1994 PLP 153 (MLD)

Plaintiff in the suit is in revision before this Court. Suit for specific performance in respect of an agreement to sell regarding a residential house at Lahore City filed by him was dismissed in the trial Court on 7-4-1991, and an appeal preferred from the decree of the trial Court failed, on 7-6-1992, in the lower Court. Material point for decision in the revision petition was, whether respondent ever agreed for the sale of his house to the petitioner and received consideration for it or to put it more briefly, whether the respondent executed agreement to sell, dated 12-11-1984 in respect of his house and received Rs30,000 as its sale price from the plaintiff Mehrban Ali. Lower Courts were agreed that agreement to sell by defendant-respondent was not proved. A residential house, under Survey No.46, situate in Bilal Street No.2, Datanagar Badami Bagh, Lahore was a non-Muslim evacuee property. In course of settlement operations, it was transferred to Habib Khan. A P.T.D. was issued to him. Consequently, he was owner of the above house. He was a Government Servant. Lately, he was Superintendent Post Office posted at Bahawalnagar. He had since retired from Government service. Plaintiff was his close relation. He occupied the house with his permission. Plaintiff claimed that Habib Khan had agreed for the sale of his house to him for a sum of Rs.30.000 on 12-11-1984 and received full consideration for the sale of the house from him. Agreement to sell was reduced in writing at Bahawalnagar on 12-11-1984. It was Exh.Pl on file of the trial Court. As the sale did not materialize, plaintiff brought a suit for specific performance of agreement to sell in his favour for the completion of the sale of the house. Suit was instituted, on 6-6-1985, in the civil Court at Lahore. Defendant contested the suit. In the written statement, a few preliminary objections to the maintainability of the suit for spec performance were taken by him. On merits, agreement to sell the house was denied by him. Further, receipt of consideration under the agreement to sell was also controverted, In a preliminary objection, it was stated that the plaintiff had earlier instituted a suit for specific performance regarding the same house and had withdrawn it unconditionally from the Court of Mr. Khalid Saeed Akhtar, Civil Judge, Lahore on 30-5-1985. It was averred the in the aforesaid suit, plaintiff had relied upon a verbal agreement for the sale of the house at Rs.24,000 whereas in the instant suit, an agreement in writing vas made the basis for the suit for specific performance. Therefore, the plaint was liable to be rejected. On 21-10-1984, pleadings gave rise to following issues for determination:

(1) Whether the suit is not maintainable under the law? OPD (2) Whether the plaint is liable to be rejected under Order VII, Rule 11, C.P.C.? OPD (3) Whether the plaintiff has no cause of action to file the suit? OPD (4) Whether the plaintiff has not come with clean hands? OPD (5) Whether the suit is not maintainable in its present form? OPD (6) Whether the suit is under-valued for the purposes of court-fee? If so, what is its effect? OPD (7) Whether the defendant executed agreement dated 12-11-19&1 in favour of the plaintiff? OPP (8) Whether the plaintiff is entitled to the decree as prayed for? OPP (9) Relief. In support of the above issues, plaintiff gave evidence of Waseeqa Navees P.W.1, Qasim Ali, Assistant National Bank of Pakistan Main Branch Bahawalnagar P.W.2, Sultan Ahmad P.W3 and himself appeared as P.W.4. P.W.1 deposed that agreement to sell Exh.Pl was scribed by him. PY.2 deposed that a bank-draft in the sum of Rs.13,000, photo copy Exh.P3 Was credited to the PLS-Savings Account of the defendant. Sultan Ahmad P.W3 stated that agreement to sell Exh.P.1 was executed by the defendant in bis presence. Plaintiff made a similar supporting statement and deposed that he had paid Rs.30,000 as sale-price of the house to the defendant. Rs.13,000 were paid through a bank draft. Rs.8,000, Rs.4,000 and Rs.5,000 were paid to the defendant through Sultan Ahmad, Shamim Ahmad and Dilshad Ahsaad respectively on different occasions. Defendant gave his own statement as D.W3 and was supported by Muhammad Abbas and Zahoor Ahmad D .W.1 and D.W.

