PLJ 2010 SC 1010
[Appellate Jurisdiction]
Present: Nasir-ul-Mulk & Khilji Arif Hussain,
JJ.
FEDERATION OF
versus
JAFFAR KHAN and others--Respondents
Civil Petition No. 1563 of 2009, decided on 17.2.2010.
(On appeal from the judgment dated 27.5.2009 of the Lahore
High Court, Rawalpindi Bench,
Civil Procedure Code, 1908 (V of 1908)--
----O.
XVII, R. 3--Right of evidence was closed--Sufficient opportunities were
provided to produce the evidence in support of their claim but failed to
produce--Written statement cannot be exhibited in the case without the
person--Validity--Document which had not been brought on record through witnesses
and had not duly exhibited, cannot be taken into consideration by the Court--A
party having produced no evidence on its own would have to abide by it and be
bound by such evidence as had come on record--Written statement cannot be
exhibited in the case without the person who filed the same being examined in
the Court and cannot be treated as substantive evidence except where such
statement amounts to admission of plaintiff's plea--Court has to take into
consideration the document on which the petitioners relied upon, has no force
as neither the copy of such document was brought on record nor during their
cross-examination the witnesses of the respondents were confronted with the
document--Concurrent findings of facts recorded by Courts below do not call for
any interference by Supreme Court--Leave was refused. [P. 1013] A, B & C
Agha Tariq Mehmood, DAG for Petitioners.
Sardar M. Aslam,
ASC for Respondents.
Date
of hearing: 17.2.2010.
Judgment
Khilji Arif Hussain, J.--Feeling aggrieved by the dismissal of their
Civil Revision No. 314 of 2006 by judgment dated 27.5.2009 passed by learned
Single Judge in Chamber of the Lahore, High Court, Rawalpindi
Bench, the Federation of Pakistan through Secretary, Ministry of Defence and another, the petitioners, seek leave to appeal
by filing instant petition.
2. Precisely stated the facts of the matter to
decide the petition are that the respondents/plaintiffs on 12-5-1993, filed a
suit in the Court of Senior Civil Judge, Rawalpindi,
against the petitioners, averring that they are the owners-in-possession of
land measuring 75-Kanals, 1-Marla comprising Khasra
Nos.1299 (5-Kanals, 17 Marlas), 1304 (3 Kanals, 1 Marla), 1308 (3-Kanals, 5 Marlas),
1309 (3 Kanals, 4 Marlas),
1314 (5 Kanals, 13 Marlas),
1294 (12 Marlas), 1303 (10 Kanals,
10 Marlas), 1311 (5 Kanals,
13 Marlas), 1312 (4 Kanals,
15 Marlas), 1315 (6-Kanals, 3 Marlas),
1317 (16 Marlas), 1306 (17 Kanals,
5 Marlas) and 1310 (8 Kanals,
7 Marlas) situated in village Jarahi
near Dhamial Camp, Tehsil
and District Rawalpindi, (hereinafter referred to as
"the suit land") and the petitioners/defendants be restrained from
interfering with their possession.
3. The petitioners/defendants contested the suit
on the ground that the suit land was purchased vide registered sale-deed dated
13.2.1956 and acquired the same through an Award of the Collector dated
16.10.1967 and since then the petitioners/defendants are owners-in-possession
of the suit land.
4. On the basis of the pleadings of the parties,
learned trial Court framed five issues, including the issues "whether the
suit land was obtained by Petitioner/Defendant No. 1 through registered
sale-deed dated 13.2.1956 and Award of Collector dated 16.10.1967" and
"whether plaintiffs are owners-in-possession of the suit land and entitled
to the relief as prayed for?"
5. Learned Civil Judge,
6. The petitioners aggrieved by the said
judgment and decree filed appeal before the District Judge, Rawalpindi,
who after hearing the parties dismissed the same vide his judgment dated
12.09.2005. There-against petitioners preferred Civil Revision No. 314 of 2006
before the Lahore High Court, Rawalpindi Bench, which
too was dismissed by the impugned judgment dated
20.5.2009.
7. Heard Agha Tariq Mehmood, D.A.G. for the
petitioners and Sardar Muhammad Aslam,
ASC for the respondents.
8. The learned counsel for the petitioners vehemently
argued that in the written statement, filed by the petitioners before the trial
Court, they have specifically alleged that they owned the suit land on the
basis of registered sale-deed dated 13.2.1956 and the Award of the Collector
dated 16.10.1967. In support of his contention learned counsel placed reliance
on the list of documents filed under Order VII, Rule
9. We have taken into consideration the
arguments of learned counsel for the petitioners and carefully perused the
record.
10. From perusal of the record it reveals that,
after filing the written statement, evidence of the respondents/plaintiffs was
concluded on 31.7.1995 and petitioners/defendants were directed to produce
their evidence on 17.9.1995, but on the said date petitioners have failed to
produce the evidence and on their request matter was adjourned to 15.10.1995.
On 15.10.1995, again petitioners have failed to produce the evidence and as a
last opportunity to produce the evidence, matter was adjourned to 05.11.1995.
Again on 05.11.1995, the petitioners failed to produce the evidence and in the
interest of justice, the matter was adjourned for recording the evidence of the
petitioners for 27.11.1995. On 27.11.1995, at the request of the petitioners,
the matter was adjourned to 16.12.1995, as petitioners' witnesses were not
present. On 16.12.1995, again at the request of the petitioners as their
witnesses were not present, matter was adjourned to 12.12.1995. On 12.12.1995,
application for adjournment was filed by the learned counsel for the
petitioners on the ground that he is busy before the High Court and a last
opportunity to produce the evidence was given to the petitioner and the matter
was adjourned to 07.1.1996. On 07.1.1996 matter was adjourned to 18.1.1996 as a
last opportunity. Again on 18.1.1996, petitioners failed to produce the
evidence and the matter was adjourned to 23.1.1996 with a warning that no
further opportunity will be given. On 23.1.1996, the petitioners failed to
produce the evidence and the side of the petitioners was closed. No application
was filed by the petitioners for recalling the order passed in exercise of
power under Order XVII, Rule 3, CPC, nor the order was challenged by way of
filing appeal and ultimately, on the basis of the material available on record,
learned trial Court decreed the suit.
11. Having considered the matter from all angles
in the light of material available on record, it appears that the learned trial
Court granted more than sufficient opportunities to the
petitioners to produce the evidence in support of their claim but they, for the
reasons best known to them, failed to produce the same and, as such, learned
trial Court rightly decreed the suit on the basis of material available before
it.
12. The document which has not been brought on
record through witnesses and has not duly exhibited,
cannot be taken into consideration by the Court. A party having produced no
evidence on its own would have to abide by it, and be bound by such evidence as
had come on record. Written statement cannot be exhibited in the case without
the person who filed the same being examined in the Court and cannot be treated
as substantive evidence except where such statement amounts to admission of
plaintiff's plea. The contention of the learned counsel for the petitioners
that the Court has to take into consideration the document on which the
petitioners relied upon, has no force as neither the copy of such document was
brought on record nor during their cross-examination the witnesses of the
respondents were confronted with the said document.
13. The concurrent findings of facts recorded by
the three Courts below do not call for any interference by this Court. The
petition is accordingly dismissed and leave refused.
(R.A.) Leave refused.