' This order will dispose of the application filed under Order XXI, rule 58, C. P. C. By Muhammad Saleem, the Intervenor, praying that the execution' application seeking attachment of the bus (No, 800.445) be dismissed.
1. Briefly stated the facts of the case are that in the Suit No, 816/77 filed by the plaintiff decree- holders claiming therein compensation under sections 1 and 2 of the Fatal Accidents Act, a decree was passed on 21-7-1981 by this Court for a sum of Rs: 1,24,000 out of which the defendant No, 2 was held liable to pay Rs, 20,000 while defendants Nos. 1 and 3 were directed to pay jointly and severally to the plaintiffs 3 and 4 a sum of Rs, 1,24,000. Judgment-Debtors were also held liable to pay proportionate cost and interest from the date of the decree till payment. The above-mentioned bus which was involved in the accident resulting in the death of Mst. Nafisa Bano was admittedly owned by defendant No, 1 Muhammad Usman and was then driven by Inayat Hussain, defendant No,
3. Its then registration No, K. A. Z. 942 plying on Route No, 5-C. Defendant No, 2 is Insurance Company with whom the said bus was insured.
2. Following the passing of the decree mentioned above the decree-holder filed Execution Application No, 9 of 1982 and wherein amongst others, relief was claimed for the attachment and sale of the said bus (registration No, K. A. Z. 944 with new registration No, 800-445). The Additional Registrar by order passed on 4-1-1982 ordered the issuance of writ under. Order XXI, rule 43, C. P. C.
Pursuant to the writ issued as above, on 13-2-1982 the bailiff attached the said bus near Mereweather Tower, Karachi in the presence of the bus driver Farman Ali and decree-holder No, I.
' Thereafter on 16-2-1982 an application under Order. XXI, rule 58, C. P. C. Was moved by the intervenor, Muhammad Saleem s/o Haji Yousuf resident of D-383 Khudadad Colony Karachi, objecting to the attachment of the said bus and praying that the same may be handed over to him on the ground that its attachment was outside the scope of the decree. In support of the application the Intervenor filed an affidavit wherein he pleader that he is the exclusive owner of the said bus, that it was purchased by hi on 17-10-1979 long before the decree was passed. He further contended that no decree had been passed against him and as such the property owner by him was not liable to be attached in consequence of the month)application filed by the decree- holders. In the affidavit he further pleaded that he had purchased the bus from defendant No; 1 and accordingly it was transferred in his favour on 17-10-1979 without knowledge .Of pendency of the suit wherein the decree was passed on 21-7-1961. He further submitted that he is the bona fide purchaser of the said bus and the entire transaction between him and defendant No, 1 took place much prior to the pronouncement of the judgment and passing of the decree and filing of the execution application. In support of his claim he produced copy of the registration book, Route permit issued in his favour, and insurance certificate in respect of the said bus under the Motor Vehicles Act, 1939. He stated that defendant No, 1 has nothing to do with the said bus owned by him and which was transferred by defendant No, 1 in his favour on 17-10-1979.
3. On behalf of the decree-holder the allegations made by the intervenor that he had purchased the bus and that it was transferred in his favour on 17-10-1979 were denied, as false and fabricated.
It was further stated in the counter affidavit that judgment-debtor No, 1 is the owner of the said bus and continues to be so. It was also pleaded that the documents are forged and have been fabricated with mala fide intention to delay and defeat the decree that has been passed against the Judgment-debtors. The rest of the allegations were also denied. It was further stated that the father of Judgment-debtor No, 1 Hakimullah attended the entire proceedings before the Additional Registrar, for the Intervenor, and that the route permit was changed in the name of intervenor only in January, 1982 after the execution was filed and the application under Order. XXI, rule 58, C. P. C.
Had been filed by Judgment-debtor No, .1 through the Intervenor to delay and defeat the decree passed against him. It was further asserted that judgment-debtor No, 1 is the owner of the bus attached and the application made by the Intervenor was liable to be dismissed.
4. The Court decided to investigate the objection application filed by the Intervenor, under Order XXI, rule 58, C. P. C. The following points for determination have been framed for the purposes of the disposal of this application, with the consent of the learned Advocates for the parties : -
(1) Whether the Intervenor has purchased the bus on 17-10-1979 ?
