-S. 12--Oral sale agreement—Non-execution of agreement in favour of respondent--Dismissal of suit for specific performance--Transfer of land in favour of Appellant No. 1, before cut-off date--Conduct of appellants--

 PLJ 2022 SC 10

Specific Relief Act, 1877 (I of 1877)--

----S. 12--Oral sale agreement—Non-execution of agreement in favour of respondent--Dismissal of suit for specific performance--Transfer of land in favour of Appellant No. 1, before cut-off date--Conduct of appellants--Appellant No. 1 was failed to establishment of bona fide purchaser--Challenge to--Appellant No. 2 dubiously and distrustfully transferred land in question in name of her real brother (Appellant No. 1) by means of an alleged oral sale and mutation entry dated 26.04.2005--In written statement, Appellant No. 2 disavowed execution of agreement with respondent but when she appeared in witness box, she deposed divergently that her husband took her thumb impression on blank papers--Nothing added more as to what legal action was taken by her against her husband, who allegedly secured thumb impression on blank papers by fraudulent and deceitful means--According to agreement with respondent, cutoff date for payment of balance sale consideration and conveyance deed was to be registered on 20.10.2008 but before expiry of cutoff date, Appellant No. 2 transferred land in favour of Appellant No. 1--The conduct of appellants demonstrate that mutation entry was a sequel of an attempt to deprive and exasperate deal finalized with respondent--Respondent proved his case of specific performance through trustworthy and reliable evidence whereas Appellant No. 1 failed to establish his plea as a bona fide purchaser through any credible evidence--First Appellate Court thoroughly evaluated and mull over evidence adduced by parties and reached to a just and proper conclusion whereas High Court in second appeal has also gauged and assessed overall evidence perfectly and rightly maintained judgment of first Appellate Court--Appeal dismissed. [Pp. 12, 13 & 16] A, B, C & G

Transfer of Property Act, 1882 (IV of 1882)--

----S. 3--Under Section 3 (Interpretation Clause) of Transfer of Property Act 1882, “a person is said to have notice” of a fact when he actually knows that fact, or when, but for willful abstention from an inquiry or search, which he ought to have made, or gross negligence, he would have known it.  [P. 14] D

Words & Phrases--

----Bona fide purchaser--One who buys something for value without notice of another’s claim to property and without actual or constructive notice of any defects in or infirmities, claims or equities against seller’s title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims. [P. 14] E

General Clauses Act, 1897 (X of 1897)--

----S. 3(20)--Good faith--"Good faith" is term which reflects state of mind and according to Section 3 (20) of General Clauses Act, 1897 "a thing shall be deemed to be done in 'good faith' where it is in fact done honestly, whether it is done negligently or not".                                                                         

                                                                                     [Pp. 14 & 15] F

AIR 1931 All. 277 ref.

Mr. Zahoor-ul-Haq Chishti, ASC for Appellants.

Mr. M. Ishtiaq Ahmad Raja, ASC for Respondent.

Date of hearing: 14.10.2021.

 PLJ 2022 SC 10
[Appellate Jurisdiction]
Present: Ijaz-ul-Ahsan and Muhammad Ali Mazhar, JJ.
BAHAR SHAH and others--Appellants
versus
MANZOOR AHMAD--Respondent
C.A. No. 389 of 2015, decided on 14.10.2021.
(Against the judgment dated 23.12.2014 passed by Lahore High Court, Multan Bench in R.S.A. No. 37 of 2014)

Judgment

Muhammad Ali Mazhar, J.--This Civil Appeal is directed against the judgment passed by the learned Lahore High Court, Multan Bench, on 23.12.2014 in Regular Second Appeal No. 37/2014 whereby the appeal was dismissed.

2. The transient facts of the case are that the respondent instituted a suit for specific performance of a contract dated 04.09.2008 executed by the Appellant No. 2 in his favour for sale of land measuring 4-Kanal 18-Marlas, situated in Khata No. 413, Mouza Wahni-wal, Tehsil and District Layyah. During subsistence of aforesaid agreement, the Appellant No. 2 transferred the land in question through oral sale, vide mutation dated 26.04.2005 in favour of the Appellant No. 1 who is real brother of the Appellant No. 2. After recording evidence, the suit was dismissed by the Trial Court. On an appeal filed by the respondent, the Appellate Court reversed the finding of trial Court and decreed the suit. Being aggrieved, the appellant filed Regular Second Appeal in the Lahore High Court, which was dismissed and the judgment passed by first Appellate Court was maintained.

3. Leave to appeal was granted vide order dated 07.05.2015 in the following terms:

“Leave is granted, inter alia, to consider whether the learned Appellate as also the learned High Court has misread and non-read the evidence on the record and has also not properly appreciated and applied the principle of bona fide purchaser in determining whether Petitioner No. 1 was such a purchaser; the respondent had not been able to prove valid execution of the agreement to sell on account of the discrepancies in the evidence led by him qua the contents of his plaint; the respondent has neither been able to prove payment of earnest money nor the delivery of possession of the suit property with exactitude as was averred in the plaint”.

4. The learned counsel for the appellants argued that the findings of both Appellate Courts are based on non-reading and misreading of evidence. The respondent failed to prove his case through trustworthy evidence. Both the Courts below failed to consider that the Appellant No. 1 was a bona fide purchaser against valuable consideration without notice that was established through credible evidence. The finding of learned High Court is set up on presumption that earlier transaction was very much in the knowledge of the Appellant No. 1 who is real brother of the Appellant No. 2. According to the learned counsel there were some serious discrepancies in the evidence, which were ignored by both the learned Appellate Courts.

