1986 PLP 1713 (MLD)

‑‑-S.115 & O.XLI, R.27‑‑Additional evidence‑‑Documents not relied upon during trial, could not be permitted .at stage of revision‑[Evidence]. Ahmad Waheed Khan for Petitioner. M. Saleem Sheikh for Respondents. Dates of hearing: 26th February, 19th March, 1st, 2nd, 8th and 9th July, 1986. This Civil Revision calls in question the judgment /decree, dated the 19th of July, 1981 of the learned Additional District Judge, Gujranwala.

2. The, petitioner Zafarullah Khan initially sought specific performance of a contract, dated the 3rd of September, 1974 allegedly executed by defendant No.1 Muhammad Siddique Naz whereby he agreed to sell the house in dispute in his favour for a sum of Rs.28,

000. He maintained that h& had advanced an earnest amount of Rs.2, 000 while the rest was to be paid at the time of registration of the sale‑deed to be finalized within three months and further that he had obtained Malkana Qabza of the house in part performance of the contract. His grievance was that instead of conveying the house to him, the vendor, acting in collusion with defendant No.2 Muhammad Javid Butt, transferred it in his favour by a subsequent register sale‑deed. He asserted that since the latter knew about the agreement earlier executed by the vendor in his favour, the subsequent sale was of no effect against his interest.. ‑He showed his willingness to pay up the residue of the consideration amount and prayed for execution of sale‑deed in his favour by way of specific performance.

3. It appears that subsequently., the defendant Javid Butt further sold away the house in favour of Muhammad Amin (defendant No.3) who was also impleaded as a party. The petitioner/ plaintiff assailed this sale too urging that having been made during the pendency of the suit, it was of no consequence.

4. Muhammad Siddique Naz, defendant No.1, (now dead) in his written statement categorically denied having made any such agreement in favour of the petitioner/ plaintiff, or received any earnest money or delivered possession in part performance thereof. He explained that instead the petitioner occupied the house for the last 12/13 years as tenant and was being proceeded against for ejectment as a defaulter. He claimed that since the so‑called agreement was not appended with the plaint, nor was even produced in reply, to a petition made by him in this behalf, an adverse inference was justified to believe that it was totally a fake and forged document. He affirmed the sale in favour of defendant No.2 Javaid Butt for consideration. Defendant No.2 Muhammad Amin in his own written statement pointed out at length how the house had been earlier transferred in favour .of Muhammad Javaid Butt after obtaining permission of the Deputy Commissioner, Gujranwala, in regard. to the plot in question and paying the dues to the Provincial Government. He denied if he had any knowledge of the pendency of the suit and claimed himself; to be a bona fide purchaser having paid Rs.50,000 under the foot of a registered sale‑deed dated the 6th of December, 1976.

5. Appropriate issues were framed by the trial Court Among others, the petitioner examined a handwriting expert who after, comparing the disputed signatures with the specimen taken in the Court as also those already existing on Fard Pata and Vakalatnama, came to the conclusion that the agreement had been signed by the defendant No.1 Muhammad Siddique Naz.' He further expressed that in the specimen taken in the Court, there was a deliberate attempt on his part to create variations one way or the other. The trial Court for 'reasons did not accept implicitly the opinion of the expert and assessing the evidence as a whole particularly the absence of the scribe as also the marginal witnesses, proceeded to conclude against the petitioner/ plaintiff and dismissed the suit. Even the appeal was dismissed by the lower appellate Court concurring with the finding that the document was forged.

