-Statement of a witness recorded in another case is not perse admissible unless it is confronted to witness while he appears in subsequent proceedings before any Court--

 PLJ 2022 Lahore (Note) 55

Civil Procedure Code, 1908 (V of 1908)--

----O.XLI R. 27--Specific Relief Act, (I of 1877), S. 42--Application for producing of additional evidence during pendency of appeal--Dismissed--Statements of witnesses of respondents were never confronted by petitioner before trial Court--Neither any application was submitted before trial Court which was refused nor appellate Court considered it appropriate to bring on record said documents in order to reach a fair conclusion--Statement of a witness recorded in another case is not perse admissible unless it is confronted to witness while he appears in subsequent proceedings before any Court--Petitioner was required to furnish documents relied upon at time of filing suit but he did not do so for long period of time and then preferred application for production of additional evidence--The petitioners while doing so was required to give sufficient reasons for non-furnishing of documents within due course of time which he could not proffer during course of arguments--Mere desire of a party to do an act which was required to be done in a particular manner cannot be termed a good reason or cause--Application could not be acceded to--Civil revision dismissed.

                                                                             [Para 7] B, C, D & E

PLD 2013 SC 255 ref.

Civil Procedure Code, 1908 (V of 1908)--

----O.XLI, R. 27--Pre-requisite for producing of document--There is a pre-requisite that the document is produced before the trial Court and the trial Court refuses to admit it in the evidence or an application for production of additional evidence is made before the trial Court which is refused then an application under Order XLI Rule 27 CPC is proceedable before the appellate Court or otherwise if the appellate Court itself deems it necessary, he may order for production of additional evidence.                                    [Para 7] A

Ch. Zahid Imran, Advocate for Petitioners.

Mr. Jahanzaib Khan, Advocate for Respondents.

Date of hearing: 7.6.2018.

 PLJ 2022 Lahore (Note) 55
Present: Atir Mahmood, J.
NOOR AHMAD etc.--Petitioners
versus
MUHAMMAD ABDUL AZIZ, etc.--Respondents
C.R. No. 146 of 2016, heard on 7.6.2018.

Judgment

Brief facts of the case are that the petitioners filed a suit for declaration before learned Civil Judge Sargodha which was decreed on 08.01.2013. Feeling aggrieved, petitioners filed an appeal before learned Additional District Judge, Sargodha and during pendency of said appeal, the petitioners filed an application under Order XLI Rule 27 CPC, whereby, he sought permission to place on record the certified copies of statements of Abdul Hameed, Hakeem Jamil Hassan and Noor Ahmad made in application under Section 14/17 of Arbitration Act. This application was resisted by the Respondents No. 1(i) to l(ix) by filing written reply. Vide impugned order dated 13.10.2015, learned lower appellate dismissed the application in the following terms:

          “All the documents sought to be produced in additional evidence pertain to the judicial record of the year, 1984 and at the time of filing of original suit in the year 2006 till its decision in the year 2012, the same were very much in knowledge of the petitioners, appellants. The petitioner has simply pleaded in his application that those documents are very necessary for the effective decision of the case but did not aver that why did they remain mum for decades. It cannot be said that this judicial record was not in the knowledge of the petitioners nor the same has been agitated in this application. No sufficient and good cause has been shown by the petitioner for producing the additional evidence at this belated stage, so the petition stands dismissed.”

Hence this civil revision has been preferred.

2. The contention of learned counsel for the petitioners is that the documents to be produced in additional evidence were the statements of the witnesses in another case and were per se admissible and the Court should have taken judicial notice of the same. Lastly, prayed that this petition be allowed and the impugned order be set aside.

3. On the other hand, learned counsel for the respondents controverted the arguments of the petitioners and supported the impugned order and prayed for dismissal of the revision petition having no merit.

4. Arguments heard. Record perused.

5. Admittedly, the documents sought to be produced by the petitioners pertain to the year 1984, whereas, the suit was filed by the predecessor of the respondents in the year 2006. Written statement was filed by the petitioners in the year 2007. It is not the case of the petitioners that the said documents were not in the knowledge of the petitioners while filing the written statement. The petitioners during the proceedings before the learned trial Court neither confronted these statements to the witnesses of the Respondent nor any application was submitted before the learned trial Court for production of said documents as additional evidence.

6. The application was filed for the first time before the learned appellate Court in order to invoke the provision of Order XLI Rule 27, CPC. It would be advantageous to re-produce the Order XLI Rule 27 CPC as under:

“Production of additional evidence in Appellate Court.--(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if--

(a)      the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(b)      the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,

the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.

7. In view of above quoted provision, there is a pre-requisite that the document is produced before the trial Court and the trial Court refuses to admit it in the evidence or an application for production of additional evidence is made before the learned trial Court which is refused then an application under Order XLI Rule 27 CPC is proceedable before the learned appellate Court or otherwise if the appellate Court itself deems it necessary, he may order for production of additional evidence. In the present case neither any application was submitted before the learned trial Court which was refused nor appellate Court considered it appropriate to bring on record the said documents in order to reach a fair conclusion.

8. Even otherwise, statement of a witness recorded in another case is not perse admissible unless it is confronted to the witness while he appears in subsequent proceedings before any Court. The petitioners filed the appeal on 23.01.2013 against judgment and decree dated 08.01.2013 passed by trial Court but he did not file the said application for more than two years thereafter and then filed the application on 17.02.2015. In my considered view, this application was at very belated stage. The petitioner was required to furnish the documents relied upon at the time of filing of suit but he did not do so for long period of time and then preferred the application for production of additional evidence. The petitioners while doing so was required to give sufficient reasons for non-furnishing of the documents within due course of time which he could not proffer during the course of arguments. Even after careful scrutiny of the application, I could not find any plausible reason warranting to allow the application. Mere desire of a party to do an act which was required to be done in a particular manner cannot be termed a good reason or cause. In the circumstances, the application could not be acceded to. Reliance is placed on the ratio laid down in case titled “Muhammad Anwar and others v. Mst. Ilyas Begum and others” (PLD 2013 SC 255).

9. The order impugned is in accordance with law. Learned counsel for the petitioners has miserably failed to point out any illegality or irregularity in the impugned order. No interference is called for.