5. The learned counsel for the respondent argued that the both learned Appellate Courts perfectly appreciated the evidence led by the parties and after considering evidence passed the judgments. The Appellant No. 1 throughout the proceedings failed to prove that he was a bona fide purchaser against value without notice of earlier agreement.

6. Heard the arguments. On scanning and scrutinizing the evidence led by the parties in the Trial Court, it is manifesting beyond any ambiguity that an agreement to sell was executed against consideration but the Appellant No. 2 dubiously and distrustfully transferred the land in question in the name of her real brother (Appellant No. 1) by means of an alleged oral sale and mutation entry dated 26.04.2005. Though in the written statement, the Appellant No. 2 disavowed the execution of agreement with respondent but when she appeared in the witness box, she deposed divergently that her husband took her thumb impression on blank papers. Nothing added more as to what legal action was taken by her against her husband, who allegedly secured the thumb impression on blank papers by fraudulent and deceitful means. The respondent produced witnesses to testify the execution of agreement to sell who were fully firmed and supported the version of the respondent in the aid of proving the execution of agreement to sell and payment of sale consideration. It is a matter of record that the first agreement was executed by the Appellant No. 2 with respondent on 04.09.2008 but after few days, she transferred the land in question on 19.9.2008 in favour of Appellant No. 1. It is incredible, rather far-fetched that being real sister and brother (the Appellant No. 1 and Appellant No. 2), the Appellant No. 1 was so ignorant or unacquainted of earlier agreement. According to the agreement with the respondent, the cutoff date for the payment of balance sale consideration and conveyance deed was to be registered on 20.10.2008 but before expiry of cutoff date, the Appellant No. 2 transferred the land on 19.9.2008 in favour of Appellant No. 1. The conduct of appellants demonstrate that mutation entry was a sequel of an attempt to deprive and exasperate the deal finalized with the respondent and hasty and abrupt transfer of property through mutation entry was effected to bring in an unconvincing plea of bona fide purchaser in anticipation of lawsuit of the respondent. The respondent proved his case of specific performance through trustworthy and reliable evidence whereas the Appellant No. 1 failed to establish his plea as a bona fide purchaser through any credible evidence.

7. The presupposition of know-how or prior notice of earlier agreement of the same property stem from calculated abstention from an enquiry by the alleged bona fide purchaser. A conscious and purposive circumvention of an enquiry and due diligence which a buyer ought to have made would always communicate a presumption of definite notice. In a position taken as bona fide purchaser, it should be established by a fair preponderance of the evidence and the fact of notice may be inferred from the circumstances as well as proved by direct evidence. An honest buyer should at least make some inquiries with the persons having knowledge of the property and also with the neighbors. An equitable interest can be hammered or resisted by a bona fide purchaser for value without notice of the legal interest in the property but it is also significant that Section 27(b) of the Specific Relief Act shields and safeguards the bona fide purchaser in good faith for value without notice of the original contract which is in fact an exception to the general rule. The doctrine of purchaser without notice embodies the maxim that “where equities are equal the law will prevail”. Under Section 3 (Interpretation Clause) of Transfer of Property Act, 1882, “a person is said to have notice” of a fact when he actually knows that fact, or when, but for willful abstention from an inquiry or search, which he ought to have made, or gross negligence, he would have known it. Explanation II, further expounds that “Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof”.

8. The burden of proof of good faith is on the subsequent buyer, who moves forward a plea that he is an innocent purchaser. Here the vendor and subsequent vendee are real brother and sister so it was not difficult at all to make some due diligence, on the contrary, it appears that the entire move was ventured to conceive an artificial plea of bona fide purchaser. If the subsequent buyer failed to take routine cautionary and preventive measure, which an ordinary purchaser will have to take, then his conduct cannot be considered bona fide or acted with fairness and uprightness. Whether in a particular case a person acted with honesty or not will obviously depend on the facts of each case. The good faith entails righteous and rational approach with good sense of right and wrong which excludes the element of deceitfulness, lack of fair-mindedness and uprightness and or willful negligence. The 9th Edition of Black’s Law Dictionary (page 1355) defines a “bona fide purchaser” as “one who buys something for value without notice of another’s claim to the property and without actual or constructive notice of any defects in or infirmities, claims or equities against the seller’s title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims”.

9. In the case of Hafiz Tassaduq Hussain v. Lal Khatoon (PLD 2011 SC 296), this Court held that the subsequent vendee thus has to discharge the initial onus (1) that he acquired the property for due consideration and thus is a transferee for value, meaning thereby that his purchase is for the price paid to the vendor and not otherwise; (2) there was no dishonesty of purpose or tainted intention to enter into the transaction which shall settle that he acted in good faith or with bona fide; (3) he had no knowledge or notice of the original sale agreement between the plaintiff and the vendor at the time of his transaction with the latter. It was further held that the second ingredient "good faith" is the term which reflects the state of mind and according to Section 3 (20) of the General Clauses Act, 1897 "a thing shall be deemed to be done in 'good faith' where it is in fact done honestly, whether it is done negligently or not". Reference of a judgment rendered in the case of Nannu Mal v. Rani Chander (AIR 1931 All 277) was also given that good faith is equivalent to honesty of dealing and does not entail upon the purchaser the necessity of searching the registry, even assuming that there were facts indicative of negligence in investigating title, that by itself was not predicative of a lack of bona fides. Therefore, the second condition shall stand settled if the subsequent vendee has acted as a man of ordinary prudence in making inquiries expected from a purchaser, who wants to acquire a good title for the price/value he is paying. This may include the checking of the Revenue Record or obtain the copies thereof to verify about the title of the vendor or any third party in right, interest or charge over the property or any endorsement in such record about any pending litigation or an injunctive order etc; this may be a good and adequate exercise of investigative process, in case of rural/agriculture property. And for the same purpose, regarding urban property, the Excise and Taxation record may be examined coupled with the verification and obtaining the original documents of title from the vendor, if those are available. However, the subsequent vendee is not obliged to run from the pillar to post in conducting, rowing and fishing inquiries, to ascertain if a third party has any interest etc. in the property which otherwise is visibly lacking. But if there exist some overt, prominent and conspicuous indicators about the third party interest, which are so patently noticeable and manifest that those could not and should not be missed and ignored by a purchaser, such as the possession not with the vendor but someone else, who if approached or its nature investigated would lead to discover such interest, the purchaser is obliged to probe about it, otherwise he may not be able to take resort of the noted equitable rule. In the case of R. K. Mohammed Ubaidullah and others vs. Hajee C. Abdul Wahab (D) By Lrs. and others (AIR 2001 SC 1658), it was held that purchaser was required to make inquiry as to the nature of possession or title or further interest if any of original purchaser over the property in question at time of entering into sale transaction.

