Chief Executive Officer, PESCO, WAPDA House, Peshawar and others Vs Syed Ayub Shah and others.

IN THE PESHAWAR HIGH COURT, PESHAWAR

[JUDICIAL DEPARTMENT]

C.R No. 977-P/2023

Chief Executive Officer, PESCO, WAPDA House, Peshawar and others ...........................Petitioners Vs

Syed Ayub Shah and others.....................Respondents Present: Mr. Arshad Jamal Qureshi, Advocate, for the petitioners.

M/S Junaid Anwar and Parvez Akhtar Shah, Advocates, for the respondent No.1.

Date of hearing: 02.10.2026

JU D G M EN T

MUHAMMAD IJAZ KHAN, J.- Through this Civil Revision Petition, petitioners-PESCO have challenged the judgment and decree of the learned Additional District Judge-IV, Peshawar dated 17.10.2023, whereby the appeal filed by the present petitioners was dismissed, and thereby maintained the judgment and decree of the learned Civil Judge-IX, Peshawar dated 30.09.2022, who vide the same had decreed the suit of respondent / plaintiff.

2.Precisely, the facts leading to the filing of this petition are that respondent/plaintiff namely, Syed Ayub Shah filed the instant suit against the present petitioners-company, whereby he has pleaded that he was appointed in the petitioners-company as Line Superintendent way back on 28.07.2004 and since then he has been serving the petitioners-company with dedication and honesty, and because of his unblemished reputation, he was also posted as Acting Superintendent Sub-Divisional Officer, Shinkiari Sub-Division No. 2, Mansehra. It is further pleaded that after one year, he was transferred from Sub-Division Shinkiari and also received an explanation letter dated 24.05.2018, wherein false allegation of providing connection to the premises in the name of “Khan” has been alleged which he termed the same as false and frivolous. It is further pleaded that after receiving the said letter, he made a request to the Executive Engineer to conduct an inquiry which was accordingly conducted and in that inquiry, he was exonerated from the charges levelled against him vide inquiry report dated 27-07-2018. The respondent / plaintiff also submitted a reply to the explanation, but the same was not considered by the petitioners-company, and also ignored the finding of

the inquiry committee and unlawfully issued a show- cause notice dated 16.01.2018, instead of requiring the respondent/ plaintiff to submit reply to the show-cause notice, the petitioner/defendant No.3 namely, the Chief Operating Officer, PESCO, issued the impugned letter whereby a major penalty of compulsory retirement was imposed vide letter dated 13-12-2018, which has been termed by the respondent/plaintiff as against the law.

The petitioners then defendants were summoned, they submitted their written statement, wherein they raised many legal and factual objections. In view of the divergent pleadings of the parties, the learned trial court framed as many as four (04) issues and in support of his plaint, the respondent / plaintiff neither appeared himself, nor he was represented by an attorney, nevertheless, that he produced two official witnesses, namely Manzoor Hussain, lineman, Shinkiari as PW-1, and Muhammad Nasim, Commercial Assistant, Revenue Office, PESCO Rural Division Mansehra, as PW-2, and closed his evidence. On behalf of the petitioners-company, they also produced a representative namely, Sajjad Muhammad, Office Assistant Confidential Section, PESCO Headquarter as DW-1, and thereafter, after hearing both the learned

counsel for the parties, the said suit was decreed in favour of respondent / plaintiff vide one of impugned judgment and decree dated 30.09.2022. The petitioners / defendants considering themselves aggrieved of the said judgment and decree preferred an appeal to the Court of learned Additional District Judge-IV, Peshawar, however, the same was also dismissed vide second impugned judgment and decree dated 17.10.2023, hence the instant petition.

3.Arguments heard and record perused.

4.At the very outset of his arguments, learned counsel for the petitioners-company raised an objection that both the fora below have committed serious illegality as respondent, namely, Syed Ayub Shah was plaintiff before the trial court, therefore, he should have either himself appeared in person in support of the facts as pleaded in his plaint, or at least he should have been represented by an attorney, however, neither he himself has appeared nor he has been represented by an attorney, therefore, the subject suit has wrongly been decreed in favour of the respondent / plaintiff. As against this, learned counsel representing the respondent / plaintiff argued that since the whole case of the respondent / plaintiff was based upon the

documentary evidence, which has been produced by PW1, namely Manzoor Hussain and PW-2, namely Muhammad Nasim, therefore, the suit of the respondent / plaintiff has rightly been decreed.

5.In view of the above divergent pleas of both the contesting parties, this court would proceed to answer the following questions:-

I. Whether a suit of the plaintiff could be decreed in his favour, if such plaintiff has neither appeared personally in the witness box and recorded his statement on oath in support of the facts pleaded in his plaint, nor he has been represented by an attorney?

