-Suit for recovery--Dismissed--Agreement to sell--Issuance of cheques for sale consideration--Dishonouring of cheques--Appellant was not owner of property--Suit property was not transferred in favour of respondent--

 PLJ 2023 Peshawar 55
[D.I. Khan Bench]
Present: Muhammad Faheem Wali, J.
SHAMSHAD ALAM--Appellant
versus
GHAZANFARULLAH KHAN--Respondent
R.F.A. No. 24-D of 2017, decided on 8.9.2022.

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

----O.XXXVII--Negotiable Instruments Act, (XXVI of 1881), S. 118--Suit for recovery--Dismissed--Agreement to sell--Issuance of cheques for sale consideration--Dishonouring of cheques--Appellant was not owner of property--Suit property was not transferred in favour of respondent--Cheques were accepted as advance--Burden to prove--Status of negotiable instruments--Challenge to--Neither appellant was owner of said landed property nor has he transferred same in favour of respondent--Property which was in-fact consideration of cheques in question, has not been delivered to defendant; therefore, same does not confer right upon plaintiff to seek recovery from defendant through summary suit--If agreement to sell in this case between parties has not yet been accomplished, cheques which were accepted by plaintiff in advance for payment of property would become instruments without consideration--Both cheques in question do not qualify status of negotiable instruments and therefore, there is no misreading, non-reading of evidence & record, or jurisdictional defect in impugned Judgment of Court below--Appeal dismissed.        [Pp. 57 & 58] A, B, D & F

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

----S. 118--Negotiable instrument--Obligation of payment--If a negotiable instrument is made or drawn without consideration, it creates no obligation of payment between parties to transaction--Issuance of a cheque is not a conclusive presumption of drawing consideration of negotiable instrument, rather it can be rebutted and initial burden of proving case i.e. Negotiable Instrument/ cheque has been executed against consideration, lies on plaintiff.                                                                                                      

                                                                              [Pp. 57 & 58] C & E

1973 SCMR 332.

Mr. Zain-ul-Abideen Afridi Advocate for Appellant.

M/s. Rizwanullah Arain and Inamullah Kundi Advocate for Respondent.

Date of hearing: 8.9.2022.

Judgment

Appellant through this Regular First Appeal, filed under Section 96 of the Code of Civil Procedure (Act-V) 1908, has called in question the vires of Judgment & Decree dated 18.05.2017 passed by the learned Additional District Judge-II, D.I.Khan, whereby the learned trial Court, dismissed his suit for recovery of Rs.42,00,000/- filed under Order XXXVII CPC.

2. Facts forming factual canvas of this appeal are that the appellant/plaintiff instituted a summary suit under Order XXXVII CPC against defendant for recovery of Rs.42,00,000/- on the basis of cheques bearing No. 7096805 dated 15.10.2014 and No. 1811923 dated 10.09.2014 alleging that he had struck a bargain of his landed property with the defendant through an agreement dated 17.06.2014, and for consideration thereof, defendant handed over him aforesaid cheques which on presentation before concerned bank on the relevant date were dishonoured. Respondent with the leave of the Court to defend the suit, filed his written statement, and thereafter, the learned trial Court framed issues and recorded evidence of parties. Finally, learned trial Court vide Judgment & Decree dated 18.05.2017 dismissed the suit, hence, the appellant preferred the instant appeal.

3. Arguments of the learned counsel for parties heard and record gone through with their valuable assistance but for the sake of brevity, without reproducing the arguments of the counsels, same will be adequately dealt with at appropriate stages in this judgment.

4. A meticulous sifting of the record transpires that both the cheques in question were handed over to appellant by the defendant in lieu of consideration of landed property, vide agreement to sell dated 17.06.2014. However, it is an admitted fact on the face of record that neither the appellant/plaintiff was owner of the said landed property nor has he transferred the same in favour of the respondent/defendant. PW-4/plaintiff in his cross examination made certain crucial admissions, which are reproduced hereunder:

"یہ درست ہے کہ اراضی مذکورہ سودا سے پہلے نہ تو میرے نام پر رجسٹری تھی اور نہ ہی انتقال تھی ۔۔۔۔۔۔۔۔۔۔۔۔ یہ درست ہے کہ اراضی مذکورہ کا میں نے مدعا علیہ کہ نہ تو رجسٹری دی ہے اور نہ ہی انتقال دیا۔"

5. Also, there is no iota of evidence which could prove that the appellant/plaintiff transferred the property in question in favour of respondent/defendant through any other means; thus, the property which was in-fact the consideration of cheques in question, has not been delivered to the defendant; therefore, the same does not confer right upon plaintiff to seek recovery from defendant through the summary suit. If a negotiable instrument is made or drawn without consideration, it creates no obligation of payment between the parties to the transaction. Similarly, if the consideration for which the instrument was made or drawn has failed subsequently, then also, the instrument creates no obligation at all. Therefore, if the agreement to sell in this case between the parties has not yet been accomplished, the cheques which were accepted by the plaintiff in advance for payment of the property would become instruments without consideration; or in other words, they will be instruments for which consideration had failed. In this regard provisions of Section 43 of the negotiable Instruments Act, 1881, are very much clear which read as under:

43. Negotiable instrument made etc. without consideration. A negotiable instrument made, drawn accepted, indorsed or transferred without consideration, or for a consideration which fails, creates no obligation of payment between the parties to the transaction. But if any such party has transferred the instrument with or without indorsement to a holder for consideration, such holder, and every subsequent holder deriving title from time, may recover the amount due on such instrument from the transferor for consideration or any prior party thereto.

Exception I. No party for whose accommodation a negotiable instrument has been made, drawn, accepted or endorsed can, if he has paid the amount thereof, recover thereon such amount from any person who became a party to such instrument for his accommodation.

Exception II. No party to the instrument who has induced any other party to make, draw, accept, indorse or transfer the same to him for a consideration which he has failed to pay or perform in full shall recover thereon an amount exceeding the value of the consideration (if any) which he has actually paid or performed.