10. Now we would like to pay attention to the niceties of a right to file Second Appeal provided under Section 100 of C.P.C, which can be set into motion only when the decision is contrary to law; failure to determine some material issue of law, and substantial error or defect in the procedure provided by the Code or law. In the case of Madan Gopal vs. Maran Bepari (PLD 1969 SC 617), this Court held that if the finding of fact reached by the first Appellate Court is at variance with that of Trial Court, such a finding by the lower Appellate Court will be immune from interference in second appeal only if it is found to be substantiated by evidence on the record and is supported by logical reasoning, duly taking note of the reasons adduced by the

first Appellate Court. In another case reported as Amjad Ikram vs. Mst. Asiya Kausar (2015 SCMR 1), this Court held that in case of inconsistency between the trial Court and the Appellate Court, the findings of the latter must be given preference in the absence of any cogent reason to the contrary.

11. The first Appellate Court thoroughly evaluated and mull over the evidence adduced by the parties and reached to a just and proper conclusion that the appellants failed to prove and justify their defence pleas and judgment of Trial Court was not based on correct exposition of law and facts, whereas the learned High Court in second appeal has also gauged and assessed the overall evidence perfectly and rightly maintained the judgment of first Appellate Court.

12. In the wake of above discussion, we do not find any good or valid ground to disturb or interfere with the impugned judgment. Consequently the appeal is dismissed.

(Y.A.)  Appeal dismissed

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Report of Government Analyst---Protocols.

Judgements of Supreme Court of Pakistan

.............

2020 SCMR 196

Report of Government Analyst---Protocols /procedure---Confirmatory forensic conclusions to establish narcotic character of a substance must be supported by the protocol/procedure mandated by R. 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001---Non-compliance of R. 6 would render the report of the Government Analyst inconclusive, suspicious and untrustworthy and would not meet the evidentiary assumption attached to such report.

.......................................

PLD 2020 SC 57

Report of Government Analyst---Essential requirements---Power of Court to summon Analyst---Scope---To serve the purposes of the Control of Narcotic Substances Act, 1997 and the Control of Narcotic Substances (Government Analysts) Rules, 2001, the report of the Government Analyst must contain three elements, i.e the tests applied; the Protocols applied to carry out these tests; and, the result of the test(s)---Once the said three requirements under R. 6 were contained in the Report of the Government Analyst, any ambiguity therein may be resolved by the Trial Court by exercising its power under proviso to S. 510, Cr.P.C.---Said provision stated that the Court may, if it considered necessary in the interest of justice, summon and examine the person by whom such report had been made---Trial Court while examining the said report had the power to summon the Government Analyst in case there was any ambiguity in the said Report and seek clarification thereof---Such clarification could only be based on the existing record of the Government Analyst and did not mean to allow the Government Analyst to conduct a fresh test or prepare another Report, for that would amount to giving the prosecution a chance of filling the gaps and lacunas in the report---Trial Court must also be mindful of the legal position that the per se admissibility of the report i.e. without examining the Analyst (expert) did not vouch for its evidentiary value---Courts were free to examine the contents of the report and to assess its evidentiary value (weight), a matter distinct from its admissibility.

Report of Government Analyst---Essential requirements---Report of the Government Analyst must show that the test applied was in accordance with a recognized standard protocol---Any test conducted without a protocol lost its reliability and evidentiary value---To serve the purposes of the Control of Narcotic Substances Act, 1997 and the Control of Narcotic Substances (Government Analysts) Rules, 2001, the report of the Government Analyst must contain three elements, i.e the tests applied; the Protocols applied to carry out these tests; and, the result of the test(s)---Report of the Government Analyst which did not specify the Protocols of the tests applied did not meet the requirements of the law---Such a Report could not be relied upon for the conviction of an accused. [Context of 'Protocols ' as explained in the judgment reported as (Ikramullah's case 2015 SCMR 1002, Imam Bakhsh's case 2018 SCMR 2039 and Khair-ul-Bashar's case 2019 SCMR 930) further clarified].

.......................................

2019 SCMR 930

Government analyst report, preparation of---Mandatory requirements---Report of the Government Analyst, prepared in consequence of R. 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, must provide for, firstly, tests and analysis of the alleged drug; secondly, the results of the test(s) carried out, and, thirdly the test Protocols applied to carry out these tests---Said three elements formed the fundamental and the core elements of a valid Report prepared by a Government Analyst---Non-compliance of R. 6 and absence of any of the said mandatory elements/requirements frustrated the purpose and object of the Control of Narcotic Substances Act, 1997 ('the Act'), thereby diminishing the reliability and evidentiary value of the Report---Under S. 36 of the Act, the report of the Government Analyst, whilst being admissible in evidence without formal proof, was rebuttable and could be questioned by the accused, inter alia, on the ground of non-compliance of the information required under R. 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001---Judgment reported as State v. Imam Bakhsh (2018 SCMR 2039) purposively interpreted the Act and (rightly) found R. 6 to be a mandatory provision regarding information to be reflected in the Report of the Analysts.