10. In view of the above, this civil revision lacks merit, hence dismissed.

(Y.A.)  Revision dismissed

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--S. 96, O.XXXVII--Suit for recovery was dismissed--Issuance of two promissory notes and two cheques--Dishonouring of cheques--

 PLJ 2022 Karachi (Note) 58

Civil Procedure Code, 1908 (V of 1908)--

----S. 96, O.XXXVII--Suit for recovery was dismissed--Issuance of two promissory notes and two cheques--Dishonouring of cheques--Unconditional undertaking--Challenge to--Trial Court erroneously and without any lawful justification held that promissory notes demonstrate that these were conditional--Another slipped-up and error manifesting from record that trial Court avowed that promissory notes were not attested by witnesses--Moreover dishonouring of cheques was also not taken into consideration but in a slipshod manner suit was dismissed at leave to defend stage--Impugned judgment was based on erroneous reasoning and incorrect exposition of law--Appeal allowed.   [Para 9 & 11] I & L

Words & Phrases--

----Issue--"Issue" means first delivery of a promissory note, bill of exchange or cheque complete in form to a person who takes it as a holder.                                                          [Para 7] A

Delivery--

----Delivery" means transfer of possession, actual or constructive, from one person to another.            [Para 7] B

Bearer--

----"Bearer" means a person who by negotiation comes into possession of a negotiable instrument, which is payable to bearer.                                                                             [Para 7] C

Banker--

----"Banker" means a person transacting business of accepting, for purpose of lending or investment, of deposits of money from public, repayable on demand or otherwise and withdrawable by cheque, draft, order or otherwise, and includes any Post Office Savings Bank.                                          [Para 7] D

Negotiable Instrument Act, 1881 (XXVI of 1881)--

----S. 4--Promissory note--A promissory note is an instrument in writing not being a bank-note or a currency note) containing an unconditional undertaking, signed by maker, to pay on 'demand or at a fixed or determinable future time a certain sum of money only to, or to order of, a certain person, or bearer of instrument.      

                                                                                             [Para 7] E

Word & Phrases--

----On demand--True import of words 'on demand' is that debt is due and payable immediately.          [Para 7] F

Difference between promissory note and bills of exchange--

----A promissory note generally involves two parties, i.e. a maker (debtor) and a payer (creditor)--On other hand, bills of exchange include a drawer, a drawee and a payee; b) As bills of exchange introduction above shows, a bill orders drawee to pay as per drawer's directions.                        [Para 8] G

Negotiable Instrument Act, 1881 (XXVI of 1881)--

----Cheque--A cheque is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand.

                                                                                             [Para 8] H

Qanun-e-Shahadat Order, 1984 (10 of 1984)--

----Art. 17(2)--Attestation of instruments--It is clearly provided in Sub-Article (2) that Unless otherwise provided in any law relating to enforcement of Hudood or any other special law, (a) in matters pertaining to financial or future obligations, if reduced to writing, instrument shall be attested by two men, or one man and two women.   [Para 10] J

Qanun-e-Shahadat Order, 1984 (10 of 1984)--

----Art. 17(2)(a)--Non-application of condition--Condition laid down in Sub-Article (2) by attestation of an instrument does not apply to promissory note which is basically provided under provisions of Negotiable Instruments Act as a fragment and segment of a special law.                          [Para 10] K

2014 SCMR 1562 ref.

Mr. Akhtar Hussain, Advocate for Appellant assisted by Mr. Younus Shaad, Advocate.

None present for Respondents.

Date of hearing: 19.4.2019.

 PLJ 2022 Karachi (Note) 58
Present: Muhammad Ali Mazhar and Agha Faisal, JJ.
MOHAMMAD MOAZAM KHAN--Appellant
versus
MOHAMMAD IQBAL & another--Respondents
F. A. No. 78 of 2017, decided on 22.5.2019.

Order

Muhammad Ali Mazhar, J.--This First Appeal under Section 96 of the Civil Procedure Code has been brought to challenge the impugned judgment dated 29.01.2013 and decree dated 06.02.2013 passed by the Vth  Additional District & Sessions Judge, Karachi-East in Suit No. 34/2011.

2. The short-lived facts of the case are that the appellant had filed a suit for recovery of Rs. 55,00,000/- under Order XXXVII CPC. The appellant alleged that the Respondent No. 1 was working as an agent of stock Brokerage. On account of friendly relations, the appellant paid him Rs. 55,00,000/-for purchase of shares but neither he purchased the shares nor returned the money back to the appellant. However on constant demand, the Respondent No. 1 (Defendant No. 1) issued two promissory notes in the sum of Rs. 43,00,000/-and Rs. 12,00,000/-. The copies of promissory notes and the receipts were also filed in the trial Court. In order to ensure the timely payment, the Respondent No. 1 had also issued five post-dated cheques amounting to Rs. 42,50,000/-and two post-dated cheques were issued from the account of his mother i.e. the Respondent No. 2. The details of cheques with amount are mentioned in seriatim. On presentation of the cheques, all cheques were dishonoured. The appellant time and again approached to the respondents but they failed to honour and fulfil their commitment and ultimately the appellant was left with no other option but to file the suit for recovery under Summary Chapter.

3. According to the impugned order, the leave to defend application was filed by the respondents in which they took the plea that the suit does not attract to the provisions of Order XXXVII CPC. They further denied that the appellant ever gave any such amount to them. They also denied the issuance of promissory notes and cheques against such consideration and wrapped up with the plea that the claim of plaintiff/appellant is false, fabricated and based on concocted story with a further request that the suit may be converted into ordinary suit for recovery rather than summary proceedings.

