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2004 Y L R 1941
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2004 Y L R 1941

[Lahore]

Before Muhammad Muzammal Khan, J

SARDAR BIBI and 6 others---petitioners

Versus

ABDUL AZIZ and 15 others---Respondents

Civil Revision No. 1476 of 2003, decided on 12th December, 2003.

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

----O. XLI, R. 27---Qanun-e-Shahadat (10 of 1984),

Art.85(3)---Additional evidence-- Attested copies of the public
record-- Admittedly documents subject of dispute were public
documents which were admissible in evidence, without formal
proof, and same were produced in ex parte evidence by the
plaintiffs when the defendants were not present before the Court,
having been proceeded against ex parte---Plaintiffs claimed that
such documents could not be said to have been re-exhibited
through oversight, but remained part of the record, whereas
defendant's stance was that these documents in no manner could
be considered and made basis of the judgment---Plaintiffs had

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moved to the Appellate Court under O. XLI, R.27, C. P. C. but the

Appellate. Court taking the view that since these documents were
already on the record of the Trial Court, dismissed their application
for additional evidence, considering those documents as part of
evidence and granted them decree prayed for---Validity---View
taken by Appellate Court was not contrary to settled law---To do
complete justice between the parties Court could consider
documents on the record, not tendered, in evidence-- Documents
in question had been rightly relied upon by the Appellate Court for
its decision---Documents forming part of the record could be
considered as part of evidence and could be made basis for
decision in order to do complete justice between the parties,
especially when there was no probability of forging those docu
ments and the other side was not deprived of any vested right.

Hakim Khan v. Aurang Zeb and another PLD 1975 Lah. 1170;
Muhammad Ashraf v. Syed Ghulam Murtaza and others 1993 CLC
185 and Mst. Begum through legal heirs and 27 others v. Allah
Ditto 2000 CLC 744 cited

(b) Qanun-e-Shahadat (10 of 1984)-----

----Art.18---Relevancy---Facts in issue-- Relevant

fact---Documents on record of the suit-- -Contention was that suit
property was owned by a Muslim which was sold to a
non-Muslim---Sale would not affect the reversionary rights of the
plaintiffs and in such manner it was a Muslim property and was
wrongly treated as evacuee by the Rehabilitation Department and
thus was wrongly allotted to the defendants-- Validity---If such
documents were excluded, property would go to the defendants to
whom the property could not be allotted as it was a Muslim
property and the real owners i. e. plaintiffs would be deprived of

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their rights and another injustice would ensue by exclusion of the

documents that the decree would be nullified by the High Court---
Documents forming part of record could be considered as part of
evidence and could be made basis for decision in order to do
complete justice between the parties.

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

----S.115---Revision---Appellate Court had rightly relied on

documents already forming part of the record for deciding the
issues involved in the case, its findings were absolutely in
consonance with the evidence on the file, no misreading or
non-reading was found---Interference in the revisional jurisdiction
was not called for in circumstances.

Arshad Mehmood for Petitioners.

Miam Muhammad Athar for Respondents.

Date of hearing: 12th November 2003.

JUDGMENT

This revision petition assails the judgment and decree dated

12-7-2003 passed by the learned Additional District Judge Gujrat,
whereby the appeal of the respondents was accepted and
judgment and decree dated. 12-12-2000 passed by the trial Court
was set aside.

1. A short factual background of the case is that Abdullah Khan

predecessor in interest of the respondents, owned land measuring
112 Kanals and two Marlas situated in village Peroo Shah, Tehsil
and District, Gujrat, who transferred it to Kishion Singh, Peja
Singh, Daisha Singh and Joon Singh, the non-muslims through a

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sale which was alleged to be without legal necessity and