.......................................

2018 SCMR 2039

Report of Government Analyst---Rule 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 was directory while R. 6 was mandatory to the extent that the full Protocols ought to be mentioned in the report of the Government Analyst---Non-compliance of R. 6, in such context, would render the report of the Government Analyst inconclusive and unreliable.

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Under Order XIV Rule 1 of the Code, when one party affirms material proposition of fact or law and the other denies the proposition, the Court is ought to frame issue as this disputed material proposition.

If more than one material propositions, independent of each other, are disputed by the parties separate issues can be framed. While farming the issues the learned Courts can also look into the material indicated in Order XIV Rule 3 of the Code. Duty is also imposed on the parties to get proper issues framed and come forward with relevant objection as well as suggestions with respect to such material propositions in dispute and divergence of stances of the parties that require formulation of issues. However, if composite issue is framed that encompasses more than one contradictory stance, interconnected to each other, the same does not per se vitiate the trial. The party challenging the same has to show some serious prejudice caused by not framing independent issues. It is also settled now that when composite issue(s) regarding merits of the case is framed and parties being fully cognizant of the real matter, have led evidence accordingly, in such eventuality contention qua the nonframing of issue fades as inconsequential, as long as judgment fulfills the requirement of law.

Civil Revision No.1156-D of 2018
Mst. Akbari Begum and another Versus Mst. Ishrat Bano (deceased)

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-S. 12--Oral sale agreement—Non-execution of agreement in favour of respondent--Dismissal of suit for specific performance--Transfer of land in favour of Appellant No. 1, before cut-off date-

 PLJ 2022 SC 10

Specific Relief Act, 1877 (I of 1877)--

----S. 12--Oral sale agreement—Non-execution of agreement in favour of respondent--Dismissal of suit for specific performance--Transfer of land in favour of Appellant No. 1, before cut-off date--Conduct of appellants--Appellant No. 1 was failed to establishment of bona fide purchaser--Challenge to--Appellant No. 2 dubiously and distrustfully transferred land in question in name of her real brother (Appellant No. 1) by means of an alleged oral sale and mutation entry dated 26.04.2005--In written statement, Appellant No. 2 disavowed execution of agreement with respondent but when she appeared in witness box, she deposed divergently that her husband took her thumb impression on blank papers--Nothing added more as to what legal action was taken by her against her husband, who allegedly secured thumb impression on blank papers by fraudulent and deceitful means--According to agreement with respondent, cutoff date for payment of balance sale consideration and conveyance deed was to be registered on 20.10.2008 but before expiry of cutoff date, Appellant No. 2 transferred land in favour of Appellant No. 1--The conduct of appellants demonstrate that mutation entry was a sequel of an attempt to deprive and exasperate deal finalized with respondent--Respondent proved his case of specific performance through trustworthy and reliable evidence whereas Appellant No. 1 failed to establish his plea as a bona fide purchaser through any credible evidence--First Appellate Court thoroughly evaluated and mull over evidence adduced by parties and reached to a just and proper conclusion whereas High Court in second appeal has also gauged and assessed overall evidence perfectly and rightly maintained judgment of first Appellate Court--Appeal dismissed. [Pp. 12, 13 & 16] A, B, C & G

Transfer of Property Act, 1882 (IV of 1882)--

----S. 3--Under Section 3 (Interpretation Clause) of Transfer of Property Act 1882, “a person is said to have notice” of a fact when he actually knows that fact, or when, but for willful abstention from an inquiry or search, which he ought to have made, or gross negligence, he would have known it.  [P. 14] D

Words & Phrases--

----Bona fide purchaser--One who buys something for value without notice of another’s claim to property and without actual or constructive notice of any defects in or infirmities, claims or equities against seller’s title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims. [P. 14] E

General Clauses Act, 1897 (X of 1897)--

----S. 3(20)--Good faith--"Good faith" is term which reflects state of mind and according to Section 3 (20) of General Clauses Act, 1897 "a thing shall be deemed to be done in 'good faith' where it is in fact done honestly, whether it is done negligently or not".                                                                         

                                                                                     [Pp. 14 & 15] F

AIR 1931 All. 277 ref.

Mr. Zahoor-ul-Haq Chishti, ASC for Appellants.

Mr. M. Ishtiaq Ahmad Raja, ASC for Respondent.

Date of hearing: 14.10.2021.

 PLJ 2022 SC 10
[Appellate Jurisdiction]
Present: Ijaz-ul-Ahsan and Muhammad Ali Mazhar, JJ.
BAHAR SHAH and others--Appellants
versus
MANZOOR AHMAD--Respondent
C.A. No. 389 of 2015, decided on 14.10.2021.
(Against the judgment dated 23.12.2014 passed by Lahore High Court, Multan Bench in R.S.A. No. 37 of 2014)

Judgment

Muhammad Ali Mazhar, J.--This Civil Appeal is directed against the judgment passed by the learned Lahore High Court, Multan Bench, on 23.12.2014 in Regular Second Appeal No. 37/2014 whereby the appeal was dismissed.