4. After hearing the arguments at leave to defend stage, the trial Court dismissed the suit, however, the appellant was permitted to file simple suit for recovery. The relevant portion of the order passed by the trial Court is reproduced as under:

"Heard and perused. Perusal of record shows that the suit of the plaintiff is based on the promissory note, perusal of promissory note shows that same is a conditional and the same is not attested by the witnesses. The receipt of payment has also not been attested by any witness. In the case in hand huge amount of Rs. 55,00,000/- has been paid by plaintiff to the Defendant No. 1, for purchase of shares and according to plaintiff, Defendant No. 1 neither purchased the shares not returned the amount to the plaintiff, he demanded for his money and in the first instance Defendant No. 1, issued 5 cheques and Defendant No. 2 issued two cheques in favour of the plaintiff on behalf of the Defendant No. 1, being the mother of the Defendant No. 1. The said cheques were encashed consequently same has been dishonoured. Finally the Defendant No. 1 had issued a promissory note in favour of plaintiff. In such type case the intention of parties is necessary circumstances for determining the question that whether under the circumstances document signed by the defendant is a bond or promissory note. The document which does not unconditional undertaking by the promisor to pay to promise by definite or determinate date would prima facie be a bond and not a pro-note. Here I have been guided from the case law reported in YLR 2000 2927 that:

          ".... Unattested promissory note, After enforcement of Qanun-e-Shahadat, 1984 all instruments pertaining to financial or future obligations are required to be attested by at least two ' witnesses. Where promissory note was not attested by the witness, suit brought on it was dismissed. Moreover, the receipt attached with pronote to be effective must have been attested by two witnesses and the said witnesses should have been produced to prove the same. Such omission on the part of the appellant was fatal in so far as proof pronote, the basis of suit, was concerned.

          In view of the above discussion, reached to the conclusion that the suit of plaintiff is not maintainable, hence the same is dismissed, with no order as to cost. However, the plaintiff is at liberty to file simple suit for recovery before the competent Court of law having jurisdiction."

5. The learned counsel for the appellant argued that the trial Court passed the impugned order without application of mind. It failed to consider that the promissory notes were termed with unconditional undertakings to pay the amount in future or on demand. All the essential ingredients of the promissory notes were fulfilled. The trial Court also failed to consider that in addition to the promissory notes the plaintiff/appellant also approached against the dishonouring of the cheques but the entire focus of the impugned judgment was on promissory notes while ignoring the factum of issuing cheques also by the same respondents.

6. On 22.09.2014, the learned Judge of this Court passed the order to effect the service through courier, pasting, publication in newspaper and on 29.10.2014 the same learned Judge held the service good. Despite service, nobody appeared for the respondents to defend this appeal and finally the matter was heard by us on 19.04.2019 in their absence.

7. Heard the arguments. The Negotiable Instruments Act is intended to lay down the whole law regarding cheques, bills of exchange and promissory notes. The negotiability can be attached to documents by mercantile usage. The Negotiable Instruments Act is a statute dealing with a particular form of contract and the law laid down for special cases must always overrule provisions of general character. According to interpretation clause of the Negotiable Instruments Act, "issue" means the first delivery of a promissory note, bill of exchange or cheque complete in form to a person who takes it as a holder; delivery" means transfer of possession, actual or constructive, from one person to another; "bearer" means a person who by negotiation comes into possession of a  negotiable instrument, which is payable to bearer; and "banker" means a person transacting the business of accepting, for the purpose of lending or investment, of deposits of money from the public, repayable on demand or otherwise and withdrawable by cheque, draft, order or otherwise, and includes any Post Office Savings Bank. According to Section 4 of the Negotiable Instruments Act, a promissory note is an instrument in writing (not being a bank-note or a currency note) containing an unconditional undertaking, signed by the maker, to pay on 'demand or at a fixed or determinable future time a certain sum of money only to, or to the order of, a certain person, or the bearer of the instrument. An instrument which fulfils all the conditions mentioned in Section 4 of the Negotiable Instruments Act would be termed as promissory note. To determine the nature of an instrument where there is a promise to pay, the best way is to see what is the intention of the parties and what is the instrument in the common acceptance of men of business or persons among whom it is commonly used. Ordinarily in order to amount to a promissory note, an instrument must simply contain a promise to pay and nothing else. The true import of the words 'on demand' is that the debt is due and payable immediately. The endorsement does not mean that it is not payable immediately or without any demand.'

8. A negotiable instrument is a document guaranteeing the payment of a specific amount of money, either on demand, or at a set time, with the payer usually named on the document. It can serve to convey value constituting at least part of the performance of a contract, albeit perhaps not obvious in contract formation, in terms inherent in and arising from the requisite offer and acceptance and conveyance of consideration. The instrument itself is understood as memorializing the right for, and power to demand, payment, and an obligation for payment evidenced by the instrument itself with possession as a holder in due course being the touchstone for the right to, and power to demand payment. A promissory note typically contains all the terms pertaining to the indebtedness, such as the principal amount, interest rate, maturity date, date and place of issuance, and issuer's signature. The difference between a promissory note and a bill of exchange is that the latter is transferable and can bind one party to pay a third party that was not involved in its creation. Bank notes are common forms of promissory notes. Bills of exchange, orders a debtor to pay a particular amount within a given period of time issued by the creditor. The promissory note is issued by the debtor and is a promise to pay a particular amount of money in a given period. A bill of exchange must clearly detail the amount of money, the date, and the parties involved (including the drawer and drawee). The following are some points of differences between promissory notes and bills of exchange, a) A promissory note generally involves two parties, i.e. a maker (debtor) and a payer (creditor). On the other hand, bills of exchange include a drawer, a drawee and a payee; b) As the bills of exchange introduction above shows, a bill orders the drawee to pay as per the drawer's directions. A promissory note, however, is not an order but a promise to pay; c) The liability of maker of a promissory note is absolute, while that of the drawer of a bill is conditional; d) Notes cannot be payable to their makers, while the drawer and the payee in bills can be the same person. So far as the niceties of the cheques are concerned, according to Section 6 of the Negotiable Instruments Act, a cheque is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand. A cheque is a peculiar sort of instrument in many ways resembling a bill of exchange, but entirely different. A cheque is not intended for circulation but it is given for immediate payment and not entitled to days of grace and thus it is strictly speaking an order upon a debtor by a creditor to pay to a third person the whole or part of a debt, yet, in the ordinary understanding of persons, it is not so considered. A cheque whether payable to bearer or to order is not rendered void by post-dating it and is admissible in evidence in an action brought after the date of the cheque by the holder although he took with knowledge of the post-dating.