(2) Whether the transaction of purchase of the bus by the Intervenor from defendant No, I was lawful and for valuable consideration ?
(3) Whether the bus was attached from the possession of the Intervenor ?
5. The Intervenor examined himself (as Exh. 4) while on behalf of the decree-holders Abdul Rehman plaintiff No, 1, guardian ad litem of the minors (decree-holders), was examined.
6. The Intervenor, Muhammad Salim (Exh. 4) in his deposition stated that he had purchased the above-mentioned bus on 17-10-1979, got it registered in his name and in support of this plea produced the registration book issued by Excise and Taxation Department (the original whereof was seen and returned). The photo copy has been kept on the record as Exh.
5. He also deposed that he got the bus insured of which certificate was produced as Exh.
6. Route permit according to Intervenor was issued to him by Regional Transport Authority on 16-1- 1980 (Exh. 7). He also produced the receipt (Exh. 8) as evidence of the purchase of the above- mentioned bus from judgment-debtor No, 1.
' The Intervenor was cross-examined by Mr. M. M. Baig the learned Advocate for the decree-holder.
In the cross-examination the intervenor admitted that in the registration book his address was given as C/o Hakim Body Maker, Lawrence Road, Karachi, owned by Hakimullah, the father of the Judgment-Debtor No,
1. He however, stated that the said Hakimullah is not known to him. The Intervenor at another place admitted that his house is in Khudadad Colony, and place of business is at Tinhatti, Karachi. He further admitted that Hakimullah father of Judgment-Debtor No, 1 was present in the Court and pointed out to the said person (Hakimullah) sitting in the Court room.
According to the Intervenor this Hakimullah is the same person whose address is given in the registration book and is the father of judgment-debtor No, 1.
' In proof of the transaction of purchase of the bus by him from Judgment" Debtor No, 1, the Intervenor in answer to question put to him deposed :- "I purchased the bus in question for Rs, 62,000. I have a shop at Tin Hatti where I sell flowers. I have no garden. I prepare the garlands and sell them at my shop at Tin Hatti. The shop is hardly 3' x 6'. I earn about Rs, 1,200 per month from the said shop. I have no other business. I pay no income-tax. I cane produce the payment of tax in respect of the bus in question for the year 1979-80. 1 have no cash in' bank. I earn Rs, 200 to Rs, 250 which I keep in my pocket.. My father has got his own house which measures about 60 yards. My father expired in 1977."
' As the Intervenor had not produced receipts for alleged payment of motor vehicle tax after the purchase of the bus, his further cross-examination was postponed. At the adjourned hearing the intervenor produced receipts for payment of taxes which have been marked Exh. 9/1 to Exh. 9/5. He however admitted in reply to a question put to him that his name does not appear in any of the said receipts against the column "Name and address of the owner" and that name of the owner of the bus is not shown therein. The intervener admitted that at the time when the bus was attached, the same was driven by Farman Ali alias Ali and that apart from receipt Exh. 8 no other agreement was executed between him and judgment-debtor No,
1. The Intervenor further deposed that after the bus was ' attached persuant to the process issued by the Court, he went to the father of the judgment-debtor who informed him about the decree having been passed.
7. We have already noted above that throughout these proceedings and hearings of Intervenor's this application, Hakimullah the father of the Judgment-debtor. No, 1 had regularly attended and continued to remain present in Court. He however was not examined by the Intervenor as a witness in the case. Veracity of the claim made by the Intervenor, as to the alleged purchase of the bus was expressly challenged and the intervenor was also questioned about the purchase of tickets which usually are issued to the passengers travelling in the bus. Following is the statement of the Intervenor given in reply to the questions put to him :- ."I purchase ticket books for issuance by the conductor to the passengers travelling in th'e bus, from a place near Light House Cinema, I do not remember the name of the press. Last time I purchased the tickets in December, 1981 but I do not remember the name of the Printer and the shop from where I purchased the same.Keep no other accounts of tickets. I produce it as Exh.
