KHURSHID ALI And 6 Other vs SHAH NAZAR

1. MUHAMMAD AFZAL ZULLAH, C.J.---This appeal through leave of the Court is directed against dismissal by the High Court, of the appellants'

2. Civil Revision, which had arisen out of a land dispute case. The respondent/plaintiff had sued for' declaration and permanent injunction, seeking title to the suit property. The appellants/defendants side had relied upon documentary evidence to show that the suit land was transferred to the appellants side by' the respondent side for consideration, and thus, in fact, it was a claim of purchase of the property, though in the facts and circumstances of the case, it could also be termed as relinquishment and/or re-sale on the part of the respondents/plaintiffs side. Amongst others, one of the documents relied upon was an `Iqrarnama' registered at No.105 on 1-8-1964. It could be linked with and treated as consequence of two other documents of July, 1964. The copies or the original of the three documents were exhibited as D.W.1/2, D.W.1%3 and D.W.1/4. The combined reading thereof did prima facie establish the pica of the appellants but as observed by the High Court their revision could not be allowed because the original register wherein Exh.D.W.I/4 was recorded/registered was not produced.

3. Leave to appeal was granted to examine: "whether the Courts have omitted from considering some of the material documents/evidence (pages 58 and 59 of the Paper Book). Besides, the Courts treated it to be a case of relinquishment when in fact it was a case of resale for some consideration. The orders of Collector/Assistant Collector corroborate it:'

4. Learned counsel for the appellants has relied upon the same material, as is noted in the leave grant order. He has also referred to the related facts and circumstances. He referred to the testimony of Muhammad Arif Khan (page 43 of the Paper Book). It is stated therein that the `Iqrarnama' recorded at No.105 on 1-8-1964 was produced in the Court in original, and thereafter its photo copy Exh.D.W.l/4 was retained as an evidence. It was also mentioned as `Bainama'. On this premises the learned counsel argued that the High Court fell in error by assuming that the original had not been produced in the Court.

5. In so far as the argument of the learned counsel goes, it does support the appellants' case that the original of Exh.D.W.1/4 was produced in the Court and was returned after comparing the same with the copy Exh.D.W.l/4. But the fact remains that the respondent/plaintiff side, as admitted by the learned counsel, had challenged the authenticity of even the- original of Exh.D:W.l/4, which was in possession of the appellants side. It was in the context that this need has arisen for the summoning and production of the original register, which would have settled this controversy one way or the other in a satisfactory manner. It is in this context that the High Court made the following observations:- "An application had been filed by the defendants for requisitioning the original Register in question but that too was not pressed vide order sheet dated 2-5-1987 for reason best known to them. In the circumstances there being no convincing and reliable evidence in support of the plea of the defendants/petitioners that the plaintiff/respondent had relinquished his right in the suit property in favour of the defendants/petitioners, the learned lower two forums had no other option but to rely on "

6. The next question arises as to whether after summoning the correct material and having made a proper application to the trial Court, needful had not been done by the appellants/defendants side in so far as the production of material evidence is concerned. In fairness the defendants had done enough. Nothing more was required for the production of the needed evidence. It was not necessary for the appellants. After making the application, also to press it, so as to compel the trial Court to summon the relevant material. It was also the duty of the Court to decide the application as and when it was made. If that duty had been performed, the controversy might have had ended at the initial stage and without any further complication.

7. It is incorrect to think now under an Islamic dispensation that the Courts arc only to sit and watch as to who commits a mistake and who does not commit a mistake, from amongst the contesting litigants, and one who commits a mistake in procedural matters should be deprived of the right claimed; even if he is entitled to it. This Court has not approved of such like practice. (See Muhammad Azam v. Muhammad lqbal PLD 1984 SC 95). In this case even if the application had not been pressed "so called"; if it was necessary for just decision of the case, as held by the High Court (to summon the material relied upon by the appellants side), it should have been summoned and treated as evidence in the matter without any formalities. And mere failure to exhibit a document formally would not make any difference.

8. In the light of what has been stated above, the error having been . Committed by the trial Court in this case in not summoning the original register and other material evidence for just decision of the case, there is no alternative p but to allow this appeal and remand the case to the trial Court for fresh decision. The application. Made by the appellants for summoning the record including the register is allowed. The said material shall be requisitioned and produced in the Court as soon as possible. The parties shall be afforded a further opportunity to adduce additional evidence, if necessary. There shall be no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.