PLJ 2024 Lahore (Note) 1
[Multan Bench Multan]
Present: Anwaar Hussain, J.
INAM ULLAH KHAN NAMI--Appellant
versus
ALI NAWAZ, etc.--Respondents
R.S.A. No. 150 of 2015, heard on 14.9.2022.
Specific Relief Act, 1877 (I of 1877)--
----S. 12--Sale agreement--Earnest money was paid--Denial of receiving of earnest money--Suit specific performance--Decreed--Execution of sale agreement was admitted by appellant--Onus to prove--Documents in questions are admitted along with signatures and thumb impressions of appellant--The onus to prove non-payment of earnest money subsequent to admission of execution shifted on petitioner who could not rebut--non-payment of earnest money--Counsel for appellant could not point out any substantial error and or any illegality, infirmity or jurisdictional error in impugned judgments and decrees passed by Courts below--Appeal dismissed.
[Para 9 & 10] A, B, C & D
2021 SCMR 415 and 1995 SCMR 466 ref.
Mr. Muhammad Masood Bilal, Advocate for Appellant.
Ch. Muhammad Anwaar-ul-Haq Advocate for Respondents.
Date of hearing: 14.9.2022.
Judgment
This Regular Second Appeal relates to property bearing No. 54/52 measuring 5-Marla and 2-5. Khewat No. 216, Khatooni No. 221, situated in Mohallah Muslamabad, Sahiwal and out of which 47/94 share i.e., 2 and 1/2 Marla is in dispute (hereinafter referred as “the suit property”), in respect of which suit for specific performance instituted by the respondents against the appellant was decreed by the learned Trial Court and the appeal filed by the appellant was also dismissed.
2. Briefly stated facts of the case are that the appellant, namely, Inam Ullah Khan Nami was owner of the suit property against whom the respondents instituted a suit for specific performance of contract on the basis of an agreement to sell dated 24.02.2004 (Ex.P1) (hereinafter referred to as “the Agreement”) with the averments that predecessor-in-interest of the respondents and the petitioner along with petitioner’s brother, namely, Malik Habib Ullah and one Abbas Akbar Chishti entered into the agreement, for a total sale price of Rs. 1,400,000/- claiming that an amount of Rs. 200,000 was paid in cash as earnest money. at the time of execution of the Agreement and rest of the amount i.e. Rs 1,200,000/- was to be paid till 30.04.2004. Malik Habib Ullah along with Abbas Akbar Chishti honored the agreement and transferred their shares in total property in favour of predecessor-in-interest of the respondents but the appellant refused to do so, which constrained predecessor-in-interest of the respondents to issue legal notice which was not responded and after the demise of predecessor-in-interest of the respondents, the suit was instituted by the latter. The appellant filed written statement controverting the allegations, inter alia, on the grounds that he had neither received any earnest money from predecessor-in-interest of respondents, nor the latter instituted any such suit during his life time, which shows that the petitioner is not bound by the terms of the agreement, and that suit is bad due to non-joinder of necessary and proper party and the same has been instituted just to tease and harass the appellant.
3. Out of the divergent pleadings, issues were framed. Evidence was adduced and recorded where after the learned Trial Court, vide its judgment and decree dated 01.12.2012, decreed the suit with costs subject to deposit of remaining consideration amount i.e.
Rs. 600,000/- within 30-days of this order, however, held that in case of failure of the respondents to so deposit the remaining sale consideration, the suit would be deemed as dismissed. On appeal preferred by the appellant, against the judgment and decree passed by the learned Trial Court, the learned Appellate Court below upheld the judgment of learned Trial Court, vide impugned judgment and decree dated 02.10.2015. Hence, this Regular Second Appeal has been preferred.
4. Muhammad Masood Bilal, Advocate, learned counsel for the appellant submits that following questions of law arise out of the lis in hand in terms of Section 100, CPC:--
i) Whether without appearance of the plaintiff as a witness, the contents of the plaint can be proved?
ii) Whether in peculiar facts and circumstances of the case, the admission of execution of the agreement by the appellant was wrongly construed as unconditional and made basis for decreeing the salt for specific performance of the contract by holding that the agreement stood proved without examining the second marginal wittiness thereof in terms of Article 79 of the Qanun-e-Shahadat Order, 1984 (“QSO)”?