6. The contention of learned counsel for the appellant is that issuance of cheques is not denied by respondent, as such, cheque is negotiable instrument and presumption of its consideration is also attached with it as provided under Section 118 of the Negotiable Instruments Act, but this Court is not in agreement with the said contention of learned counsel for appellant, for the reason, that under Section 118 of Act ibid, issuance of a cheque is not a conclusive presumption of drawing consideration of negotiable instrument, rather it can be rebutted and initial burden of proving the case i.e. Negotiable Instrument/cheque has been executed against consideration, lies on the plaintiff. Reliance is placed on the principle handed down in the case of “Salar Abdur Rauf vs. Mst. Barkat Bibi” (1973 SCMR 332).

7. In view of the above discussion, both the cheques in question do not qualify the status of negotiable instruments and therefore, there is no misreading, non-reading of evidence & record, or jurisdictional defect in the impugned Judgment of the learned Court below. The instant appeal is bereft of merits, and dismissed as such with no order as to cost.

(Y.A.)  Appeal dismissed

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دیوانی مقدمات میں اضافی شہادت

  2023 YLR 1972

Order XLI Rule 27 C.P.C. envisaged certain circumstances when additional evidence can be adduced.

Keeping in view the said provision of law, it appears that first situation is not attracted because the learned trial Court never refused to admit the said documents in evidence. In second circumstance, the appellate Court may require any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause. The expression “to enable it to pronounce judgment” has been subject to general decision of superior Court wherein it has been held that when appellate Court finds itself unable to pronounce judgment owing to lacunas or defects in the evidence as it stands it may admit additional evidence but a party to the appeal cannot be allowed to produce additional evidence so as to patch-up the weaker parts of its case or fill-up omissions. The scope of order XLI Rule 27 C.P.C. is limited as it contemplates very few circumstances or conditions in which the appellate Court may allow a party to the appeal to produce additional documentary evidence. Admittedly, the case of the petitioner does not fall under Rule 27 C.P.C., because there is no material on record which suggests that the said documents have been available but could not be produced for reasons beyond the control of petitioner. Petitioner failed to satisfy the Court with regard to non-production of said documents at relevant time.

Order XLI Rule 27 C.P.C. does not envisage filling-up the lacuna left by a party in evidence before trial Court۔

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--- Dispute was with regard to gift regarding suit property allegedly made on the basis of fraud and misrepresentation --

 2023 MLD 1405

Gift --- Proof --- Onus to prove --- Not party to proceedings --- Effect --- Concurrent findings of two Courts below --- Dispute was with regard to gift regarding suit property allegedly made on the basis of fraud and misrepresentation --- Validity --- Ingredients for a valid gift were offer , acceptance and delivery of possession --- When sanctity of gift was challenged or called into question , especially on the basis of fraud and misrepresentation , beneficiary not only had to prove valid execution of gift deed or mutation but also the original transaction --- Owner of a portion of suit property was not impleaded as party to the suit and was not provided with an opportunity to defend himself --- No adverse order could be passed against such owner as it would amount to condemning him unheard --- Free and fair opportunity of defending and presenting one's case was to be provided --- High Court declined to interfere in judgments and decrees passed by two Courts below as no illegality and irregularity was committed --- High Court in exercise of revisional jurisdiction under S. 115 , C.P.C. could not disturb concurrent findings of facts by two Court below when the same did not suffer from any misreading or non - reading of evidence --

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Suit for specific performance of agreement to sell --- Execution of agreement --- Admission --- In order to prove the agreement to sell the respondent examined her special attorney and one of the attesting witnesses of the agreement to sell as witnesses -

 2023 CLC 1411

Suit for specific performance of agreement to sell --- Execution of agreement --- Admission --- In order to prove the agreement to sell the respondent examined her special attorney and one of the attesting witnesses of the agreement to sell as witnesses ---- In addition thereto , the respondent tendered in evidence certain documents as well --- Contrary to this , the appellant examined his attorney as the sole witness to rebut the evidence led by the respondent , who in his statement conceded the execution of agreement to sell --- Thus , after the admission of this material fact , the respondent successfully discharged the onus of proof with regard to the execution of agreement , as admitted facts need not to be proved --- Record showed that there was no hurdle in the way of the appellant to execute the sale deed in favour of respondent in furtherance of the agreement to sell.

Suit for specific performance of agreement to sell- -Penalty clause --- Suit of the respondent was decreed to the extent of double of the amount paid by her to the appellant but in appeal the suit decree fo specific allowed holding her entitled to was performance --- Held , that only resistance to the suit was rested on the fact that there was a penalty clause in the agreement to sell that in case of failure by the appellant to abide the terms of the agreement , he would pay double of the amount received at the market value to the respondent , so the respondent was precluded to ask for specific performance of agreement to sell --- Relief of specific performance is a discretionary relief in terms of S.22 of the Specific Relief Act , 1877 but such discretion cannot be exercised arbitrarily and the court while exercising the discretion is bound to follow the well settled principle that discretion shall always be structured on reasoning and fairness ---

In the facts and circumstances of the case , S. 20 of the Specific Relief Act , 1877 , would come into play , which provided that even if there is a stipulation in agreement that in case of its breach a penalty would be the outcome , this by itself would not impede the specific performance of the agreement --- First Appellate Court was justified in forming the opinion that the respondent was entitled for the decree of specific performance , in the circumstances --- Second appeal was dismissed , in circumstance .

Second Appeal --- Regular second appeal has a very limited scope as provided under S.100 of C.P.C .--- Where there is divergence of views in both the Courts below , ordinarily preference should be given to the judgment of first appellate Court unless it offends any law --- Judgment of appellate Court cannot be interfered with unless some procedural defect materially affecting such findings is pointed out by the appellant --- There is a marked distinction between the revisional jurisdiction and appellate jurisdiction in terms of S.100 of C.P.C.