9. We have minutely examined both the promissory notes and in our resolute view, all the prerequisites required to be followed and fulfilled at the time of issuing promissory notes were see through and persevere with. The trial Court erroneously and without any lawful justification held that the promissory notes demonstrate that these were conditional. Another slipped-up and error manifesting from the record that the trial Court avowed that the promissory notes were not attested by the witnesses. Moreover the dishonouring of cheques was also not taken into consideration but in a slipshod manner the suit was dismissed at leave to defend stage. If the trial Court was of the view that leave to defend application deciphered some triable issues then the trial Court could have granted leave to defend conditionally or unconditionally and after settlement of issues the suit could have been decided on merits rather than non-suiting the appellants on misconceived notion.

10. The trial Court relied on the judgment in the case of Muhammad Nawaz vs. Abdul Sattar reported in 2000 YLR 2927. The head note produced in the judgment is also not correctly reproduced. The judgment in the case of Muhammad Nawaz (supra) is not focused on the controversy raised in the case in hand and moreover, the judgment is not grounded on correct exposition of law. The promissory notes are not required to be attested by the witnesses. Under Article 17 of the Qanun-e-Shahadat Order, 1984, it is clearly provided in Sub-Article (2) that unless otherwise provided in any law relating to the enforcement of Hudood or any other special law, (a) in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly. The condition laid down in Sub-Article (2) by attestation of an instrument does not apply to the promissory note which is basically provided under the provisions of Negotiable Instruments Act as a fragment and segment of a special law. In the matching context, and milieu, the Hon’ble Supreme Court in the case of Sheikh Muhammad Shakeel vs. Sheikh Hafiz Muhammad Aslam reported in (2014 SCMR 1562) in paragraph 9 articulated as under:

"9. We have heard the learned Counsel for the parties and have perused the record. The appellant filed a suit in terms of Order XXXVII, Rule 2, C.P.C. on the basis of a Promissory Note executed by the respondent on 25-5-2001. The learned High Court has held that the Promissory Note was not attested in terms of Article 17(2)(a) of the Order, therefore, it was not a valid instrument. This finding of the learned High Court is contrary to the language of Section 4 of the Act, which defines a Negotiable Instrument. In terms of Section 4 of the Negotiable Instruments Act, a Promissory Note is required to contain the following ingredients:--

(i)       An unconditional undertaking to pay,

(ii)      the sum should be the sum of money and should be certain,

(iii)     the payment should be to or to the order of a person who is certain, or to the bearer, of the instrument,

(iv)     and the maker should sign it."

11. Since the impugned judgment was based on erroneous reasoning and incorrect exposition of law therefore we had set aside the impugned judgment and decree vide our short order dated 19.4.2019 and remanded the matter to the trial Court for deciding the suit on merits. Above are the reasons of our short order.

(Y.A.)  Appeal allowed

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عارضی حکم امتناعی ،، مدت ایک سال تک

 Interim injunction. Expiry.

PLD 2019 Lahore 295

O-XXXIX, R-2-B [as amended by the Lahore High Court]. Temporary injunction ceased to have effect upon expiration of the period of one year as envisaged by O-XXXIX, R-2-B, CPC In the present case, a period of more than one year had lapsed between the passing of the temporary injunction, in favour of plaintiffs by the Trial Court and the passing of the impugned decision by the appellate Court, whereby the temporary injunction was confirmed. As such, at the time of the decision by the appellate Court there was no temporary injunction in the field in favour of the plaintiffs. Nothing was available on the record to show that the defendants had moved application in termsof R-2-B of O-XXXIX, CPC for extension of the order of temporary injunction granted in their favour nor for that matter the order was extended nor was there any report to that effect before the High Court. Similarly there was nothing on the record to show that the said order was suspended by the appellate Court in the plaintiffs' appeal since by operation of law there was no temporary injunction in the field. Plaintiffs' appeal before the appellate Court in fact had become infructuous. Revision petition was dismissed being incompetent with the observation that defendants, if advised, may move an application under the provisions of R-2-B of O-XXXIX, CPC before the trial Court for extension and/or Re~issuance of a temporary injunction in their favour. Raja Talat Mahmood v. Ismat Ehtishamul Haq 1999-SCMR-2215; District Collector, Bannu and 4 others v. Muhammad Subhan and 3 others 2008-CLC-1568 and Xen PESCO (WAPDA) Mansehra through Chairman, PESCO and 4 others v. Gas Masters CNG Filling Station, Mansehra through Khalid Latif and others PLD 2005-Peshawar-132 ref.

{PLD 2019 Lahore 295}, Before Mamoon Rashid Sheikh, J, Muhammad Safdar etc. vs. Muhammad Naseer Haider etc.

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--Suit for declaration, permanent injunction and possession---Rival claimants to ownership of property--

 2022 S C M R 55
[Supreme Court of Pakistan]

(a) Specific Relief Act (I of 1877)---

----Ss. 9, 42 & 54---Suit for declaration, permanent injunction and possession---Rival claimants to ownership of property---Plaintiffs/ respondents claimed that suit property was owned by their grandfather, therefore they were entitled to their share in the same, whereas the defendants claimed that suit property was gifted to them by a tribe in respect of their religious service---Held, that it was always the prime responsibility of the plaintiff to discharge initial burden of proof with regard to his/her claim as per the plaint---Perusal of the record of present case revealed that the statement of the attorney for the plaintiffs and their witnesses did not confirm the contents of the plaint--- Plaintiffs were claiming to be the grandchildren of the purported owner of the property but undisputedly, the immediate legal heirs of their grandfather did not claim their right of inheritance in respect of suit property in their life time---No documentary or oral evidence had been produced to prove the ownership of the plaintiffs' grandfather with regard to the property in question---Alleged pedigree table produced and relied upon by the plaintiffs was not an evidence to establish right of ownership---To the contrary, the defendants claimed that the property in question had been gifted to them by the inhabitants of a tribe in lieu of religious services rendered by them---Such fact had been admitted by the witnesses of the plaintiffs and such contention was further supported from the statements of witnesses produced by the defendants---By comparing the statements of witnesses produced by the parties, the quality of the evidence produced by the defendants was much higher than the evidence of the plaintiffs---Under such circumstances, the defendants had been able to substantiate their stance which they had taken in their written statement---Appeal was allowed and suit filed by plaintiffs was dismissed.

