1. Syed Jamshed Ali, J.--The suit filed by Mst. Quresha Sultana and her husband Maj. (Retd.) Farooq Shah (Respondants Nos. 1 and 2 herein) for possession of the land in dispute based on title was decreed by the learned trial Court on 1.2.1990. However, on the appeal of the petitioner the decree was reversed and the suit was dismissed on the ground that Maj. (Retd) Farooq Shah, Respondent No. 1, had appeared as attorney of Respondent No. 1 in support of her case who was not properly authorized and was not himself a proper party. On the revision petition of Respondents Nos. 1 and 2, the learned High Court found that the reason for interference of the learned First Appellate Court in the decree of the trial Court was unsustainable. Accordingly, it restored the judgment and decree of the learned trial Court vide judgment dated 6.7.2001 which has been impugned in the present petition.
2. The claim of Respondent No. 1 in suit was based on Mutation No. 7551 dated 10.9.1977. However, Petitioner No. 1 setup counter title by claiming purchase of the land in dispute from the same vendor orally in 1956-57. The trial Court and the learned High Court dis-believed the so-called oral transaction of sale and preferred the documentary evidence of title of Respondent No. 1.
2. 3.The learned counsel for the petitioner contends that Respondent No. 2 had no locus-standi to be joined as a 'plaintiff in the suit, the plaintiff-Respondent No. 1 did not appear as her own witness and Respondent No. 2 who appeared as an attorney had not filed power of attorney before the learned trial Court. According to him, non-appearance of Respondent No. 1 to support her own case was fatal. Reliance was placed on K.S. Agha Mir Ahmad Shah and others v. K.S. Agha Mir Yaqub Shah & others (PLD 1957 (WP) Karachi 258). Another complaint being made is that copy of the power of attorney was submitted before the learned High Court which could not have been received and looked into in view of Article 76 of the Qanun-eShahadat Order, 1984. He further submitted that, in fact, Respondent No. 2, as attorney of the vendor, has been selling land to different persons and the sale made by him on behalf of the owner in favour of his wife was illegal.
3. 4.The submissions made by the learned counsel for the petitioner have been considered. Joinder of Respondent No. 2, as co-plaintiff, did not militate against the claim of Respondent No. 1 in the suit nor it caused any prejudice to the petitioner in any manner. Non-appearance of the plaintiff in this case was also not fatal. Respondent No. 2 was the general attorney of the vendor from whom Respondent No. 1 had purchased the land and therefore, he was fully in knowledge of the relevant facts. The judgment in the case of K.S. Agha Mir Ahmad Shah and others v. K.S. Agha Mir Yaqub Shah & others supra proceeds on its own facts. Non-appearance of the party as a witness came under consideration of the Superior Courts at a number of occasions. The first important judgment to be found is Sardar Gurbakhsh Singh v. Gurdial Singh and another (AIR 1927 P.C. 230). In the said case a male child was being put up as a legitimate heir of the Jagirdar which was disputed. His mother, although present in the Court, did not appear in the witness box. It was in this context that the following observations were recorded by their Lordships of the Privy Council-- "..............The true object to be achieved by a Court of justice can only be furthered with propriety by the testimony of the party who personally knowing the whole circumstances of the case can dispel the suspicions attaching to it. The story can then be subjected in all its particulars to cross- examination" (underlining is ours to supply emphasis).
4. 3.The second important case is Lal Durga Bakhsh Singh v. Rani Brij Raj Kaur (AIR 1938 P.C. 40). In the said case defendant in the suit, the appellant before the Privy Council, had claimed adoption and had also claimed property under a will. His non-appearance was considered to be fatal. The observations of the Privy Council in the said case were as follows: "Equally notable is his absence from the witness box--quite deliberate as is shown by the record-- in relation both to his alleged adoption and to the will of Partab Bahaduer Singh which he propounded in the circumstances presently to be referred to. The case against adoption, judged merely by his own conduct at every stage, is almost overwhelming. He has elected to leave that conduct of his entirely without explanation. If his failure to give evidence was attributable to a reluctance to testify shared with many Indians of high caste, that is unfortunate, because in the present case his failure to testify has strained judicial credulity to breaking point. "
5. 6.Reference may also be made to a judgment of Lahore High Court in Muhammad Hafeez u.
6. Muhammad Hanif Khan and another (1991 M LD 1576). It was a case of ejectment. The tenant had denied relationship of landlord by relying on an agreement to sell but did not appear in the witness box. The view taken by the learned High Court was "It is a settled principle of law that party personally knowing circumstances of the case is duty hound to appear as its own witness and submit to cross-examination failing which truth of that party may be discredited" (under-lined to supply emphases).
7. 7.The principle enunciated by the Privy Council in Gul Bakhsh Singh supra was pressed before the learned Calcutta High Court in Buoy Kumar Karnani u. Lahori Ram Prasher (AIR 1973 Calcutta 465) in a suit for recovery of money. The argument was repelled with the following observation: "But in the argument made by Dr. Das, if accepted, would mean that the plaintiff should have been called to disprove the defendant's case. In my view, there is no question of invoking presumption of Section 114, illustration (g) of the Indian Evidence Act and the principles laid down in the said Privy Council decision, cannot apply in this case ".
8. 8.The ratio of the aforesaid judgments is that if there are certain facts and circumstances specially in the knowledge of the party, an adverse inference could be drawn from its non-appearance.
9. There cannot, however, be any caste iron mould for the aforesaid principle. It will depend on the facts of each case. In case the circumstances on which a party relies are proved by evidence on record, then non-appearance of the party would not be fatal. It may be observed that a presumption (drawn from the conduct of a party), could not nullify proof of a fact by the evidence produced in the case.
9. As far as the contention that the attorney could riot have sold the land in favour of his own wife is concerned, it is based on Section 214 of the Contract Act. According to the said section, it is the principal who could repudiated the transaction. Till date the principal had never questioned the transaction made by Respondent No. 2 in favour of Respondent No. 1.
10. 10.The matter stands concluded by a finding of fact duly arrived at by the learned High Court.
11. While Respondent No. 1 was able to establish her title to the land in question on the basis of documentary evidence, petitioner had no title and was relying only on an oral assertion even without bringing the vendor into the witness box from whom he had statedly purchased the land particularly when the alleged vendor was his brother-in-law.
12. 11.For what has been discussed above, we do not find any merit in this petition which is dismissed.
13. Leave refused.