2. The transient facts of the case are that the respondent instituted a suit for specific performance of a contract dated 04.09.2008 executed by the Appellant No. 2 in his favour for sale of land measuring 4-Kanal 18-Marlas, situated in Khata No. 413, Mouza Wahni-wal, Tehsil and District Layyah. During subsistence of aforesaid agreement, the Appellant No. 2 transferred the land in question through oral sale, vide mutation dated 26.04.2005 in favour of the Appellant No. 1 who is real brother of the Appellant No. 2. After recording evidence, the suit was dismissed by the Trial Court. On an appeal filed by the respondent, the Appellate Court reversed the finding of trial Court and decreed the suit. Being aggrieved, the appellant filed Regular Second Appeal in the Lahore High Court, which was dismissed and the judgment passed by first Appellate Court was maintained.

3. Leave to appeal was granted vide order dated 07.05.2015 in the following terms:

“Leave is granted, inter alia, to consider whether the learned Appellate as also the learned High Court has misread and non-read the evidence on the record and has also not properly appreciated and applied the principle of bona fide purchaser in determining whether Petitioner No. 1 was such a purchaser; the respondent had not been able to prove valid execution of the agreement to sell on account of the discrepancies in the evidence led by him qua the contents of his plaint; the respondent has neither been able to prove payment of earnest money nor the delivery of possession of the suit property with exactitude as was averred in the plaint”.

4. The learned counsel for the appellants argued that the findings of both Appellate Courts are based on non-reading and misreading of evidence. The respondent failed to prove his case through trustworthy evidence. Both the Courts below failed to consider that the Appellant No. 1 was a bona fide purchaser against valuable consideration without notice that was established through credible evidence. The finding of learned High Court is set up on presumption that earlier transaction was very much in the knowledge of the Appellant No. 1 who is real brother of the Appellant No. 2. According to the learned counsel there were some serious discrepancies in the evidence, which were ignored by both the learned Appellate Courts.

5. The learned counsel for the respondent argued that the both learned Appellate Courts perfectly appreciated the evidence led by the parties and after considering evidence passed the judgments. The Appellant No. 1 throughout the proceedings failed to prove that he was a bona fide purchaser against value without notice of earlier agreement.

6. Heard the arguments. On scanning and scrutinizing the evidence led by the parties in the Trial Court, it is manifesting beyond any ambiguity that an agreement to sell was executed against consideration but the Appellant No. 2 dubiously and distrustfully transferred the land in question in the name of her real brother (Appellant No. 1) by means of an alleged oral sale and mutation entry dated 26.04.2005. Though in the written statement, the Appellant No. 2 disavowed the execution of agreement with respondent but when she appeared in the witness box, she deposed divergently that her husband took her thumb impression on blank papers. Nothing added more as to what legal action was taken by her against her husband, who allegedly secured the thumb impression on blank papers by fraudulent and deceitful means. The respondent produced witnesses to testify the execution of agreement to sell who were fully firmed and supported the version of the respondent in the aid of proving the execution of agreement to sell and payment of sale consideration. It is a matter of record that the first agreement was executed by the Appellant No. 2 with respondent on 04.09.2008 but after few days, she transferred the land in question on 19.9.2008 in favour of Appellant No. 1. It is incredible, rather far-fetched that being real sister and brother (the Appellant No. 1 and Appellant No. 2), the Appellant No. 1 was so ignorant or unacquainted of earlier agreement. According to the agreement with the respondent, the cutoff date for the payment of balance sale consideration and conveyance deed was to be registered on 20.10.2008 but before expiry of cutoff date, the Appellant No. 2 transferred the land on 19.9.2008 in favour of Appellant No. 1. The conduct of appellants demonstrate that mutation entry was a sequel of an attempt to deprive and exasperate the deal finalized with the respondent and hasty and abrupt transfer of property through mutation entry was effected to bring in an unconvincing plea of bona fide purchaser in anticipation of lawsuit of the respondent. The respondent proved his case of specific performance through trustworthy and reliable evidence whereas the Appellant No. 1 failed to establish his plea as a bona fide purchaser through any credible evidence.

7. The presupposition of know-how or prior notice of earlier agreement of the same property stem from calculated abstention from an enquiry by the alleged bona fide purchaser. A conscious and purposive circumvention of an enquiry and due diligence which a buyer ought to have made would always communicate a presumption of definite notice. In a position taken as bona fide purchaser, it should be established by a fair preponderance of the evidence and the fact of notice may be inferred from the circumstances as well as proved by direct evidence. An honest buyer should at least make some inquiries with the persons having knowledge of the property and also with the neighbors. An equitable interest can be hammered or resisted by a bona fide purchaser for value without notice of the legal interest in the property but it is also significant that Section 27(b) of the Specific Relief Act shields and safeguards the bona fide purchaser in good faith for value without notice of the original contract which is in fact an exception to the general rule. The doctrine of purchaser without notice embodies the maxim that “where equities are equal the law will prevail”. Under Section 3 (Interpretation Clause) of Transfer of Property Act, 1882, “a person is said to have notice” of a fact when he actually knows that fact, or when, but for willful abstention from an inquiry or search, which he ought to have made, or gross negligence, he would have known it. Explanation II, further expounds that “Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof”.

8. The burden of proof of good faith is on the subsequent buyer, who moves forward a plea that he is an innocent purchaser. Here the vendor and subsequent vendee are real brother and sister so it was not difficult at all to make some due diligence, on the contrary, it appears that the entire move was ventured to conceive an artificial plea of bona fide purchaser. If the subsequent buyer failed to take routine cautionary and preventive measure, which an ordinary purchaser will have to take, then his conduct cannot be considered bona fide or acted with fairness and uprightness. Whether in a particular case a person acted with honesty or not will obviously depend on the facts of each case. The good faith entails righteous and rational approach with good sense of right and wrong which excludes the element of deceitfulness, lack of fair-mindedness and uprightness and or willful negligence. The 9th Edition of Black’s Law Dictionary (page 1355) defines a “bona fide purchaser” as “one who buys something for value without notice of another’s claim to the property and without actual or constructive notice of any defects in or infirmities, claims or equities against the seller’s title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims”.

