this order is immediately remitted to the said learned Civil Judge, Alipur. S.M.B./P-17/L Case remanded.