11. (Subject to objection). This it in the handwriting of one. Abdul Rehman-Abdul Rehman resides at Garden. He is my employee. I give him Rs, 1,200 per month. He is a part time employee. He does not keep any other account. He keeps the receipts of purchase of diesel. He purchases diesel every day in the evening. I have not brought the receipts for the diesel purchased for this bus. I do not know the name of the owner of the petrol pump fromwhere the diesel is purchased. It is the petrol pump of P. B. S. At Garden. I purchase diesel in cash. For the salary paid to Abdul Rehman I do not take any receipt from him but he signs the register for receiving the salary. I have not brought the register but I can produce the same."
' As to the documents of purchase of the bus by the intervenor the same were expressly challenged as forged and fabricated.
8. On behalf of the decree-holders who are minors was examined Abdul Rehman plaintiff No, 1 and guardian ad litem of the said minors. He deposed in his evidence that Usman defendant No, 1 was examined in Suit No, 816/77 on 12/3/1981 and at that time he deposed that he was the owner of the bus in question. Certified copy of his statement has been produced , as Exh.
13. The statement then made by him (J. D. No, 1) on 12-3-1981 reads as follows : "I am the owner of the bus in dispute. -The witness Inayat was my driver. This bus was insured. I produce a certificate as Exh. 10/1."
In the cross-examination Abdul Rehman stated that he has no documentary evidence to show that the bus does not belong to Muhammad Saleem the intervenor or that he has been set up by judgment-debtor No,
1. He however, denied the suggestion that the bus was sold to Saleem by judgment-debtor No, 1 in 1979.
9. In the light of the above evidence led by the parties I now proceed to examine the Issues/points which have been framed in the case.
10. I would take up the first and second points together as I find the same are inter-related.
' The learned counsel for the Intervenor submitted that the documentary evidence produced by the Intervenor proves the fact of the purchase of the bus by him (Intervenor) from judgment-debtor No, 1 on 17-10-1979. 'In support of proof of this sale transaction the learned counsel relied upon the receipt dated 17-10-1979 which has been produced and marked as Exh.
8. Before I proceed further it may be mentioned that in his evidence. The Intervenor stated : "Apart from Exh. 8 no other agreement was executed between me and the judgment-debtor for purchasing the said vehicle."
Now we examined this receipt and its evidentiary value. This receipt appears to have been executed by some person but it is not possible to decipher his name. It purports to have been attested by two witnesses, Muhammad Tahir and A. Shaikh. However neither the alleged executant of this receipt was examined in the court nor any of the attesting witnesses was produced. It is significant to note that in his deposition the Intervenor who produced this receipt, could not say a single word either to identity of the signatures or the persons who allegedly executed or attested it.
Even the name of scribe has not been disclosed.
' Here I may refer to the case of Muhammad Yousuf v. S. M. Ayub (1). In this case the question/admissibility/proof of the document produced and exhibited at the trial came up for considerations. The observations of Mr. Justice Sajjad Ahmed relevant for the purposes of this case on the question involved are reproduced hereinbelow "When I say that the document Exh. P. E. Is unproved. I have in mind
(1) PLD 1973 SC 160 ' the mandatory provisions of section 67 of the Evidence Act, which lay down that "if a document is alleged to be signed or written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting". If the case of the respondent was that the appellant had signed the original of Exh.
P. E. Or the certificate appended to it, must have been proved that it was in the appellant's handwriting, for which no effort whatsoever was made. In the case of Bengal Friends & Co. v. Gour Benode Shah & Co., this Court had expressed itself on this point as follows :- "Documents which are not copies of judicial record, should not be received in evidence without proof of signatures and handwriting of persons alleged to have signed or written th em."
' I am of the view that even if such documents even brought on record and exhibited without objection, they remain on the record as "exhibits" and faithful copies of the contents of the original but they cannot be treated as evidence of the original having been signed and written by the persons who purports to have written or signed them, unless the writing or the signature of that person is proved in terms of the mandatory provisions of section 67 of the Evidence Act. If instead of the copy Exh. P. E.,.The original form "E" which formed the primary evidence, had been exhibited on the record without proving as to who was its author can it be argued' that by merely exhibiting it, the document should be taken for granted as bearing the signature of the appellant without proof that in fact it was written and signed by him. The onus obviously lay on the respondent to prove this fact and his failure to prove it did not cast any responsibility on the appellant to negatively disprove it."
