1. ' Through this revision application under section 115, C.P.C. The applicants have assailed the concurrent findings of the learned two Courts below whereby the suit filed by respondents Nos.1 and 2/plaintiffs was decreed. The prayer in the suit which was allowed reads as follows:-
(a) Declaration that the plaintiffs are the absolute owners of their respective plots described in their respective sale-deeds dated 10-4-1978 and defendants have no rights or interest thereto.
(b) That the defendants be directed to hand over vacant possession of the private Plots Nos.74 and 77 of C.S. No,A/119-13-14 Deh Hyderabad with boundaries described in para. 4 of the plaint to the plaintiff No,1 and of the private Plots Nos.75 and 76 of C.S. No,A/119-13-14 Deh Hyderabad, with boundaries in para.6 of the plaint to the plaintiff No,2 and on their failure the possession be delivered through the process of Court.
2. ' Heard Mr. Jhamat Jethanand learned counsel for the applicants and Mr. Masood Ali learned counsel for respondents Nos.1 and 2.
3. ' Mr. Jhamat Jethanand, Advocate has submitted that the concurrent findings of the learned two Courts below are liable to be set aside and the revision should be allowed, dismissing the suit on consideration of the following points:--
(i) The rule laid down by the superior Courts in respect of Pardanashin ladies have not been followed by the learned two Courts below.
(ii) The Appellate Court has illegally allowed the production of additional evidence and has relied upon the same ignoring the provisions contained in Order 41, rules 27 and 28, C.P.C.
(iii) The plaintiffs/respondents Nos.1 and 2 had failed to prove subdivisions of the plots.
4. ' Elaborating the above contentions Mr. Jhamat Jethanand, Advocate has submitted that the case of plaintiffs/respondents Nos.1 and 2 is that, the suit land was jointly owned by the defendants/applicants and respondent No,3. All of them except defendant No,6/respondent No,3 Mubarak Ali are illiterate and the lady applicants are Pardanashin as well. He has submitted that a cloak of protection has been woven around the interest of illiterate and Pardanashin ladies, therefore, even if execution of some documents is not denied by the illiterate and Pardanashin ladies and has admitted, the burden is on the person who wants to rely on the document executed by such ladies to establish that the contents of the documents were read over to such lady executants and they signed the documents after fully being conversant of the contents of documents or that the documents were signed without any coercion, fraud or misrepresentation and with the consent and free-will of the executants. In support of his contentions he has placed reliance on the following judgments:--
(1) National Bank of Pakistan v. Mst. Hajra Bai PLD 1985 Kar. 431 (D.B.),
(2) Fida Muhammad v. Pir Muhammad PLD 1985 SC 341, and
(3) Jannat Bibi v. Sikandar Ali PLD 1990 SC 642.
5. ' In the case of National Bank of Pakistan v. Mst. Hajra Bai (supra) the suits were filed by National Bank of Pakistan against two ladies on the basis of documents executed by them in favour of the bank. The suits were resisted by the ladies contending that, they had not executed the hypothecation deeds in favour of the bank. They had also denied the execution of promissory note in favour of husband of one of the ladies who had obtained loan from the bank. The ladies expressed their complete ignorance about the alleged transaction between the bank and the loanee. They raised a plea that they are illiterate Pardanashin ladies and denied the execution or signing of any document for guarantee or hypothecation. They stated that the loane obtained their signatures on several blank papers and had also fraudulently took away the title deeds of their properties. They further stated that when they were produced before the District Registrar, Karachi they refused to admit the contents of the documents intended to be registered and accordingly the said document was returned unregistered.
