MUKHTAR AHMAD THROUGH LEGAL HEIRS Versus MUHAMMAD YUNUS

On 24‑7‑1984 the appellant, namely, Mukhtar Ahmad (deceased) filed a suit against the respondents. According to the plaint the suit shop was owned by Jalal Din, the father of the appellant and respondent No. 1. The shop was transferred to respondent No. 1 by his father by means of an arbitration award that was made rule of the Court on 7‑7‑1976. This transaction was incorporated into Revenue Record vide a Mutation No. 15716 attested on 6‑2‑1977. According to this mutation the area of shop was 2 Marlas 176 Sq.ft. bearing Khasra Nos. 174 and 175. Later it was found that the shop was comprised in Khasras Nos. 172, 173 and Mutation No. 18268 was attested on 9‑3‑1980. The area of the shop was corrected as 2 Marlas 224 Sq. ft. that respondent No. 1 sold out the shop to the appellant for a consideration of Rs.60,000 vide a registered sale‑deed, dated 1‑2‑1981. However, in the sale‑deed with reference to Mutation No. 15716 shop was stated to be comprised in Khasras Nos. 174‑175; that an attempt was made by respondent No. 1 to get Mutation No. 19693 (attested on the basis of Said sale‑deed) rejected but the application was dismissed on 12‑1‑1983. Thereafter, respondent No. 1 proceeded to transfer the same shop vide a Court decree, dated 20‑7‑1983 on the basis of award in favour of respondents Nos.2 to 5. This latter transaction was stated to be illegal and ineffective upon the rights of the appellant. With these averments a declaration was sought that the appellant is the owner of the suit shop and that respondents have nothing to do with it and that said Court decreed, dated 20‑7‑1983 be also annulled. The respondents contested the said suit. The allegations that the shop had been sold to the appellant by respondent No. 1 was denied. Issues were framed. Evidence of the parties was recorded. Learned trial Court decreed the suit vide a judgment and decree, dated 18‑7‑1988. A first appeal filed by the respondents was, however, alleged by a learned Additional District Judge, Sargodha, who dismissed the suit of the appellant on 6‑12‑1988.

2. Learned counsel for the appellant contends that the evidence on record has been misread by the learned Additional District Judge. Further, complains that learned Additional. District Judge has proceeded on the premises that the original impugned sale‑deed had not been produced when learned trial Court had granted permission to the appellant to lead secondary evidence vide order, dated 5‑10‑1986. Learned counsel for the respondents on the other hand vehemently argues that the learned trial Court had proceeded to allow the appellant to lead secondary evidence in utter violation of law as also its interpretation by the Supreme Court of Pakistan. According to the learned counsel for the respondents this was a case of no evidence inasmuch as the primary evidence was with held without any lawful cause.

3. I have gone through the learned trial Court records, with the assistance of the learned counsel for the parties. For the order propose to pass to this case I shall refrain from discussing the merits of the two variant, judgments and of course evidence available on record.

4. The suit was filed on 20‑3‑1984. The entire suit is based on the allegations that the suit property was sold by respondent No. 1 to the appellant vide a registered sale‑deed, dated 1‑2‑1981. The plaint does not at all disclose as to whether or not the appellant was in possession of the original and if not in whose possession the sale‑deed is. Learned counsel for the respondents has drawn my attention to the list of documents required to be filed under Order 7, Rule 14, C.P.C. alongwith the plaint. This list is available at page 31 of the trial Court file and is blank. According to the list of reliance available at page 29 columns 1 and 2 are blank. However, in column 3, inter alia, "copy of registered deed, dated 12‑2‑1981" is mentioned. It has not been mentioned as to in whose possession the sale‑deed is. There is yet another list of documents available at page 35 that was filed on 8‑1‑1984, at serial No.5 is mentioned "copy of registered deed dated 1‑2 1981" at pages 55 to 58 is copy of certified copy of sale‑deed dated 1‑2‑1981 obtained on 21‑2‑1984. It was on 7‑2‑1987 that a copy of original sale‑deed was filed which is available at pages 111 to 113 of the trial Court record. The application for permission to lead secondary evidence was filed on 9‑9 1986. This application is available at page 561 of the trial Court file. It is stated in this application that the original sale‑deed was given to Patwari for the purposes of mutation in the year 1981. Then it was stated:

In reply dated 17‑9‑1986 the respondents protested that sale‑deed is result of fraud. The said reason even by the appellant was denied. The learned trial Court proceeded to allow the application vide order, dated 5‑10‑1986. It has been observed in the order that the "plaintiff has allegedly lost this document". With the said observation the application was allowed.

5. Article 75 of the Qanun‑e‑Shahadat Order, 1984, lays down in mandatory terms that a document must be proved by the primary evidence. Article 76 provides some exception to the said rule and as per clause (c) of the said Article secondary evidence may be given of the contents of a document when original has been lost. To my mind the learned trial Court has proceeded to allow the appellant to lead secondary evidence without there being any evidence on record to establish, what the learned lower Court has its described "alleged" lost of the original document. Learned counsel for the respondents relies on the case of Mst. Khurshid Begum and 6 others v. Chiragh Muhammad 1995 SCMR 1237. I find that the said judgment of the Supreme Court fully supports the contention of the learned counsel. The ratio of the said decision is that proof of lost of document is condition precedent to permission to lead secondary evidence. It was emphasised by the apex Court "if the loss is not proved secondary evidence would become valueless". I, therefore, find that the entire proceedings in this case stand vitiated because of the failure of the learned trial Court to act in accordance with provisions of the Statute as interpreted by the Supreme Court of Pakistan.

6. In the light of above discussion I have no option but to set aside the judgments and decrees of both the learned lower Courts as also the order, dated 5‑10‑1986 of the learned trial Court. The result would be that the suit filed by the appellant/plaintiff shall be deemed to be pending in the Court of Senior Civil Judge, Sargodha, where parties shall appear on 17‑5‑2001. Learned Senior Civil Judge shall proceed to take up the application for grant of permission to lead secondary evidence and to adjudicate the correctness or otherwise of the grounds raised therein in the light of such evidence as parties may produce and for the purposes reasonable opportunities shall be provided to both the parties. After‑having decided the said matter the learned Senior Civil Judge shall proceed to decide the suit itself in the light of said decision, in accordance with law and in the light of said observations, of the Supreme Court of Pakistan. This entire exercise shall be completed by the learned Senior Civil Judge before 31‑30‑2001. No order as to costs.

A copy of this order alongwith the record of the learned trial Court be immediately remitted to the learned Senior Civil Judge, Sargodha, for compliance.

Q.M.H./M.A.K./M‑537/L Case remanded.