تعمیل مختص دعوی ایگریمنٹ کے گواھان بغیر ڈکری۔case laws on specific performance |

خریدار/ مدعی نے ثابت کرنا ھوتا ھے کہ تاریخ مقررہ پر اسکے پاس بقیہ زرثمن ادا کرنے کی capacity موجود تھی یا اس کے پاس ایسے ذرائع موجود تھے جن سے وہ ادائیگی کرسکتا تھا۔

PLD 2023 SC 653

Case law on specific performance

زیر نظر کیس لا میں لاھور ھائیکورٹ نے قرار دیا کہ اگر ایگریمنٹ کے دو مارجنل گؤاہان نہ بھی پیش کیے جائیں دعوی تعمیل مختص پھر بھی صیح ڈگری ہوا ھے۔ کیونکہ اپیل کنندہ نے دوسرے کیس میں بیان ریکارڈ کروایا تھا جس پر اپیل کنندہ کے سائن انگوٹھے موجود ھیں جس کا فرانزک رپورٹ بھی موجود ھے۔ اور عدالتی کاروائی کو سچائی کا درجہ حاصل ھے۔ ہائی کورٹ نے اپیل خارج کر دی۔

Stereo. H C J D A 38.

JUDGMENT SHEET

LAHORE HIGH COURT

MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

RSA No.230/2016

Muhammad Islam

Versus

Bagh Ali (deceased) through

LRs.

J U D G M E N T

Date of Hearing:

23.01.2024

Appellant by:

Mian Mumtaz Ahmad Zahid, Advocate.

Respondent by:

Mr. Muhammad Khalid Mehmood Ayyaz,

Advocate.

Anwaar Hussain, J. Through this Regular Second Appeal,

under Section 100 of the Code of Civil Procedure, 1908 (“CPC”), the

appellant, has laid challenge to the impugned judgments and decrees

dated 22.04.2014 and 18.10.2016. Through the former judgment, the

suit of the respondent, for specific performance of contract instituted

on the basis of agreement to sell dated 24.03.2009 (“the agreement”)

in respect of the suit property was decreed by the Trial Court and

through the latter judgment, the appeal preferred by the appellant

against the former judgment was dismissed.

Learned counsel for the appellant submits that the concurrent

findings of the Courts below are against law inasmuch as the suit of

the respondent has been decreed merely on the statement recorded in

the prior suit, instituted by the respondent, without appreciating that

the second marginal witness of the agreement did not appear and,

hence, the appellant failed to prove the agreement in terms of Article

79 of the Qanun-e-Shahadat Order, 1984 (“QSO”). Further contends

that the appellant is still in possession of the suit property and it belies

all logic that the entire sale consideration was paid by the respondent

RSA No.230/2016

without receiving the possession. Places reliance upon the cases

reported as “Mst. Saeeda Anwar and 3 others v. Malik Bashir Ahmad

and others” (2009 MLD 1314), “Sheikh Muhammad Munir v. Mst.

Feezan” (PLJ 2021 SC 217) and “Muhammad Amjad, etc. Abdul

Ghafoor, etc.” (PLJ 2021 Lahore 577). Conversely, learned counsel

for the respondent supports the impugned judgments with the

averments that the appellant appeared in person in the prior suit

instituted by the respondent and conceded the claim of the respondent

and the thumb impression was affixed. Adds that thumb impression

had been duly verified through examination by the Finger Expert,

hence, the appellant has no case and the present appeal merits

dismissal.

Arguments heard. Record perused.

In view of the submissions of learned counsel for the parties,

following question of law is formulated, which requires determination

by this Court in terms of Section 100, CPC:

“Whether the suit for specific performance of the

contract based on an agreement to sell can be

decreed when the second marginal witnesses of the

agreement is not produced by the vendee, in

compliance of Article 79 of QSO?

There is no cavil to the proposition that for the purposes of

proof of a document falling under the purview of Article 17 of the

QSO, two attesting witnesses must be examined as per requirement of

Article 79 thereof. However, the rigors and clutches of the said

requirement envisaged under Article 17, read with 79 of QSO, subside

where the execution of a document is admitted. In such like situation,

the plaintiff is not bound to produce both the marginal witnesses in

order to prove the execution of the agreement. In case reported as

“Abbas Ali Vs. Liaqat Ali and another (2013 SCMR 1600), it has

been held that the documents are required to be attested by two

witnesses but where the executant admits the execution of the

RSA No.230/2016

document, then in terms of Article 81 of the QSO such document can

be used against him though it was required by law to be attested. The

said Article reads as under:

“81. Admission of execution by party to attested

document.- The admission of a party to an attested

document of its execution by himself shall be

sufficient proof of its execution as against him,

though it be a document required by law to be

attested.”

