PLJ 2019 Lahore 366
[Bahawalpur Bench Bahawalpur]
Present: Ch. Muhammad Masood Jahangir, J
Mst. ZENAB BIBI--Petitioner
versus
AHMAD YAR--Respondent
C.R. No. 17-D of 2012, heard on 16.05.2018
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Suit for specific performance of agreement--Concurrently decreed--Jurisdiction--Challenge to--Although, scope thereof is limited, but such findings can be distressed by this Court, if Courts below appeared to have either misread evidence on record or while assessing evidence had omitted from consideration some important piece of evidence, which had direct bearing on issue involved--It can safely be concluded that both Courts below while misconstruing evidence of parties to lis decreed suit of respondent, who designed Exh.P1 to deprive landlady of her valuable property and verdicts of Courts below being classic example of misreading and non-reading of evidence on record are illegal, unlawful and corum non judice, which cannot be sustained in eye of law--Resultantly, instant Civil Revision is allowed. [Pp. 372 & 373] H & I
2014 SCMR 914, 2016 SCMR 24, ref.
Civil Procedure Code, 1908 (V of 1908)--
----O. XX, R. 5 & XLI, R. 31--Concurrent findings--Without sensing pleadings and evidence--It was achy for me to observe that both Courts below without sensing pleadings and evidence of parties in its true perspective rendered their concurrent findings in favour of respondent in complete derogation of Order XX rule 5 as well as Order XLI rule 31 of Code, 1908. [P. 369] A
Cross-examination--
----Statement of witnesses--It was claim of respondent that bargain was settled on 10.01.2003 and advance amount was paid then and there and in lieu thereof possession changed hands before witnesses, but respondent/beneficiary being PW2 omitted to disclose date of transaction in his statement-in-chief and when he was specifically questioned about it in his cross/examination, he again failed to tell date when sale was struck--This was again surprising that respondent for first time disclosed in his statement that transaction was spontaneously struck through Ghulam Ali at Court premises of Haroon Abad, but one of marginal witnesses, Muhammad Zaman (PW3) antipodal to plaintiff (PW2) stated that sale was settled at Basti Khatal--Disparity with regard to venue among them could neither be treated as minor contradiction nor it can be lightly ignored--Moreover, not only plaintiff (PW2) rather other attesting witness, Baqir Ali (PW4) in their cross-examination exposed that day when stamp paper was purchased, not only advance amount was paid, rather contract was also written then and there, but this fact was totally negated by agreement (Exh.P1), recital of which proved stance of petitioner that its stamp paper was issued by Stamp Vendor on 07.01.2003, whereas it was scribed on 10.01.2003--This glaring contradiction was sufficient to disbelieve case of respondent--Baqir Ali (PW4) was also fair enough to depose that bargain was settled by plaintiff before their arrival--Both of marginal witnesses (PW3 and 4) were not residents of locality either where vendor resided or suit plot was located and even where contract was executed. [Pp. 370 & 371] B & E
Marginal Witnesses--
----Position of marginal witnesses of agreement was also not different--Among them, Muhammad Khan (DW3) mentioned that about seven years earlier, it was settled, whereas other Baqir Ali (PW4) uttered that six or seven years prior to his deposition, sale was struck--When every concerned signatory is found to’ be unaware of date, month and year of transaction besides writing of document relating to it, then how discretionary relief against an ignorant and illiterate lady, who from day first after commencement of trial was calling it a fictitious and forged document could be awarded. [P. 370] C
Civil Procedure Code, 1908 (V of 1908)--
----O. VI, R. 2 & O.VIII, R. 2--Principle of “Secundum allegata et probata”--It is well settled proposition of law that if any fact is not asserted in pleadings, then no evidence can be led to prove it, however, even if recorded, that has to be ignored as per principle of “secundum allegata et probata” which means that a fact has to be pleaded first in plaint or written statement by a party before it is allowed to be proved. [P. 370] D
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 80--Documentary record--Validity--Bare perusal of agreement was again an affirmation that CNIC numbers of vendor and alleged marginal witnesses were not entered on it either by Scribe or by Stamp Vendor, who issued its stamp paper--Now there left statement of Muhammad Anwar, (PW1), Stamp Vendor, despite fact that he explicitly disclosed that relevant Register was consigned to Record Room after its due completion, it was not summoned through Record Keeper concerned--It could be best independent documentary record to authenticate issuance of stamp paper to petitioner to rebut her allegation that she did not appear before Vendor for its purchase, but it was deliberately withheld, as such adverse inference was to be drawn, had it been examined that would have proved allegations of petitioner--Civil revision was allowed. [P. 371] F & G
2013 SCMR 868 & PLD 1990 SC 642, ref.
Mr. Muhammad Saleem Faiz, Advocate for Petitioner
Mr. Shah Muhammad Khokhar, Advocate for Respondent
Date of hearing: 16.5.2018
Judgment
Instant Civil Revision has been filed by lady petitioner to throw challenge on concurrent judgments and decrees dated 08.09.2009 and 23.11.2011 rendered by the Courts below, whereby suit for specific performance of agreement instituted against her by the respondent was decreed and appeal of the former failed.