6. ' The said ladies had also brought a suit against the bank and the loanee for declaration that the detention of title deeds of their properties was illegal, void and inoperative. They had further prayed to restrain the bank from using the said deeds in any manner. They had pleaded that the loanee who was husband and son of the ladies took away title deeds of the properties owned by the ladies and obtained the signatures of the ladies on some blank papers. When questioned by Registrar if they had given their consent for registration of mortgage document in respect of their properties in favour of bank they refused to sign the documents. They showed their complete ignorance about the alleged transaction between the bank and the loanee. The ladies had taken plea that there was no privity of contract between the parties and they had not executed any guarantee for repayment of the dues which their husband and son owed from the bank. The case of the bank was that the ladies had not only executed the documents but had also executed agreement to mortgage their properties and their title deeds were handed over to the bank as security for bank guarantees that were given by the loanee. It was averred by the bank that subsequently the ladies in collusion with the loanee tried to wriggle out from their commitment, and therefore, refused to sign the mortgage deed at the time of registration.
7. ' In view of the above pleadings a learned Single Judge of this Court observed as follows:-- "In this case, the precise question whether in the facts and circumstances of the present case defendants Nos.2 and 3 who are Muslim ladies not used to appearing in public are entitled to the protection of any special rule of evidence so far as the proof of execution of the document in question is concerned. It is well-settled that in the Sub-continent Pardanashin ladies have been given a special protection in view of the special conditions of times, they are presumed to be imperfect knowledge of the world, as by the Parda system they are practically excluded from the social intercourse and communion with the outside world. Thus a rule has been evolved for the protection of Pardanashin ladies whereby a duty has been cast upon a person claiming under an instrument signed by a Pardanashin lady not only to prove the execution of the document but also that the nature of the transaction contained in the document was fully understood by such executing Pardanashin women. The law regarding Pardanashin ladies equally applies to illiterate and ignorant women."
8. ' The bank, being aggrieved with the above observation preferred High Court appeal before a Division Bench of this Court and after examining the chain of authorities on the point under consideration, a Division Bench of this Court held as follows:-- "From the above authorities the legal position that crystallizes is that in the case of a document allegedly executed by an illiterate person or Pardanashin lady, the party taking advantage under it must establish by strongest and most satisfactory proof that not only the document was executed by such illiterate person or Pardanashin lady but also that the said illiterate person or Pardanashin lady had fully understood what was contained in the document. Mere fact that the execution was unaccompanied by duress, protest or obvious signs of misunderstanding or want of comprehension is in itself no real proof of true understanding mind in the expectant. The evidence must show that the document was read over and if necessary explained to the executant and in the case it was in the language which the executant did not understand, it was translated for the executant's comprehension. However, if subsequently the executant makes a declaration that he or she had not understood what he or she was doing, that by itself is not conclusive. It must be a question whether, having regard to the proved personality of the executant, the nature of the transaction, the circumstances under which it was executed and the whole history of the parties, it was reasonably proved that the document was the free and intelligent act of the executant or not.
9. If the answer was in the affirmative, the person relying on the document had discharged the onus resting upon him. Thus the Courts have no doubt evolved certain rules for their guidance in such cases, but the rules so laid down are only rules of prudence rather than rules of law and, therefore, their application depends upon facts of each individual case. If these 'rules are moulded into inelastic formulas or crystallized into inflexible rules and treated as of universal application, there will be grave risk of failure of justice."
10. ' However, while propounding the above principle of law the learned Member of the Division Bench proceeded to examine as to how the exposition of the above principles covered the cited case.
11. They found that the stand of ladies was that, they were completely in the dark as to the transaction that had taken place between the bank and the loanee. According to them the loanee had obtained their signatures on blank papers and had taken away their property title deeds on the excuses which turned out to be false. It was further observed that when the ladies were taken to Registrar and were informed by them that they were to sign the mortgage deed whereby their properties were to be mortgaged as a security for the guarantees given by them on behalf of loanee they refused to sign the deed with the result that the mortgage deed was returned unregistered. The learned Judge further observed that, had the ladies entered into mortgage agreement they would not have backed out at the time of registration of mortgage deed.
12. ' After examining the facts of the case in the light of pleas taken by the ladies it was observed that the fraud was played on the ladies and the entire deal of the loanee was shady. It was ultimately held, that the learned Judges came to the irresistible conclusion that the ladies were not party to the documents in question and in case they had signed the documents they were totally in the dark as to the contents of the same. It was further held that it was more probable that their signatures were ' obtained on blank papers beduse after all the loanee who obtained their signature was their own, and therefore, they could not think even for a moment that they would betray their confidence but then they came to know the real purpose behind the moves of the loanee they frustrated his intention. With these findings the judgment of the Single Judge in favour of the ladies was upheld and the appeal was dismissed.
