'AQEEL AHMED ABBASI, J.---Being aggrieved and dissatisfied by the judgment and decree dated 5- 1-2007 passed by VIIth Additional District Judge, Hyderabad in Civil Appeal No,63 of 2005 whereby the appeal of the respondent Nos.1 and 2 has been allowed and the suit of respondents Nos.1 and 2 bearing F.C. No,478/2000 which was dismissed by 3rd Senior Civil Judge, Hyderabad vide judgment and decree dated 9-2-2005 and 10-2-2005 has been revised by VIIth Additional District Judge, and the suit has been decreed, the applicant has preferred the instant revision.
2. The brief facts leading to filing the instant revision are that the respondent filed the suit for declaration bearing No,478 of 2000 in the Court of 3rd Senior Civil Judge, Hyderabad with the following prayer:-- "That this plaintiff therefore prays that this Hon'ble Court may be pleased to declare that the Agreement of Sale dated 3-1-1997 (annexure P-1 to plaint) and Power of Attorney dated 10-2-2000 (annexure P-2 to plaint) are forged, false and bogus documents, as they were never executed by the above named plaintiffs. Cost of the suit be also awarded."
3. As per facts stated in the plaint, the respondent No,1 claimed to be the owner of Plot No,10/5, measuring 1780 square feet formed out of Serial No,399, situated at Deh Nareja, Hali Road, Hyderabad, purchased by her partly from Habib-urRehman son of Muhammad Hasan Shaikh vide sale-deed, and partly from Sharifa Begum wife of Rana Irshad Mehmood vide registered Sale-deed No,1717 dated 13-5-1981 and No,2811 dated 21-9-1981 respectively registered in the office of Sub-Reg is trar , Hyderabad Sindh. The respondent further claimed to have constructed 9 shops on the ground floor and godown behind the shops and one residential house with 4 rooms on the first floor of the said plot. As per respondent Nos.1, 9 shops were rented out to different tenants vide rent agreement, dated 20-11-1999. It was further stated by the respondent that on 12-1-1984 the respondent No,1 has appointed her husband Niaz Ahmed Khan, respondent No,2, as her General Attorney vide General Power of Attorney registered on 12-1-1984 under Registration No,18 in the office of Sub-Registrar, Hyderabad Sindh. It was claimed that the said Power of Attorney was still enforced and operational as the same has neither been withdrawn nor cancelled by the respondent No,l. Respondent further stated that in the month of January, 2001, one Mr. Sikander Ali, the tenant of respondent No,1 of Shop No,3 of the suit property has revealed that the applicant/ defendant No,4 claimed in the suit that one namely Ali Sher son of Hakim Ali Khan has claimed that he has purchased the suit property from the respondent No,1 on the basis of agreement of sale dated 3-1-1997 and Power of Attorney, dated 10-2-2000 and copies of which documents were claimed to have been obtained from applicant/defendant No,4, and the same were annexed along with the plaint by the respondent No,1 as annexure P-2 and P-3 respectively. The respondent No,2 served a legal notice dated 23-2-2000 through his Advocate Abdul Shakoor Malik on the tenant of respondent No,1 informing him that the above said documents are false and fabricated. Copy of such notice was also annexed with the plaint as Annexure P-4 to P-9. The respondent No,1 further submitted that she being a pardanashin lady has never executed the alleged agreement of sale dated 3-1-1997 in favour of applicant/ defendant No,4 in the suit nor the above named respondent has ever executed Power of Attorney dated 10-2-2000 and further respondent did never receive any amount from the applicant/defendant No,4 namely Ali Sher son of Hakim Ali.
4. Written statement was filed by the applicant/defendant No,4 wherein, besides objection on the maintainability of the suit, the claim of the respondent was denied and the execution of the disputed document i.e, Sale Agreement dated 3-1-1997 and Power of Attorney dated 10-2-2000 in favour of the applicant, was reiterated. However, it appears that no document was either annexed with the written statement nor the same was produced in the evidence by the applicant. The record further reflects that the defendants Nos.1 to 3 being officials did not contest the suit. Trial Court framed the following 5 issues:--
(1) Whether the suit is not maintainable according to law?