II. Under what circumstances, a suit could be decreed in favour of a plaintiff despite his non-appearance in the witness box or his attorney?

6.As far as, question No.I is concerned, Rule-I of Order VI CPC stipulates that pleadings shall contain the plaint and the written statement and as per mandate & requirements of Article 117 of The Qanun-e-Shahadat Order, 1984 any person who desires to obtain a favourable judgment from a Court of law is bound to prove all those facts which he/she has pleaded in his plaint, whereas Rule 2 of ibid Order VI CPC requires that pleading shall state the material facts only and not the evidence, whereas, Rules 1 & 2 of Order-III CPC requires that appearance in the Court is to be made by a party in person, or by a recognized agent, or by a

pleader. Rule 1 & 2 of Order III CPC being relevant is reproduced below:-

ORDER III — RECOGNIZED AGENTS AND

PLEADERS

1.Appearances, etc., may be in person, by recognized agent or by pleader. Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf:

Provided that any such appearance shall, if the Court so directs, be made by the party in person.

2.Recognized agents. The recognized agents of parties by whom such appearances, applications and acts may be made or done are—

(a)persons holding powers-of-attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties;

(b)persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorized to make and do such appearances, applications and acts.

The perusal of the aforesaid provisions of law would require that a party has either to appear in support of his pleading in person, or through a

recognized agent, or by a pleader, and if such party is represented by an attorney, then he must have a duly executed power of attorney. Furthermore, as the respondent was plaintiff, therefore, under the mandate of Article 117 of The Order of 1984, he was required to have proved all those facts which he has pleaded in his plaint, and for the proof of the same, he was required either to have appeared in person, or through a recognized agent, or an attorney and in case of his failure an adverse inference within the meaning of Article 129 (g) of Qanun-e-Shahadat Order, 1984 qua the authenticity & genuineness of his case is to be drawn. In the present case, neither the respondent / plaintiff has personally appeared, nor he has bothered to produce an attorney, and thus his such non- appearance as a witness would be a sweeping circumstances to discredit the truth of his case. In a case1 the Apex Court has held that initially, it is the party itself to depose about the first hand and direct evidence of material facts of the transaction or the dispute and its attorney having no such information cannot be termed as a competent witness within the meaning of Order III, Rules 1 and 2 of C.P.C. In Mrs. Zakia Hussain and another .vs. Syed Farooq Hussain (PLD 2020 Supreme Court 401)

another case2 the Apex Court has held that the plaintiff himself opted not to appear before the Court and make his statement on oath as required by law for appearance of a witness to take oath before the court for making a correct statement. Further held that his own claim is on the basis of registered Sale Deed from his mother in his favour that transaction when the plaintiff presses for grant of a declaration in his favour, he was required to make a statement himself by appearing in the witness- box otherwise when without any justification the plaintiff opted not to appear in the court in such like situation the inference can be drawn against the said plaintiff in the light of judgments of this Court reported as "Niaz Rasool through Muhammad Bilal v. Mst.

Parveen Ikram and others" (2013 SCMR 397) and "Mir Ajam Khan v. Mst. Quresha Sultana and others" (2006 SCMR 1927). Likewise, the Lahore High Court in a case3 has held that in the absence of the appearance of the plaintiff as his own witness, statements of the remaining P.Ws. have no significance.

In the same way, the High Court of Sindh in a case4 has Muhammad Rafique and another .vs. Syed Warand Ali Shah and others (2021 S C M

R 1068)

Allah Diwaya .vs. Farrukh Abbas and another (2012 C L C 651) Mst. Zareedah Begum and 2 others vs. Abdul Rasheed and 4 others (2013 Y L R

held that it is also a matter of record that the respondent/defendant No.1 categorically claimed to have got power of attorney in his favour in lieu of payment of the share money to the plaintiffs/applicants and even produced such receipts of payment on record and in such eventuality it was necessary for the plaintiffs/applicants to have appeared personally to deny such claim and documents more particularly when the present applicants/plaintiffs did not come with a plea of their being parda observing, which might have prevented them from appearing in the court because the signature/thumb-marks on such receipts, claimed to be executed by the plaintiffs/ applicants after receiving money, could only be legally denied by them because there can be no cavil to deny the legal position that certain acts, things and intents which the party alone can depose and explains hence on such aspects the attorney, being ignorant, cannot substitute the party. In this regard, further reliance could also be made on the following judgments:-

i. Humayun Naseer Cheema and 3 others .vs. Muhammad Saeed Akhtar and others (2007 C L C ii. Fateh Muhammad through L.Rs. and others .vs. Fida Hussain Shah through L.Rs (2007 C L

C 1885)

iii. Muhammad Hafeez .vs. Muhammad Hanif Khan and another (1991 M L D 1576)

iv. Haji ABDULLAH KHAN and others .vs.

