MUHAMMAD NOOR MESKANZAI, J. --- Instant appeal is directed against the judgment and decree dated 20th October, 2007 passed by the Senior Civil Judge,. Gwadar, whereby the suit filed by the appellant against the respondents for recovery of Rs. 1,000,000/- (Rupees ten lacs) was dismissed.
2. The brief facts, relevant for the disposal of instant appeal are that the appellant/plaintiff instituted a suit against respondents/defendants for recovery of Rs. 1,000,000/- initially in the Court of Qazi, Gwadar. It was-averred in the plaint that respondents No. 2 and 3 owed Rs. 1,00,000/- towards plaintiff on account of purchase of a `Launch' to the tune of Rs. 800,000/- (Eight lacs) and further Rs. 200,000/- (Rupees two lacs) cash were given to them. It was further stated in the plaint that vide agreement dated 1st July, 1997, the respondent No. 1 stood surety for respondents No. 2 and 3 and undertook that in case they failed to make payment of the said amount, he would pay the same. It was further agreed that he will handover his two shops situated at Shahi Bazar, Gwadar to the plaintiff in lieu of said amount. As the respondents No. 2 and 3 failed to make payment within the stipulated period, as such the defendant No. 1 handed over both the shops to plaintiff and the same are in plaintiff's possession for the last five years and the plaintiff is receiving rent from the tenants. It was also mentioned in the plaint that one Sahib Khatoon (sister of respondent No. 1) filed a suit for legacy in respect of the shops in question thus the plaintiff approached to defendant No. 1 for payment of Rs. 1,000,000/- but he flatly refused to make payment.
3. The respondent No. 1/defendant No. 3 contested the suit by way of filing written statement, however, the respondents/defendants No. 2 and 3 did not turn up, as such were proceeded against ex parte. The learned Trial Court out of pleadings of the parties framed following issues:--- {{URDU TEXT}}
4. Thereafter, the parties were directed to adduce evidence in support of their respective claims, whereupon plaintiff produced five PWs besides recording his own statement. In rebuttal the respondent No. 1 adduced three DWs and the defendant himself appeared in the witness-box. The learned Qazi, Gwadar after hearing the parties and evaluating the evidence decreed the suit vide judgment and decree dated 16th August, 2003. The respondent No. 1 feeling aggrieved of the judgment and decree referred to hereinabove preferred an appeal before the Majlis-e-Shoora, Mekran at Turbat, which too was dismissed. The respondent No. 1 dissatisfied with both the judgments and decrees filed RSA No. 1 of 2006 before this Court. This Court vide judgment/decree dated 28th June, 2006 accepted the RSA and set aside the judgments/decrees dated 16th August,, 2003 and 20th March, 2004 respectively passed by the Qazi, Gwadar and Majlis-e-Shoora, Mekran at Turbat and remanded the case to the Trial Court for re-writing of the judgment keeping in view the provisions of Order XX, Rule 5, C.P.C. In the meantime, the Court of Qazi, Gwadar was succeeded by Senior Civil Judge, as such, the latter vide judgment and decree dated 20th October, 2007 dismissed the suit, hence instant appeal.
Learned counsel for the appellant that the appellant has fully proved his case by producing trustworthy and confidence inspiring evidence but the learned Trial Court without properly appreciating the material available on record illegally and unlawfully dismissed the suit. It was further argued that the learned Trial Court misinterpreted the agreement dated 1st July, 1997 which proves that respondents No. 5 and 3 purchased the 'Launch' and also received Rs. 200,000/- cash from plaintiff and the respondent No. 1 stood guarantor. On failure of respondents No. 2 and 3 to make the payment, respondent No. 1 cleared the outstanding liability by handing over two shops to the appellant. Learned counsel stressed that the appellant produced tenants of the shops who affirmed before the Court that they have executed affidavit at the behest of respondent No, 1 with regard to regularly paying the rent but the learned Trial Court failed to take into consideration this aspect of the matter. The learned counsel next argued that the Trial Court wrongly concluded that agreement dated 1st July, 1997 was not produced by the appellant. In fact the plaintiff annexed copy of agreement with the very suit and thereafter tendered the same while recording his own statement, but the Trial, Court failed to put exhibit thereon. Learned counsel canvassed that the document was placed on record and was not confronted in any manner, the learned Trial Court ought to have had taken the same into consideration. Learned counsel further contended that the witnesses produced by the appellant clearly stated that the amount was outstanding against the respondent and the respondent No. 1 himself too accepted the responsibility. Lastly the learned counsel' prayed for acceptance of appeal and setting aside the judgment and decree impugned.
