SHAHID BILAL HASSAN, J. Through this judgment, the instant civil revision and the other Civil Revision No.24608 of 2020 (tilted Muhammad Ismail (deceased) through LRs vs. Muhammad Aslam), arising out of the same judgments/decrees dated 24.7.2019 and 24.2.2020 passed by learned counsel courts below which both have been impugned before this Court through the above referred civil revisions, are intended to be disposed of. Hereinafter, Muhammad Aslam shall be called as "petitioner" and Muhammad Ismail shall be called as "respondent".
2. In short, the facts leading to filing of these civil revisions are that Muhammad Aslam/petitioner instituted a suit for possession through specific performance of contract alongwith permanent injunction against Muhammad Ismail/respondent contending therein that the respondent agreed to sell his property measuring 1 Kanal, 4 Marlas against a consideration of Rs.4,50,00,000 and in this regard an agreement dated 13.6.2012 was reduced into writing. The petitioner paid Rs.52,50,000/- as earnest money to the respondent, out of which Rs.50,000/- was paid as cash, whereas Rs.52,00,000/- was paid through a cheque dated 15.6.2012, which was subsequently encashed by the respondent. The remaining consideration amount was to be paid in the shape of transfer of 2 Kanals, 161/2 Marlas valuing Rs.1,68,00,000/- by the petitioner in favour of the respondent, whereas rest of the consideration amount i.e. Rs.2,29,50,000/- was to be paid through cheques. The petitioner always remained ready to perform his part of obligation but the respondent after using delaying tactics finally refused to do the needful on his part. The suit was contested by the respondent mainly on the ground that actually the petitioner was not ready to comply with the terms and conditions of the agreement to sell dated 13.6.2012, owing to which the said agreement was cancelled. Out of divergent pleadings of the parties, 6 issues including Relief' were framed.
The learned trial court, after recording parties' evidence and hearing arguments of their learned counsel, dismissed the petitioner's suit for possession through specific performance along with permanent injunction, vide judgment/decree dated 24.7.2019, however, amount of Rs.52,00,000/- received by the respondent from the petitioner, being not earnest money, was held liable to be returned by the respondent to the petitioner with an observation that as the respondent had kept with him the said amount almost for 7 years since 2012, therefore, keeping in view the depreciation of money and increase in value of the property, the respondent was held responsible to pay an additional amount of Rs.30,00,000/- thereby the respondent was held responsible to pay total amount of Rs.82,00,000/- to the petitioner within two months from the date of announcement of judgment by the learned trial court. Being dissatisfied with the said judgment/decree, both parties preferred two separate appeals before the learned appellate court. Vide judgment/decree dated 24.2.2020, the learned appellate court dismissed the respondent's appeal, whereas partially accepted the petitioner's appeal by modifying the judgment/ decree of learned trial court in terms that the petitioner Muhammad Aslam shall be entitled to recover an amount of Rs.1,04,00,000/- from the respondent Muhammad Ismail, whereas to the extent of specific performance of the agreement, the appeal of the petitioner was dismissed. Both the aforesaid judgments/decrees of learned courts bellows have been assailed by both the parties through these civil revisions.
3. Heard. Record perused.
4. After hearing learned counsel for the parties, I am not inclined to respond to the instant civil revisions on merits i.e. with regards to the stance taken up by petitioner in the plaint as well as the respondent in the written statement. A careful perusal of the record reveals that the procedure adopted by the learned trial court is not in accordance with the mandate of law with regards to the recording of evidence of both the parties in the instant case. Obviously, both the parties had submitted copies of certain documents in terms of Order XIII Rule 1 CPC and desired production of documents in terms of Order VII Rule 14 CPC along with the plaint and written statement.
5. After framing of issues, the parties were directed to produce their respective evidence which needful was done. A perusal of the record reveals that only one document was got exhibited as Ex.P-1 in the testimony of PW-1, whereas no other document was got exhibited through the testimonies of either PWs or DWs, rather rest of the documents were brought on record through the statements of the learned counsel for the parties, which were either exhibited or marked. In this scenario, the only question to be determined is as to whether the recording of evidence in the instant case is as per mandate of law or not? In this case, from the side of petitioner total three witnesses were produced, whereas from the other side, only the respondent himself appeared as DW-1. Only one document i.e. Ex.P-1 was got exhibited by PW-1 in his statement, whereas the remaining documents were got exhibited/marked through the statements of learned counsel for the parties and not through the testimonies of either PWs or DWs except PW-1, as stated above. In this regard, the Hon'ble Supreme Court of Pakistan in the case reported as Federation of Pakistan through Secretary, Ministry of Defence and another vs. Jaffar Khan and others (PLD 2010 SC 604) has observed that:- "12. The document which has not been brought on record through witnesses and has not duly exhibited, cannot be taken into consideration by the Court. A party having produced no evidence on its own would have to abide by it, and be bound by such evidence as had come on record.
