2003 PLP 1706 (SCMR)

FAQIR MUHAMMAD KHOKHAR, J.

The petitioners seek leave to appeal against judgment, dated 6-5-2002 passed by the Lahore High Court, Lahore in Regular First Appeal No. 126 of 1997.

2. Briefly stated, the facts of the case are that the respondent filed a suit for specific performance of agreement to sell, dated 27-12-1993 (Exh.P1) executed by the petitioners, for the sale of shops in the basement of Asif Tauseef Arcade, Commercial Zone, Liberty Market, Gulberg, Lahore. It was averred in the plaint that out of the total stipulated price of Rs.16,50,000 the respondent had paid to the petitioners an amount of Rs.12,90,000 as earnest money. The civil suit of the respondent was decreed by the Civil Judge, Lahore vide judgment and decree, dated 11-3-1997. The R.F.A. No.126 of 1997 of the petitioners was dismissed by the Lahore High Court, Lahore, by impugned judgment, dated 6-5-2002. hence this petition for leave to appeal.

3. The learned counsel for the petitioners argued that the High Court was not justified in non-suiting the petitioners in the presence of clear admission by the respondent of the past transaction (Exh.D.1) as security which falsified the case of the respondent for specific performance of the so-called agreement to sell. It was further argued that the High Court had erred in law in discarding the evidence of the petitioners. The impugned judgment suffered from misreading and misappreciation of the evidence of both the parties.

4. We have heard the learned counsel for the petitioners at length. We find that D.Ws.1 and 2 namely Javed Masood and Muhammad Asif did not categorically deny the execution of the agreement to sell (Exh.P1). On the other hand the respondent produced P. W.1 Muhammad Mushtaq who had affixed the signatures over the agreement to sell (Exh. P1). He clearly stated that in his presence an amount of Rs.12,90,000 was paid by the respondent to the petitioner Muhammad Asif as earnest money out of the total consideration of Rs.16,50,000 and that Muhammad Asif petitioner affixed his signatures and thumb-impression over Exh.P.1. P.W.2 M. Javed, another marginal witness of (Exh.P1) also stated that he had put his signatures as Exh.P-1/B upon the agreement to sell (Exh.P-1) which was entered into between the parties for the sale of the property for the consideration mentioned therein. He further stated that earnest money of Rs.12,90,000 was also received by Muhammad Asif in his presence who affixed his signatures over the agreement to sell (Exh.P-1). Not only that P.W.4 Faiz Pirzada, who was scribe of agreement to sell (Exh.P-1) also corroborated the statement of P.Ws. 1 and

2. In this view of the matter the petitioners failed to prove that the document (Exh.P1) was executed as security for the purpose or investment and not for the sale of the suit property. The concurrent findings of fact recorded by the trial Court as also by the Lahore High Court do not suffer from misreading or non-reading of any material piece of evidence so as to call for any interference by this Court. This is not fit a case for grant of leave to appeal.

5. For the foregoing reasons, we do not find any merit in this petition and the same is dismissed accordingly. S.A.K./M-603/S Petition dismissed.