MUHAMMAD TARIQ vs Mrs — 2023 CLC 1107 ISLAMABAD

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MUHAMMAD TARIQ VS Mrs. MARRIUM SIAL S.12---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Suit for specific performance of agreement to sell---Agreement, proof of---Failure to produce two attesting witnesses---Effect---Suit filed by petitioner / plaintiff was decreed in his favour by Trial Court but Lower Appellate Court reversed the findings and dismissed the suit---Validity---Trial Court correctly appreciated the evidence and concluded that petitioner / plaintiff succeeded in establishing, on balance of probabilities, execution and content of the Agreement, payment of consideration amount as earnest money as well as illegal procurement of original Agreement by seller from petitioner / plaintiff---Lower Appellate Court without appreciating all aspects of evidence adduced and the standard of proof required in support of a civil claim (i.e. balance of probabilities), took a very technical view of provisions of Qanun-e-Shahadat, 1984, to conclude that the agreement had not been proved by the petitioner---Where an agreement was not witnessed by two male witnesses, Court could take into account secondary or corroborating evidence to determine whether or not there was an agreement between the parties to perform obligations stated in such agreement--- After taking into account primary evidence and secondary/corroborating evidence Court could determine whether on balance of probabilities claimant had established validity of his/her claim--- Lack of proof of an agreement in terms of Art. 79 of Qanun-e-Shahadat, 1984, where either two attesting witnesses were unavailable or could not be produced to testify, was not fatal to the claim of a party seeking performance of obligations under such agreement---High Court in exercise of revisional jurisdiction restored judgment and decree passed by Trial Court and that passed by Lower Appellate Court was set aside---Revision was allowed, in circumstances. Citation Name: 2023 CLC 1107 ISLAMABADBookmark this Case MUHAMMAD TARIQ VS Mrs. MARRIUM SIAL O.IX-a---Intermediate dates---Case management and scheduling conference---Scheme for conducting a trial under C.P.C. (especially Order IX-a) places Court in a controlling role in the middle---Provisions of C.P.C. imagine an adjudicatory process where contesting parties place their cards on the table face-up, and pursue their claims in view of the available evidence in relation to the claims and defences that all sides are aware of---Case management and scheduling conference is a mandatory step in trial process that cannot be ignored---after completion of service and once pleadings have been filed, the court must schedule this conference to draw out a plan for trial and way forward in consultation with counsel for parties. Citation Name: 2023 CLC 1107 ISLAMABADBookmark this Case MUHAMMAD TARIQ VS Mrs. MARRIUM SIAL O.XIII, R.4---Documentary evidence---Admissibility and proof---Distinction---Court must not confuse admissibility of document into record for consideration during trial with proof of such document or weight and relevance to be attached to it in support of a claim---Proof of a document and weight to be accorded to it is to be determined by Court after recording of evidence while pronouncing judgment. Citation Name: 2023 CLC 1107 ISLAMABADBookmark this Case MUHAMMAD TARIQ VS Mrs. MARRIUM SIAL O.IX, O. IX-a, O. XV & O.XV-a---Procedure of trial---Principle---Clearly marked stages in a trial have been prescribed in C.P.C.--- If such stages are ignored possibility of resolution of (i) disputes based on admissions, or (ii) through alternate means of dispute resolution (including compromise) or (iii) through summary judgment (without a trial of facts) dwindles--- Unless claims and material in support of such claims is laid bare for the benefit of all parties, no party is incentivized to enter into a compromise, the court is unable to determine in an educated manner the issues in controversy between the parties, and has no ability to decide the matter at the first hearing or through summary judgment---This renders provisions of O IX, O.IX-a, O.XV and O.XV-a, C.P.C. redundant and results in all suits brought to the court being subjected to trial, and populates Court dockets with matters that might be resolved without trial and without inordinate delay in cases finding a resolution. Citation Name: 2023 CLC 1107 ISLAMABADBookmark this Case MUHAMMAD TARIQ VS Mrs. MARRIUM SIAL Document---Endorsing "Mark" instead of "Exhibit"---Effect---It is for the Court to ensure that no document is included in case record as a marked document, if it does not fulfill requirements of being exhibited. Citation Name: 2023 CLC 1107 ISLAMABADBookmark this Case MUHAMMAD TARIQ VS Mrs. MARRIUM SIAL Trial Court---Duties, functions and obligations---Court is a neutral arbiter of law and facts in a dispute between contesting parties and is not a disinterested bystander---Court is under an obligation to play active role to determine truth of the matter brought before it while passing judgment on the validity of claim before it---To dispense justice in accordance with law is ultimately responsibility of a Court---Court cannot fill any lacuna in the claim of party or relax obligation of a party to discharge its burden of proof---Court is under an obligation to ascertain truth of claims made before it by contesting parties---Ample authority under Civil Procedure Code, 1908, as well as Qanun-e-Shahadat, 1984, has been vested in Court to require contesting parties to clarify their positions, to summon essential witnesses as Court witnesses and to seek expert opinion where required---Court sitting in judgment over rival claims ought to exercise such power proactively in order to determine truth in controversy before it and dispense justice in accordance with law---Role of Trial Court is not that of a disinterested bystander witnessing a trial---As adjudicator of claims between contesting parties role of Trial Court is that of a seeker of true facts underlying a controversy. Citation Name: 2023 CLC 1107 ISLAMABADBookmark this Case MUHAMMAD TARIQ VS Mrs. MARRIUM SIAL Practice and procedure---Courts of law have no authority to contrive a procedure for conduct of trials that is in contradiction with that prescribed by procedure. Citation Name: 2023 CLC 1107 ISLAMABADBookmark this Case MUHAMMAD TARIQ VS Mrs. MARRIUM SIAL O.XIII, R.4---Endorsement on document admitted in evidence---Scope---Only such documents can be read into evidence which have been duly exhibited before the Court. Citation Name: 2023 CLC 1107 ISLAMABADBookmark this Case MUHAMMAD TARIQ VS Mrs. MARRIUM SIAL art. 72---Civil Procedure Code (V of 1908), O.XIII, R.4---Document, proof of---Procedure---Proof of a document is question of evidence---Manner in which document is to be placed on record as an exhibit and timing of such placement is a matter of procedure prescribed by C.P.C.---Procedure is guided by the need to ensure discovery and prevent surprises during adjudication of civil claims and not to limit production and exhibition of documents by a party in support of its claim. Citation Name: 2023 CLC 1107 ISLAMABADBookmark this Case MUHAMMAD TARIQ VS Mrs. MARRIUM SIAL art.132---Civil Procedure Code (V of 1908), O.V, O.VII & O.XIII---Documentary evidence---Document not relied upon---Producing document during examination-in-chief---Effect---Practice of allowing witnesses to adduce documentary evidence during their examination-in-chief as primary mode of producing documentary evidence is in breach of provisions of O.V, O.VII and O.XIII, C.P.C.---Such practice cannot be countenanced and it is only upon showing "good cause" for non-production of a document at the first instance (as required by O.V and O.VII C.P.C.) that the Court may allow production of such document at a later stage in accordance with O.XIII, R.2, C.P.C.

MUHAMMAD TARIQ vs Mrs — 2023 CLC 1107 ISLAMABAD

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