(2) Whether the suit is undervalued and the plaint in sufficiently stamped?
(3) Whether the agreement of sale dated 3-1-1997 and Power of Attorney dated 10-2-2000 were not executed by Mst, Razia and the same are false and forged documents?
(4) Whether the plaintiff is entitled for the relief claimed?
(5) What should the decree be?
5. Whereafter parties lead their evidence. From the side of respondent/ plaintiff Niaz Ahmed Khan, respondent No,2 for self and as general attorney of his wife Mst. Razia respondent No,1 was examined who produced original General Power of Attorney (marked as Exh.37) executed by hjs wife in his favour and also produced copies of 5 notices which were served on the tenants in respect of subject property through Malik Abdul Latif, Advocate, as Exh.38/1 to Exh.38/5. Execution of alleged Sale Agreement by the respondent and the Power of Attorney in favour of the applicant/defendant No,4 was vehemently denied and it was stated that those documents are forged and bogus, hence required to be cancelled or ignored for being of no legal consequence. It appears that matter was fixed for cross-examination of the respondent by the counsel for the applicant as well as counsel for other parties but record reflects that none of the counsel chose to cross-examine the respondent. The matter was fixed for arguments. After hearing all the counsel for the parties, the judgment dated 9-2-2005 was announced whereby issues Nos.1 and 2 were decided against the applicant, whereas on issue No,3, no finding was given by the learned trial Court for the reason that since the documents sought to be cancelled by the respondent were not produced and exhibited in the suit proceedings. In view of the finding on the issue No,3 the issues Nos. 4 and 5 were also decided against the respondent and the suit was dismissed with no orders as to cost. The said order was challenged by the respondent by filing Civil Appeal No,63 of 2005 before the VIIth Additional District Judge, Hyderabad. It appears that parties were represented by the learned counsel who argued the entire case before the VIIth Additional District Judge, Hyderabad, who vide its impugned judgment and decree dated 4-1-2007 and 18-1-2007 respectively has set aside the judgment and decree dated 9-2-2005 and 10-2-2005 respectively passed by the learned trial Court and allowed the Civil Appeal as prayed in suit with no order as to costs. The learned counsei for applicant argued that the impugned order is bad in law and facts whereas the original judgment and decree passed by the learned trial Court was based on valid legal grounds. Learned counsel argued that suit filed by the respondent was misconceived as neither the documents sought to be cancelled were exhibited before the Court nor any permission or direction of the Court for production of such documents was sought by the respondent. The learned counsel further argued that it was the duty of the plaintiff to establish his claim through evidence which per learned counsel of the respondent miserably failed to do so. Learned counsel further argued that impugned judgment and decree is violative of Order XLI Rule 31 whereby the learned appellate Court was required to formulate the issue or point of determination whereafter finding of each issue was required to be given. It was further argued that only the attorney of respondent was examined whereas no other witnesses were examined by the respondent, therefore, the claim of the respondent/ plaintiff remained unestablished in law and facts. Learned counsel in support of his argument placed reliance in the following cases:--
(1) Nasir Abbas v. Manzoor Haider Shah PLD 1989 SC 568.
(2) Imam Dino and others v. Nawaz Ali Shah 2003 CLC 1889.
(3) Karachi Development Authority and 2 others v. Taj Mahal Nursery and 3 others. 2000 CLC 1352.
(4) Juma Khan v. Mst. Shamim and 3 others 1992 CLC 1022.
(5) Trustees of the Port of Karachi and another v. Faquir Muhammad 1992 MLD 1782.
(6) Syed Farzand Raza Rizvi v. Syed Zaheer Mustafa 1988 MLD 463.