9. In the case of Hafiz Tassaduq Hussain v. Lal Khatoon (PLD 2011 SC 296), this Court held that the subsequent vendee thus has to discharge the initial onus (1) that he acquired the property for due consideration and thus is a transferee for value, meaning thereby that his purchase is for the price paid to the vendor and not otherwise; (2) there was no dishonesty of purpose or tainted intention to enter into the transaction which shall settle that he acted in good faith or with bona fide; (3) he had no knowledge or notice of the original sale agreement between the plaintiff and the vendor at the time of his transaction with the latter. It was further held that the second ingredient "good faith" is the term which reflects the state of mind and according to Section 3 (20) of the General Clauses Act, 1897 "a thing shall be deemed to be done in 'good faith' where it is in fact done honestly, whether it is done negligently or not". Reference of a judgment rendered in the case of Nannu Mal v. Rani Chander (AIR 1931 All 277) was also given that good faith is equivalent to honesty of dealing and does not entail upon the purchaser the necessity of searching the registry, even assuming that there were facts indicative of negligence in investigating title, that by itself was not predicative of a lack of bona fides. Therefore, the second condition shall stand settled if the subsequent vendee has acted as a man of ordinary prudence in making inquiries expected from a purchaser, who wants to acquire a good title for the price/value he is paying. This may include the checking of the Revenue Record or obtain the copies thereof to verify about the title of the vendor or any third party in right, interest or charge over the property or any endorsement in such record about any pending litigation or an injunctive order etc; this may be a good and adequate exercise of investigative process, in case of rural/agriculture property. And for the same purpose, regarding urban property, the Excise and Taxation record may be examined coupled with the verification and obtaining the original documents of title from the vendor, if those are available. However, the subsequent vendee is not obliged to run from the pillar to post in conducting, rowing and fishing inquiries, to ascertain if a third party has any interest etc. in the property which otherwise is visibly lacking. But if there exist some overt, prominent and conspicuous indicators about the third party interest, which are so patently noticeable and manifest that those could not and should not be missed and ignored by a purchaser, such as the possession not with the vendor but someone else, who if approached or its nature investigated would lead to discover such interest, the purchaser is obliged to probe about it, otherwise he may not be able to take resort of the noted equitable rule. In the case of R. K. Mohammed Ubaidullah and others vs. Hajee C. Abdul Wahab (D) By Lrs. and others (AIR 2001 SC 1658), it was held that purchaser was required to make inquiry as to the nature of possession or title or further interest if any of original purchaser over the property in question at time of entering into sale transaction.

10. Now we would like to pay attention to the niceties of a right to file Second Appeal provided under Section 100 of C.P.C, which can be set into motion only when the decision is contrary to law; failure to determine some material issue of law, and substantial error or defect in the procedure provided by the Code or law. In the case of Madan Gopal vs. Maran Bepari (PLD 1969 SC 617), this Court held that if the finding of fact reached by the first Appellate Court is at variance with that of Trial Court, such a finding by the lower Appellate Court will be immune from interference in second appeal only if it is found to be substantiated by evidence on the record and is supported by logical reasoning, duly taking note of the reasons adduced by the

first Appellate Court. In another case reported as Amjad Ikram vs. Mst. Asiya Kausar (2015 SCMR 1), this Court held that in case of inconsistency between the trial Court and the Appellate Court, the findings of the latter must be given preference in the absence of any cogent reason to the contrary.

11. The first Appellate Court thoroughly evaluated and mull over the evidence adduced by the parties and reached to a just and proper conclusion that the appellants failed to prove and justify their defence pleas and judgment of Trial Court was not based on correct exposition of law and facts, whereas the learned High Court in second appeal has also gauged and assessed the overall evidence perfectly and rightly maintained the judgment of first Appellate Court.

12. In the wake of above discussion, we do not find any good or valid ground to disturb or interfere with the impugned judgment. Consequently the appeal is dismissed.

(Y.A.)  Appeal dismissed

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It is noteworthy that the words “or produced” in between the words “call” and “witnesses” were inserted in sub-rule (2) of rule 1 of Order XVI C.P.C. through the Lahore High Court Amendment dated 02.10.2001Notwithstanding the above restriction imposed by Lahore High Court amendment in rule 1(2) of Order XVI C.P.C.,

 2022 MLD 121

No appeal is provided in law against an order passed by a trial court allowing an application to produce any witness. The remedy of revision under Section 115 C.P.C. against such an order depends on whether or not it can be termed as a “case decided” and whether the order impugned suffers from any illegality or material irregularity in the exercise of its jurisdiction vested in the subordinate court. The expression “case decided” is not necessarily confined to a final order, rather it may, in particular facts and circumstances of the case, relate to an interlocutory order passed at any stage of the proceedings including an interim order requiring application of mind. An order passed in an improper exercise of jurisdiction, if not interfered with, may lead to an injustice or hardship when an interim order from its very inception appears to be or has an effect of the final order. Therefore, there is no absolute bar against entertaining revisional jurisdiction against an interlocutory order.

A literal reading of rule 1 of Order XVI C.P.C. above suggests that in sub-rule (1) an obligation has been upon the litigants to provide a certificate of readiness to produce evidence, along with a list of witnesses whom they propose to call either to give evidence or produce documents within seven days after settlement of issues. Sub-rule (2) consists of two parts: first one stipulates a restriction on a party to the litigation to call or produce witnesses other than those contained in the said list; the second part creates an exception to the restriction contemplated in the first part whereby a discretion has been conferred upon the court to grant permission to call or produce any witness. The applicant seeking permission of the court is required to show good cause for the omission of the said witnesses from the list and the court granting permission has an obligation to record reasons for so doing.