consideration under the Punjab Customary Law. This sale was
challenged by Abdul Aziz Khan etc. respondents, through a
declaratory Suit No. 114/ 1990 of 1948, which was decreed in their
favour on 25-7-1950 holding that this sale will not affect the
reversionary rights of the respondent. Abdullah Khan died in 1970
and reversionary rights of the respondents became operative.
Mutation No.7659 dated 9-10-1970 was attested in favour of the
respondents, it appears that disputed land was treated as evacuee
property and was allotted to the petitioners. Petitioners on the
basis of their allotment from the Settlement Department and a
decree-dated 7-5-1981 took over the possession of the land in
dispute where after the respondents filed a suit for possession on
the basis of judgments and decrees dated 25-7-1950/2-8-1950. In
this suit initially, petitioners-defendants were preceded against ex
parte, after recording of respondent's ex parte evidence their suit
was decreed ex parte, and the matter ultimately came up before
this Court, in form of Writ Petition No.2771 of 1992 which was
decided on 26-2-1992 and the case was remanded back to the
trial Court for taking de novo proceedings, after granting
opportunity to the parties to prove their respective cases, by
producing evidence. Respondents prior to the remand of case by
this Court had produced certain documents as Exhs.P.1 to 5 in
their ex parte evidence which consisted of Jamabandi (Revenue
Record), copy of plaint, copy of judgment dated 27-5-1950 and
copy of decree sheet of 1950 whereas, in post remand
proceedings, these documents remained on the record but could
not be reproduced in evidence by the respondents. The learned
trial Court on 12-12-2000 decided the case on the basis of fresh
evidence and did not take into account the documents, which were

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already on the file, as Exhs.P.1 to 5 and dismissed the suit of the

respondents.

2. Respondents aggrieved of the decision of the trial Court, filed an

appeal before the Additional District Judge, Gujrat and alongwith
their appeal, they filed an application under Order XLI, rule 27 of
the C.P.C. praying permission to produce as additional evidence,
the documents which were already part of the record of the trial
Court, produced by the respondents before remand of case; as
Exhs.P.1 to 5. The Appellate Court after obtaining reply to this
application under Order XLI, rule 27 of the C.P.C. from the
petitioners who contested it, decided both the appeal, as well as,
the application, simultaneously. Appeal of the respondents was
accepted and their suit was decreed. Application seeking
permission to produce documents; by way of additional evidence
was refused, on the ground that these documents are already on
the record, vide judgment and decree dated 12-7-2003. The
petitioners have now come up, against this judgment, in revisional
jurisdiction of this Court.

3. Learned counsel for the petitioners submits that respondents by

filing an application under Order XLI, rule 27, C. P. C. have
themselves admitted that documents sought to be produced by
way of additional evidence, are not part of their evidence. He
further submits that Appellate Court has erred in law, in taking
contradictory stands of dismissing the application of the
respondents for additional evidence, on the one hand and relying
on same documents which were sought to be produced in
additional evidence, while accepting their appeal, on the other
hand. He further contends that this Court had ordered de novo trial
in earlier round of litigation which means, trial of the suit from the

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very beginning and this term has been interpreted in the cases of
Abdul Kadeer Miah alias Abdul Quader Molla v. Amir Hussain PLD
1965 Dacca 369; Atiq ur-Rehman (Minor) and 7 others v.
Muhammad Ibrahim and 2 others PLD 1982 Lahore 62 and Taj Din
and two others v. Ghulam Muhammad and another PLD 1982
Lahore 177. The learned counsel, elaborat ing his arguments,
urged that on Issue No.2 trial Court had decided that the suit is not
maintainable but the Appellate Court while accepting the appeal of
the respondents, has not reversed the findings on Issue No.2 thus
in presence of these findings, their suit could not have been
decreed.

4. The learned counsel appearing on behalf of the respondents

controverted the arguments of the petitioners and asserted that the
documents produced by them at the time when the petitioners
were proceeded ex parte, as Exhs P.1 to 5, remained part of the
record, but could not be re-exhibited, out of over sight, in the
statement of their counsel and those being copies of the public
record, were not to be formally proved, as such, were sought to,
be produced by way of additional evidence before the Appellate
Court. He also submits that view taken by the Appellate Court is
absolutely justified because, the documents already forming part
of the record, could be competently made basis of the decision by
the Court. He in this behalf relied on the cases of "Hakim Khan v.
Aurang Zeb and another" PLD 1975 Lahore 1170; "Muhammad
Ashraf v. Syed Ghulam Murtaza and others" 1993 CLC 185 and
"Mst. Begum through legal heirs and 27 others v. Allah Ditto" 2000
CLC 744.