2. In concision, facts of the case were that petitioner was exclusive titleholder of the suit plot situated in urban area of Bahawalnagar. The respondent with regard to it instituted suit for specific performance of contract on 14.07.2005, contending therein that he purchased the disputed plot against consideration of Rs.60,000/- and after making payment of Rs.50,000/-, not only the contract dated 10.01.2003 (Exh.P1) was scribed, but the possession also changed hands in his favour before the witnesses. For ease, it would be better to reproduce his stance as disclosed in para-1 of the plaint, which is as under:--
It was also pleaded in para-2 that not only personally, rather through Punchayat, efforts were made to pay the rest of the sale price, but the promisor was found to be reluctant, forcing the promisee/respondent to approach the Court for having a decree of performance of his contract (Exh.P1). The petitioner defended the suit through her written statement alleging therein that she neither ever settled a bargain nor received advance amount. She also claimed that Exh.P1 was a fake, forged and fictitious document, which was prepared collusively to deprive her of the valuable property. She in the inception of the litigation specifically highlighted the factors in her pleadings to prove that Exh.P1 was a counterfeited document for the counts; firstly, that had the bargain been settled on 10.01.2003, there was no occasion to purchase the stamp paper of Exh.P1 three days prior to its execution and secondly that the respondent was even not aware of the name of her husband, who disclosed the name of her ex-husband in spite of that he had divorced her five years prior to alleged contract, whereas prior to the day of alleged execution of contract, she had already contracted second marriage with Muhammad Arshad, but disclosure of petitioner being wife of a person, who was no more her husband, was a solid proof that the contract was fakely constructed. After settlement of issues both the parties led evidence, however it was achy for me to observe that both the Courts below without sensing the pleadings and evidence of the parties in its true perspective rendered their concurrent findings in favour of respondent in complete derogation of Order XX rule 5 as well as Order XLI rule 31 of the Code, 1908 and it was very simple for this Court to remand the suit on this count, but having entire material before me, I opted to decide it on merit at my end rather than to throw the parties to face agony of another round of litigation.
3. Arguments heard and record perused.
4. There is no cavil to conclude that agreement to sell (Exh.P1) neither generates nor quenches right, title or interest in the immovable property and being beneficiary, it was imperative upon respondent to have proved its valid execution as well as transaction cited therein. As observed supra, it was the claim of respondent that bargain was settled on 10.01.2003 and advance amount was paid then and there and in lieu thereof possession changed hands before the witnesses, but the respondent/beneficiary being PW2 omitted to disclose the date of transaction in his statement-in-chief and when he was specifically questioned about it in his cross/examination, he again failed to tell the date when the sale was struck. The position of the marginal witnesses of the agreement was also not different. Among them, Muhammad Khan (DW3) mentioned that about seven years earlier, it was settled, whereas the other Baqir Ali (PW4) uttered that six or seven years prior to his deposition, the sale was struck. When every concerned signatory is found to’ be unaware of the date, month and year of the transaction besides writing of the document relating to it, then how discretionary relief against an ignorant and illiterate lady, who from the day first after the commencement of trial was calling it a fictitious and forged document could be awarded. Moreover, rest of his (PW2) entire statement to the effect that petitioner after settling the oral contract fled away with Muhammad Arhsad to Haroon Abad, where on having been approached by him along with witnesses, she agreed to execute the agreement, which was scribed there, was contrary to the contents of his plaint. It is well settled proposition of law that if any fact is not asserted in the pleadings, then no evidence can be led to prove it, however, even if recorded, that has to be ignored as per principle of “secundum allegata et probata” which means that a fact has to be pleaded first in the plaint or written statement by a party before it is allowed to be proved. This principle is enunciated by Order VI rule 2 and Order VIII rule 2 of the Code 1908, which has also been affirmed by the apex Court in judgments reported as Pakistan Vs. Abdul Ghani (PLD 1964 SC 68) and Hyder Ali Bhimji Vs. VITH Additional District Judge, Karachi (South) & another (2012 SCMR 254).