The object of rule 1(1) of Order XVI C.P.C. is that no one should be taken by surprise in the course of the trial and parties, before commencement of trial, must be conscious, aware and fully prepared as to what kind of evidence was expected to be given by the witness of the opposite side so that they make necessary preparations for cross examinations etc. and to prevent any concoction and fabrication of the evidence.5 The above approach is quite similar to the one prevailing in the courts of England and Wales where litigation is conducted on the principle of “cards on the table”. This means that parties to litigation have an obligation to disclose to the other side, at the appropriate point in time, all the evidence it holds which either assists its own case or assists the other side's case. Their objective is to ensure that the litigation is run as efficiently, cost-effectively and proportionately as far as possible.

It is noteworthy that the words “or produced” in between the words “call” and “witnesses” were inserted in sub-rule (2) of rule 1 of Order XVI C.P.C. through the Lahore High Court Amendment dated 02.10.2001Notwithstanding the above restriction imposed by Lahore High Court amendment in rule 1(2) of Order XVI C.P.C., it is still open for the court to allow production or summoning of the witnesses at a belated stage upon showing of a “good cause” and for “reasons to be recorded”. No absolute criteria could be set as a benchmark to test if a case of omission of a name from the list of witnesses was on account of “good cause”, however, the reason must be legally justifiable and bald claims that it shall be in the interest of justice or it shall facilitate the court in deciding the matter would not be a legally sufficient reason for that purpose.11 13. Likewise, rule 1(2) of Order XVI C.P.C. requires the court to record reasons for the exercise of its discretion. Such requirement has been imposed apparently to keep a judicial check on unbridled and absolute discretion of the court. What qualifies to be valid reasons for the grant of permission under rule 1(2) ibid has been a subject matter of judicial discourse. One view in such discourse is that reasons to be recorded by the trial court for the permission granted under the said rule must be confined to the “good cause” shown (i.e. the explanation advanced) by the party for the omission to include name of witness sought to be called or produced.

The other end of the spectrum of this discourse takes a broader view by liberating the reasons to be recorded by the trial court from the confines of explanation furnished by the litigant for the omission of the name of a witness in the list and includes elements such as importance of the witness in the trial; prejudice, if any, to the opposite party; and inconvenience of the trial court.

The primary focus of such a view appears to be on how the permission sought, if not granted, may curtail access to justice of the applicant, how much administration of justice is likely to be burdened in the proceedings before the court if the permission sought is granted, and how the fair trial right as enshrined in Article 10A of the Constitution, shall be curtailed by the grant or refusal of such an application. The focus surely shifts away from technical knockout of the litigants for their omissions and inefficiencies.

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---Ss. 13 & 24--Civil Procedure Code, (V of 1908), S. 115(1)(a)(b)(c)--Pre-emption suit--Concurrent findings--Direction to deposit in Court one third of sale-price-

 PLJ 2022 SC 22

Punjab Pre-emption Act, 1991 (IX of 1991)--

----Ss. 13 & 24--Civil Procedure Code, (V of 1908), S. 115(1)(a)(b)(c)--Pre-emption suit--Concurrent findings--Direction to deposit in Court one third of sale-price--Short fall of small portion of sale consideration--Declination of application for deposit of balance amount--Non-compliance of order--Exercising of revision power--Challenge to--Consequences for plaintiff in failing to deposit one-third amount of sale consideration within time prescribed by Courts orders, which cannot extend beyond thirty days--Consequence is dismissal of suit--Section 115 of Code enables a Court to exercise revisional power, contours of which are proscribed--Judge of High Court assumed jurisdiction which was not vested in him by Section 115 of Code--Plaintiff did not deposit stipulated one-third of sale consideration amount within prescribed period, as provided for in Section 24 of Act, and thus attracted consequences thereof, which was dismissal of suit--Appeal allowed.                                [Pp. 25 & 26 ] A, B & D

Civil Procedure Code, 1908 (V of 1908)--

----S. 115--Exercising of revisional jurisdiction--Suit was correctly dismissed, and in accordance with law--Causes (a), (b) and (c) of sub-section (1) of Section 115 were not attracted therefore jurisdiction thereunder could not be exercised by High Court.                                                                                    

                                                                                               [P. 26] C

Raja Muhammad Farooq, ASC and Syed Rifaqat Hussain Shah, AOR for Appellants.

Mr. Muhammad Akram Gondal, ASC and Mr. Ahmed Nawaz Chaudhary, AOR for Respondents.

Date of hearing: 28.10.2021.

 PLJ 2022 SC 22
[Appellate Jurisdiction]
Present: Qazi Faez Isa and Yahya Afridi, JJ.
HAMZA SHERAZ and another--Appellants
versus
RIAZ MEHMOOD (deceased) through L.Rs.--Respondents
C.A. No. 183 of 2015, decided on 28.10.2021.
(Against the order dated 04.12.2014 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Civil Revision No. 47 of 2007)

Judgment

Qazi Faez Isa, J.--This appeal has been preferred as of right under Article 185(2) of the Constitution as the learned Single Judge of the High Court in exercise of revision powers under Section 115 of the Code of Civil Procedure, 1908 (‘the Code’) set aside two concurrent judgments of the Subordinate Courts which had dismissed the pre-emption suit filed by the respondents’ predecessor on the ground that his non-compliance with the order of the Trial Court, dated 18 May 2005, whereby he was directed to deposit in Court the stipulated one-third of the sale price within thirty days, could be varied, and having come to this conclusion permitted him to deposit the shortfall.