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The question addressed in this case is regarding the undue adjournments for producing the evidence in the light of Order XVII Rule 3 of the Code of Civil Procedure, 1908.

 The question addressed in this case is regarding the undue adjournments for producing the evidence in the light of Order XVII Rule 3 of the Code of Civil Procedure, 1908.

Civil Revision-Civil Revision (against Decree)-Declaration
554-20
ATTA ELLAHI VS ALLAH BACHAYA ETC.
Mr. Justice Sultan Tanvir Ahmad
01-04-2022
2022 LHC 3672

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--Principle of lis pendes--Protection of right of plaintiff--Appellate Court while vacating stay order observed that “by virtue of principle of lis pendens as enumerated in Section 52 of Transfer of Property Act, 1882, right of plaintiffs is well protected” The principle of lis pendes is no ground to refuse temporary injunction.

 PLJ 2022 Quetta (Note) 60

Civil Procedure Code, 1908 (V of 1908)--

----O.XXXIX Rr. 1 & 2--Specific Relief Act, (I of 1877), Ss. 39, 42 & 54--Application for grant of temporary injunction was accepted--
Appeal--Allowed--Ingredients for temporary injunction--Object of Grant of interim injunction--No deprivation of respondents from property--Object of interim injunction--Third party interest--Direction to--Party to suit has to establish prima facie case, balance of convenience and irreparable loss for temporary injunction--The three ingredients must co-exist in favour of a party--Petitioners have not sought any relief which deprived the Respondent No. 1 from property, only prayed to maintain status quo in respect of suit properties till disposal of suit. It is well settled principle that the object of granting interim injunction is to ensure that the suit property would not be alienated in case of decree of the suit in favour of plaintiff; execution thereof does not become difficult--The order passed by Additional District Judge-VII, Quetta is set aside--The respondent is directed not to create third party interest in suit properties till disposal of main suit--Revision petition allowed.

                                                                                [Para 8 & 9] A & C

Transfer of Property Act, 1882 (IV of 1882)--

----S. 52--Principle of lis pendes--Protection of right of plaintiff--Appellate Court while vacating stay order observed that “by virtue of principle of lis pendens as enumerated in Section 52 of Transfer of Property Act, 1882, right of plaintiffs is well protected” The principle of lis pendes is no ground to refuse temporary injunction.

                                                                                             [Para 9] B

2005 CLC 925 ref.

M/s. Gul Hassan Tareen and Arif Bazai, Advocates for Petitioners.

Mr. Akram Shah, Advocate and Mr. Muhammad Ayub Tareen, Assistant Advocate General for Respondent No. 1.

Date of hearing: 6.7.2021.

 PLJ 2022 Quetta (Note) 60
Present: Abdul Hameed Baloch, J.
MUHAMMAD ASHRAF KASI and 3 others--Petitioners
versus
MUHAMMAD YAHYA KASI and others--Respondents
C.R. No. 430 of 2020, decided on 12.7.2021.

Judgment

The petitioners/plaintiffs assailed order dated 09th November, 2020 (impugned order) passed by Additional District Judge-VII, Quetta, (appellate Court) whereby interim order dated 14th September, 2020 passed by Senior Civil Judge-IV, Quetta was set aside and application under Order XXXIX, Rules 1 and 2, C.P.C. was dismissed.

2. Concise facts of the case are that the petitioners/plaintiffs filed a suit for declaration, partition, cancellation, permanent injunction and rendition of accounts against the respondents/ defendants in the Court of Senior Civil Judge-IV, Quetta (trial Court). Along with the suit an application under Order XXXIX, Rules 1 and 2, C.P.C. was also filed praying therein that Respondent/Defendant No. 1 be directed to maintain status quo position regarding title and possession of the suit properties existing exclusively in his name and in his possession.

3. The Respondent/Defendant No. 1 filed written statement and controverted the contention of the petitioners/plaintiffs by raising legal as well as factual grounds. He also filed rejoinder to the application under Order XXXIX, Rules 1 and 2, C.P.C. and prayed for dismissal of the application.

4. The Respondents/Defendants Nos. 3 and 4 also filed their written statement and admitted the contention of the petitioners/plaintiffs. The official respondents/defendants filed their separate written statement and rejoinder to the application under Order XXXIX, Rules 1 and 2, C.P.C.

5. Meanwhile the Respondent/Defendant No. 1 filed an application for transposition of Respondents/Defendants Nos. 2 to 4 as plaintiffs which was allowed by the trial Court vide order dated 1st November, 2019.

6. The trial Court heard arguments on application under Order XXXIX, Rules 1 and 2, C.P.C. and vide order dated 14th September, 2020 accepted the application. Being aggrieved the Respondent/ Defendant No. 1 filed appeal before appellate Court, who vide order dated 9th November, 2020 accepted the appeal and vacated the stay order, hence the petitioners/plaintiffs are before this Court.

7. Heard and perused the record with the assistance of learned counsel for the parties. It would not be irrelevant to reproduce Order XXXIX, Rule 1, C.P.C., which reads as under:

“ORDER XXXIX, RULE 1, C.P.C. Cases in which temporary injunction may be granted.--Where in any suit it is proved by affidavit or otherwise--

(a)      that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

(b)      that the defendant threatens, or intends, to remove or dispose of his property with a view to defraud his creditors.

          The Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the Court thinks fit, until the disposal of the suit or until further orders.”

8. As per above provision the party to the suit has to establish prima facie case, balance of convenience and irreparable loss for temporary injunction. The three ingredients must co-exist in favour of a party. Admittedly the petitioners have not sought any relief which deprived the Respondent/Defendant No. 1 from the property, only prayed to maintain status quo in respect of the suit properties till disposal of the suit. It is well settled principle that the object of granting interim injunction is to ensure that the suit property would not be alienated in case of decree of the suit in favour of plaintiff; execution thereof does not become difficult.

