PLJ 2012
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 17--Executory contracts of sale--Second agreement to sell was executed at instance endorsing first agreement and acknowledging his liability and extending time for execution due to inability to get property redeemed--Question of maintainability of suit--Suit for declaration assailing legality of both the agreements--Validity--In order to prove execution produced stamp vendor and attesting witness--Registered with sub-registrar--Held: Suggesting proof of execution of matters pertaining to future obligation but nevertheless since there was an admission on part of appellant regarding existence and execution of the agreement, therefore, provisions of Art. 17 of Order 1984, are not attracted to the facts--Agreement was registered with sub-registrar, which fact has not been controverted at instance of appellant, who admitted his appearance before sub-registrar. [P. 549] A
Registration of Agreement--
----It was duty of appellant to prove real intention of parties as alleged by him--Bald statement at instance of appellant deposing that agreement was executed as guarantee by itself is not sufficient to discharge onus of issue with reference to its terms and condition in view of act of registration of agreement and evidence of stamp vender and an attesting witness besides appearance of respondent in witness box. [P. 549] B
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 103--Advance plea--Non-applicability--Contradicting terms and conditions of agreement to sell--Brother and father were attested witnesses of agreement to sell but nevertheless father of appellant did not appear as a witness in order to substantiate assertion of appellant--Brother of appellant though entered in witness box but evidence of appellant contradicting terms and conditions of agreement to sell cannot advance the plea of appellant in view of Art. 103 of Q.S.O.--Proviso to provision cannot advance plea of appellant due to its non-applicability. [P. 549] C
Civil Procedure Code, 1908 (V of 1908)--
----S. 100--Amount as per contract was paid in his presence--Advance plea--Argument though canvassed with vehemence regarding misreading and non-reading of evidence in order to cover the case within meaning of S. 100 of CPC cannot advance plea of appellant. [Pp. 549 & 550] D
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 17--Execution of agreement to sell--Prove of--According to which matters relating to future and financial obligation are required to be reduced into writing and if reduced in writing, instrument shall be attested by two men and evidence shall be led. [P. 550] E
Agreement to Sell--
----Controversy with reference to execution of second agreement to sell only one witness was produced in order to prove agreement to sell--To prove execution of the agreement though was required to produce both attesting witnesses and in absence of compelling circumstances for non-production of second witness, execution of agreement to sell could not be established in accordance with law. [P. 550] F
Civil Procedure Code, 1908 (V of 1908)—
----S. 100--Second agreement--Question of--Genuineness of first agreement--Admission on part admitting existence and execution of agreement--Terms and conditions of agreement--If second agreement is forged and fabricated, then how it can be presumed that first agreement was genuinely executed at instance of appellant--In order to question genuineness of first agreement for simple reason that there is frank admission on part of appellant admitting existence and execution of agreement but questioning terms and conditions of the agreement and as such onus was shifted upon him to prove it which had failed to substantiate. [P. 550] G
Essence of contract--
----Contents of agreement to sell--Time was essence of contract and failure to perform his part of contract was sufficient to non suit him. [P. 551] H
Mr. Muhammad Mahmood Chaudhri, Advocate for Appellant.
Mr. Sher Zaman, Advocate for Respondents No. 1 to 2.
M/s. Muhammad Khalil Rana and Muhammad Usman Arif, Advocates for Respondent No. 3.
Date of hearing: 20.9.2011.
PLJ 2012 Lahore
Present: Mehmood Maqbool Bajwa, J.
ZAWAR HUSSAIN--Appellant
versus
NAZAR MUHAMMAD MALIK, etc.--Respondents
RSA No. 1 of 2011, heard on 20.9.2011.
Judgment
Feeling dis-satisfied with the judgments and decrees dated 3.12.2010 and 26.5.2010 drawn up by the learned Addl. District Judge and learned Civil Judge, Kamalia respectively, the appellant being defendant calls in question the vires of said judgments and decrees, by way of present appeal whereby the suit for specific performance instituted by Respondent No. 1 was decreed.
2. Relevant facts for the disposal of present appeal are that Respondent No. 1 instituted suit for specific performance against the appellant seeking specific performance of executory contracts of sale dated 29.10.2005 duly registered with Sub-Registrar Kamalia on 28.11.2005 and 31.1.2006 allegedly executed by him undertaking to alienate his holding for a consideration of Rs. 12,75,000/-. It is the case of said respondent that the present appellant received Rs.200,000/- at the time of execution of agreement dated 29.10.2005 undertaking to alienate his holding in favour of Respondent No. 1 on 31.12.2005 after redemption of property from Agricultural Development Bank of Pakistan, Kamalia branch (Respondent No. 3). However second agreement to sell was executed on 31.1.2006 at the instance of appellant endorsing first agreement and receiving Rs.50,000/- acknowledging his liability and extending time for its execution due to his inability to get the property redeemed.