6. Mr. Ahmed Waheed for the petitioner indeed took serious objections to the judgment of the lower appellate Court. He stressed that there was no reason to overlook the expert opinion of Mr. Muhamamd A. A . Nomani (P.W.2) merely because in the opinion of the learned Additional District Judge forgery was rampant these days. He contended that in fact the Court below should have itself compared the signatures to come to a pragmatic conclusion rather than to bypass the opinion for an illusory or assumptive reason. Secondly, he adverted attention to the order of the trial Court whereby money order coupons allegedly signed by the deceased Muhammad Siddique Naz were over‑ruled for want of reliance when put in cross‑examination. According to him, the signatures on these coupons could have provided sufficient material for comparison with the disputed ones but shutting them out on the pretext of absence of reliance was indeed denial of a right to the petitioner granted to him by rule 18 of Order VII, C.P.C Thirdly, he urged that evidence had been grossly misread whereby the lower appellate Court wrongly believed that the petitioner failed to show if the scribe was not alive or available. Fourthly, he submitted that the agreement being not a document in law requiring attestation, failure to examine the attesting witnesses was not in any manner material. He relied upon section 72 of the Evidence Act, 1872 and Fazal Muhammad ate! v. Aishayan Bibi etc. 1984 C L C 3401. Lastly, invoking‑ section 3 of the Transfer of Property Act, 1882, he observed that the previous possession of the petitioner over the impugned house constituted sufficient notice to all and, thereof acquisition of title on the part of the respondent/ defendant Muhammad Amin despite such knowledge was of little consequence qua the petitioner's interest in it. He canvassed vehemently that failure on the part of defendants 2 and 3 to appear as witnesses to deny notice of the petitioner's interest in. the house was quite material justifying a serious inference against their claim.

7. In reply, Sh. Muhammad Saleem, assailed‑the competence of the revision petition basically, because the concurrent findings of the Courts below that the document in question was forged, related to a fact. His contention was that every illegality did not justify interference in revision especially when the two Courts were jurisdictionally quite competent to dispose of the matter. He referred to Melappa etc. v. Guramma etc. AIR 1956 Bom. 129 in support of the argument that a document put in cross‑examination could be used only to contradict a witness and not for using as a piece of substantive evidence to discharge onus. He submitted that the money order coupons could have been used at best to contradict the witness but not to bring them on record as specimen of the deceased's signatures for comparison with the' disputed ones. If this were the intention, according to him, then the provisions of rule 1 for Order XIII should have been followed by appending those coupons with the plaint. Omission to append them was said to be very serious. In fact it was a repetition of conduct on the part of .the petitioner who earlier in a like manner had neglected to produce the impugned document alongwith the plaint or to rely upon it by mentioning in the list of reliance s or to produce it in pursuance, of an application made by the respondent/ defendant No.1 in this behalf. Adverting attention to the very contents of the agreement itself, counsel pointed out that it had fixed a period of three months for completion of the sale‑deed and that it had become totally ineffective by efflux of tine, during which the petitioner took no steps to get it enforced. Reliance in this behalf was placed on Raju Roy v. Kasinath Roy etc. A I R 1956 Pat. 308, Messrs Badruddin H. Mavani v. Government of Pakistan etc. 1981 C L C 339 and Muhammad Khalid v. Muhammad Munir etc P L D 1982 Lah.

630. Lastly, he observed that the expert opinion was the weakest evidence, decrepit of credibility and even risky at times to rely upon: Ch. Abdul Hamid v. Deputy Commissioner, etc. 1985 S C M R 359 and Syed Ali Nawaz Shah Gardezi v, Lt.‑Col Muhammad Yusuf P L D 1963 S C 51 were cited in this behalf.

8. There is no gain saying the fact that the disputed question before the Courts below was of a fact. The concurrent finding was that the impugned agreement relied upon by the petitioner/ plaintiff was forged. Undue reliance was placed upon the opinion, of the handwriting expert. He himself rightly or wrongly took note of the fact that there war variations in the signatures appearing on the agreement P.1 as compared to the specimens taken in the Court. However, no such objection was taken to his admitted signatures on the Fard Pata and V8k8182nama and l their comparison disclosed a marked disparity between the two easily' discernible even to the naked‑eye. The letters "M", "S", "A" and particularly "Z" were widely different in size, style, formation and figure. The letter "M" in the disputed signatures had larger loop in the beginning the letter "E" therein was more crude and imperfect the letter "A" in shape was nowhere near "A" of the Fard Pata and the vakalatnama. Likewise, the concluding stroke of the letter "Z" in the disputed ones did not create two oval circles at' the end. Instead, it created only one. These are the reasons among others to make the expert opinion weak, decrepit and‑ even risky in this case. The added reason to view the document this way is the absence of the scribe and the marginal witnesses. True it was a document not requiring attestation in terms of section 72 ibid but once it was shown to have been attested there was no provision to preclude the examination of those witnesses) in proof thereof. Section 60 of the Evidence Act calls for primar B evidence and obviously if a witness sees another writing or signing document, his testimony would constitute the best evidence. Withholding it could not be taken lightly in the context. The statement of the petitioner's own son Shafique Ullah in this behalf was rightly spurned as he himself was neither the scribe nor a marginal witness. He referred instead to two other witnesses Akram and Rehmat but they too were not examined. Absence of such a material first‑rate evidence about the execution of the agreement in question in fact made a complete fetish thereof.

