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Second Appeal No. 246 of 1953, decided on 8th November 1954, from the decree of the Court of Masud Ahmad, District Judge, Mianwali, dated the 7th July 1953, reversing that of Sultan Khan, Senior Civil Judge, Mianwali, dated the 2nd May 1953.
(a) Appeal‑Evidence equally balanced Appellate Court should not disturb lower Court's judgment.
If in the opinion of the Appellate Court the evidence is equally balanced so that a conclusion one way or the other could not very well be drawn, the appellate Court should not set aside the judgment.
In order to succeed the onus is on the appellant to show a balance in his favour.
This rule, however, will not apply where the appellate Court comes to positive findings of its own on merits and lets fall a casual remark that the evidence appears to be equally balanced.
Mst. Fakrunnisa v. Moulvi Izarus A I R 1921 P C 55, Naba Kishore v. Upendra Kishore A I R 1922 P C 39 and Chandra Kishore v. Sissendi Estate A I R 1949 P C 207 ref.
(b) Evidence Act (I of 1872), Ss. 35 and 74‑Report.of offence lodged at police station. under S. 155 Cr. P. C.‑Public document‑Relevancy.
A report entered in a register kept in the police station under section 155 Cr. P. C. in which reports of non cognizable offences are recorded is a public document being the out‑come of an act of a public officer of the executive branch of the Government. Such a report is relevant under section 35 of the Evidence Act and is a public document within the meaning of section 74.
Mian Muhammad Shafi for Appellant.
Iftikhar‑ul‑Haq Khan for Respondent.
---‑This second appeal arises out of a suit for dissolution of marriage and raises a question of some interest and importance with respect to second appeals. Mst. Nur Khatun appellant was married to Nur Khan respondent about 25 years ago. There were six children of this marriage, four of whom are alive and the parties lived together for about sixteen years. The present suit was filed by Mst. Nur Khatun on the 2nd of October 1951. Allegations in the plaint were that the plaintiff had been maltreated by the defendant and was turned out of the house four years before the suit after having been severely beaten. Grounds on which dissolution was asked for were :‑
(1) Cruelty,
(2) Failure to maintain for a period of more than two years, and
(3) Failure to perform marital obligations for a period of more than three years.
Issues framed in the suit were :‑
(1) Did the defendant beat the plaintiff and turn her out of his house without any valid reason and when
(2) Has the defendant neglected to maintain the plaintiff and to perform his marital obligations towards her and for how long
(3) Relief.
The learned trial judge found on issue No. 1 that beating was not proved. He did not record a finding that the plaintiff had been turned out but held that she had been discarded more than four years before the suit. On these findings issue No. 2 was decided in favour of the plaintiff and the suit decreed. On appeal the learned District judge reached the conclusion that the plaintiff had been turned out but had left the house of the defendant as she admitted in the witness‑box. Her case in the witness‑box was that she had been confined in the house and getting an opportunity had fled. The learned judge found that in these circumstances it was the duty of the plaintiff to prove justification for her leaving the defendant's house. As there was no proof of maltreatment or of any other justification it could not be said that the defendant had either failed to maintain her or failed to perform his marital obliga tions. The learned Judge found also that the separation of the parties took place within two years of the filing of the suit and therefore, the suit was in any case premature. In the end the learned judge made an observation, which is the basis of the appellant's argument before me, that in any case the evidence of the parties was balanced and the trial Court could not have found issue No. 2 in favour of the plaintiff.
It is argued by the learned counsel for the appellant that' when the judge of the first appellate Court reaches a con clusion that the evidence of the parties is balanced, he cannot set aside the judgment of the trial Court if it has drawn an inference in favour of one party. Reliance is placed on some Privy Council judgments wherein it is laid down that it is the duty of an appellant to satisfy an appellate Court that the judgment of the trial Court is wrong and that he cannot succeed if all that he is able to show are nicely balanced con siderations.
The first case relied upon is Mst: Fakrunnisa v. Moulvi Izarus (AIR 1921 PC 55). Their Lordships were dealing with a question of fact as to the amount of dower that had been fixed and made the following observation :‑
"In every appeal it is incumbent upon the appellant to show some reason why the judgment appealed from should be disturbed; there must be some balance in their favour when all the circumstances are considered, to justify the alteration of the judgment that stands. Their Lordships are unable to find that this duty has been discharged."