9. The appellate Court while vacating the stay order observed that “by virtue of principle of lis pendens as enumerated in Section 52 of Transfer of Property Act, 1882, the right of plaintiffs is well protected” The principle of lis pendes is no ground to refuse the temporary injunction. Reliance is placed on case Mst. Nazir Begum v. Muhammad Tahir 2005 CLC 925, wherein it was held:

“10. The applicability of the doctrine of lis pendens has been held by this Court as no ground for refusing to issue temporary injunction in case titled Sardar Wali Muhammad v. Sardar Muhammad Iqbal Khan Mokal and 7 others PLD 1975 Lah. 492 with the following main observation:

                   “I am of the view that the applicability of principle of lis pendens is no ground for refusing to issue a temporary injunction. In case where prima facie the property in suit is jointly owned by a party, the denial of the right of one party by the other may be a source of causing irreparable loss and injury. In the present case the suit has been filed for rendition of accounts against Sardar Wali Muhammad. If he alienates this property, the persons who will be in possession of the property by way of alienation will have to be impleaded as party to the case at least in order to compel them to make a restitution of whatever income and profits the plaintiff is deprived. In these circumstances, I am of the view that the temporary injunction was rightly issued and the balance of convenience was in favour of the issuance to temporary injunction inter alia on the ground that it would avoid multiplicity of suits or inclusion of stranger to the suit. The appeal of Sardar Wali Muhammad has no force and is liable to be dismissed.”

The question of grant of injunction on the ground that the purchaser was bound by the doctrine of lis pendens was also discussed in the case of Haji Gul Muhammad Haji Ismail and others v. Munawar Ali Khan and others 1987 MLD 2828 wherein it was held:

                   “The object of granting interim injunction is to maintain the status quo and not to disturb it. The Defendants 3 to 6, therefore, cannot be allowed to sell, alienate or deal in any manner whatsoever or develop or to construct a building or to change the entire situation to the disadvantage of the other party.”

In order to prohibit and avoid introduction of strangers the grant of injunction was upheld by this Court in the case of Fateh Muhammad v. Muaammad Hanif and another PLD 1990 Lah. 82 in the following terms:

                   “Though rule of lis pendens applied to the suit for specific performance and amply protected the plaintiff against apprehended pendente lite alienations, yet in order to prohibit and avoid introduction of strangers into the lis which is likely to enlarge the scope of dispute between the parties, injunction ought to issue to prohibit the defendants from transferring the land in suit.”

11. The criteria as mentioned hereinabove, in the cases cited (supra), there is no cavil with the proposition that despite applicability of the doctrine of lis pendens, the Court can pass temporary injunction to avoid multiplicity of the proceedings and to prohibit the introduction of strangers into lis to enlarge the scope of dispute between the parties, provided the petitioner succeeds in establishing his case on the parameters of prima facie case, balance of convenience and irreparable loss and injury, in its favour.

Keeping in view of above circumstances the revision petition is accepted. The order dated 9th November, 2020 passed by Additional District Judge-VII, Quetta is set aside. The respondent/Defendant
No. 1 is directed not to create third party interest in the suit properties till disposal of the main suit. No orders as to costs.

(Y.A.)  Petition dismissed

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-Proceedings against appellant were initiated on basis of video viral on ARY, which were not conducted in consonance with law--

 PLJ 2022 Tr.C. (Note) 62

Civil Servants (Efficiency & Discipline) Rules, 1973--

----R. 4(1)(b)(iv)--Service Tribunals Act, (LXX of 1973), S. 4--Appellant was serving in Pakistan Railways--Booking of parcel--No authority to checking of parcel--Registration of FIR--Acquittal from charge--Issuance of charge sheet--Allegations of misconduct and breach of trust--Inquiry report--Dismissal from service--Dismissal of appeal--Honourable acquittal--Proceedings were initiated on basis of video--Non-recording of evidence regarding bribery or corruption--In case of honourable acquittal by a Court of Law, it would be wrong to draw up a departmental proceedings on same set of facts--It is well established by now that normally where accused is acquitted honourably and completely exonerated of charge, it would not be expedient to continue a departmental proceedings on very same charges--Proceedings against appellant were initiated on basis of video viral on ARY, which were not conducted in consonance with law--It is also admitted fact that no evidence whatsoever was recorded except looking ARY prepared video aired on 03.12.2014 and conclusion made by inquiry officer was based on surmises and conjectures--Inquiry officer and appellate authority failed to consider that there is no evidence of bribery or corruption--No evidence was recorded which held appellant responsible for said allegations--There was no loss to Railway and inquiry was not conducted in accordance with Rules, envisaged in Government Servants (Efficiency & Discipline) Rules, 1973, the impugned orders under circumstances are harsh and not warranted by law are hereby set aside--Appeal was allowed.       

                                                           [Para 8, 11 & 12] A, B, C, D & E

PLD 2019 SC 675 ref.

Mr. Babar Rajpar, Advocate for Appellant.

Ch. Jaffer Hussain, Advocate for Respondents.

Date of hearing: 30.7.2020.

 PLJ 2022 Tr.C. (Note) 62
[Federal Service Tribunal, Islamabad]
Present: Qazi Khalid Ali, Chairman and Rizwan Ali Dodani, Member
KHADAM HUSSAIN--Appellant
versus
GENERAL MANAGER, PAKISTAN RAILWAYS, HEADQUARTER OFFICE, LAHORE and 5 others--Respondents
Appeal No. 10(K)CS of 2020, decided on 30.7.2020.

Judgment

Qazi Khalid Ali, Chairman.--Khadim Hussain son of Jumma Khan resident of Karachi has filed this appeal under Section 4 of the Service Tribunals Act, 1973 (Act LXX of 1973) against the impugned order dated 31.01.2015 whereby the Divisional Commercial Officer has awarded major penalty of “Dismissal from Service” under Rule 4(1)(b)(iv) of Civil Servants Efficiency & Discipline) Rules, 1973. He filed departmental representation on 23.02.2015 but the same had not been responded.