9. It is on the record that the agreement had not been appended with the plaint nor was produced even when the respondent agitated about it. This itself was a sufficient ground to exclude it altogether. To seek to get it proved through money order coupons was another fragile attempt to make up the deficiency in this behalf. The afore cited Bombay case lent considerable support to the objection that even, these coupons were allowed to be produced in cross‑examination the same could not have been taken as substantive evidence to compare the signatures of the deceased in dispute with those on them. Obviously, this was a substantive use for which evidence should have been brought forth at the earliest by appending the documents with, the plaint or at least showing them in the list of reliance s. The provision of rule 18 o Order VII, C.P.C. is meant only to contradict the witness concerned before whom those coupons were placed. He was neither the author thereof nor was he denying their existence. Beyond the aforesaid limited scope of producing the documents during cross‑examination, their user to help discharge the onus probandi could not be allowed. The relevant order is hardly, open to any exception.

10. The agreement itself was intended to remain in operation for three months and the same ended towards the close of the year 1974. The sale of the house was made firstly in favour of defendant /respondent No.2 Muhammad Javaid Butt in 1976 and, of course, even the second sale made in favour of respondent /defendant Muhammad Amin took place during the same year a bit later. It all happened when already the period of three months stipulated in the impugned agreement had expired. It had the effect of making the agreement cease to operate by efflux o time. There was no indication if the time‑limit was not of the essence of the contract. The authority cited in this behalf fully helped the respondents. The mere fact that he had still the limitation to bring the suit of its own force, did not have the effect of changing the basic time‑frame agreed upon between the parties in the agreement itself. The right to sue for specific performance shall be deemed to be controlled by any such stipulation and it was not easy to bypass its lapse.

11. On the petitioner's own showing he was in possession for 12/13 years: Although section .3 of the Transfer of Property Act, provided that such a possession may be a notice to all yet it seems to have been over‑ridden by the provisions of section 53‑A thereof which was introduced subsequently It specifically provided that where the promisee is already in, possession of the property and continues to avail the same, he had to do something in the nature of part performance so as to make any prospective buyer aware of his interest under the agreement. There is no evidence worth the name to show if the petitioner did anything extra‑ordinary as part performance to constitute notice. Hill possession as a tenant did not constitute notice of its own force. Conversely, the indication was that it being a plot still under the control of the Provincial Government, the first vendee Muhammad Javid Butt took care in obtaining permission of the Deputy Commissioner and paying all dues before getting the sale registered in his own favour. The subsequent vendee Muhammad Amin respondent relied upon the permission so granted to the original allottee Muhammad Siddique Naz for transferring it and, therefore, it afforded a sufficient reason for him to believe honestly that there was no clog on the sale of the house in his favour by the original transferee. Even if the‑ respondents did not appear themselves to make statements as witnesses, there was sufficient material on the record to establish their bona fides. The petitioner was admittedly not present when the impugned agreement was allegedly executed. His testimony, in law, was excluded under section 92 of the Evidence Act.

12. The contention as to misreading the evidence was equally not much substantial. Failure to show as to whom the scribe was or if hog was not alive or available was of little significance because the fact remained that he was not examined to prove the execution of the agreement. Some documents filed in the rent case were sought to be produced here by way of additional evidence. Such a prayer was already turned down in the order, dated 12th of October, 1982, by my brother. Muhammad Afzal Lone, J. Since those were not relied upon during trial, it is too late to permit them. The petitioner's entry upon they house as a tenant years ago,, the institution of ejectment proceedings against him for default, and lately the order of the Rent Controller ejecting him there from, would be circumstances of their own nature tending rather to make his attitude inexorable in sticking to the house right or wrong,

13. There is no substance in the revision petition and the same is accordingly dismissed with costs throughout. M.Y. H. Revision dismissed.