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—Suit for declaration and permanent and mandatory injunction—Decreed--Appeal--Accepted--Modificaton in judgment--Pedigree table--Respondents were not challenged pedigree table--Principle of return (Radd)--Surviving sister-

 PLJ 2023 Lahore (Note) 118
Present: Ch. Muhammad Iqbal, J.
MUHAMMAD YASIN and 2 others--Petitioners
versus
MUNIR HUSSAIN and 10 others--Respondents
C.R. No. 2285 of 2015, heard on 19.1.2023.

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

----Ss. 42 & 54--Muhammadan Law, Para 66—Suit for declaration and permanent and mandatory injunction—Decreed--Appeal--Accepted--Modificaton in judgment--Pedigree table--Respondents were not challenged pedigree table--Principle of return (Radd)--Surviving sister--Challenge to--As per settled law, after death of Muhammad Ismail, 1/2 share belonged to Mst. Lajjo Bibi being his only surviving sister and under para 66 of Mohammaden Law remaining 1/2 share would also be returned to her under principle of return (Radd)/exclusion--As per law respondents-plaintiffs were required to tender document in their own statements but perusal of record shows that sale deed as well as mutations, which were challenged by respondents in suit have been produced by counsel for respondents in his statement which is not a valid tender of documents in evidence--It is settled law that documents relied upon or on basis of which case has been filed, should be produced in evidence by party itself and a fair opportunity should be given to other party to cross-examine same, as such documents produced by respondents’ counsel cannot be relied upon as valid piece of evidence and ordinarily such documents are excluded from taking into consideration--Respondents have failed to prove their assertions through any unimpeachable and trustworthy oral as well as documentary evidence--Petition allowed.                                        

                                                          [Para 9, 10, 11 & 12] A, B, C & D

Ref. 1991 SCMR 2300; 2021 SCMR 1534; 2007 SCMR 996; PLD 2021 SC 715; 2016 SCMR 24.

Ms. Gulzar Butt and Mian Muhammad Ayub, Advocates for Petitioners.

Ch. Abdul Majeed, Ch. Ehsan-ul-Haq and Ch. Zahid Majeed, Advocates for Respondents.

Date of hearing: 19.1.2023.

Judgment

Through this single judgment I intend to decide the titled Civil Revision along with Civil Revision No. 2561/2015 as both these cases have arisen out of the same judgment and decree.

2. Brief facts of the case are that the respondents/plaintiffs filed a suit for declaration, mandatory and permanent injunction along with consequential relief against the petitioners/defendants and contended that a constructed house measuring 4½ Marla situated in Khokharke Tehsil and District Gujranwala was purchased by Muhammad Ismail son of Jan Muhammad through registered sale deed dated 27.08.1966. Muhammad Ismail died on 26.05.2001 being unmarried and inheritance Mutation No. 8459 dated 07.08.2003 was incorporated in the revenue record in favour of Mst. Lajjo Bibi real sister of Muhammad Ismail. Mst. Lajjo Bibi died issueless on 10.05.2005. The respondents/plaintiffs contended that they are the sole heirs of Muhammad Ismail and Mst. Lajjo Bibi and are entitled to inherit the estate left by them. The petitioners/defendants filed contested written statement controverting the pedigree table alleged by the respondents/plaintiffs and tendered another pedigree table of Mst. Lajjo Bibi. Further contended that Mst. Lajjo Bibi after receiving the consideration of the suit property, executed a general power of attorney in favour of Petitioner No. 1/Defendant No. 1 who further alienated the suit properly in favour of Petitioner No. 3/Defendant
No. 3 through registered sale deed No. 2202 dated 15.03.2004. Out of the divergent pleadings of the parties, the learned trial Court framed following issues:--

I.       “Whether the plaintiffs are owners of the suit house mentioned in Para Nos. 2 & 3 being legal heirs of the deceased Muhammad Ismail and Mst. Lajo Bibi? OPP

II.      If the above mentioned issue is proved in affirmative, whether plaintiffs are entitled to decree for declaration along with permanent injunction, as prayed for? OPP

III.     Whether plaintiffs are entitled to receive amount of
Rs. 8,000/- per month from the defendants as mesne profit, as prayed for? OPP

IV.     Whether plaintiffs have no cause of action to file this suit? OPD

V.      Whether plaintiffs are estopped by their words and conduct to file this suit? OPD

VI.     Whether the plaintiffs have not come with clean hands before this Court? OPD

VII.    Whether this suit is not maintainable in its present form? OPD

VIII.   Whether this suit is false, frivolous and has filed just to harass and blackmail the defendants, therefore, the same is liable to be dismissed with cost under Section 35-A of C.P.C? OPD.

VIII-A. Whether Mst. Lajo Bibi was real owner of suit property and Muhammad Ismail was mere a Benamidar, if so, its effect? OPD-3.

IX.     Relief”.

Thereafter, the learned trial Court recorded evidence of the parties and vide judgment and decree dated 28.07.2012 decreed the suit filed by the respondents/plaintiffs, however, rejected their claim regarding mesne profits. Being aggrieved, the petitioners/defendants assailed the said judgment and decree through an appeal which was partly accepted by the learned appellate Court vide judgment and decree dated 23.06.2015, the judgment and decree of the learned trial Court was modified in the terms that Mst. Lajjo Bibi was entitled 1/2 share of the suit property, as such to that extent she rightly alienated the suit property to petitioners/defendants.

3. The petitioners in the titled Civil Revision No. 2285/2015 have challenged the judgments and decrees of both the learned Courts below and have prayed for dismissal of the suit whereas the respondents through the connected Civil Revision No. 2561/2015 have requested that the judgment and decree dated 23.06.2015 passed by the learned appellate Court may be set aside.

4. I have heard the arguments of learned counsels for the parties and have gone through the record with their able assistance.