This was again surprising that respondent for the first time disclosed in his statement that transaction was spontaneously struck through Ghulam Ali at Court premises of Haroon Abad, but one of the marginal witnesses, Muhammad Zaman (PW3) antipodal to the plaintiff (PW2) stated that sale was settled at Basti Khatal. The disparity with regard to venue among them could neither be treated as minor contradiction nor it can be lightly ignored. Moreover, not only plaintiff (PW2) rather the other attesting witness, Baqir Ali (PW4) in their cross-examination exposed that the day when stamp paper was purchased, not only advance amount was paid, rather contract was also written then and there, but this fact was totally negated by the agreement (Exh.P1), the recital of which proved the stance of the petitioner that its stamp paper was issued by the Stamp Vendor on 07.01.2003, whereas it was scribed on 10.01.2003. This glaring contradiction was sufficient to disbelieve the case of respondent. Baqir Ali (PW4) was also fair enough to depose that bargain was settled by the plaintiff before their arrival. Both of the marginal witnesses (PW3 and 4) were not residents of the locality either where the vendor resided or the suit plot was located and even where the contract was executed.
5. The other setback of the case was that admittedly contract was neither scribed by a regular Deed Writer nor signed by the person, who wrote it. Moreover, the Scribe was also not examined, however, on query it was disclosed by learned counsel for the respondent that he had already passed away, but he was forced by the record to admit that none familiar with his writing was summoned as per requirement of Article 80 of the Order, 1984. The bare perusal of agreement was again an affirmation that CNIC numbers of the vendor and the alleged marginal witnesses were not entered on it either by the Scribe or by the Stamp Vendor, who issued its stamp paper. It was kept in dark by the respondent who identified the lady before the Vendor and the Scribe. Now there left statement of Muhammad Anwar, (PW1), the Stamp Vendor, despite the fact that he explicitly disclosed that relevant Register was consigned to Record Room after its due completion, it was not summoned through the Record Keeper concerned. It could be the best independent documentary record to authenticate the issuance of stamp paper to the petitioner to rebut her allegation that she did not appear before the Vendor for its purchase, but it was deliberately withheld, as such adverse inference was to be drawn, had it been examined that would have proved the allegations of the petitioner.
6. The other salient feature of the case was that admittedly petitioner was ignorant and illiterate lady, who specifically denied settlement of bargain as well as receipt of consideration and in such scenario, it was sine qua non for the beneficiary/respondent to have established that petitioner had independent advice, who settled the transaction voluntarily with full knowledge and import of what the transaction was meant for. The argument of learned counsel for the respondent that petitioner was not parda observing lady and as such she was not entitled for the treatment extended to such class was not well founded. The petitioner being ignorant as well as illiterate lady was to be equated with pardanasheen lady and equally entitled for the same treatment, which is available to such group of women. Despite the fact that PW2 and PW4 stated in their cross-examination that the petitioner was in the company of a male, but he was not associated elsewhere, when Exh.P1 was constructed. As such contract and the transaction being militant to the judgments of the superior Courts rendered in the cases reported as Mt. Farid-un-Nisa Vs. Munshi Mukhtar Ahmad and another (AIR 1925 P.C 204), Chainta Dasya Vs Bhalku Das (AIR 1930 Cal. 591), Jannat Bibi Vs. SikandarAli and others (PLD 1990 S.C 642), Mian Allah Dita through LRs Vs. Mst Sakina Bibi and others (2013 SCMR 868), Ghulam Farid and another Vs. Sher Rehman through L.Rs (2016 SCMR 862) and Phul Peer Shah Vs. Hafeez Fatima (2016 SCMR 1225) could not be given any weight.
7. At the fag end of his arguments, stress of learned counsel for respondent/plaintiff that concurrent findings recorded by both the Courts below cannot be interfered with by this Court while invoking jurisdiction under Section 115 of the Code, 1908, is also without any force. Although, the scope thereof is limited, but such findings can be distressed by this Court, if Courts below appeared to have either misread evidence on record or while assessing evidence had omitted from consideration some important piece of evidence, which had direct bearing on the issue involved. In arriving at such conclusion this Court is fortified by the dictum laid down in the judgments reported as Muhammad Nawaz alias Nawaza and others Vs. Member Judicial Board of Revenue and others (2014 SCMR 914) and Nazim-ud-Din and others Vs. Sheikh Zia-ul-Qamar and others (2016 SCMR 24). It is obvious and clear that no Court in the country has the jurisdiction to decide about the rights of the parties wrongly and in violation of law and the Revisional Court has no exception to this rule. Even otherwise it has also been held by the Superior Courts that a Court could not pass an order of its liking, solely on the basis of its vision and wisdom, rather it was bound and obligated to render decisions in accordance with law and the law alone. So, this Court can decide, in which cases, the interference is warranted.
8. In such facts and circumstances, it can safely be concluded that both the Courts below while misconstruing the evidence of the parties to the lis decreed the suit of respondent, who designed Exh.P1 to deprive the landlady of her valuable property and verdicts of the Courts below being classic example of misreading and non-reading of the evidence on record are illegal, unlawful and corum non judice,
which cannot be sustained in the eye of law. Resultantly, instant Civil Revision is allowed, impugned judgments and decrees of the Courts below are set aside and the suit of respondent is dismissed with coste throughout.
(M.M.R.) Civil revision allowed