13. ' In the case of Jannat Bibi v. Sikandar (supra) the relevant facts were that respondent No,3 in the cited case was an Assistant Sub-Inspector, in the Police Department and father of respondents Nos.1 and 2 who were residing in the neighbourhood of the appellants in the cited case. He sympathized with the appellant and her mother offered to help them for securing permanent transfer deed in their names and getting entered their names in the Provisional Transfer Order and asked them to execute a power of attorney in his favour. Relying on the representation, the appellant and her mother affixed their thumb-impressions on certain paper as they were illiterate.
14. This paper was later on used partly as a mortgage deed and partly as an agreement to sell the house for a consideration of Rs,6,650 which was acknowledged to have been received at the time of execution of the document.
15. ' In the above perspective the question pertaining to the protection of illiterate Pardanashin lady came for consideration before the Honourable Supreme Court.
16. ' The Honourable Supreme Court observed that it is well-settled that the question whether the lady is Pardanashin or not is a question of fact and that it is also well-settled that the burden of proof in respect of a document purported to have been executed by a Pardanashin woman affecting her right or interest in the immovable property is on the person claiming the right or interest under the document. It was further observed that it is for the person claiming the benefit under the document to establish affirmatively that it was substantially understood by the lady and it was really her free and intelligent act. If she is illiterate, it must have been read over to her. The Honourable Supreme Court, while considering the above issue undertook resume of the case-law and proceeded on to examine if the sale-deed in the cited case bearing thumb-impression by the appellant ladies was explained to and understood by them and whether the respondent was able to discharge the burden of proof to the execution of sale-deed by them. While examining the facts of the case, it was observed that the executant lady stated that she had put her thumb-impression on the power of attorney but the same was not read over to her. She further denied to have affixed thumb- impression on document and the sale-deed and had taken specific plea that she had not sold the house. She further stated that the document which was signed before.Tehsildar was executed under the misrepresentation that she had to sign the receipt before Tehsildar. After examining the entire facts in the light of the plea taken by the illiterate Pardanashin lady the Honourable Supreme Court held that it could not be said that the documents were read over or explained to the appellant, and therefore, the respondents who were the beneficiaries of the documents failed to discharge the burden of proof of the execution of the documents.
17. ' In the case of Fida Muhammad v. Pir Muhammad (supra) the Honourable Supreme Court had laid down certain principles in respect of General Power of Attorney which are as below:-- "Attorney is not absolved from his two essential obligations mentioned as under: ' Firstly, in cases of difficulty (and it will be a case of difficulty if the power of attorney is susceptible to doubt about its interpretation) to use reasonable diligence in communicating with the principal and seeking to obtain his instructions, and secondly, if the agent deals on his own account with the property under agency, e.g. If he purchases it himself or for his benefit, he in his own interest should obtain the consent of the principal in that behalf after acquainting him with all material circumstances on the subject, failing which the principal is at liberty to repudiate the transaction."
18. ' Mr. Jhamat Jethanand, Advocate has submitted that the ratio of the above judgments are fully attracted to the facts of the present case but the learned two Courts below have totally ignored this aspect of law laid down by the superior Courts and, therefore, the findings of the two Courts below suffer from illegality.