NISAR MUHAMMAD KHAN and others (P L D 1959 (W. P.) Peshawar 81)

7.It may further be clarified that even as per the developed jurisprudence, if a plaintiff is represented by an attorney and he is not having the personal knowledge of the facts pertaining to the case of the plaintiff even production of such attorney and his statement is to be considered as irrelevant and not sufficient for decreeing the suit. Similarly, if a fact has not been pleaded in the pleadings then even if a party states such fact in the witness box, the same could not be considered as such evidence even if led is to be treated as beyond pleadings. Likewise, if a fact has been pleaded in the plaint but such fact has not been stated on oath in the witness box, then such pleaded fact too could not be taken and considered as evidence.

In a case5 the Apex Court has held that an attorney is competent to act on behalf of the party in the light of specific authority given to him provided he is having the information and knowledge of the facts in issue, however, where an attorney is not having information Mrs. Zakia Hussain and another .vs. Syed Farooq Hussain (PLD 2020 SC 401)

qua material facts then even if such attorney appeared in the witness box, his statement would not be beneficial for the case of a plaintiff.

8.As far as question No.II is concerned, it is a century old settled jurisprudence that pleadings could not be equated with evidence unless its filer appears in the witness box to support its contents on oath and as such make himself available for the cross-examination of the opposite party, nevertheless that a suit may be decreed without the personal appearance of the plaintiff, or even of his attorney, provided firstly where the pleaded facts have been admitted, by the defendant(s) in his/their written statement, or, secondly where, the suit is entirely based upon, official documents and the same have been produced from the proper custody, and thirdly where only pure question(s) of law is involved in a case, however, in the present case, though the respondent / plaintiff has relied upon the official documents, but there are other certain allegations pertaining to the person of respondent / plaintiff which he has alleged and pleaded in his plaint as incorrect that is to say that he was enjoying a good reputation and that he has wrongly been implicated in a factually incorrect case on the basis of malice and

malafide and that he has not received any show cause notice but even then he has been proceeded against, and thus in order to prove the aforesaid facts and many other, as pleaded in the plaint, the respondent / plaintiff was required to have appeared in person but he did not opt for the same. In a case6 the Apex Court has held that pleadings of parties are not a substitute of evidence and same being not a substantive evidence, the averments made in the pleadings would carry no weight unless proved through the evidence in Court or admitted by the other party. In the ibid judgment, it has further been held that controversial questions of facts cannot be proved merely on the basis of pleadings.

Particular fact pleaded by a party must be proved by the said party. Similarly, in another case7 the Apex Court has held that written statement cannot be treated as evidence against party who had submitted the same.

Without leading evidence, the plea raised by defendant in written statement cannot be accepted merely on the basis of assertion. Likewise, the Apex Court in Muhammad Rafique and another’s case (2021 SCMR 1068) [supra], has held that pleadings cannot be equated with the evidence and a person claiming a right Faqir Muhammad and 8 others v. Abdul Momin and 2 others (PLD 2003 SC 594) Muhammad Bashir and others .vs. Iftikhar Ali and others (PLD 2004 SC 465)

or interest in the property is bound to prove a case pleaded by it through valid reasonable oral as well as documentary evidence acceptable by the court. In the same way, this Court in a case8 has held that the general rule is that unless proved on the strength of cogent and reliable evidence, the mere averments made in the plaint are not sufficient for the entitlement of a decree.

9.In view of the above discussion and exposition of law on the subject, this revision petition is allowed, consequently, the impugned judgments and decree of both the courts below respectively, dated 30.09.2022 and 17.10.2023 are set aside and as a result thereof, this case is remanded back to the learned Trial Court to provide an opportunity to the respondent / plaintiff either to appear in person in witness box for recording his statement on oath in support of his plaint and thereafter the petitioners-company be provided an opportunity to cross examine him and then it shall decide the lis afresh in accordance with the evidence already recorded by the parties as well as the directed ibid statement of the plaintiff.

10.Since the controversy pertains to the compulsory retirement of the respondent / plaintiff and as after Haji Shewa Jan and another .vs. Government (2016 CLC 230)

passing of the impugned judgment and decree, his services have been restored by the petitioners-company, therefore, till the decision of the main lis, he shall continue to perform his duty and in this regard, the petitioners-company shall not pass any adverse order.

Announced

JUDGE

(S.B) Hon’ble Mr. Justice Muhammad Ijaz Khan Noor Shah