Article 81 is an exception to the general rule that where a document is

required by law to be attested, the same cannot be used in evidence

unless two attesting witnesses are called for the purposes of proving

its execution. The simple reading of Article 81 shows that where the

execution of a document is admitted by the executant himself, the

examination of attesting witnesses is not necessary. As the agreement

in the instant case had been admitted in the prior suit filed by the

respondent against the appellant, by recording statement before the

Trial Court, the non-production of both the marginal witnesses is not

fatal to the case of the respondent. Moreover, in terms of Article 91 of

the QSO, presumption of genuineness is attached to documents

forming part of the judicial proceedings, which reads as under:

“91. Presumption as to documents produced as

record of evidence: Whenever any document is

produced before any Court, purporting to be a

record or memorandum of the evidence, or of any

part of the evidence given by a witness in a

judicial proceeding or before any officer

authorized by law to take such evidence or to be a

statement or confession by any prisoner or

accused person, taken in accordance with law, and

purporting to be signed by any Judge or

Magistrate or by any such officer as aforesaid, the

Court shall presume that the document is genuine;

that any statements as to the circumstances under

which it was taken, purporting to be made by the

person signing it, are true, and that such evidence,

statement or confession was duly taken.”

RSA No.230/2016

The statement dated 30.05.2009 (Ex.P3) pertaining to the agreement

was recorded during the judicial proceedings that took place in the

prior suit and falls under the purview of Article 91 read with Article

81 of the QSO and its effect cannot be brushed aside lightly. Assertion

of the appellant that the said statement recorded in the prior suit does

not belong to him and his signature and thumb impression have been

forged and fabricated by playing fraud upon the Court is belied by the

report of Finger Expert Bureau that is also available on the record as

Ex.P7 duly corroborated by testimony of PW-4/Inspector Police

Finger Expert Print Bureau, Punjab, according to which the thumb

impression available on the agreement are identical to the specimen

thumb impression marked as D, D/1 and D/2. This Court is of the

opinion that mere assertion of the appellant that he did not appear in

the prior suit and has not recorded any statement and affixed his

thumb impression on the order sheet, of the prior suit, cannot be relied

upon nor the same is sufficient and cogent reason to rebut the

presumption of truth attached to the judicial proceedings. In case

reported as “Abdul Aziz v. Abdul Hameed (deceased) through LRs.”

(2022 SCMR 842), the Supreme Court of Pakistan has held that

sanctity of highest order is attached to the judicial proceedings and to

outweigh the same, strong and unimpeachable evidence is to be

produced. The appellant has failed to bring on record any such

evidence.

In the given facts and circumstances, this Court is of the

opinion that the suit for specific performance of the contract based on

an agreement to sell can be decreed even if the second marginal

witnesses of the agreement is not produced by the vendee in

compliance of Article 79 of QSO in cases which fall within the

purview of Article 81 which is an exception to the rule contained

under Article 79 of the QSO. The case law cited by the learned

counsel for the appellant has been considered but the same has no

application as Article 81 is attracted in this case.

RSA No.230/2016

The matter can be examined from another angle. The appellant

never assailed the proceedings and the statement recorded on

30.05.2009 in the prior suit by initiating appropriate proceedings

rather denied the same in an oblique manner while filing written

statement in the suit instituted by the respondent from which the

present second appeal has emanated, which cannot denude the earlier

proceedings of its genuineness and/or existence unless the same is

held to be fraudulent by the said Court. The proceedings carried out in

prior suit particularly statement recorded on 30.05.2009 still holds the

field and exist in judicial record. In such situation, it is for the Court to

look into peculiar facts and circumstances of each case as also the

conduct of the parties and their credibility while appreciating the

evidence available on record and both the Courts below have correctly

appreciated the controversy while decreeing the suit of the respondent.

In view of what has been discussed above, this RSA is found to

without merit and hence, dismissed.

(Anwaar Hussain)

Judge

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