3. The suit was contested by the appellant legally as well as on facts raising multiple preliminary objections, questioning the maintainability of the suit. On factual premises though the agreement to sell dated 29.10.2005 was not questioned at the instance of appellant but it was alleged that there was no transaction at all as suggested in the executory contract and the said agreement was executed as guarantee at the instance of appellant because Abdul Hafeez, his brother showed his intention to go to United States of America and the Respondent No. 1 being travel agent agreed to make arrangements for his visa and as such with this mutual understanding the agreement was executed but the Respondent No. 1 though sent his brother to Dubai but could not arrange visa for United States of America and as such after return of his brother, the appellant made protest with Respondent No. 1, who in anticipation instituted suit for specific performance. Execution of agreement dated 31.1.2006 was categorically denied. The suit was instituted on 14.2.2006. The present appellant also instituted suit for declaration assailing the legality of both the agreements on 22.2.2008, which was contested by Respondent No. 1 reiterating his version contained in the plaint as grounds of defence in written statement.
Since common question of fact and law was involved in both the suits, therefore, learned trial Court after consolidating both the suits, cast as many as 13 issues arising out of pleadings of the parties.
After recording evidence produced by adversaries, learned trial Court answered the Issue No. 1 partly in favour of Respondent No. 1 regarding existence, execution, terms and conditions of agreement to sell dated 29.10.2005 but recorded adverse findings with reference to second agreement dated 31.1.2006 and granted decree in favour of Respondent No. 1 subject to payment of balance sale consideration and dismissed the suit of appellant for declaration with consequential relief.
4. Aggrieved by the said judgment and decree, the appellant preferred an appeal against the consolidated judgment and decrees drawn up by the learned trial Court and the learned first appellate Court vide judgment and decree dated 3.12.2010 maintained the findings of learned trial Court on all issues but while answering Issue No. 1, set aside the findings of Court of first instance with reference to non execution of second agreement holding that in view of the evidence led by Respondent No. 1, execution of second agreement to sell dated 31.1.2006 also stands established.
5. Heard adversaries at length and perused the record.
Learned counsel for the appellant assailed the vires of impugned judgments and decrees on multiple grounds contending that since the Respondent No. 1 instituted suit for specific performance, therefore, it was his duty to prove the execution of both the agreements. Submitted that simultaneously the said respondent was obliged to prove the payment of earnest money to the tune of Rs.200,000/- as well as Rs.50,000/-. allegedly paid by him to the appellant respectively in pursuance of both the agreements but failed to prove the same. In order to substantiate the arguments, learned counsel for the appellant while making reference to the evidence adduced by Respondent No. 1, contended with vehemence that the execution of both the agreements could not be established at the instance of Respondent No. 1. Making reference to the contents of agreement to sell dated 29.10.2005 (Exh.P.1) and referring to the evidence of Mubarak Ali (PW.1) it was maintained that though it is a case of Respondent No. 1 that earnest money to the tune of Rs.200,000/- and Rs.50,000/- was paid in presence of witnesses but nevertheless Mubarak Ali, stamp vendor (PW.1) categorically maintained in cross-examination that amount referred to in both the contracts was not paid in his presence. Continuing his arguments, learned counsel for the appellant contended that Respondent No. 1 was also obliged and required to produce receipts to show the payment of Rs.200,000/- as well as Rs.50,000/- but nevertheless nothing was placed on record. With this background it was maintained that finding regarding receipt of Rs.200,000/- recorded by both the Courts below is result of misreading and non-reading of evidence. Further argued that decree for specific performance is a discretionary relief and keeping in view the attending circumstances, the same should not have been granted by both the learned Courts. Making reference to the findings of learned trial Court formulating opinion regarding failure of Respondent No. 1 to prove the execution of second agreement dated 31.1.2006 (Exh.P.2) it was maintained that if the second agreement is result of fraud and forgery, then how presumption can be drawn regarding genuineness of agreement to sell (Exh.P.1). Making reference to the contents of both the contracts, learned counsel for the appellant maintained that since time was essence of contract, therefore, the suit was liable to be dismissed in view of failure of the Respondent No. 1 to perform his part of contract as agreed. Learned counsel for the appellant sought help from the dictums laid down in "SAID AMIN vs. Mst NAYAB and others" (2011 CLC 309), "SHAKEEL AHMED VS. Mst. SHAHEEN KOUSAR" (2010 SCMR 1507), "ZAHID RAHMAN VS. MUHAMMAD ALI ASGHAR RANA" (2007 CLC 1814) and "Mst. SHAHEEN KAUSAR VS. SHAKEEL AHMED" (2005 YLR 1317).