Learned counsel for the appellant submits that the agreement is admitted, which was executed by the appellant along with his brother Malik Habib Ullah with predecessor-in-interest of the respondents, however, the appellant did not receive any earnest money and the receipt (Ex.P2) in respect thereof, written on the back of the first page of the agreement, being an independent document does not bear the signatures of any witness and hence, the agreement was without consideration. Adds that the admission of the appellant of the execution of the agreement has been wrongly construed to be admission of receipt of consideration, which is not sustainable in the eye of law. Further contends that none of the plaintiffs appeared in witness box in support of their contentions and hence, adverse presumption is to be drawn against them. Concludes that admission of the appellant was not unconditional and hence, the respondents were obligated to prove the agreement in terms of Article 79 of QSO, which the respondents failed to do as second marginal witness was never produced. Places reliance on “Messrs Kuwait National Real Estate Company (Pvt.) Ltd and others v. Messrs Educational Excellence Ltd and another” (2020 SCMR 171), “Feroz Khan and others v. Mst. Waziran Bibi” (1987 SCMR 1647), “State Life Insurance Corporation v. Mamoor Khan” (1993 CLC 790) and “Muhammad Hussain v. The Sate” (1977 SCMR 109) in support of his contentions
5. Conversely, Ch, Muhammad Anwar-ul-Haq, Advocate learned counsel for the respondent submits that the agreement is admitted and is registered and hence, presumption of truth is attached to it. Adds that each page of the agreement was duly signed by the appellant and hence, the appellant cannot retract from the same. Further submits that the receipt does not fall under the purview of Article 79 of the QSO inasmuch as no denial has been made that the thumb impressions affixed by the appellant on the receipt are forged, rather the said document is covered by Article 113 of QSO read with Section 60(2) of the Registration Act, 1908, Places reliance on “Muhammad Nawaz v. Mst. Ahmad Bibi and others” (1995 SCMR 466).
6. In rebuttal, learned counsel for the appellant submits that receipt (Ex.P2) is an independent document and hence, admission of the agreement (Ex.P1) does not mean that the appellant has admitted the receipt.
7. Arguments heard. Record perused with able assistance of learned counsel for the parties.
8. As regards the first legal question, it is imperative to note that the contents of the plaint can be proved by the plaintiff side through oral as well as documentary evidence and for this purpose, the plaintiff in a suit may appear in person or through a duly constituted attorney. In the instant case admittedly, the vendee who was predecessor-in-interest of the respondents expired and after his demise the suit was instituted by his children and in response to the plaint of the suit instituted by the respondents, the appellant in his written statement admitted execution of the agreement and only vaguely denied that he did not receive any earnest money. It is imperative to note that the acknowledgment that the earnest money was received is not only recorded in the main body of the agreement but also on the back of the first page of the agreement, which constituted the receipt (Ex.P2) and same is thumb marked. The appellant never denied his signatures and thumb impression on every page of agreement as well as the receipt (Ex.P2). It is trite law that admitted facts need not to be proved. Therefore, in the peculiar facts and circumstances of the instant case, first question of law formulated by learned counsel for the appellant loses its significance.
9. Adverting to the second question which relates to the effect of admission of the appellant, it is worth mentioning that the said admission by all standards is neither vague nor conditional, rather the appellant during Examination-in-Chief stated as under
"بر حلف بیان کیا کہ جائیداد متدعویہ 2 مکانات B1/52 اور 54A/B1 پر مشتمل ہے۔ 52/B1 میری ملکیتی اور مقبوضہ ہے جبکہ دوسرا مکان 54A/B1 میرے بھائی ملک حبیب اللہ کا ملکیتی تھا۔ میرے بھائی نے بیرون ملک جانا تھا جس بناء پر اس نے اپنی جائیداد کا سودا ہمرا ہ مورث اعلیٰ مدعیان سے مبلغ تقریبا 7 لاکھ روپے میں طے کر لیا اور اقرار نامہ بھی تحریر و تکمیل ہو گیا اقرار نامہ میں سودے کی اشورنس assurance کے لئے مجھے بھی فریق بنایا گیا حالانکہ میں نے نہ تو کوئی رقم ازاں مورث اعلیٰ مدعیان وصول کی اور نہ ہی کسی جائیداد کے فروخت کرنے کا اقرار کیا تھا۔"
(Emphasis supplied
The above quoted passage clearly indicates that the appellant after admitting the execution of the agreement in paragraph No. 2 of his written statement has made an improvement and deposed beyond pleadings by stating that he affixed his signatures as a form of an assurance/guarantee. On the reverse side of the agreement, there is an endorsement at the time of registration by the Sub-Registrar concerned and the appellant has admittedly signed the agreement at the time of its registration, which contemplates that the contents of the document was read over to the parties, hence, the plea that it was signed as an assurance/guarantee is highly unconvincing. Similarly, while being cross-examined, he categorically states as under:
