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First Appeal No,14 of 1986, decided on 8th December, 1986.
---S.96 & O.IX,R.6(1)(a)---Power of Court to pass ex pane decree- Requirements--Court being empowered under O.IX,R.6(l)(a), Civil Procedure Code (V of 1908), to decree suit ex parte without recording evidence where defendant after notice remained ex parte, order of Trial Court refusing to decide case ex parte although plaintiff had proved his case by producing unrebutted ex parte proof, held, was not in accordance with dictates of justice and was liable to be set aside--High Court in exercise of appellate jurisdiction set aside illegal order of Trial Court and granted ex parte decree in favour of plaintiff.
---Arts.76(d) & 102--Photostat copy of document---Admissibility of- Photostat copy of document being admissible as secondary evidence under Arts.76(d), & 102 of Qanun-e-Shahadat Order, 1984, held would not debar production of photostat of agreement, reduced into writing 'and same could not be regarded as oral evidence of contents of document.
M.Saleem Iqbal for Appellant.
Date of hearing: 8th December, 1986.
This appeal is directed against the judgment and decree, dated 23-12-1985 dismissing Suit No 440/84 filed by the appellant for recovery of Rs.83,712/-.
2. The appellant had claimed that he had purchased Plot No.222/23, measuring 5556 Sq.yards at Korangi from the respondent for Rs.9,50,000. There was no dispute about the sale of the .plot, but the plaintiff /appellant had been obliged to pay Capital Gain Tax in respect of the said Plot on behalf of the respondent amounting to Rs.68,470 and electricity bills of Rs.12,691 and water and conservancy charges of Rs.2,500 for the period during which the respondent was the owner. The appellant had filed photostat copies of the agreement of sale, dated 10-12-1983 in his favour and also the photostats of the receipts of the Capital Gain Tax, electric bills and W&C Charges paid by the appellant.
3. The defendant/ respondent had remained ex parte and the plaintiff /appellant filed an affidavit in token of ex parte proof. The affidavit had reiterated the contents of the plaint to be correct.
4. The trial Court dismissed the suit on the ground that the primary proof had not been tendered in respect of the agreement of sale as required under Article 75 of Qanoon-e-Shahadat, 1984. Article 102 of the Qanoon-e-Shahadat which excludes the oral evidence in terms of contract reduced into writing was also relied upon.
5. Mr.M.Saleem Iqbal, Advocate for the appellant has submitted that the learned Single Judge dismissed the suit without hearing the plaintiff's counsel in respect of the adequacy of proof. He also submitted that in fact, the Court could have pronounced a decree without recording any evidence as permitted under Order 9 Rule 6(a) of C.P.C.
6. I am satisfied that, in the circumstances of the case, the Civil Judge has not proceeded to decide the case in accordance with the dictates of justice. The defendant having remained ex parte, the decree should have been allowed under Order 9 Rule 6(a) C.P.C. as the said Rule clearly empowers the Court to grant such a decree. More so there was absolutely no rebuttal of the claim made by the appellant and the respondent had not challenged the correctness of the photo stat copies filed. Even under Article 76(d) of the Qanoon-e-Shahadat Order, 1984 a photostat is regarded as a secondary evidence of a document because it is a copy made by the modern devices. There is no challenge made by any one to such copy being filed and in the absence of such a challenge and in this case particularly, it was met and proper that the photostat of the agreement filed by the appellant could have been relied upon.
7. In any case the affidavit filed by the appellant, in lieu of the evidence, had remained the only evidence on record and, therefore, it could be relied upon for the purpose of granting a decree.
8. Article 102 of the Qanoon-e-Shahadat did not debar the production of the photostat of the agreement, which had been reduced into writing and the said photostat could not be regarded as the oral evidence of the contents of a document.
9. In any case, the payment of Capital Gains Tax of Rs.68,470 had not been made in pursuance of the agreement, but was alleged to have been paid in pursuance of oral request made by the respondent to the appellant with a promise that it will be duly adjusted and, therefore, this item was not at all hit by the provisions of the Article 102 of the Qanoon-e-Shahadat Order, 1984 as the same was only incidental to the contract and not in terms of the contract.
10. That under the circumstances the appellant had made out a fair case for the grant of decree of Rs.83,712, which should have been allowed.
11. Consequently, this appeal is allowed and the Judgment and decree, dated 23-12-1985 is set aside and a decree of Rs.83,712, with costs is allowed in favour of the appellant against the respondent.
H.B.T./K-31/K Appeal allowed.
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