' Reference may also be made to the observations made by another learned Judge (Mr. Justice Anwarul Haq as he then was) which read :- "As regards the contention that the document was not proved in accordance with law, I find that there is merit in the submission that the provisions of sections 67 and 47 of the Evidence Act were not complied with as there is no evidence on the record regarding the identity of the handwriting and the signatures of the appellant as appearing on the certificate appended at the end of Exh. P.
E. It is true that the document was produced before the Tribunal by an official of the Registrar, Joint Stock Companies, Peshawar, and it was exhibited thereafter, without any question having been put to the witness in cross-examamination about the genuineness and the authorship of the document, but the fact remains that this official did not say a word about his familiarity with the handwriting and signatures of the appellants."
11. The other document produced by the Intervenor in support of the alleged transaction is the certificate of insurance dated 24-10-1981. This document also remains unproved as neither the executant thereof was examined nor there is any evidence of the writing and signature of the executant on record. This document though marked as Exh. 6 on the principles laid down in the case of Muhammad Yousuf referred to above,, also remains unproved, and cannot be looked into to establish its contents.
' Reference then be made to the registration book of the said bus which shows that it has been transferred to Mr. Muhammad Saleem as owner and his address is given as C/o Hakim Bus Body Maker. Significant to note is the fact that Muhammad Saleem who is resident of Khudadad Colony and owns a small cabin (3' x 6') at Tinhatti where he sells flowers has given address "Court of Hakim Bus Body maker" which is owned by the father of Judgment-debtor No, 1 himself, we have already noted above that Hakimullah is the father of judgment-debtor No, 1 and that he has throughout remained present in Court during the hearing of this application. Another fact to be noted is that the transaction of the sale is stated to have taken place on 17-10-1979 and that on the same day the bus is shown to have been transferred and registered in the name of Muhammad Saleem the Intervenor C/o Hakim Bus Body maker (a concern of father L f Judgment debtor No, 1) who according to his own statement was not known to him. The inference is obvious, and there is no difficulty in observing that mere entry in the registration book mentioned above is no proof of the fact, in the circumstances of the case, that the intervenor became owner of the said bus.
12. As regards the payment of motor vehicle taxes for which receipts have been produced as Exhs.
9/1 to 9/5 it would be noted that the name of the intervenor does not appear in the column "Name and address of the owner" in any of the said receipts. It can therefore neither be said who actually paid the said taxes,. Nor the same lends support to the plea that the Intervenor is the owner of the said bus. The other document produced Exh. 10 dated 4-1-1982 which is a permit for stage- carriage, it would be seen that the address given in it does not show that Muhammad Saleem is the owner of the said bus. If the contentions of the decree-holders to the effect that Muhammad Usman, judgment-debtor No, 1 continues to be the owner of the bus are correct, then the mere fact the ndme of Muhammad Saleem has been used as the holder of the permit at the instance of Judgment-debtor No, 1 with intention to delay and defeat the decree passed in the suit, would not in any manner help either Judgment-Debtor No, 1 or the intervenor in getting the bus released.
13. The last document produced in support of his claim by the Intervenor that he is the owner of the bus is the statement of account Exh.
11. It is described by the intervenor as the statement of account for the sale of tickets issued to passengers travelling in the bus. It is stated to have been prepared by one Abdul Rehman who is alleged to be the part time accountant in the employment of the Intervenor. This person (Abdul Rehman) however was also not produced. The intervenor was even unable to give the name and place from where the bus tickets used to be purchased by him. He also could not remember the name of the owner of the petrol pump from where he purchased the diesel for the bus. Obviously the statement of account (Exh. 11) also remained unproved.
