KHAMISO vs MANSIGNO Ss — 2026 PLD 184 KARACHI-HIGH-COURT-SINDH

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KHAMISO VS MANSIGNO Ss.11 & 115 & O.VII, R.11---Qanun-e-Shahadat (10 of 1984), Arts.2, 3, 17 & 79---Transfer of Property Act (IV of 1882), S.3---Constitution of Pakistan, Art.10-A---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell---Agreement to sell attested by one witness---Trial Court rejecting plaint due to defective attestation---Legality---Respondent No.1 (through LRs) filed suit for specific performance and injunction based on an alleged agreement for purchase of suit land; the Trial Court rejected the plaint under O.VII R.11(d), C.P.C. for want of two attesting witnesses, but the Appellate Court set aside that rejection and remanded the suit, which order was under challenge in the present revision petition---Legal question requiring determination in the present matter was as to "whether a suit could be dismissed without recording evidence by invoking Art.17 or 79 of the Qanun-e-Shahadat, 1984?"---Held: Trial Court adopted a preemptive measure and it had rejected the plaint which was contrary to the language of Art.79 of Qanun-e-Shahadat, 1984 which did not declare a suit would be barred or in other words it did not preclude the party from filing a suit and whenever a party file a suit while lacking attesting witnesses of the agreement, it could not fall under R.11(d), C.P.C.---Without arriving at evidence stage and without crossing the different stages of evidence, dependent upon the requirements of Arts.2 and 3 of the Qanun-e- Shahadat, 1984, the provision of Art.79 could not be invoked---It was not permissible for the Trial Court to jump straightaway over Art.79 while bypassing the whole scheme of Qanun-e-Shahadat, 1984---Views of Trial Court about the infirmity of agreement which led to decision to reject the plaint was based on surmises, assumptions and conjectures---Stage as required under Art.79 of Qanun-e-Shahadat, 1984 i.e. "it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution" had not arrived or in other words the Trial Court had not afforded opportunity to the plaintiff to come into witness box, adduce evidence, produce document or agreement on oath, undergo the test of cross-examination and prove of the execution of agreement as per assertiveness and aspiration of doctrine of fair trial as embodied under Art.10-A of the Constitution---Trial Court was directed to proceed with the suit by recording evidence---Order passed by the Appellate Court was maintained---Present revision petition was dismissed, in circumstances. Citation Name: 2026 PLD 184 KARACHI-HIGH-COURT-SINDHBookmark this Case KHAMISO VS MANSIGNO O.VII, R.11---"Rejection of plaint in suit" and "dismissal of suit"---Distinction---Scope---Order VII, R.11, C.P.C. refer only words the "rejection of plaint in suit" which ought to be applied by Trial Court having power and jurisdiction to adjudicate the lis and whenever any of the basic ingredients mentioned at (a) to (d) in O.VII, R.11, C.P.C. are available on examination of plaint including documents attached thereto---In contrast, the "dismissal of suit" connotes that it is a final determination of controversy between the parties---The power and jurisdiction to dismiss the suit can only apply by Trial Court when the parties have adduced evidence, produced documents on oath and undergone with the test of cross-examination by opposite party and finally fails to clear the test of "prove"---Another key difference between the "rejection of plaint in suit" and "dismissal of suit" is that the former keep opens the door for the plaintiff to re-try or re-file or re-institute a fresh suit or, in other words, the plaintiff cannot be precluded to file afresh suit on same cause of action or joinder of new cause of actions, against same parties or include other parties or on same subject-matter or with addition or subtraction of subject-matter where it is possible for him according to situation---In contrast, the later strictly prohibit the plaintiff to institute fresh suit---The plaintiff cannot file fresh suit against the same parties (including legitimate successor in interest or successor in office) or in respect of same subject-matter---The legal position is further tightened on the point of cause of action---In former case, the cause of action may be kept same for the plaintiff or he may join more cause of action to re-agitate or institute suit whilst the later omitted the point of cause of action and paved out another way to tackle the cases on examination of earlier subject matter decided either directly or indirectly in previous suit (case) and it can only be invoked when the evidence is recorded, the documents have been produced on oath and such document could be read as admissible