5. I have considered the arguments of the learned counsel for the

parties and have examined the record: It is admitted between the

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parties that the documents subject of dispute are public

documents, which are admissible in evidence, without formal
proof. It is, also admitted that these documents were produced in
ex parte evidence by the respondents when the petitioners were
not present before the Court, having been proceeded against ex
parte. Respondent's claim is that these documents could not be
re-exhibited through over sight, but remained part of the record,
whereas petitioner's stance is that these documents in no manner,
can be considered and made basis of the judgment. Respondents
after losing case before the trial Court realized the mishap
whereupon, they moved to the Appellate Court under Order XLI,
rule 27, C.P.C. but the Appellate Court taking the view that since,
these documents are already on the record of the trial Court,
dismissed their application for additional evidence, considering
those documents as part of evidence and granted them a decree,
prayed for. I think that view taken by the Appellate Court is not
contrary to judicial precedents. Courts had been considering and
basing documents on the record, but not tendered in evidence, as
foundations of their judgments, to do complete justice between the
parties. In case of Hakim Khan (supra) the view was taken that
there is no law preventing a Court from looking into anti
considering documents even if those are not exhibited, provided
those have been placed on record. It was further held in this case
that omission to mark a document is merely an irregularity, which
is, otherwise curable. In the other case of Muhammad Ashraf
(supra) the view taken was that a document although not properly
produced in evidence but available on record can be looked into
and then in a latest judgment of this Court, in the case, of Mst.
Begum (supra) the entire case law was scanned and it was held
that Courts can take necessary steps, even sou motu and can

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issue directions, to bring all necessary and relevant documents on

record of the suit; by way of additional evidence, even without
asking of either party. In the instant case documents were
produced in evidence though at the time when the petitioners were
ex parte yet remained part of the record. These documents
required no formal proof being copies of the public record and
cannot be tampered with anti thus I feel that those have rightly
been relied by the Appellate Court for its decision.

6. In order to see relevancy of these documents and to assess, as

to whether, by exclusion of these documents what would be the
fate of the case, I have examined the merits as well. Property
subject of litigation was owned by Abdullah Khan who sold it to
non-Muslims, as noted in the earlier part of this judgment but was
ultimately held that it will not affect reversionary rights of the
respondents and in this manner it was a Muslim property and was
incorrectly treated as evacuee by the Rehabilitation Department
and thus was wrongly allotted to the petitioners. Now if we exclude
the documents Exhs.P.1 to 5 subject of dispute, property goes to
the petitioners to whom this property could not have been allotted
being a Muslim property and the real owners i.e. respondents will
be deprived or their rights, to have their ancestral property Another
injustice will ensue by exclusion of these documents that is the
decree dated 25-7-1950 will be nullified by this act, hence in view
of circumstance of this case and following the earlier view
consistently taken by this Court, in the above referred judgments, I
hold that the documents forming part of the record can be
considered as part of evidence and can be made basis for
decisions in order to do complete justice between the parties
especially when there is no probability of forging those documents

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and the other side is not deprived of any vested right.

7. Adverting to the objection of the petitioners that since Issue

No.2 regarding maintainability of the suit by the respondents in the
present form, was decided by the trial Court in favour of the
petitioners/defendants and Appellate Court could not decree
respondent's suit as it was not their suit, as it had not set aside
those findings of the trial Court, I find that trial Court after giving
incorrect finding on Issues Nos. 5, 7 and 8 jointly, observed while
answering Issue No.2 that on account of its decision on other
issues, it is also decided in favour of the defendants. Primarily this
issue was framed on the basis of Preliminary Objection No.2 of the
written statement filed by petitioners/ defendants and it is to the
effect that since a part of the land in dispute has been allotted to
defendants Nos.8 to 16 thus suit cannot proceed in its present
form. Allot ment of Muslim property by Settlement/ Rehabilitation
Department cannot strike out the suit, even otherwise suit, as
framed, is not bad at law. Learned counsel for the petitioners, has
not suggested me any other probable form of the suit. By setting
aside false findings on Issues Nos.5, 7 and 8 of the trial Court by
the Appellate Court, result of Issue No.2, in the circumstances,
also stood reversed.

8. For what has been discussed above, I am of the considered

opinion that Appellate Court has rightly relied on documents
already part of the record as Exhs.P.1 to 5 for deciding the issue
involved in the case. Its findings are absolutely in consonance with
the evidence on the file, which neither have been asserted nor is
proved to have been misread or non-read, in absence of which no
interference in the revisional jurisdiction is called for. This revision
petition has no merits in it and is accordingly, dismissed, leaving

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the parties to bear their own costs.

M.I./S-819/L Revision dismissed.

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