Conversely learned counsel for Respondents No. 1 and 2, while drawing attention of this Court to the order dated 7.1.2011, recorded by this Court maintained that the appeal was not admitted for regular hearing and pre-admission notice was issued, therefore, the arguments canvassed at the instance of appellant on the base of factual premises can not be taken into consideration. Highlighting the scope of Section 100 of The Code of Civil Procedure, 1908 with reference to grounds upon which second appeal can be entertained, learned counsel for Respondents No. 1 and 2 maintained that the argument canvassed at the instance of appellant relates to factual controversy, which stand settled by the judgments and decrees of learned lower Courts and this Court while exercising the powers under Section 100 of The Code of Civil Procedure, 1908, can not examine the finding of facts which are concurrent in nature as the re-appraisal of evidence is not permissible under the said provision of law on the grounds agitated. Help was sought from the ratio expounded in "ABDUL RASHID VS. BASHIRAIN and another" (1996 SCMR 808), "Haji SULTAN AHMAD through Legal Heirs vs. NAEEM RAZA and 6 others" (1996 SCMR 1729) and "PATHANA vs. Mst. WASAI AND ANOTHER" (PLD 1965 Supreme Court 134). Alternatively it was also pleaded that the appellant can not point out that the findings on fact recorded by both the Courts are result of misreading and non-reading of evidence in order to cover the case within the meaning of Section 100 of The Code of Civil Procedure, 1908.
6. Admittedly, the appeal was not admitted for regular hearing and pre admission notice was issued to the adversary. One can not dispute that second appeal is permissible on the following grounds:--
(1) The decision being contrary to law;
(2) The decision being contrary to usage having the force of law;
(3) Failure to determine some material issue of law;
(4) Failure to determine some material issue of usage having the force of law; and
(5) Substantial error or defect in the procedure provided by The Code of Civil Procedure, 1908 or by any other law for the time being in force which may possibly have produced an error or defect in the decision of the case upon the merits.
During the course of arguments, learned counsel for appellant maintained that the findings of both the Courts are result of misreading and non-reading of evidence and as such the judgments and decrees are contrary to law. In view of the matter, it would be desirable to examine the evidence in order to determine whether the judgments of both the Courts are contrary to law falling within the ambit of Section 100 of The Code of Civil Procedure, 1908.
7. Execution of agreement to sell dated 29.10.2005 was not questioned at the instance of appellant but with some reservation and it was maintained that the same was executed as guarantee in view of the undertaking given by the Respondent No. 1 to make arrangement for the visa of brother of appellant for
8. The payment of Rs.200,000/- in pursuance of agreement to sell (Exh.P.1) also stand proved in view of the statement of Respondent No. 1 (PW.2) maintaining that the said amount was paid to the appellant in his house in presence of witnesses finding support from the deposition of Muhammad Zaman (PW.3) whose statement is in line with that of Respondent No. 1. While making reference to the agreement (Exh.P.1) it was maintained that amount as per contract was paid at the time of execution of agreement but Mubarik Ali (PW.1) categorically added that earnest money was paid in his presence. It just finds mentioned in agreement (Ex.P.1) that Rs.200,000/- have been received by the appellant in presence of witnesses finding full support from the statement of not only Respondent No. 1 but also from the deposition of Muhammad Zaman (PW.3) maintaining that amount was paid in the house of Respondent No. 1. In view of the matter, argument though canvassed with vehemence regarding misreading and non-reading of evidence in order to cover the case within the meaning of Section 100 of The Code of Civil Procedure, 1908 can not advance plea of appellant.
