Monday, 28 May 2012

Statement of dead man is admissible

PLJ 2004 Lahore 1538 [Rawalpindi Bench Rawalpindi]

Present: MAULVI ANWAR-UL-HAQ, J  WARIS KHAN (deceased) through L.Rs. and 8 others-Petitioner

versus -

MUHAMMAD IQBAL-Respondent C.R. No. 227/D of 2001, heard on 18.3.2004. (i) Civil Procedure Code, 1908 (V of 1908)--

—S. 115-Suit for pre-emption-Dismissal by trial Court-Appeal failed
before District Court-Challenge to-Mode of making talbs-Question of-
One of recognized modes of making talb-i-Ishhad is that same can be
made in presence of witnesses at the property sought to be pre-empted-
Talbs have been proved by producing witnesses who were named in
plaint-None of witnesses stated word about Zarar or Zaroorat-
Statement in plaint or notice which of course never reached respondent
who admittedly was abroad would be of no avail to petitioner for simple
reason that pleadings are not evidence—Notwithstanding fact that
original plaintiff died cause of action survived to his L.Rs. who were
brought on record and one of them even entered witness box-He opted to
remain silent—Held: Findings of Courts below cannot disturbed—Petition
dismissed.                                                     [Pp. 1539 & 1540] A, B & D

(ii) Qamm-e-Shahadat Order, 1984 (10 of 1984)--

—Art. 46-Statement of dead man-Admissibility-Statement of a deadman
is admissible for very limited purpose-Filing of suit for pre-emption and
giving of notice of talb-i-Ishhad is not business as envisaged by Art. 46 as
would be apparent from plain reading of said provision of law-In
Somewhat similar circumstances very significant plea of subsequent
vendee in terms of Section 27(b) of Specific Relief Act, 1877, was
discarded by Supreme Court as he had died before he could support
same. '                                                                                  [P. 1540] C

' Ch. Afrasiab Khan, Advocate for Petitioners. Ch. M. Tariq, Advocate for Respondent. Date of hearing : 18.3.2004.

judgment

Vide Mutation No. 2743 attested on 18.1.1993 the respondent purchased the suit land for Rs. 5,00,000/-. On 17.5.1993 Waris Khan the predecessor4n-interest of the petitioners filed a suit for possession of the suit land by pre-emption. According to him, the land had, in fact, been sold for Rs. 1,00,000/-, He claimed to be a co-sharer. He pleaded talbs and also pleaded that he will suffer loss in case he does not get the suit land. The suit was resisted by the respondent. Issues were framed. Evidence* of the parties was recorded.' The learned trial Court found that the deceased plaintiff who

died after filing the suit, was possessed with a superior right of pre-emption. He found that the land was purchased for Rs. 5,00,000/- as mentioned in the mutation. He dismissed the suit by holding that talbs have not been performed and that Issue No. 3 pertaining to zarar and Zaroorat stands unproved. The suit was dismissed on 21.7.2000. A learned ADJ, Chakwal, dismissed the first appeal of the petitioners on 14.3.2001 confirming the findings on the said issues.

2.         Learned counsel for the petitioners contends that evidence in the
matter of talbs has not been properly read. As regards zarar and zaroorat he
contends that the statement made by the deceased-plaintiff in the plaint and
the notice of talb-i-ishhad to the effect that he will suffer the loss in case he
does not get the land would be admissible under Article 46 of the Qanun-e-
Shahadat Order, 1984, being a statement of a dead person having been made
in the normal course of his business. Learned counsel for the respondent, on
the   other   hand,   supports   the   impugned  judgments   and   decrees  by
contending that the matter of zarar and zaroorat was a part of substantive
law till 31,12.1993 when the judgment of the Hon'ble Shariat Appellate
Bench, of the  Supreme  Court of Pakistan  in  the  case  of Haji Rana
Muhammad Shabbir Ahmad Khan u. Government of Punjab, Lahore (PLD
1994 SC 1) took effect and there being no evidence on record of zarar or
zaroorat,   the  learned   Courts  below  have  lawfully  dismissed  the  suit.
According to him, talbs have not been proved.

3.         I have examined copies of the record. Now I find that in the plaint
it was pleaded that the deceased-plaintiff came to know about the sale two
days before the institution of the suit and made talb-i-muwathibat in
presence of witnesses and then tried to contact the respondent who was
abroad. He then proceeded to the suit land and made talb-i-ishhad and then
issued a notice. Ghulam Mustafa PW-1 and Suba Khan PW-2 before whom,
according to the contents of the plaint, talb-i-muwathibat was made, have
appeared and deposed accordingly.  They have further stated that the
respondent was abroad and as such the petitioner went to the suit land and
made a talb-i-Ishhad in their presence. I have examined the said statements
and find that nothing derogatory turned out in the cross-examination. To my
mind talb-i-muwathibat stood proved and so did the talb-i-ishhad. One of the
recognized modes of making of talb-i-ishhad is that the same can be made in
presence of witnesses at the property sought to be pre-empted and this has
been proved to have been done. Reference be made to the case of Ghulam
Jillani and 3 others v. Ghulam Muhammad and 7 others (1991 SCMR 2001).

4.         The said argument of Ch. Afrasiab Khan in the matter of zarar
and zaroorat despite its ingenuity however fails to impress me. It will be seen
that the talbs as pleaded in the plaint, according to my own reading of the
record, have been proved by producing the witnesses who were named in the
plaint. Now none of the said witnesses and the PW-3, a son of the deceased-
plaintiff, have stated a word about zarar or zaroorat. The said statement in
the plaint or notice Ex. P.I which, of course, never reached the respondent

who admittedly was abroad would be of no avail to the petitioner for the simple reason that pleadings are not evidence. The primaiy purpose is to enable the parties to set down their respective pleas so as to further enable them to prove the same in the course of trial. Notwithstanding the fact that the original plaintiff died the cause of action survived to his LRs who were brought on record and one of them even entered the witness box. He opted to remain silent on the said issue.

5.          Needless to state that Article 46 of the Qanun-e-Shahadat Order,
1984 makes the statement, inter alia, of a dead person admissible for the
veiy limited purpose noted therein. Learned counsel thought to argue that
the said plaint and notice would constitute statement having been made in
the normal course of business. I am afraid that filing of a suit for pre­
emption and giving of a notice oftalb-i-Ishhad is not a business as envisaged
by Article 46 of the Qanun-e-Shahadat Order, 1984 as would be apparent
from a plain reading of the said provision of law. In the second no notice
foundation stands laid in the pleadings or in the evidence to even consider as
to   whether   Article   46   would   apply   or   not.   In   somewhat   similar
circumstances a very significant plea of a subsequent vendee in terms of
Section 27 (b) of the Specific Relief Act, 1877, was discarded as he had died
before he could support the same in the witness box in the case of Mst.
Khair-un-Nisa and 6 others versus Malik Muhammad Ishaque and two
others, (PLD 1972 SC 25),

6.          I, therefore, do confirm the findings of the learned Courts below
on Issue No. 3. The civil revision is accordingly dismissed without any orders

P as to costs.                                                               

(B.T.)                                                                              Petition dismissed.


No comments:

Post a Comment

Contact International Lawyer

If you have any queries related with this post you can contact at internationallawyerinfo@gmail.com

Regards,
Salman Yousaf Khan
Chairperson
International Lawyer
+92-333-5339880