"اقرار نامہ Ex.P1 پر Ex.P1/5, Ex.P1/4, Ex.P1/3 میرے دستخط اور نشانات انگوٹھا ہیں ۔۔۔۔۔ یہ درست ہے کہ Ex.P1 اقرار نامہ بیع 24.2.04 کو تحریر کروایا تھا۔ یہ درست ہے کہ اقرار نامہ Ex.P1 علی اکبر چشتی، ملک حبیب احمد اور میں تینوں نے تحریر کروایا تھا۔ یہ غلط ہے کہ میں (sic) سب رجسٹرار کے روبرو برائے رجسٹری اقرار نامہ بیع پیش ہوئے تھے از خود کہا کہ میں بیٹھا رہا تھا اور باقی سب رجسٹرار کے پیش ہوئے تھے۔ یہ درست ہے کہ اقرار نامہ Ex.P1 پر سب رجسٹرار کی تحریر Ex.P1/6 ہونے کے بعد Ex.P1/5 میں نے دستخط کیے اور نشان انگوٹھا لگایا۔"
(Emphasis supplied
Perusal of above quoted part of the cross-examination conducted upon the appellant leaves no room for doubt that after admitting the execution of agreement in his written statement, he also admitted the same while being cross-examined. Here it is worth mentioning that even signatures as well as thumb impression on the receipt (Ex.P2), which learned counsel for the appellant during arguments before this Court has stressed to be an independent document, has been admitted in the following manner:
"یہ درست ہے کہ Ex.P2 پر میرے دستخط Ex.P2/2 ہیں جبکہ Ex.P2/1 میرے دستخط اور نشان انگوٹھا ہے اس طرح میرے بھائی ملک حبیب احمد کے دستخط اور نشان انگوٹھا میرے دستخطوں کے بائیں جانب ثبت ہے۔ یہ درست ہے کہ Ex.P2 وہ رسید ہے جس میں درج ہے کہ پانچ سو/پانچ سو کے چار سو نوٹ کل مالیتی مبلغ 2 لاکھ روپے ہیں یہ تحریر رسیدی ٹکٹوں پر ہے اور اس بارے میں میرے دستخط اور نشان انگوٹھا ثبت ہے۔"
(Emphasis supplied
The appellant while appearing as DW-1 even went on to state as under, which indicates that he again deviated from his pleadings:
"یہ درست ہے کہ میں نے اپنا نصف معاہدہ Ex.P1 کے مطابق منتقل نہ کروایا ہے۔ از خود کہا کہ میرا سودا ہی نہ تھا۔ میں تو صرف گارنٹی کے طور پر شامل ہوا تھا۔"
(Emphasis supplied)
Needless to mention that a registered document carries a presumption that they were genuinely executed, which the appellant failed to rebut. Moreover, the appellant also admitted that a legal notice was issued by predecessor-in-interest of the respondents, whereby said predecessor-in-interest clearly asserted his right calling upon the appellant to perform his part of the contract which the appellant received, however, he admits that he did not respond to the same. Therefore, the question whether the agreement and the receipt were proved in accordance with law in terms of provisions of Article 79 of the QSO as out of two marginal witnesses only one appeared is also not relevant in the instant case. Needless to mention that the documents in questions are admitted along with signatures and thumb impressions of the appellant thereon. Such an admission in the pleadings followed by the cross examination, cannot be discarded merely for non-appearance of the second marginal witness as Article 79 of QSO comes into play when execution of a document is outrightly denied. Where the document is not only admitted but also registered such requirement even if not met is of not much significance for the decision of the case. When the execution of a document is admitted, the contents of such an admitted document are presumed to be true unless otherwise proved. In the instant case, the partial payment of the consideration as earnest money is presumed to be true being the contents of the agreement, execution whereof is admitted. The onus to prove non-payment of earnest money subsequent to the admission of execution shifted on the petitioner/defendant who could not rebut the said presumption. In somewhat similar facts and circumstances, where the execution of the document was admitted, the honorable Supreme Court of Pakistan in case titled “Sajjad Ahmad Khan v. Muhammad Saleem Alvi and others” (2021 SCMR 415) held the requirement of producing the second witness to be a hyper technicality and not violation of Article 79 of QSO and in the said case when such hyper technicality was followed by the Courts below, even concurrent findings of three Courts below were set aside by the honorable Apex Court. Besides the above, it is clear that the agreement to sell underlying the suit, though execution admitted, but otherwise denied by the petitioner, as never been challenged through any proceedings before the competent Court for its cancellation. The august Supreme Court in case of Sajjad Ahmad Khan supra observed that mere denial of agreement to sell on the basis of being fake and fictitious is not sufficient unless challenged specifically. In view of the law laid down in case of Sajjad Ahmed supra, which is squarely applicable to the facts of instant case, the case law cited by the learned counsel for the appellant were considered but found distinguishable.
10. Learned counsel for the appellant could not point out any substantial error and or any illegality, infirmity or jurisdictional error in the impugned judgments and decrees passed by the learned Courts below. In the circumstances, it is found that the instant Regular Second Appeal does not fall within the purview of Section 100, C.P.C. Furthermore, the judgments impugned herein are well reasoned and based on the evidence on record, therefore, this Court is of considered view that the same do not call for any interference. Hence, the instant Second Appeal being devoid of any force is dismissed.
(Y.A.) Appeal dismissed