9. The execution of agreement to sell dated 4.2.2006 (Exh.P.2) was however, questioned at the instance of appellant. In view of the matter, the Respondent No. 1 was obliged and required to prove its existence, execution in accordance with Article 17 of The Qanoon-e-Shahadat Order, 1984, according to which matters relating to future and financial obligation are required to be reduced into a writing, and if reduced in writing, instrument shall be attested by two men and evidence shall be led accordingly. The expression "evidence shall be led accordingly" is of significant, important and vital in order to settle the controversy with reference to the execution of second agreement to sell regarding which there are negative finding by learned trial Court but contrary view was formulated by the learned first appellate Court maintaining that execution of said agreement also stands established. Perusal of the record suggests that the Respondent No. 1 produced only one marginal witness (Muhammad Zaman) (PW.3) in order to prove the execution of said agreement though was required to produce both the attesting witnesses and in the absence of compelling circumstances for non production of second witness, the execution of agreement to sell dated 31.1.2006 could not be established by Respondent No. 1 in accordance with law. The findings of learned first appellate Court with reference to execution of agreement to sell (31.1.2006) (Exh.P.2) can not be endorsed as the said findings are based on inadmissible evidence and as such same are contrary to law. Learned counsel for the appellant referring to the findings of trial Court canvassed argument that if the second agreement dated 31.1.2006 is forged and fabricated, then how it can be presumed that first agreement was genuinely executed at the instance of appellant. The argument canvassed is based on presumption which is not required to be dealt with by this Court within ambit of Section 100 of The Code of Civil Procedure, 1908 but nevertheless this argument too would hardly advance the case of appellant in order to question the genuineness of first agreement for the simple reason that there is frank admission on the part of appellant admitting the existence and execution of said agreement but questioning the terms and conditions of said agreement and as such the onus was shifted upon him to prove it otherwise, which admittedly he failed to substantiate. Even otherwise, distinction has to be made in failure to prove document and declaration of forgery. Failure to prove a document is not sufficient to stamp it as forged. Perusal of para (12) of the judgment of learned trial Court reveals that Respondent No. 1 was non-suited to the extent of this agreement due to his failure to prove the same in accordance with law.
10. Making reference to the contents of agreement to sell dated 31.12.2005 (Exh.P.1) it was maintained that time was essence of contract and failure of the respondent to perform his part of contract was sufficient to non suit him. I have gone through the rule of law enunciated in "ZAHID RAHMAN VS. MUHAMMAD ALI ASGHAR RANA" (2007 CLC 1814) and "Mst. SHAHEEN KAUSAR VS. SHAKEEL AHMED" (2005 YLR 1347) highlighting the yardstick in order to determine whether time can be considered as essence of contract relating to immovable property to which no exception can be taken but nevertheless the rule of law enunciated in the Reports can not advance the plea of appellant for the simple reason that there is a clear stipulation in the agreement (Ex.P.1) that appellant shall alienate the property in favour of Respondent No. 1 up till 31.12.2005 after getting the property redeemed, which undeniably is still under mortgage with bank. Argument canvassed at the instance of appellant on the strength of case law cited in "SAID AMIN vs. Mst. NAYAB and others" (2011 CLC 309) also can not advance plea of appellant to set at naught the judgments because the Respondent No. 1 has proved the execution of agreement to sell dated 28.11.2005 and payment of Rs.200,000/- as earnest money which fact as referred earlier was not partly questioned admitting the execution of said agreement. Argument of learned counsel for the appellant that the Court is not bound to grant relief of specific performance in each and every case because it is lawful to do so as held in "SHAKEEL AHMED VS. Mst. SHAHEEN KOUSAR" (2010 SCMR 1507) though can not be questioned but nevertheless can not advance plea of appellant before this Court while deciding the appeal under Section 100 The Code of Civil Procedure, 1908 on this score alone in the absence of grounds mentioned in Section 100 of The Code of Civil Procedure, 1908.
11. Pursuant to above discussion no exception can be taken to the findings of learned trial Court as well as learned first appellate Court to the extent of existence, execution, terms and condition of agreement to sell dated 28.11.2005 (Exh.P.1) though the findings of learned first appellate Court with reference to execution of agreement to sell dated 31.1.2006 (Ex.P.2) are legally not sustainable.
The findings on other issues are not subject to criticism as the controversy required to be settled was with reference to findings on Issue No. 1.
12. Learned counsel for Respondent No. 3(ADBP. Kamalia) while submitting the arguments maintained that the property subject matter of the suit is mortgaged with the said respondent and as such interest of Respondent No. 3 is required to be protected and safeguarded to which no exception can be taken as the rights to be transferred to Respondent No. 1 shall be subject to the charge on the property in favour of Respondent No. 3.
13. Pursuant to above discussion, findings of learned trial Court as well as learned first appellate Court barring the findings of learned first appellate Court with reference to execution, existence, terms and conditions of second agreement to sell dated 31.1.2006 (Exh.P.2) can not be said to be contrary to law and as such the appeal preferred by appellant having no force is dismissed.
(R.A.) Appeal dismissed
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