2. The brief facts necessary for the adjudicating of this appeal are that the appellant joined Pakistan Railways on 25.01.1987 as Junior Commercial Assistant Parcel (SCAP) in BS-7 with unblemished record of service. He was responsible for accepting items for transportation, as per rule of the department and he had been acting strictly in accordance with law. That, on 23.11.2014 at 11.00 hours, one Syed Waseem Qaiser approached him in the office for booking of parcel of household items. Appellant checked the CNIC and got filled the requisite Form, from the said client and after completion of all the codal formalities booked the consignment, weighing 20 KG, while charging Rs. 220/- against bill No. 784171/2 CPHHE. There is no Scanner or X-Ray Machine available at the Karachi Cantt Station. The booking staff had also no authority to check the contents of the parcel and thus appellant was not knowing what was inside the parcel and believed Syed Waseem Qaiser that it contained household items. The parcel was handed over to the delivery staff then it was made over to the Guard of the Train who also did not make any complaint. It is further averred that there was no mechanism to check the wrong declaration of any Shipper. The consignment was received in Lahore Parcel Office and remained there for more than 4 days. The management of ARY Channel plotted and fabricated a story outside the Railway Station boundary, the parcel was opened and banned items were shown as received. That the Respondent No. 1, afterwards held a press conference and brushed aside the allegations of ARY Channel and condemn the said act by them. The report of the Channel was bogus and was termed as act of black-mailing, but subsequently the FIR No. 194/2014 dated 03.12.2014 under Section-13/20/65 of A.O., 9-A CNSA, 3/4 PEHO, 109 PPC in P.S. Railway Police was registered. The appellant faced the trial and acquitted by the trial Court vide judgment dated 29.04.2019. The department issued charge sheet for misconduct and breach of trust and a fact finding inquiry was ordered. The report was prepared on 14.01.2015, holding the appellant guilty for taking illegal and banned item in passenger train and recommended action against him, charge sheet was issued, containing the allegations. The appellant submitted the reply, but ultimately, he was dismissed from the service on 31.01.2015. His departmental representation dated 02.03.2015 also met the same fact. No regular inquiry was conducted. The department defended action of the appellant in the press conference but later in altogether different instance, dismissed the appellant from service. That the fake video was also prepared to show the voice of the appellant which was tempered one. The appellant alleged his innocence and prayed for his reinstatement.

3. The respondents resisted the appeal and filed the written objections, inter-alia, contending that the respondents have been proceeded exparte vide order dated 22.06.2015 because of their failure to file their written objections. The Respondents No. 4, 5 & 6 were deleted from the list of the respondents.

4. In the first round of litigation, the appeal was dismissed by this Tribunal on 02.03.2017 and order of this Tribunal dated 28.03.2017 in R.P. No. 34/2017 in appeal No. 1268(R)/CS/2015 dated 02.03.2017, in appeal No. 1268(R)/CS/2015 through Civil Appeal Nos. 1919 & 1920 of 2019 out of Civil Petition Nos. 1522 & 1523 of 2017 before Hon’ble Supreme Court of Pakistan which have been accepted vide order dated 20.09.2019. The operative part is reproduced hereunder for the sake of convenience:

“3. Consequently, by consent the impugned judgments of the Federal Service Tribunal dated 28.03.2017 and 02.03.2017, are set aside and the matter is remanded to it for deciding it afresh after taking new evidence in the matter, if necessary. The petitions are converted into appeal and are allowed in the above terms. All the CMA s are disposed of”.

5. Mr. Badar Ahmed Rajpar, learned counsel for the appellant contended that the appellant was a Booking Clerk. He received consignment from a private person under his signatures. He had no authority to open the parcel and check its contents. He fell prey to conspiracy. No regular inquiry was conducted as required under the Government Servants (Efficiency & Discipline) Rules, 1973 and Railway Servants (E&D) Rules, 1975. The record was not provided to the appellant and no prosecution witness were examined either. Even the complainant had not appeared before the inquiry officer and thus on the basis of erroneous assumptions, the appellant was awarded major penalty of dismissal from service. He further contended that now as a further development of the case, the appellant has now been acquitted  in FIR No. 197 of 2014 P.S. Railway Police, Lahore by the learned 1st Class District Court, Lahore, on 29.04.2019. Likewise, the appellant was also acquitted by learned Special Court (Central-II) Lahore vide order dated 31.07.2019 has also pleased to acquit the appellant under Section 249-A Cr.P.C. in FIR No. 197/2014. He produced the certified 31.07.2019. Same were taken on record and copies whereof have been supplied to learned advocate for respondents.

6. Conversely, Ch. Jaffer Hussain, learned advocate for the respondents stated that the appellant was responsible for booking of arms and ammunition deliberately and intentionally. He had been afforded the opportunity of personal hearing and was confronted with the evidence against him. Although, appellant have been acquitted in both criminal case but the departmental proceedings and criminal proceedings are in different jurisdiction therefore the acquittal in criminal case does not affect the departmental proceedings under Efficiency & Discipline Rules. The appeal is liable to be dismissed. In support of his contentions, he relied on Coaching Tariff of Pakistan Railways, Pakistan Railways Commercial Manual, 1988, Judgments of this Tribunal dated 11.11.2016 09.11.2018 in Appeals No. 200(R)CS/2015 and 150(K)CS/2016.

7. We have heard the rival arguments of learned counsel for the parties and minutely perused the record as well as case law on the subject.

8. The question of initiating departmental action after an acquittal by a Court of Law on the same facts of the case is not quite free from difficulty. In case of acquittal with benefit of reasonable doubt, it may quite permissible to initiate departmental proceedings even on the same set of facts, for is still a point to be decided by the employer as to whether a person should be or should not be allowed to continue in service. But in case of honourable acquittal by a Court of Law, it would be wrong to draw up a departmental proceedings on the same set of facts. It is well established by now that normally where the accused is acquitted honourably and completely exonerated of the charge, it would not be expedient to continue a departmental proceedings on the very same charges or ground or evidence.

9. We have been also able to lay our hands on the judgment of Honourable Supreme Court of Pakistan titled as Senior Superintendent of Police, Government of Sindh, Hyderabad and others vs. Iqbal Ahmed and another (2004 PLC (CS) 115), wherein Honourable Supreme Court observed as under:

“6. The higher police authorities did not give weight to the acquittal order of the respondents passed by a Court of competent jurisdiction inasmuch as there was no other charge or show-cause notice against the respondents. Keeping in view the circumstances, the Tribunal had considered the case in its proper perspective. The impugned judgment is well-reasoned and in accordance with the principles laid down by this Court”.