Written statement cannot be exhibited in the case without the person who filed the same being examined in the Court and cannot be treated as substantive evidence expect where such statement amounts to admission of plaintiff's plea. The contention of the learned counsel for the petitioners that the Court has to take into consideration the document on which the petitioners relief upon, has no force as neither the copy of such document was brought on record nor during their cross-examination the witnesses of the respondents were confronted with the said document."
The Hon'ble Supreme Court of Pakistan has further held in the case reported as Mst. Akhtar Sultana vs. Major Retd. Muzffar Khan Malik through his legal heirs and others (PLD 2021 SC 715);- "This Court has time and again emphasized that the disputed documents cannot be tendered in evidence in statement of the counsel for a party, because such procedure deprives the opposing party to test the authenticity of those documents by exercising his right of cross-examination."
In another case reported as Rustam and others vs. Jehangir (deceased) through LRs (2023 SCMR 730), the same view has been taken by the Hon'ble Supreme Court of Pakistan, which reads as under:- "the document should be produced in the evidence by the party itself and a fair opportunity should be given to the opposite party to cross-examine the same, as such, the said two documents produced by the defendants counsel in his statement could not be taken into consideration."
6. It has also been noted that some of documents have been brought on record through the testimony of learned counsel for the petitioner which have been taken as i.e. Mark-A & Mark-B. Now the question is whether the legality of marked documents is to be seen and responded to by this Court? In this regard, Rule 4 of Order XIII Code of the Civil Procedure, 1908 is relevant to be produced hereunder:- "4. Endorsements on document admitted in evidence.--(1) Subject to the provisions of next following sub-rule, there shall be endorsed on every document which has been admitted in evidence in the suit the following particulars, namely:- a. the number and title of the suit, b. the name of the person producing the document, c. the date on which it was produced, and d. a statement of its having been so admitted: and the endorsement shall be signed or initialed by the Judge.
(2) Where a document so admitted is an entry in a book, account or record, and a copy thereof has been substituted for the original under the next following rule, the particulars aforesaid shall be endorsed on the copy and the endorsement thereon shall be signed or initialed by the Judge.
The above provision of law makes it diaphanous that when a document is not brought on record through witness(es) and duly exhibited, the same cannot be taken into consideration by the Court, as the same has no legal value and sanctity in the eye of law. In judgment reported as Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others (PLD 2010 SC 604) the Apex Court of the country held that:- "The document which has not been brought on record through witnesses and has not duly exhibited, cannot be taken into consideration by the Court.
The same was followed in the case reported as Abdullah v. ProvincialGovernment through Secretary Board of Revenue and 3 others (2014 CLC 285-Balochistan) and similar view was adopted in Inspector-General of Police, Balochistan, Quetta and 4 others v. Ghulam Rasool (2012 CLC 1645-Balochistan). Even prior to it, the Hon'ble Supreme Court in a case reported as State Life Insurance Corporation of Pakistan and another v. Javaid Iqbal (2011 SCMR 1013), which has been relied upon and referred by the learned trial Court, held that:- "We are not convinced that, such document, which has not been produced and proved in evidence but only "marked" can be taken into account by the Courts as a legal evidence of a fact.
The ratio of said judgment was followed and relied upon alongwith Anwar Ahmad v. Mst. Nafiz Bano through Legal Heirs (2005 SCMR 152), in Syed Abdul Manan and others v. Malik Asmatullah and others (2019 CLC 1096-Balochistan).
8. Mere marking of a document as an exhibit would not dispense with requirement of proving the same and the same cannot be exhibited unless it is proved. As per law laid down by the Hon'ble Supreme Court of Pakistan in the cases cited above, the documents not brought on the record through witnesses testimonies cannot be taken into consideration by the court. But, in this regard, both the learned courts below have failed to adopt the said procedure of law. In addition to this, the reading of documents in evidence without observing legal requirements of Article 76 of the Qanun-e-Shahadat Order, 1984 would be illegal. Reliance is placed on Feroz Din and others vs. Nawab Khan and others (AIR 1928 Lahore 432) and Fazal Muhammad vs. Mst. Chohara and others (1992 SCMR 2182).
9. While relying on the judgments, supra, as well as the other case law reported as PLD 1973 SC 160, PLD 2020 SC 749, and 2021 YLR 2310, the learned trial court has deviated from the settled principle of law, as it ought to have taken the documentary evidence of the parties or recorded the same during the testimonies of either PWs or DWs. As stated above, the learned trial court has totally travelled beyond its jurisdiction with regards to the recording of evidence with particular reference to the documentary evidence, therefore, civil revisions are allowed, the impugned judgments/ decrees of both the learned courts below are set aside and the case is remanded to the learned trial court for a decision afresh after recording total evidence of the parties keeping in view the proposition mentioned in the above cited cases of Hon'ble Supreme Court of Pakistan strictly in accordance with law. Parties are directed to appear before the learned trial court on 16.1.2024. It is expected that the learned trial court shall decide the case expeditiously positively within six months form the date of receiving the certified copy of instant judgment.