19. ' On the other hand Syed Masood Ali learned counsel for respondents Nos.1 and 2 has submitted that the ratio of the judgments is attracted when the execution of document is alleged in consequence of fraud or misrepresentation and not otherwise. He has submitted that in the present case it was specifically averred in the plaint that the defendant No,6 Mubarak Ali brother of defendants Nos.5 and 7 to 11 was holding power of attorney from all the defendants and the defendants in their written statement did not deny the contents of para.3 of the plaint. It was averred in the written statement that defendant No,6 was the attorney but his power of attorney is cancelled. Syed Masood Ali has submitted that the facts of the present case are thus totally distinguishable from the facts of the cited case in which the disputed documents were alleged to have been executed as a result of fraud or misrepresentation, while in the present case there is no such plea. The only contention of the defendants was that the power of attorney in favour of defendant No,6 was cancelled and no evidence whatsoever has been produced to substantiate the contention. It would be pertinent to observe that Mr. Jhamat Jethanand has conceded that no evidence was produced by the defendant to prove that the power of attorney was cancelled before execution of sale-deed by attorney No,6 in favour of plaintiffs/ respondents Nos.1 and 2.
20. ' I have carefully considered the contentions of the learned Advocates for the parties and the material available on record. I have very carefully examined the judgments on which Mr. Jhamat Jethanand has placed reliance. At this juncture I would like to observe that the law of precedent requires that the ratio of a judgment should be discerned from the Jaw, facts and circumstances of each case and should be applied with all care and caution, otherwise there is likelihood of misapplication of ratio of judgment and causing of injustice to the parties. This aspect has been considered in the case of National Bank of Pakistan v. Mst. Hajra Bai (supra) and a note of caution has been given by the learned Members of the Division Bench in the following words:-- "Thus, the Courts have no doubt evolved certain rules for their guidance in such cases, but the, rules so laid down are only rules of prudence rather than rules of law and, therefore, their application depends upon facts of each individual case. If these rules re-moulded into inelastic formulas or crystallized into inflexible rules and treated as of universal application, there will be grave risk of failure of justice."
21. ' It is always imperative that while applying the ratio of any case the particular facts and circumstances of the said case should be kept in view. Applying this principle I find that in cases on which Mr. Jhamat Jethanand has placed reliance a specific plea was raised by the illiterate Pardanashin ladies that the disputed documents were got executed by them as a result of fraud and misrepresentation. In the present case there is no such plea. The point requiring in this case is whether the power of attorney admittedly executed by the defendants in favour of defendant No,6 was cancelled or not and it is admitted position that no such evidence was adduced by the defendants.
22. ' For the foregoing reasons I am of the opinion that the ratio of the judgments on which Mr. Jhamat Jethanand has placed reliance are not attracted to the facts of the present case and, therefore, it cannot be held that in the facts and circumstances of the present case the learned two Courts below ought to have followed the principles laid down by the superior Courts. It is held that the concurrent findings of the learned two Courts below does not suffer from any illegality as contended by Mr. Jhamat Jethanand. So for the guidelines laid down, by the superior Courts in respect of power of attorney is concerned it is also not attracted to the facts and circumstances of the present case.
23. ' Now I come to the second contention of Mr. Jethanand, Advocate that the Appellate Court illegally allowed to produce the additional evidence. The relevant facts are that during, the course of recording the evidence by the trial Court a simple copy of the power of attorney executed by the defendants in favour of defendant No,6 was produced being Exh.63. At the appellate stage a question arose whether the said simple copy of the power of attorney produced in evidence and allowed to be exhibited without any objection could be taken into consideration. Confronted with this situation the learned counsel for the respondents Nos.1 and 2 submitted application under Order 41, rule 27, C.P.C. Praying that the certified copy of the general power of attorney executed by the defendants in favour of Mubarak Ali and which was duly registered with the Sub-Registrar, Hyderabad may be allowed to be produced at the appellate stage.
24. ' The learned Appellate Court allowed the application with the following order:-- "Heard Mr. Syed Masood Ali and Mr. Jhamatmal, Advocates for the appellants. Also perused R&Ps of the appeal and those of the suit, held in trial Court.
25. ' The document sought to be produced in the evidence is a certified, simple copy whereof has already been produced in the evidence, produced by the parties, in the trial Court. The said simple copy was not resisted to be allowed to be produced. Copy thereof is sought to be produced as the law requires that simple copy of a document cannot be allowed to be looked into. This document is very much relevant and the authenticity thereof appears to be free from any doubt. The same also covers the pleadings of both the parties.