5. The respondents/plaintiffs alleged the following pedigree table of Muhammad Ismail and Mst. Lajjo Bibi:

The petitioners/defendants have controverted the aforesaid pedigree table by producing another pedigree which is as under:

By placing both the pedigree tables at juxta position it is an established/admitted fact thai Mst. Lajjo Bibi was real sister of  Muhammad Ismail. It is settled law that admitted facts need not to be proved. Reliance is placed on the cases of Mst. Nur Jehan Begum through LRs v. Syed Mujtaba Ali Naqvi (1991 SCMR 2300) and Mst. Rehmat and others vs. Mst. Zubaida Begum and others (2021 SCMR 1534).

6. The respondents/plaintiffs contended that Jan Muhammad, predecessor-in-interest of the Muhammad Ismail and Mst. Lajjo Bibi, had two other brothers whereas the petitioners/defendants contended that Jan Muhammad was the only son of Rulya. The respondents/ plaintiffs were under obligation to prove the aforesaid pedigree table as well as relationship as prescribed under Article 64 of Qanun-e-Shahadat Order, 1984 but they did not produce any evidence and only oral assertions were made in support of their claim.

7. On the other hand, the Petitioners No. 1/defendant appeared as D.W.1 as well as produced Mst. Zubaida Bibi (D.W.2) who deposed that defendants are her nephews; that Mst. Lajjo Bibi was her maternal aunt who had four sisters; that Lajjo’s father name was Jan Muhammad who had no brother; that plaintiffs are not relatives of Lajjo; that Ismail was brother of Lajjo, who had no wife or child; that Ismail was blind and used to live with Mst. Lajjo; that Lajjo sold her house to her nephew Yasin. During cross-examination, she deposed that:

"لا جو بی بی میری سگی خالہ تھی اور اسماعیل میر اسگا ماموں تھا۔۔۔ فتح دین جان محمد کا بھائی نہ تھا۔ کالے خان بھی جان محمد کا بھائی نہ تھا۔ جان محمد اکیلا تھا۔۔ جان محمد میرے ہاتھوں میں فوت ہوا تھا۔ مجھے علم نہ ہے کہ فتح دین اور کالے خان رلیا کے بیٹے تھے تاہم یہ غلط ہے کہ فتح دین اور کالے خان، جان محمد کے حقیقی بھائی ہیں۔"

On ‘death of Muhammad Ismail, his inheritance mutation No. 8459 dated 30.08.2003 was incorporated in favour of Mst. Lajjo Bibi which mutation was witnessed by the pattidaran. Upon the above said mutation, a pedigree table is drawn which shows that Jan Muhammad was survived by Muhammad Ismail and Mst. Lajjo Bibi. The respondents/plaintiffs did not challenge the validity of the said mutation/pedigree table before any forum.

8. Muhammad Siddique (P.W.1) admitted in his statement that after the death of Muhammad Ismail, suit property was transferred in the name of Mst. Lajjo Bibi. He deposed that:

"محمد اسماعیل کی وفات کے بعد مکان مذکورہ لاجو بی بی کے نام ہو گیا کیونکہ وہ اس کی بہن تھی۔ لاجو     بی بی اب فوت ہو چکی ہے۔ لا جو بی بی کی شادی ہوئی تھی اس کی کوئی اولاد نہ ہوئی تھی اور لا جو بی بی لا ولد فوت ہوئی تھی۔ لا جو بی بی کا خاوند چنن دین لا جوبی بی کی وفات سے پہلے ہی فوت ہو گیا تھا۔۔۔

میں لا جو بی بی کو اس کی زندگی میں ملتا رہتا تھا۔"

Munir Hussain respondent No. 1/plaintiff during his cross-examination admitted that he knew the factum of execution of general power of attorney by Mst. Lajjo Bibi in favour of petitioner/Defendant No. 1 Muhammad Yasin. The relevant portion of his cross examination is reproduced as under:

لا جو بی بی نے 1.Exh.D کے سلسلے میں مجھے بتایا تھا کہ اس نے اشٹام خرید نہ کیا تھا۔۔۔ لا جو بی بی اس وقت یسین مدعاعلیہم کے گھر پر تھی ۔"

Munir Hussain P.W.6 while appearing in rebuttal evidence deposed that:

"لا جو بی بی مذکوریہ کو مکان متد عویہ ازاں وراثت محمد اسماعیل سے ملا تھا۔"

The respondents/plaintiffs were well aware of the factum of inheritance mutation of Muhammad Ismail in favour of Mst. Lajjo Bibi but they did not challenge the same at that time rather they claimed their entitlement in the suit property after death of Mst. Lajjo Bibi which proves their mala fide and ulterior motive.

9. As per settled law, after death of Muhammad Ismail, 1/2 share belonged to Mst. Lajjo Bibi being his only surviving sister and under para 66 of Mohammaden Law the remaining 1/2 share would also be returned to her under the principle of return (Radd)/exclusion. Reliance in this rsgard is placed on cases cited as Saadullah and others vs. Mst. Gulbanda and others (2014 SCMR 1205) and Waris Ali and others vs. Rasoolan Bibi (PLD 2014 SC 779).

10. As per law the respondents-plaintiffs were required to tender document in their own statements but perusal of the record shows that the sale deed as well as mutations, which were challenged by the respondents/plaintiffs in the suit [Exh.P.14 to Exh.P.17] have been produced by the learned counsel for the respondents/plaintiffs in his statement which is not a valid tender of the above documents in evidence. It is settled law that the documents relied upon or on the basis of which the case has been filed, should be produced in the evidence by party itself and a fair opportunity should be given to the other party to cross-examine the same, as such the documents produced by the respondents’ counsel cannot be relied upon as valid piece of evidence and ordinarily such documents are excluded from taking into consideration. Reliance is placed on the cases titled as Mst. Hameeda Begum and others vs. Mst. Irshad Begum and Others (2007 SCMR 996), Province of the Punjab through Collector, Sheikhpura and others v. Syed Ghazanfar Ali Shah and others (2017 SCMR 172 ) and Mst. Akhtar Sultana vs. Major Retd. Muzaffar Khan Malik through his legal heirs and others (PLD 2021 SC 715).

