PLJ 2023 Lahore (Note) 56
Present: Shahid Bilal Hassan, J.
Haji MUHAMMAD AKRAM (deceased) through legal heirs--Appellants/Plaintiffs
versus
YASMEEN ANWAR and others—Respondents/Defendants
R.S.A. No. 106 of 2014, decided on 27.9.2022.
Specific Relief Act, 1877 (I of 1877)--
----S. 12--Suit for specific performance--Dismissed--Appeal--Partially allowed--Sale agreement--Inconsistency between findings of trial and appellate Courts--No evidence regarding payment of remaining sale consideration--Entitlement for recovery--Challenge to--Appellant has not showed his readiness and willingness as well as bona fide to perform his part of agreement by depositing balance amount with Court at time of institution of suit or even during pendency of suit--It is a settled principle by now that in case of inconsistency between findings of trial Court and Appellate Court, findings of latter must be given preference in absence of any cogent reason to contrary--Appellate Court has rightly exercised vested jurisdiction and has not committed any illegality and irregularity while passing impugned judgment and decree--Appeal dismissed.
[Para 4, 5 & 6] B, C & D
2015 SCMR 1, PLD 1969 SC 617 and 2013 SCMR 1300 ref.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 17(2)(a)--Attestation of document--When two persons enter into any agreement pertaining to financial or future obligations, instrument should be attested by two men or one man and two women, so that one may remind the other. [Para 4] A
Mr. Hamid Iftikhar Pannu, Advocate for Appellants.
Mian Tariq Hussain, Advocate for Respondents.
Date of hearing: 27.9.2022.
Order
Through this single order, the captioned appeal and connected C.R. No. 1210 of 2017, wherein one and the same judgment and decree passed by the learned appellate Court has been called into question, are being disposed of.
2. Nub of the litigation coming to this stage is that the appellant instituted a suit for specific performance of agreement to sell alongwith permanent injunction against the present respondents. The respondents contested the suit by filing written statement. Out of divergent pleadings of the parties, the learned trial Court framed issues and evidence of the parties, in pro and contra, was recorded; The learned trial Court, on conclusion of trial, dismissed the suit vide impugned judgment and decree dated 20.06.2011. The appellant being aggrieved of the said judgment and decree preferred an appeal and the learned appellate Court vide impugned judgment and decree dated 03.10.2013 partly allowed the appeal and while setting aside the judgment and decree passed by learned trial Court, decreed the suit in favour of the appellant-plaintiff to the extent of Rs. 260,000/-; hence, the instant appeal as well as connected C.R.No. 1210of2017.
3. Heard.
4. Article 17(2)(a) of the Qanun-e-Shahadat Order, 1984 provides that in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly; meaning thereby when two persons enter into any agreement pertaining to financial or future obligations, the instrument should be attested by two men or one man and two women, so that one may remind the other.
Article 79 of the Qanun-e-Shahadat Order, 1984 enumerates the procedure of proof of execution of document required by law to be attested; for ready reference the said provision of law is reproduced here:
‘If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence.’
Now, when the present case is considered, it appears that the appellant has produced the marginal witnesses of the agreement to sell Ex. P1 and receipt Ex.P2, so as to prove their valid, execution. All the P.Ws. produced by the appellant have corroborated and supported the stance of the appellant with regards to agreement to sell and receipt of
Rs. 260,000/-whereby no evidence has been led by the appellant germane to payment of remaining sale consideration Rs. 1,005,000/-. As against this, the respondents have not pleaded the elements of fraud and have not produced any evidence in support of their stance rather D.W. 1, the solitary witness, deposed that she was not accompanying her husband at the time of execution of alleged agreement to sell. In this view of the matter, the learned appellate Court after evaluating evidence on record in a minute manner has reached to a just conclusion that the appellant is entitled to recover Rs. 260,000/-, paid by him, because the appellant has not showed his readiness and willingness as well as bona fide to perform his part of agreement by depositing the balance amount with the Court at the time of institution of the suit or even during pendency of the suit.
5. Apart from the above, it is a settled principle by now that in case of inconsistency between the findings of the learned trial Court and the learned Appellate Court, the findings of the latter must be given preference in the absence of any cogent reason to the contrary. Reliance is placed on Amjad Ikram v. Mst. Asiya Kausar and 2 others (2015 SCMR 1), -Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 SC 617) and Muhammad Nawaz through LRs. v. Haji Muhammad Baran Khan through LRs. and others (2013 SCMR 1300).
6. In view of the above, the learned appellate Court has rightly exercised vested jurisdiction and has not committed any illegality and irregularity while passing the impugned judgment and decree, warranting interference by this Court at this stage. Resultantly, while placing reliance on the judgments supra, the appeal in hand as well as connected civil revision bearing No. 1210 of 2012 having no force and substance stand dismissed. No order as to the costs.
(Y.A.) Appeal dismissed
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