6. Conversely, the learned counsel for the respondent has vehemently opposed the instant revision application on the ground that the original judgment and decree was based on misreading of evidence and improper appreciation of law, hence the matter was summarily dismissed on technical ground whereas the impugned judgment and decree passed by the learned Vllth Additional District Judge, Hyderabad, is based on proper appreciation of facts and thorough examination of the law applicable in the instant case. Learned counsel further argued that the impugned judgment which has been passed after hearing both the counsel for the parties at length and after examination of the case-law referred and relied upon by both the parties does not suffer from any factual error or legal infirmity, on the contrary is based on assigned reasoning, hence does not require any interference by this Court in its revisional jurisdiction which is limited in nature and its scope. Learned counsel further stated that the copies of the documents which were sought to be declared as false and fabricated were since obtained froth the applicant hence the said photocopies were sought to be exhibited before the learned trial Court who refused to accept the same for not being admissible in evidence and dismissed the suit of the applicant on false pretext i.e, that the original documents were required to be produced by the respondent/plaintiff for which he was seeking cancellation. Learned counsel argued that since neither the respondent/plaintiff was the executant of such document nor the beneficiary hence could not possibly possess such document and produce the same in Court. Learned counsel further argued that once the plaintiff has presented his case in the plaint which contents were duly verified on oath and further supported such contention through examination on oath and thereafter produced himself for cross-examination, such assertions therein could have been denied by the defendant through his evidence on oath along with relevant documents. As per learned counsel in the instant case neither the assertions of the respondent/plaintiff with regard to the ownership and possession of the subject property has been specifically denied nor the allegation relating to false hood of the Sale Agreement dated 3-1-1997 and Power of Attorney dated 10-2-2000 was specifically rebutted or denied by the applicant/defendant in his written statement. Learned counsel further argued that it was the duty of applicant/defendant to produce such documents through which the applicant/defendant was claiming title over the subject property and further to adduce his evidence in support of his claim which the applicant/defendant miserably failed to do so. He has further argued that when written statement has been filed but the same has not been supported by the evidence the same is of no legal effect, hence is required to be ignored.
7. As regards the maintainability of instant revision the learned counsel has argued that the scope of revision is narrow and can only be invoked in case when gross illegality or jurisdictional error has been pointed out by the applicant. He further argued that in view of the judgment of the superior Courts, in the case of conflicting judgments of two forums preference is to be given to the judgment passed by the appellate Court. It was, therefore, concluded by the learned counsel that the impugned judgment and decree does not suffer from any factual or legal infirmity, therefore, the instant revision application is liable to be dismissed with costs. In support of his argument he has relied upon the following judgments:--
(1) K.A. H. Ghori v. Khan Zafar Masood and another PLD 1988 Karachi 460
(2) Faqir Muhammad and 8 others v. Abdul Momin and 2 others PLD 2003 SC 594
(3) Muhammad Hassan v. Khawaja Khalid-ur-Rehman 2007 SCMR 576
(4) Muhammad Abdul Karim v. Abdul Aziz and others 2007 CLC 360
(5) Atiq-ur-Rehman through (Real Father) and another v. Muhammad Amin PLD 2006 Supreme Court 309
(6) Sarfraz A. Malik v. Anjum Pervaiz and 3 others 2009 MLD 367
(7) Abdullah and 11 others v. Muhammad Haroon and 8 others 2010 CLC 14
8. I have heard both the learned counsel for the parties perused the record and examined the case-law referred and relied by both the parties. From perusal of the record produce before the Court below it appears that the respondent filed a suit seeking declaration to the effect that agreement of sale dated 3-1-1997 (Annexure P-1 to plaint) and Power of Attorney dated 10-2-2000 (Annexure P-2 to plaint) are forged, false and bogus documents as they were never executed by the above named respondent/plaintiff. Since the respondent/plaintiff never owned to have executed such documents nor considered the same is valid and legal documents could not possibly produce the original of such documents which according to the respondent/plaintiff were claimed by the applicant/defendant No,4 to have been executed in his favour, therefore, the same should have been in possession of the applicant/defendant No,4, who is the actual beneficiary of such documents. In order to prove a negative fact i.e, non-execution of alleged Sale Agreement dated 3-1-1997 and General Power of Attorney dated 10-2-2000 by the respondent/plaintiff, the respondent was required to deny the same by filing Affidavit