The second case relied upon is Naba Kishore v. Upendra Kishore (AIR 1922PC39). The question debated before their Lordships was whether necessity existed for a lease by a Hindu widow. Their Lordships reached the conclusion, in agreement with the lower Court, that necessity had not been proved. There is an observation at the end of the judgment as follows :‑
"The only further observation that their Lordships desire to make is to call attention once more to the fact that in appeals the burden of showing that the judgment appealed from is wrong lies upon the appellant. If all he can show is nicely balanced calculations which lead to the equal possibility of the judgment on either the one side or the other being right, he has not succeeded. It is not necessary to invoke that doctrine against the appellant in the present instance because, for reasons that have already been stated, their Lordships think they have failed, but it is a matter which would be well for the appellants to bear in mind."
Next case cited is Chandra Kishore v. Sissendi Estate (AIR1949PC207). The judgment simply quotes the observation from Mst. Fakrunisa v. Moulvi Izarus which I have already quoted.
These cases do support the proposition that if in the opinion of the appellate Court the evidence is equally balanced so that a conclusion one way or the other could not very well be drawn, the appellate Court should not set aside the judgment. These observations simply that if evidence is equally balanced it is open to the trial Court to come to a conclusion in favour of either party. When the case comes to the appellate Court and the appellant is unable to show a balance in his favour, he does not discharge the burden that lies on him. It appears to me that their Lordships of the Privy Council have in these judgments laid down rule as to onus and a disregard of such a rule will call for interference in second appeal.
In the present case the learned District Judge did say that in any case the evidence of the parties was more or less equally balanced. Following is the sentence in his judgment on which reliance is placed :‑
"In any case as the oral evidence of the parties was more or less equally balanced and as on such kind of evidence it could not be held that the plaintiff had discharged the bur den of proof which lay on her, the trial Court was not justified in deciding issue No. 2 in her favour".
If this finding was the only basis of the judgment I would have to set it aside and record my own finding on facts, However, as will appear from the following extract from the judgment of the learned District judge, he had already recorded two positive findings, the first being that the plaintiff himself left the house of the defendant without justification and second that the separation took place within two years of the suit :‑
"Muhammadan Law attaches considerable sanctity to marriage contracts and such contracts cannot be dissolved on flimsy grounds. It was, therefore, the plaintiff's duty to prove by reliable evidence that her husband, without any lawful excuse, had failed to maintain her and to perform his marital obligations. If she had left her husband's house of her own accord, as she now admits, he was not bound to provide for her maintenance, nor could he perform his marital obligations. For this state of affairs the plaintiff herself was to be blamed, as there is no evidence on the record to show that her husband had been maltreating her and had given her a beating before she left her house. In the absence of proof of this fact, there was no lawful excuse for the plaintiff to live apart from her husband and to demand maintenance from him. It is also not definitely established that she had been living separately for the last 4 or 5 years. The probability is that she left her husband's house about two years ago, because immediately afterwards he lodged a report of this fact at the police station. A copy of the report dated 29th October 1950 was produced by the defendant in the trial Court, but was returned on the ground that it had not been proved. The document being copy taken from an official record was a public document within the meaning of section 76 of the Evidence Act and could be admitted into evidence without any formal proof. It has been produced in this Court now and has been admitted into evidence. The contents of this document support the allegations made by the defendant that his wife left his house about a year or so before the suit was filed, and not a few months earlier as had been wrongly mentioned in the written statement. This fact, coupled with the oral evidence of the defendant, which appears to be much more reliable than that of the other party, clearly proves that the statutory period provided by the Dissolution of Muslim i Marriages Act had not expired when the plaintiff filed her
suit to get her marriage dissolved."
By the reference to the more or less equal balance of oral evidence the learned District judge only meant to say that even if he had not reached positive conclusions on the question of fact, issue No. 2 could not be decided in favour of the plaintiff. Such an alternative ground does not in any way destroy the effect of the positive conclusion reached in the judgment. Those findings remain valid and are not liable to be challenged in second appeal.
Another point argued on behalf of the appellant is that a report which was made by the defendant at the police station about the abduction of the plaintiff has been illegally received in evidence. It is urged by the learned counsel in the first place that that report is not a public document and could not have been proved by a certified copy. Here the learned counsel is clearly wrong. It is a report entered in a register kept in the police station under section 155 of the Criminal P. C. in which reports of non‑cognizable offences are recorded. It is a public document because it is an act of a public officer of the executive branch of the Government. The document is relevant under section 35 of the Evidence Act and it is a public document within the meaning of section 74. Another objection taken is that the production of the certified copy does not prove the identity of the person who made the report. There is, however, evidence aliunde to prove that fact. The defendant has himself stated in the witness‑box that he made the report of which he has produced the certified copy.
This appeal fails and is dismissed with costs.
A. H. Appeal dismissed.
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