11. The respondents/plaintiffs have failed to prove their assertions through any unimpeachable and trustworthy oral as well as documentary evidence, as such the findings of both the learned Courts below on Issue Nos. I, II, and VIII-A being against the record, are hereby reversed and the same are decided against the respondents/plaintiffs and in favour of the petitioners/defendants.

12. The learned Courts below have committed blatant misreading and non-reading of the evidence and have also failed to apply the correct law which rendered the said dicta as not sustainable in the eyes of law. This Court, under Section 115, C.P.C, has jurisdiction to interfere in the perverse concurrent judgments and decrees of the learned lower foras. Reliance is placed on the case of Nazim-ud-Din and others vs. Sheikh Zia-ul-Qamar and others (2016 SCMR 24).

13. In view of above, this civil revision is allowed the judgment and decree dated 28.07.2012 passed by the learned trial Court and the judgment and decree dated 23.06.2015 passed by the learned appellate Court are set aside and the suit filed by the respondents/plaintiffs is hereby dismissed. The connected Civil Revision No. 2561/2015 is hereby disposed of accordingly. No order as to costs.

(YA)    Petition allowed

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Rule 27 of Order XLI CPC empowers the appellate Court to allow additional evidence to be adduced , whether oral or documentary , after the recording of reasons .

 The powers vested in the High Court under section 115 of the CPC are to be exercised in accordance with the parameters described in clauses ( a ) to ( c ) ibid . The revisional powers are meant for correcting errors made by the subordinate courts in the exercise of their jurisdiction . Ordinarily , erroneous decisions of fact are not revisable , except in cases where the decision is based on no evidence or inadmissible evidence and is so perverse that grave injustice would result therefrom .

Rule 27 of Order XLI CPC empowers the appellate Court to allow additional evidence to be adduced , whether oral or documentary , after the recording of reasons . This power is circumscribed by three eventualities described in clauses ( a ) to ( c ) i.c. if the court , from whose decree the appeal has been preferred , has refused to admit evidence which ought to have been admitted ; the appellate court , on being satisfied that the additional evidence was available but could not be produced before the trial court for reasons beyond the control of the party seeking its production ; or the appellate court itself requires any such evidence so as to enable it to pronounce a judgment . Rule 28 of Order XLI describes the procedure for taking additional evidence and provides that the appellate court may either take such evidence or direct the court from whose decree the appeal is preferred , or any other subordinate court , to take such evidence and to send it when taken to the appellate court . Rule 29 of Order XLI further provides that where additional evidence is directed or allowed to be taken , the appellate court shall specify the points to which evidence is to be confined and record in its proceedings the points so specified . It would also be relevant to refer to Rule 23 of Order XLI of CPC which describes the mode and conditions for remanding of a case by the appellate court . Rule 27 of Order XLI explicitly refers to an appellate court but by now it is well settled that in exceptional cases the power can also be exercised by the revisional court .

A larger Bench of Supreme Court has held that , ordinarily , at the stage of civil revision there is no question of recording additional evidence , but there may be exceptional cases where , in the interest of justice and if so required by the court to enable it to adjudicate on the matter , the court may order that such additional evidence should be recorded.

In exceptional cases depending on the facts and circumstances , a court exercising revisional jurisdiction may record clarificatory statement or admit evidence in any other form , in order to determine whether the lower court had acted illegally or with material irregularity , so as to attract clause ( c ) of section 115 ( 1 ) of the CPC.3 Another larger Bench of this Court has held that where in a case falling under section 115 ( 1 ) ( c ) of the CPC , it has been established that the appellate court had exercised its jurisdiction illegally or with any material irregularity then the scope of additional evidence is not excluded . Additional evidence can , therefore , be admitted in exceptional cases and to rectify the error where the court had acted illegally or with material irregularity in the exercise of its jurisdiction , and justifiably fell within the four corners of the power vested in the High Court under section 115 of the CPC.

The power under order XLI Rule 27 of the CPC is not intended to be exercised to fill up lacunas , or to make up any deficiency in the case , nor to provide an opportunity to the party raise a new plea . The power essentially has to be exercised cautiously and sparingly and not to facilitate an indolent litigant . The court , before exercising its jurisdiction of allowing the recording of additional evidence , must be satisfied that the document sought to be adduced in evidence is not of the nature that could be easily fabricated , tampered or manufactured .

"C.P.1692-L/2022

Shamshad Bibi v. Riasat Ali, etc Mr. Justice Athar Minallah

25-05-2023"

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--Pre-arrest bail--Allowed--Recovery of bags of wheat in possession of petitioner--Tentative assessment--Statement of investigation officer--

 PLJ 2023 Lahore (Note) 120
[Multan Bench, Multan]
Present: Sadiq Mahmud Khurram, J.
MUHAMMAD AKBAR--Petitioner
versus
STATE and another--Respondents
W.P. No. 7012 of 2023, decided on 29.5.2023.

Punjab Foodstuff (Control) Act, 1958 (XX of 1958)--

----Ss. 3 & 6--Price Control and Prevention of Profiteering and Hoarding Act, 1977--Pre-arrest bail--Allowed--Recovery of bags of wheat in possession of petitioner--Tentative assessment--Statement of investigation officer--Nothing more is to be recovered from possession of petitioner--Verification of version of petitioner by investigation officer--The Investigating Officer of case, submits that nothing more is to be recovered from possession of petitioner--When nothing more is to be recovered from possession of petitioner, no useful purpose would be served by sending petitioner behind bars--The Investigating Officer has already verified versions of complainant as well as petitioner during investigation of case--In view of peculiar circumstances of case, sending petitioner behind bars at this stage, would cause irreparable loss to his reputation and would serve no useful purpose--Petition allowed.          [Para 4] A

Mr. Muhammad Faisal Bashir Ahmed Chaudhary, Advocate for Petitioner.