On the other hand, the learned counsel for respondent No. 1 strenuously opposed the appeal and supported the judgment impugned. It was argued that the plaintiff badly failed to prove his case by producing tangible, trustworthy and confidence inspiring evidence. The learned C.L.R.
Trial Court after proper appraisal of material available on record, considering all the material and diluting upon each and every aspect of the case passed a well-reasoned judgment. Learned counsel for appellant failed to point out any illegality or material irregularity in the judgment impugned. Learned counsel further argued that the statements of the witnesses were contradictory to the stand taken by the appellant, as such the suit filed by the appellant could not have been decreed. Learned counsel laid much stress that the agreement relied upon by the plaintiff was not exhibited, as such the learned Trial Court rightly dismissed the suit filed by the plaintiff.
5. We have considered the arguments advanced by learned counsel for the parties and perused record of the case. At the very out set it is important to observe that the respondent while filing written statement specifically raised objection regarding limitation but despite such objection no issue was framed by the Trial Court. This matter came up before this Court by means of R.S.A. No. 1/2006 and thus Court while accepting RSA remanded the case to the Trial Court vide judgment and decree dated 28th June, 2007, Operative portion of the order is reproduced herein below:- "Submission made by the learned counsel for the appellant considered and impugned judgment examined. The Trial Court framed eight issues referred to herein above but no finding has been recorded on each and every issues. The judgment reflects that all the issues have been disposed of together, which in our view does not fulfill the requirements of the provisions of Order 20, Rule 5, C.P.C. Similarly the Appellate Court without taking, note of the above lapse on the part of Trial Court did not decide the issues and without formulating of points by determination issues and without formulating of points for determination dismissed the appeal, whereby the provisions of Order 41, Rule 31, C.P.C. Have been violated.
Thus taking into consideration the above factors we set aside the impugned judgment and decree dated 16.8.2003 passed by Qazi Gwadar and judgment and decree dated 20.3.2001 passed by Majlis-e-Shoora, Makran at Turbat and remand the' case to the Trial Court for re-writing of judgment, keeping in view the provisions of Order 20, Rule 5, C. P.C. "
6. We are not oblivious of the fact that despite objection of limitation in written statement, issue regarding limitation has not been framed and the legal requirement is that the point of limitation must be adhered to by the Courts seized with the matters as contemplated by Section 3 of Limitation Act. Since this is the second time the matter has come before this Court and perhaps in early round of litigation, the parties remained satisfied with the issues already framed and this Court remanded the case just for rewriting of the judgment without directing for framing of issues regarding limitation. Hence, under these circumstances we are constrained to confine ourselves to the issues already framed. The perusal of the judgment reflects that the Trial Court while dilating upon the matter discussed certain issues together keeping in view the combined effect and common impact thereof. The learned counsel for the parties also did not raise any objection upon the course so adopted, hence we would like to dispose of the matter on the same pattern by taking the issues jointly as done by the Trial Court because no prejudice is caused to either of the party.