26. ' In the circumstances, the said document is allowed to be looked into for the purposes of the decision of this appeal, as simple copy thereof (verbatim to same) is already in the evidence recorded by the trial Court.
27. ' Mr. Jhamat Jethanand, Advocate contended that the learned Appellate Court was not justified in allowing the production of additional evidence at the appellate stage and according to the learned counsel the order is violative of the provisions contained in Order 41, rule 27, C.P.C. However, the learned counsel was not able to show as to which provision contained in Order 41, rule 27, C.P.C.
28. Has been violated. The above provision reads as follows:-- "Order 41, rule 27.--- Production of additional evidence in Appellate Court.-(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if-
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
29. ' Mr. Jhamat Jethanand, Advocate next contended that even if the Appellate Court was justified in allowing the production of additional evidence under rule 27 of Order 41, it was required to adhere to the provision contained in rule 28 of Order 41 which reads as follows:-- "Mode of taking additional evidence.--- Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court."
30. ' He has, submitted that in accordance with the provisions contained in rule 28 of Order 41, the learned Appellate Court was required either to record evidence thereby taking the certified copy of General Power of Attorney in evidence or could have directed the trial Court to take evidence and then to send it to the Appellate. Court for consideration. He has contended that since it was not done the power of attorney could not be taken into consideration.
31. ' Syed Masood Ali learned counsel for respondents Nos.1 and 2 has contended that the plea taken by Mr. Jhamat Jethanand, Advocate is misplaced. He has submitted that it is directed in rule 27 of Order 41 that the Appellate Court may allow the production of any document if it is required to enable it to pronounce judgment or for any other substantial cause. Syed Masood Ali has mentioned that substantial cause in this case was that the simple copy of the power of attorney, the execution whereof is otherwise admitted in the written statement, was produced without any objection from the defendants and the Court in. Order to ascertain the contents of power of attorney was competent to allow the production of the certified copy of the power of attorney. He has submitted that it is not a case of non-recording of evidence and therefore, compliance of rule 28 of Order 41, C.P.C. Was not required.
32. I have considered the contentions of the learned Advocates and I am persuaded to agree with the submission of Syed Masood Ali. Since, in this case the trial Court as well as the learned counsel for the defendants were not vigilant at the time of production of document which was not a certified copy, therefore, a simple copy of the document was allowed to be produced in evidence. It was the duty of the trial Court to see at the time of production of the document whether it was admissible in evidence or not and at the same time it was the duty of Advocate for defendants it would be pertinent to observe that the defendants were represented by Mr. Jhamat Jethanand, Advocate even in the trial Court to raise objection to the production of document in evidence which is Exh.63.
33. It is established principle of administration of justice that nobody should suffer on account of lapse on the part of Court. Thus the Appellate Court was fully justified in allowing the production of certified copy of the power of attorney for the substantial cause of justice and there was no necessity of recording the evidence merely for the production of certified copy of the power of attorney because the copy thereof was already produced in evidence and was exhibited without any objection from the Advocate for the applicants/defendants. I am, therefore, not impressed with the contention that the impugned judgment of the Appellate Court suffers from the illegality contended by Mr. Jhamat Jethanand.
34. So far the contention about failure of the plaintiffs to prove the division of plot is concerned it is a simple question of fact and I would not like to interfere with the concurrent findings of the facts by the two Courts below in exercise of revisional jurisdiction.
35. ' The learned Advocates for the parties have addressed some arguments on the other points of facts as well but I am not persuaded to give any finding on these points because they require the reappraisal of evidence and it is admitted principle relating to the exercise of revisional jurisdiction that the Revisional Court should not reappraise the evidence and should not come to any other conclusion even if another view could be taken by the Revisional Court.
36. ' For the foregoing reasons I am of the opinion that the judgments of the learned two Courts below do not suffer from any illegality or irregularity warranting interference by this Court in exercise of revisional jurisdiction. The concurrent findings of the facts by the two Courts below are upheld and the revisional application stands dismissed accordingly. The parties are left to bear their own cost.