Mr. Mushtaq Ahmad Chohan, Assistant Advocate General for State.

Date of hearing: 29.5.2023.

Order

Through the instant petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner namely Muhammad Akbar, seeks pre-arrest bail in case FIR No. 439 of 2023 dated 01.05.2023, registered in respect of offences under Sections 3 and 6 of the Punjab Food Stuff (Control) Act, 1958 (XX of 1958) and Section 3 of the Price Control and Prevention of Profiteering and Hoarding Act, 1977 (XXIX of 1977), at the Police Station Saddar Chichawatni, District Sahiwal.

2. The allegations against the petitioner namely Muhammad Akbar, culled from the evidential material produced before the Court, are that he was found in possession of 250 bags of wheat.

3. I have heard the learned counsel for the petitioner and leamed Assistant Advocate General and perused the record with their able assistance.

4. This is a pre-arrest bail and only a tentative assessment of the evidentiary material produced before the Court can be made at this stage. It is noticeable that the F.I.R. has been registered with regard to Section 3 of the Price Control and Prevention of Profiteering and Hoarding Act, 1977 (XXIX of 1977), whereas the Section 3 of the Price Control and Prevention of Profiteering and Hoarding Act, 1977 (XXIX of 1977) is not a penal section at all and does not provide any punishment for any commiting any act rather it is Section 7 of the Price Control and Prevention of Profiteering and Hoarding Act, 1977 (XXIX of 1977) which provides that it is an offence if the provisions of Section 3 of the Price Control and Prevention of Profiteering and Hoarding Act, 1977 (XXIX of 1977) are violated but despite this fact no offence under Section 7 of the Price Control and Prevention of Profiteering and Hoarding Act, 1977 (XXIX of 1977), is being investigated, which itself is denuding the lax manner in which the Investigating Officer of the case is proceeding with the investigation of the case. With regard to the other offences being investigated under Sections 3 and 6 of the Punjab Food Stuff (Control) Act, 1958 (XX of 1958), it is observed that the act which has been made punishable under Section 6 of the Punjab Food Stuff (Control) Act, 1958 (XX of 1958) is the act of contravention of any order made under Section 3 of the Punjab Food Stuff (Control) Act, 1958 (XX of 1958). It is necessary that while exercising the powers under Section 3 of the Punjab Food Stuff (Control) Act, 1958 (XX of 1958), the Government has to notify such exercise of powers, however, during the investigation of the present case, no copy of such Notification of the Government as issued under Section 3 of the Punjab Food Stuff (Control) Act, 1958 (XX of 1958), has been appended with the record of the investigation. In this manner, when there does not exist any prima facie, proof that a Notification has been issued by the Government exercising its powers under Section 3 of the Punjab Food Stuff (Control) Act, 1958 (XX of 1958), then the question as to whether the petitioner can be liable for violation of such order as mandatory under Section 6 of the Punjab Food Stuff (Control) Act, 1958 (XX of 1958), is the question which needs further determination by the learned trial Court, however, at present it raises a doubt with regard to the liability of the petitioner with regard to the offence made punishable under Section 6 of the Punjab Food Stuff (Control) Act, 1958 (XX of 1958). The complainant of the case, present before the Court, submits that the (Government had issued 100 bags containing wheat to the petitioner, however, he has returned only 60 bags. In this manner, the petitioner is directed to return the 40 bags containing wheat to the Food Inspector, immediately. The Investigating Officer of the case, submits that nothing more is to be recovered from the possession of the petitioner. When nothing more is to be recovered from the possession of the petitioner, no useful purpose would be served by sending the petitioner behind the bars. The Investigating Officer has already verified the versions of the complainant as well as the petitioner during the investigation of the case. In view of the peculiar circumstances of the case, sending the petitioner behind the bars at this stage, would cause irreparable loss to his reputation and would serve no useful purpose. Reliance is placed on the case of “Khalil Ahmad Soomro and others v. The State” (PLD 2017 SC 730) wherein the following principle has been enunciated:

“Although for grant of pre-arrest bail one of the pre conditions is that the accused person has to show that his arrest is intended by the prosecution out of mala fide and for ulterior consideration. At pre-arrest bail stage, it is difficult to prove the element of mala fide by the accused through positive/solid evidence/ materials and the same is to be deduced and inferred from the facts and circumstances of the case and if some events-hints to that effect are available, the same would validly constitute the element of mala fide.”

5. In view of the above discussion, this petition is allowed and ad-interim pre-arrest bail already granted to the petitioner, by this Court, vide order dated 15.05.2023, is confirmed subject to his furnishing fresh bail bonds in the sum of Rs. 2,00,000/-(Rupees two hundred thousand only) with one surety, in the like amount, to the satisfaction of learned trial Court.

6. It is clarified that the observations enumerated are absolutely tentative in nature and restricted only to the extent of this particular petition, having no nexus and relevance with the trial, which shall be concluded quite independently and purely on merit.

(Y.A.)  Petition allowed

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-Para 149 & 150--Ingredients of valid gift--Three important prerequisites are described for a valid gift such as explicit offer of gift by donor, acceptance of gift by donee and voluntary delivery of possession to donee under very gift transaction.

 

 PLJ 2023 Lahore (Note) 124
[Multan Bench, Multan]
Present: Ch. Muhammad Iqbal, J.
MUHAMMAD YOUNAS--Petitioner
versus
MUHAMMAD ASHRAF and 3 others--Respondents
C.R. No. 259-D of 2020, heard on 1.6.2023.