7. Though the Trial Court has disposed of issues No. 1 & 6 jointly keeping in view the office thereof nevertheless the issue No. 1 the burden whereof was upon plaintiff, appears not to have been proved because the only evidence available on record seems to be the statement of Haji Usman which is not worth consideration for a couple of reasons. Firstly; because this is the sole evidence and legally to prove a fact pertaining to civil liabilities is required to be proved by two witnesses and secondly the statement of this witness runs contrary to the contents of the plaint. Besides, the reason discussed in detail by the Trial Court while resolving these issues in affirmative, we are of the considered opinion that appellant/plaintiff has badly failed to prove the issue No. 1. Since the issue No. 1 has been resolved in negative the natural effect thereof would be that issue No. 6 stands proved. Hence, we do not see any, plausible reason to upset the finding recorded by the Trial Court,
8. As far as issue Nos. 2 & 7 are concerned, the Trial Court has resolved both the issues by taking the some together keeping in view the common impact thereof. In fact both the issues are offshoot of issue Nos. 1 & 6, and the findings recorded thereon have a great impact on these issues as well. In order to prove issue No. 2 plaintiff produced P.W.3 Imam Bakhsh and Reheem Bakhsh who claimed to have identified their signatures on document, yet have failed to prove the contents of the documents as the narration of both the P.Ws. Run contrary to the agreement. According to P.W.3 Imam Bakhsh there was a dispute of rupees ten lacs among the parties. Defendant No. 1 was owning a debt of Rs. 1,00,0000/- towards plaintiff who demanded the same and defendant/respondent No. 1 being incapable to make the payment, gave the shops in lieu of the said amount. He does not state that defendant was surety and on that account he gave the shops.
Secondly the P.W. Does not state number of shops nor has given the boundaries in examination-in- chief. Further PW.3 states in reply to question No. 2 that:
9. As far as statement of P.W.4. Raheem Bukhsh son of Sabzal is concerned, according to his statement he was present in the office of Hassan when a sale-deed was executed as Ahmed had taken a loan of Rs. 100,00,00/-from Wahid Bakhsh and in case of non-payment of said loan he had to transfer ownership of one shop to Wahid Bakhsh. Statement of P.W.4. Also runs contrary to the contents of agreement . Moreover, as per agreement two shops have been given to plaintiff whereas according to P.W.4. Only one shop was given. P.W.4 further states that he does not know the other witnesses of agreement. Besides, the author of the document despite being alive was not produced nor any plausible reason for his non-production was offered. Additionally the document was liable to be registered and for want of non-registration such document does not operate to create, extinguish any right. It is important to note that the document in original was neither tendered in evidence nor produced on record and only a photo-stat copy is available which neither could have been tendered in evidence nor could be taken into consideration. Since the plaintiff has failed to prove issue No. 2, therefore, issue No. 7 automatically stands proved. Moreover, P.W.3. And P.W.4 have sworn affidavits before the learned Majlis-e-Shoora during pendency of proceedings under Section 12(2), C.P.C. With regard to the same subject-matter. Though no question was put to P.W.3 & P.W.4 in comparison with the said affidavits, yet the affidavits have been appended by the plaintiff with the plaint. The Trial Court in order to arrive at a just conclusion rightly evaluated both the statements of same person on the same subject and, thus the statements of P.W.3 & P.W.4 were rejected for viable reasons.
10. Like the above-referred issues the remaining issues , i.e. 3, 4, 5 and 8 have also been resolved together.' The over all impact of the evidence produced by the plaintiff is that the plaintiff has failed to prove the execution of the document plus delivery of possession of the shops to him. In the plaint though it has been stated that the shops were handed over to plaintiff but in the same plaint the petitioner stated that the defendant is neither prepared to make the payment of Rs. 1,000,000/- nor is ready to give his share of. Shop to plaintiff. This averment reflects that the plaintiff has never been delivered to him the possession of shops or he has ever collected any rent from the tenants.
The prayer clause unfolds the very theme and mala fide of the plaintiff.
For the sake of convenience Para No. 5 and prayer clause of the suit are reproduced herein below:- -- {{URDU TEXT}}
11. A meaningful analysis of the evidence produced by the plaintiff reflects that the evidence and the contents of the plaint are irreconcilable in nature and run contrary to each other. We are clear in our mind that the Trial Court after proper application of judicial mind and analysis of evidence has rightly resolved the issues mentioned hereinabove. Perusal of the record further reflects that the learned Trial Court after the thorough examination of, evidence and by forwarding cogent, plausible and rational reasons resolved the contrary by dismissing the suit, which do not call for any interference by this Court, as there is no misreading or non-reading of evidence nor there is misappreciation of facts or misapplication of any law.
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