to this effect and offering himself for cross-examination by the applicant/ defendant No,4 whereafter it was the duty of the applicant/defendant No,4 either to rebut and refute such allegations by filing counter affidavit, producing himself as a witness and further subjecting him to be cross-examined by the respondent/plaintiff. It appears that such exercise has not been undertaken by the applicant/defendant No,4 who merely filed an evasive written statement but neither produced himself as a witness nor submitted any document including the Sale Agreement and Power of Attorney stated to have been executed in his favour. Record further reveals that the applicant/defendant No,4 did not even cross-examine the respondent/plaintiff whereby the statement on oath of the respondent/plaintiff could have been refuted or shaken. Perusal of the issues framed by the learned trial Court reflects that a pertinent issue relating to admissibility of the photocopies of alleged forged and bogus documents was never formulated. On the contrary the suit has been dismissed mainly on the ground that since the said documents have not been produced by the respondent/ plaintiff in his evidence as such in absence of those documents the learned trial Court did not give any finding on those documents of which the cancellation was sought by the respondent/plaintif. f. Similarly, when the applicant/defendant No,4 in his written statement denied the allegations of the respondent/plaintiff and claimed the alleged Sale Agreement dated 3-1-1997 and General Power of Attorney dated 10-2-2000 executed in his favour to be valid legal documents creating his title in respect of subject property, the learned trial Court did not venture to ensure production of the same in Court. The learned trial Court did not formulate any issue to the effect as to who is required to produce such document in evidence either the party who is denying the execution of such documents or the one who owns the execution of such documents in his favour allegedly creating right and title over the subject property in favour of such party.
9. In view of hereinabove facts, it appears that the learned trial Court has dismissed the suit on technical ground without formulating the substantial legal issue revolving around the validity or otherwise of the said Sale Agreement and Power of Attorney, which were sought to be declared as forged and bogus. Similarly, the appellate Court while dealing with the controversy in hand appears to have set-aside the judgment and decree passed by the learned trial Court on legal plane, which prima facie appears to have legal support in view of the judgment relied upon by the learned counsel for respondent/plaintiff, whereas the factual aspect i.e, determination as to whether the alleged Sale Agreement dated 3-1-1997 and General Power of Attorney dated 10-2- 2000 were the forged and bogus documents, as claimed by the respondent/plaintiff has not been dealt with. In the instant case it appears that both the parties admit the existence of Sale Agreement dated 3-1-1997 and General Power of Attorney dated 10-2-2000, however, the respondent/ plaintiff denied execution of such documents and alleged the same to be as bogus and forged documents, whereas, the applicant/ defendant No,4 by merely filing the written statement claimed such documents to be valid and legal, and further claimed to have paid an amount of Rs,14,50,000 as sale consideration in respect of subject property to the respondent/plaintiff at the time of execution of alleged sale agreement and further claimed to have taken over the possession of such property. However, it appears that such claim of the defendant could not stand the test of evidence as neither the applicant/defendant No,4 produced himself as a witness to substantiate such claim nor even chose to cross-examine the respondent/plaintiff in order to refute the allegations and to dislodge the assertions of the respondent/plaintiff. Accordingly, I do not find any error in the judgment of the appellate Court whereby the claim of the applicant/defendant No,4 has been denied under the facts and circumstances of the case. Similarly, the finding of the appellate Court regarding assertions/claims of the respondent/plaintiff appears to have been based on sound legal principle, however, in the absence of any finding on the validity of the alleged forged documents by both the Courts below without even examining the same or seeking production of such documents during the course of proceeding and exhibiting such documents as per law whereafter the same could have stood the test of evidence, any finding in my view, deciding the fate of such documents could not be considered as valid and in accordance with law.
10. In the light of above facts, while agreeing with the judgment of the learned appellate Court on legal plane, I set-aside both the impugned orders and remand the case to the learned trial Court with the direction to formulate a legal issue relating the validity or otherwise of the alleged Sale Agreement dated 3-1-1997 and General Power of Attorney dated 10-2-2000, after seeking production of such documents from the concerned party as per law. The learned trial Court is directed to give its judgment on the above proposed legal issue preferably within a period of three months.