evidence by Trial Court or otherwise while delivering the judgment---However, in both situations law provides statutory remedies against either Order of rejection of plaint in suit or dismissal of suit by way of judgment. Citation Name: 2026 PLD 184 KARACHI-HIGH-COURT-SINDHBookmark this Case KHAMISO VS MANSIGNO When law requires a thing to be done in particular manner then, it should be done in that manner and anything done in conflict of the command of law shall be unlawful being prohibited or not permissible. Citation Name: 2026 PLD 184 KARACHI-HIGH-COURT-SINDHBookmark this Case KHAMISO VS MANSIGNO arts.17, 79 & 81---Execution of a document---Proof---Production of two attesting witnesses, requirement of---Exception to the general requirement---Where the execution of a document is admitted by the executant himself, the examination of attesting witness is not necessary. Citation Name: 2026 PLD 184 KARACHI-HIGH-COURT-SINDHBookmark this Case KHAMISO VS MANSIGNO Each case has to be decided on its own facts---The Court cannot force or knock out someone's suit having variegated style and nature of lis. Citation Name: 2026 PLD 184 KARACHI-HIGH-COURT-SINDHBookmark this Case KHAMISO VS MANSIGNO Ss.12 & 39---agreement to sell---Defendant's bare denial of execution in written statement---Requirement to challenge the agreement through separate proceedings---Scope---Even where the defendant in his written statement alleges the agreement and his signatures over the same as fake and fictitious but has not specifically challenged the agreement in question either by way of criminal proceedings or through a civil suit, a simple denial of a document being fake and fictitious is not legally sufficient unless the same facts are proved and established on the record. Citation Name: 2026 PLD 184 KARACHI-HIGH-COURT-SINDHBookmark this Case KHAMISO VS MANSIGNO S.11---Res judicata, doctrine of---Concept and scope---The doctrine of res judicata isbased on the three maxims: (i.) 'Nemo debet bis vaxari pro una et eadem cansa'which means none should be vexed twice for thesame cause; (ii.) 'Interest reipublicae ut sit finis litium' which meansthat it is in the interest of the state that there should bean end to litigation; (iii.) 'Res judicata pro veritate accipitur' which means that a judicial decision must be accepted as correct---The doctrine of res judicata prohibits the re-litigation of matters which is otherwise already decided by a court---The theory of res judicata is the culmination of the public purpose embodied in the three maxims, and it applies to all judicial processes, civil or criminal---The theory of res judicata is based on justice, equity, and moral conscience---This concept and its provision serves as astrong deterrent to re-try or re-agitate any lawsuits or disputes that were previously and conclusively resolved between the same parties under the same title or on same subject-matter---The main goal of "res judicata" is to provide court decisions a sense of finality and certainty in order to prevent protracted litigation and protect parties from being harassed---Furthermore, the "res judicata" has more connotations than just its literal translation---It is not limited to literally meanings but it is also used in modern legal discourse to refer to "claim preclusion", a robust and firm concept that guaranteeing that a judgment's binding or settled disputes. Citation Name: 2026 PLD 184 KARACHI-HIGH-COURT-SINDHBookmark this Case KHAMISO VS MANSIGNO arts.17 & 79---Whether a scribe of a document can be an attesting witness---Permissibility and legality---a scribe is not an attesting witness in terms of arts.17 & 79 of the Qanun-e-Shahadat, 1984 though he has written the agreement or signed in some manners except as an attesting witness---The scribe of a document can only be a competent witness in terms of arts.17 & 79 of the Qanun-e-Shahadat, 1984 if he has put his signature as an attesting witness of the document and not otherwise---The signing of the document in the capacity of a writer or scribe does not fulfill and meet the mandatory requirement of attestation, however, he may be examined by the concerned party for the corroboration of the evidence of the marginal witnesses. Citation Name: 2026 PLD 184 KARACHI-HIGH-COURT-SINDHBookmark this Case KHAMISO VS MANSIGNO It is indispensable and imperative sense of the duty of a Court in application of law and its interpreting to essentially delve into and realistically discover the intention of the legislature about the statutes---It is not possible for Trial Court to take departure from the amplitude of evidential rules by importing a particular rule in order to decide the matter summarily.

KHAMISO vs MANSIGNO Ss — 2026 PLD 184 KARACHI-HIGH-COURT-SINDH

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