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

----S. 42--Suit for declaration--Decreed--Appeal--Dismissed--Gift mutation--Absence of material information--Validity of gift mutation--Revenue officers and attesting witnesses of gift were not produced in evidence by petitioner--Material flaw--Concurrent findings--Challenge to--Detail declaration of gift was not maintained in written statement of petitioner--Petitioner did not mention detail declaration of gift mutation in his written statement--It was primary duty of petitioner to prove with elaborate specifications--Non-proving of asserted stance of gift transaction through corroborative, credible & trustworthy evidence is considered a material flaw which dismantles very foundation of stance of petitioner--Neither attesting witnesses of gift mutation in question nor Revenue Officers who entered sanctioned said gift mutation were produced in evidence to prove alleged gift mutation--It is mandatory for petitioner to produce requisite number of witnesses of very gift transaction as well as that of gift mutation but petitioner has failed to produce witnesses of gift mutation-- Non-production of required witnesses is blatant non-compliance of mandatory provisions of law which is considered fatal for case of petitioner--The concurrent findings of fact are against petitioner which do not call for any interference by this Court in exercise of its revisional jurisdiction--Revision petition dismissed.

                                                               [Para 5, 7 & 9] A, B, D, E & F

2016 SCMR 1417, 2021 SCMR 743, PLD 2022 SC 85, 2016 SCMR 662, PLD 2015 SC 187, 2015 SCMR 1044 & 2014 SCMR 1469 ref.

Muhammadan Law--

----Para 149 & 150--Ingredients of valid gift--Three important prerequisites are described for a valid gift such as explicit offer of gift by donor, acceptance of gift by donee and voluntary delivery of possession to donee under very gift transaction.                                                                      [Para 6] C

Ch. Pervaiz Akhtar Gujjar, Advocate for Petitioner.

Mian Adil Mushtaq and Ch. Imran Khalid Amartasari, Advocates for Respondent No. 2.

Date of hearing: 1.6.2023.

Judgment

Through this civil revision, the petitioner has challenged the validity of judgment and decree dated 30.06.2018 passed by the learned Civil Judge, Lodhran who decreed the suit for declaration filed by Respondent No. 2 and judgment and decree dated 28.11.2019 passed by the learned Additional District Judge, Lodhran who dismissed the appeal of the petitioner.

2. Brief facts of the case are that Respondent No. 2/ plaintiff filed a suit for declaration against the petitioner and Respondents No. 1,3 & 4/ defendants contending therein that she is owner of land measuring 18-Kanals 06-Marlas (1/7th share) fully described in the headnote of the plaint and challenged the validity of alleged gift Mutation No. 1604 dated 29.07.1996 which was executed by the predecessor-in-interest of the parties namely Muhammad Ishaq in favour of the petitioner and Respondent No. 1/Defendants No. 1 & 2 (sons) and subsequent transaction are against the law, fact, illegal and based on fraud. Petitioner/ Defendant No. 1 filed contesting written statement controverted the stance of the respondent/ plaintiff on factual and legal parlances. Respondent No. 3/Defendant No. 3 submitted conceding written statement. Suit to the extent of Respondent No. 1/Defendant No. 2 was dismissed as withdrawn on the basis of compromise. Respondent No. 4/Defendant No. 4 proceeded against ex-parte. The learned trial Court framed issues, recorded pro and contra evidence of both the parties and vide judgment and decree dated 30.06.2018 decreed the suit for declaration filed by Respondent No. 2. The appeal of the petitioner was also dismissed by the learned appellate Court vide judgment and decree dated 28.11.2019. Hence, this civil revision.

3. I have heard the arguments of learned counsels for the parties at full length and gone through the record with their able assistance.

4. The main controversy is centered around Issues No. 1 to 3 which are as under:

“Whether the plaintiff is entitled to get a decree for declaration as prayed for?

OPP Whether the plaintiff is owner in possession of the property measuring 18 kanals and 16 marlas? OPP

Whether the impugned Mutation No. 1604 dated 29.02.1996 from the predecessor of the parties Muhammad Ishaq was sanctioned as Per law and is correct in the eye of law? OPP”

Kamal Din appeared as DW3 who in his cross-examination, deposed that:

جب انتقال درج ہوا اس روز ہمارے دستخط و انگوٹھے نہ ہوئے تھے۔۔۔۔۔۔۔ یونس اور اشرف لودھراں تحصیلدار کے روبرو پیش نہ ہوئے تھے۔ لودھرا ں رو برد  پٹواری تحصیل دار بابا اسحاق کے کوئی بیانات نہ ہوئے تھے۔۔۔۔۔۔ میرے سامنے بابا اسحاق نے مدعاعلیم نمبر 3-4 مدعیہ کو زمین نہ دی تھی۔

Allah Rakha and Kamal Din DW2 & DW3 marginal witnesses of alleged mutation also failed to identify their signatures and thumb impressions on impugned mutation. Zulfiqar Patwari recorded his statement on 15.05.2018 but no rapt Roznamcha is available on record regarding impugned mutation which shows that no rapt Roznamcha qua impugned mutation was entered. DW3 also admitted that Muhammad Ishaq predecessor-in-interest of the parties was ill who was brought on donkey cart. On 30.03.2016, Respondent No. 1/Defendant No. 2 along with his counsel appeared and got recorded statement on Oath that he would pay Rs. 2,00,000/-to the plaintiff within two months and if he failed to pay the said amount then the plaintiff may receive the same through suit, in this regard, pronote was executed. For ready reference, statement and order dated 30.03.2016 is reproduced as under:-

منجانب مد عاعلیہ نمبر 2 وکالت نامہ را د ماجد نثار احمد ایڈووکیٹ حاضر ۔

مد عاعلیہ نمبر 2 اصالتا حاضر۔

 مد عاعلیہ نمبر 2 بیان قلمبند کرانا چاہتا ھے ۔ بیان قلمبند ہووئے۔

بیان ازاں مد عاعلیہ نمبر 2 محمد اشرف۔

بر خلاف۔

بیان کیا کہ ہمراہ مدعیہ راضی نامہ ہو گیا ھے ۔ دولاکھ روپے اندر دو ماہ میں مدعیہ کو ادا کر دونگا۔ اگر ادا نہ کروں تو مدعیہ بذریعہ دعوی وصول کر سکتی ھے۔ اس ضمن میں پرونوٹ مارک A بحق مدعیہ تحریر ھے ۔ مدعیہ میری حد تک اپنادعوی واپس لینے کی پابند ھے ۔ سن کر درست تسلیم کیا۔

30.03.16  بیان ازاں مدعیہ آسیہ بی بی

برحلف۔  

بیان کیا کہ بیان مدعا علیہ سن کیا ہے۔ درست تسلیم ہے۔ میں بیان بالا کی روشنی میں دعوی ھذا تا حد محمد اشرف مدعا علیہ نمبر 2 واپس لیتی ہوں۔

سن کر درست تسلیم کیا۔

30.03.2016/ORDER.