2. Learned counsel for the appellants states that as per record the sale price of the property purchased by the appellants was one million and six hundred thousand rupees, such amount was mentioned in the sale mutation (at page 56) and the plaintiff/pre-emptor had also mentioned it in his plaint however, he had contended that an exaggerated amount was shown and that the actual sale price was six hundred thousand rupees. He submits that since the sale mutation had specifically mentioned the sale price and as the Court had directed deposit of one-third of such amount, which came to five hundred and thirty-three thousand, three hundred and thirty-four rupees and thirty-five paisas this amount should have been deposited. However, the plaintiff/pre-emptor deposited an amount of five hundred and thirty-three thousand rupees only and, thus, there was a shortfall of three hundred and thirty-three rupees and thirty-five paisas. Therefore, the suit was rightly dismissed by the Trial Court and the decision of the Trial Court Judge was upheld in appeal. Learned counsel has also referred to the judgments of Muhammad Talha v Muhammad Lutfi (2005 SCMR 720) and Tariq Mehmood v Ghulam Ahmed (PLD 2017 SC 674) and stated that the learned Judge erred in observing that the second proviso to Section 24 of the Punjab Pre-emption Act, 1991 (‘the Act’) required ‘to deposit the probable value of the property’, which learned counsel submits was incorrect. He further submits that on the basis of this error reliance was placed on certain judgments of the High Court but the principle laid out in such judgments were not attracted to the facts of the instant case. The learned counsel states that when the Act had stipulated that something be done in a particular manner and further provided a penalty that of dismissal of suit, then the Court had no discretion in the matter. Concluding his submissions, he states that one-third of the sale consideration had to be deposited even if the plaintiff-pre-emptor disputed such sale consideration, which dispute would be subsequently attended to after framing of an issue in this regard and recording of evidence and if the pre-emptor succeeded in establishing that a lesser amount was paid as sale consideration he would then be entitled to withdraw the excess amount deposited by him.

3. The learned counsel for the respondents submits that the shortfall of a small portion of sale consideration was a genuine mistake on the part of the plaintiff/pre-emptor and he had moved an application seeking permission of the Court to deposit the balance amount but the same was not allowed. Learned counsel states that it does not stand to reason that a person prepared to deposit a substantial portion of the stated one-third amount would non-suit himself by not depositing a very small portion thereof. Concluding his submissions, he submits that the learned Judge of the High Court had correctly exercised his discretion and the judgments of the High Courts cited in the impugned judgment are fully attracted to the facts and circumstances of this case.

4. We have heard the learned counsel for the parties and with their assistance have examined the documents available on the record as well as the precedents mentioned in the impugned judgment and those referred to by the learned counsel for the appellants. To appreciate the controversy and determine it the applicable Section 24 of the Act is reproduced hereunder:

24. Plaintiff to deposit sale price of the property. (1) In every suit for pre-emption, the Court shall require the plaintiff to deposit in such Court one-third of the sale price of the property in cash within such period as the Court may fix:

          Provided that such period shall not extend beyond thirty days of the filing of the suit;

          Provided further that if no sale price is mentioned in the sale deed or in the mutation, or the price so mentioned appears to be inflated, the Court shall require deposit of one-third of the probable value of the property.

(2) Where the plaintiff fails to make a deposit under sub- section (1) within the period fixed by the Court, or withdraws the sum so deposited by him, his suit shall be dismissed.

(3) Every sum deposited under sub-section (1) shall be available for the discharge of costs.

(4) The probable value fixed under sub-section (1) shall not affect the final determination of the price payable by the pre-emptor.

5. It appears that the shortfall in depositing of the one-third amount of the sale consideration was a mistake because the plaintiff who was prepared, and did deposit, a substantial portion of the one-third amount will not non-suit himself by failing to deposit a small portion thereof. However, the question before us is, whether the Court has discretion to proceed in a manner not stipulated in Section 24 of the Act. The provision is self-contained and clear. It also mentions the consequences for the plaintiff in failing to deposit the one-third amount of sale consideration within the time prescribed by the Courts orders, which cannot extend beyond thirty days. The consequence is the dismissal of the suit. While one can sympathize with the plaintiff-pre-emptor for miscalculating the amount but the law is clear and permits no discretion of the sort as exercised in the impugned judgment.

6. Section 115 of the Code enables a Court to exercise revisional power, the contours of which are proscribed. The learned

Judge of the High Court assumed jurisdiction which was not vested in him by Section 115 of the Code, the relevant portion whereof is reproduced hereunder:

115. Revision. (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-

(a)      to have exercised a jurisdiction not vested in it by law, or

(b)      to have failed to exercise a jurisdiction so vested, or

(c)      to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it think fit.

Therefore, the suit was correctly dismissed, and in accordance with the law. Moreover, clauses (a), (b) and (c) of sub-section (1) of Section 115 were not attracted therefore jurisdiction thereunder could not be exercised by the High Court. This is also not a case where the Court had itself calculated the one-third amount and made a mistake which required correction. In this case the plaintiff/pre-emptor himself committed the mistake, the consequences whereof he had to suffer. The quantum of the mistaken amount was inconsequential. The plaintiff/pre-emptor did not deposit the stipulated one-third of the sale consideration amount within the prescribed period, as provided for in Section 24 of the Act, and thus attracted the consequences thereof, which was the dismissal of the suit.

7. Therefore, for the reasons mentioned above the impugned judgment is not sustainable, which is set aside, this appeal is allowed and the pre-emption suit filed against the appellant is dismissed, but with no order as to costs.

(Y.A.)  Appeal allowed

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