After acquittal from Court of law, nothing remain against the appellant.

10. In addition to the above, it is also of paramount importance that the imposition of major penalty without conducting a regular inquiry has been prohibited by the Hon’ble Supreme Court of Pakistan through the following judgments:-

“1.      2004 SCMR 316 (Pakistan International Airlines Corporation through Managing Director, PIAC, Head Office, Karachi Airport, Karachi vs. Ms. Shaista Naheed);

2.       2004 PLC (CS)524 (Abdul Rehman Zulfiqar vs. Secretary Education Government of the Punjab, Schools Education Department, Civil Secretariat, Lahore & 3 others);

3.       2002 SCMR 57 (Rashid Mehmood vs. Additional Inspector-General of Police and 2 others);

4.       2000 SCMR 1868 (Superintendent of Police Headquarter, Rawalpindi and others vs. Ijaz Haider);

5.       1393 SCMR 603 (Alamgir vs. Divisional Forest Officer, Multan and others)”

11. On perusal of the record minutely, we have observed that the proceedings against the appellant were initiated on the basis of video viral on ARY, which were not conducted in consonance with law. We have also been able to lay our hands at judgment of Hon’ble Supreme Court of Pakistan titled as Ishtiaq Ahmed Mirza and 2 others vs. Federation of Pakistan and others (PLD 2019 Supreme Court 675), which has outlined following parameters which are required to be followed while using the audio/video as admissible evidence. For the sake of convenience, para-11 of the report at pages 697 and 698 are reproduced as under:

“11. The precedent cases mentioned above show that in the matter of proving an audio tape or video before a Court of law the following requirements are insisted upon:

*                  No audio tape or video can be relied upon by a Court until the same is proved to be genuine and not tampered or doctored.

*                  A forensic report prepared by an analyst of the Punjab Forensic Science Agency in respect of an audio tape or video is per se admissible in evidence in view of the provisions of Section 9(3) of the Punjab Forensic Science Agency Act, 2007.

*                  Under Article 164 of the Qanun-e-Shahadat Order 1984, it lies in the discretion of a Court to allow any evidence becoming available through an audio tape or video to be produced.

*                  Even where a Court allows an audio tape or video to be produced in evidence such audio tape or video has to be proved in accordance with the law of evidence.

*                  Accuracy of the recording must be proved and satisfactory evidence, direct or circumstantial, has to be produced so as to rule out any possibility of tampering with the record.

*                  An audio tape or video sought to be produced in evidence must be the actual record of the conversation as and when it was made or of the event as and when it took place.

*                  The person recording the conversation or event has to be produced.

*                  The person recording the conversation or event must produce the audio tape or video himself.

*                  The audio tape or video must be played in the Court.

*                  An audio tape or video produced before a Court as evidence ought to be clearly audible or viewable.

*                  The person recording the conversation or event must identify the voice of the person speaking or the person seen or the voice or person seen may be identified by any other person who recognizes such voice or person.

*                  Any other person present at the time of making of the conversation or taking place of the event may also testify in support of the conversation heard in the audio tape or the event shown in the video.

*                  The voices recorded or the persons shown must be properly identified.

*                  The evidence sought to be produced through an audio tape or video has to be relevant to the controversy and otherwise admissible.

*                  Safe custody of the audio tape or video after its preparation till production before the Court must be proved.

*                  The transcript of the audio tape or video must have been prepared under independent supervision and control.

*                  The person recording an audio tape or video may be a person whose part of routine duties is recording of an audio tape or video and he should not be a person who has recorded the audio tape or video for the purpose of laying a trap to procure evidence.

*                  The source of an audio tape or video becoming available has to be disclosed.

*                  The date of acquiring the audio tape or video by the person producing it before the Court ought to be disclosed by such person.

*                  An audio tape or video produced at a late stage of a judicial proceeding may be looked at with suspicion.

*                  A formal application has to be filed before the Court by the person desiring an audio tape or video to be brought on the record of the case as evidence”.

12. We have also very carefully examined the inquiry report and also watched the ARY video clip in presence of the learned counsel for the parties and the appellant. On our confrontation, the appellant stated that it is a tempered and concocted report. It is admitted fact that charge sheet was issued to the appellant on 16.12.2014. The appellant had submitted the reply of charge sheet and denied the allegations. It is also admitted fact that no evidence whatsoever was recorded except looking the ARY prepared video aired on 03.12.2014 and the conclusion made by inquiry officer was based on surmises and conjectures whereas the appellant in his reply had stated that the  inquiry conducted by worthy Dy. DS/Ops at DY CCM/M, Lahore and proved that Syed Waseem Qaiser approached appellant while he was performing his duty as outward parcel and offered him for booking of banned item was not correct. He offered me to book two cartons household effect (HHE) duly properly packed. He filled up Risk Note Form ‘A’ endorsed his address, Mobile No. 0345-2981166 and also provided the photocopy of CNIC No. 42501-6836137-5 and also endorsed the name of receiver at Lahore Mr.Asif thereafter weight 20 KG, he issued the PW bill No. 784171 dated 26.11.2014 on usual charges of Rs. 210/-. So he had not violated Railway Rules and not allowed any one to transport illegal banned and dangerous items by defence of appellant, then the appellant’s version cannot be denied right away. The inquiry officer and appellate authority failed to consider that there is no evidence of bribery or corruption. The inquiry officer never recorded the statement of Syed Waseem Qaiser, Mr. Asif neither Railway Staff and ARY TV and relying on ARY TV Programme, without viewing the same in the light of the above statement of the appellant. No evidence was recorded which held appellant responsible for the said allegations. There was no loss to the Railway and the inquiry was not conducted in accordance with the Rules, envisaged in the Government Servants (Efficiency & Discipline) Rules, 1973, therefore, .the impugned orders under the circumstances are harsh and not warranted by law are hereby set aside.

13. The upshot of the above discussion, the appeal is accepted and the appellant is ordered to be reinstated in service from the date of dismissal. No order as to costs.

14. Parties be informed accordingly.

(Y.A.)  Appeal accepted

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