14. This brings us to another important factor as to whether in fact the Intervenor is the bona fide purchaser of the bus for valuable consideration. It is stated by him that he purchased the said bus for Rs, 62,000. When questioned about his financial status, Internor deposed that he has a shop at Tin Hatti where he sells flowers but on a further question put to him he admitted that he has no garden of his own, that he earns about Rs, 1,200 per month from the said business and that he has no other business. To another question put to him the witness stated :- "I have no cash in bank. I earn Rs, 200 to Rs, 250 w hich I keep in my pocket. My father has got his own house which measures about 60 (Sq. Yds.)."
' The evidence on record shows that the Intervenor is a petty flower seller, doing business in a cabin (3' x 6') in a poor locality (Tin-hatti), earning about Rs, 1,200 per month having cash Rs, 200 to Rs, 250 which he carries in his pocket, with no bank balance, could not have the capacity or funds to purchase the bus for Rs, 62,000.
Besides the above, I find the following facts which also negative the story set up by the intervenor :- (1)That the address of Muhammad Saleem (the intervenor given in the registration book is "C/o Hakim Body Maker, Lawrence Road, Karachi", which concern is owned by Hakimullah the father of Judgmentd-Debtor No, I. The intervenor has neither given his own residential nor business address.
(2)That judgment, debtor No, 1 has not been produced by the intervenor to prove the alleged sale of bus.
(3)Judgment Debtor No, 1 also did not care to step in the witness-box or to submit to the cross- examination to support the story of the alleged sale of the bus by him to the intervenor.
' It can hardly be disputed that to prove the alleged sale of the bus, Judgment-Debtor No, 1 was a material witness. The non-production of Judgment-Debtor No, 1 as a witness in the case leads to a strong presumption that if Judgment-Debtor No, 1 had been produced he would not have supported the story set up by the Intervenor, This aspect of the case assumes all the more importance as we find that the story set up by the intervenor that he purchased the bus on 17-10- 1979 from Judgment-Debtor No, 1 is contradicted by evidence given by Judgment-Debtor No, 1 himself at the trial of the suit wherein on 12-3-1981 he stated :- "I am the owner of the bus in dispute."
' The last fact which we note here is that Hakimullah, father of the Judgment-Debtor No, 1, who remained throughout present in the Court during the hearing of this application was also not examined. It was the case of the Intervenor in his evidence that :- "After the bus was attached pursuant to the process issued by the Court I went to the father of Judgment-Debtor No, 1 who informed me about the decree passed in the Suit."
' In spite of the above statement the intervenor did not care to examine Hakimullah though he is the person "care of" whom the name of the intervenor is shown in the registration book of the bus and that he is the father of Judgment-Debtor No, 1 and thus a material witness. Withholding of evidence of this witness also raises adverse presumption against the intervenor.
' The points Nos. 1 and 2 are accordingly answered in the negative and in favour of the decree- holders.
15. The last point which requires consideration, is whether the bus was attached from the possession of the intervenor.
' It has conic in the evidence that the bus was attached on 13-2-1982 near Mereweather Tower M. A.
Jinnah Road, Karachi when it was driven by Farman Ali. The said driver Farman has not been examined in the Court to show that he was an employee of the Intervenor or that he was driving the bus on behalf of the intervenor. The onus was upon the Intervenor, which he failed to discharge.
Even otherwise mere possession of attached property is no longer the decisive factor within the meaning of rule 60 of Order XXI, C. P. C. (as amended by Ordinance, XII of 1972) which as follows : - "Rule 60. Release of property from attachment. -Whereupon the said investigation the Court is satisfied that the claimant or objector had title to, or right or interest in, the said property, and the said property was not, by reason of such title, right or interest, wholly or partly liable to attachment, the Court shall make an order releasing the property, wholly or, as the case may be, to such extent as it is not so liable, from attachment."
16. The conclusion which follows from the above discussion is that the Intervenor has failed to prove that he has purchased the bus on 17-10-1979 or that he has any title to or right or interest in the attached bus or that he is the transferee thereof for valuable consideration. Accordingly I hold that the said bus is not liable to be released within the meaning of rule 60 of Ordinance XXI, C. P. C. (as amended by Ordinance No, XII of 1972).
17. For reasons stated above, the application filed by the Intervenor is dismissed with costs.
' Further proceedings for execution of decree against the attached bus shall be continued on re- opening of the Court after summer vacation.