The statements of Defendant No. 2 and plaintiff are reconded above. Keeping in view the above statement of plaintiff, suit in hand is hereby dismissed as withdrawn to extent of Defendant No. 2. The parties will remain bound to their statements. Now the file be put up on the already fixed date i.e. 11.04.2016.

Announced: 30.03.2016.                           (Sumera Naz Malik)
                                                              Civil Judge Class-III,
                                                                        Lahore.”

5. Admittedly, the gift mutation is at discord between the parties, as such it is mandatory for the beneficiary (petitioner/ Defendant No. 1) to describe meticulous details of day, date, time, venue, presence of witnesses as well as making of gift, offer and acceptance and delivery of possession in the pleadings (written statement) whereafter such asserted fact should have been necessarily proved affirmative and trustworthy through corroborative, evidence but the Petitioner/Defendant No. 1/ beneficiary did not mention the detail declaration of gift mutation in his written statement. It was the primary duty of the beneficiary i.e. petitioner/Defendant No. 1, to prove the above mentioned constituents with elaborate specifications but no such evidence is produced in this regard. The absence of above material information in the written statement renders the statement of the defence witnesses (DWs) beyond the scope of pleadings and same can validly be excluded from the judicial consideration. Thus, non-proving of the asserted stance of gift transaction through corroborative, credible and trustworthy evidence is considered a material flaw which dismantles the very foundation of the stance of the petitioner/Defendant No. 1. Reliance is placed on the cases titled as Peer Baksh through LRs and others vs. Mst. Khanzadi and others (2016 SCMR 1417), Muhammad Nawaz and others vs. Sakina Bibi and Others (2020 SCMR 1021), Atta Muhammad and others vs. Mst. Munir Sultan (deceased) through her LRs and others (2021 SCMR 73), Syed Ahmad vs. Ali Akbar and Others (2021 SCMR 743) and Faqir Ali and others vs. Sakina Bibi and others (PLD 2022 SC 85).

6. As per Para Nos.  149 and 150 of the Muhammadan Law three important prerequisites are described for a valid gift such as explicit offer of the gift by donor, acceptance of the gift by the donee and voluntary delivery of possession to the donee under the very gift transaction. The above ingredients are mandatory in nature and absence of proof of any ingredient whereof render the very gift transaction as invalid. Here, in this case the above said ingredients have neither been pleaded in the written statement nor proved by producing any witness which is considered a material flaw which dismantled the validity of the gift mutation. The Hon’ble Supreme Court of Pakistan in a judgment titled as Mst. Saadia vs Mst Gul Bibi (2016 SCMR 662) held as under:

14. Indeed, if a document in the form of memorandum of gift has been executed between the parties (donor and donce) as an acknowledgment of past transaction of oral gift, its non-registration will not have much bearing as regards its authenticity or validity, but the other important thing is the proof of fulfillment of three conditions of a valid gift “offer”, “acceptance” and “delivery of possession”.

Reliance can also be placed on the cases titled as Allah Ditta and others vs. Mamak alias Muhammad Siddique and others (2017 SCMR 402), Naveed Akram and others vs. Muhammad Anwar (2019 SCMR 1095) and Muhammad Sarwar vs Mumtaz Bibi and others (2020 SCMR 276).

7. Even otherwise, neither the attesting witnesses of the gift mutation in question nor the Revenue Officers (Patwari and Tehsildar) who entered/sanctioned the said gift mutation were produced in evidence to prove the alleged gift mutation. As per Article 79 of the Qanun-e-Shahadat Order, 1984, it is mandatory for the beneficiary/petitioner to produce the requisite number of the witnesses of the very gift transaction as well as that of gift mutation but the petitioner has failed to produce the witnesses of the gift mutation. The non-production of the required witnesses is blatant non-compliance of the aforesaid mandatory provisions of law which is considered fatal for the case of the petitioner. Reliance is placed on the cases cited as Hafiz Tassadug Hussain vs. Muhammad Din through legal heirs and others (PLD 2011 SC 241), Farzand Ali and another vs. Khuda, Bakhsh and other (PLD 2015 SC 187) and Farid Bakhsh vs. Jind Wadda and others (2015 SCMR 1044).

8. Petitioner/Defendant No. 1 neither produced in evidence the witnesses of gift mutation Patwari and Tehsildar who entered and sanctioned the impugned gift mutation nor any convincing reason has been furnished for non-producing them which amounts to withholding of the significant evidence and it would be legally presumed that had the said witnesses produced in the evidence, they would have deposed against the petitioner, as such presumption under Article 129 (g) of Qanun-e-Shahadat Order, 1984 clearly operates against him. Reliance is placed on the cases titled as Sughran Bibi vs. Mst. Aziz Begum and 4 others (1996 SCMR 137) and Jehangir vs Mst. Shams Sultana and Others (2022 SCMR 309).

9. Learned counsel for the petitioner has not been able to point out any illegality or material irregularity in the impugned judgments & decrees passed by the learned Courts below and has also not identified any jurisdictional defect. The concurrent findings of fact are against the petitioner which do not call for any interference by this Court in exercise of its revisional jurisdiction. Reliance is placed on the case titled as Mst. Zaitoon Begum vs. Nazar Hussain and another (2014 SCMR 1469).

10.  In view of above, this Civil Revision is hereby dismissed being devoid of any merits. No order as to Costs.

(Y.A.)  Revision petition dismissed

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