2. Defendant denied his signatures on EXh.Pl and receipt of consideration in the sum of Rs.30,000 mentioned in it. He described the agreement for the sale of the house by him as a fake and concocted document. Upon scrutiny of record, the trial Court found that the suit was not barred as it was founded on a different cause of action; the plaint was not liable to rejection under Order 7, Rule 11, C.P.C., the plaintiff had a cause of action for trial of the suit; the suit for specific performance was maintainable in its existing form; the suit was properly valued for purposes of court-fee and that the plaintiff failed to prove the agreement to sell regarding the house in question m his favour, and, therefore, he was not entitled to a decree for specific performance. Consequently, the suit was dismissed by the trial Court. In appeal by the plaintiff, the decree dismissing the suit was maintained, on 7-6-1992: In the context of the material available on record, it is required to be seen, whether the petitioner successfully proved execution of agreement to sell the house in dispute in his favour by the respondent. The venue for execution of deed of agreement was chosen at Bahawalnagar, because the respondent was then posted there. Plaintiff did not attend the execution of the deed of agreement. It was scribed by the deed-writer at the behest of the defendant. Its execution was attested by two marginal witnesses. They were Zahoor Ahmad and Muhammad Arif. They did not appear for the plaintiff at the trial in proof of execution of agreement. No reason was forthcoming for withholding them by the plaintiff. Zahoor Ahmad appeared for the defendant as D.W.2. He deposed that he had signed a blank paper and similarly Muhammad Arif was shown to have appended his signatures on a blank paper. Defendant denied his own signatures on Exh.Pl. No effort was made at the trial to identify his disputed signatures, on Exh.Pl wrath his sample signatures by an expert witness. Plaintiff himself was not a witness to the execution of the agreement. There was a serious dispute on payment of sale price. Shamim Ahmad and Dilshad Ahmad did not appear to support payment of Rs.4,000 and Rs.5,000 respectively to the defendant. Sultan Ahmad P.W.3 deposed to have paid Rs.8,000 to the defendant. There was nothing in writing to support that payment. His testimony therefore, was unconvincing. The receipt of Rs.13,000 through Bank draft was admitted by the defendant, but its nature was described as payment on account of rent arrears. Bank Draft was dated 12-2-1984. Defendant gave evidence that, at times, the house was on rent and the plaintiff upon collecting it paid him the amount of rent received from the tenants. Agreement to sell was scribed at Bahawalnagar, on 12-11-1984. It did not recite the payment of Rs.13,000 through a bank draft towards the adjustment of the sale price of the house. Instead, the agreement recited that sale price was received in presence, of its marginal witnesses. This recital did not synchronise with the evidence given for proving payment of Rs.30,

000. P.W.1 deposed that after writing the agreement to sell Exh.Pl, it was handed over to the defendant. The defendant did not admit execution of the agreement at the hands of P.W.1. How the document came in possession of the plaintiff was not clear from the record. Sultan P.W3 though shown to be present at the time of execution of agreement to sell did not sign or thumb mark it. His presence on the occasion was not beyond dispute. In face of denial of execution of the deed of agreement by the defendant, it was clear duty of the plaintiff who relied upon it to prove its execution by producing necessary evidence of convincing nature. That type of evidence was absent in the case. To crown all, there was another important piece of evidence furnished by the court-record to falsify the agreement and, that was, that on 25-3-1985, the plaintiff instituted a civil suit for spec performance against the defendant in the civil Court at Lahore for completion of the sale of the house in his favour. In the plaint of the suit for specific performance, the plaintiff relied on "verbal agreement" on 1-12-1984, in consideration of Rs.24,

000. Plaint recited receipt of full consideration by the defendant. The defendant (Habib Ullah Khan) appeared in the suit filed at Lahore; engaged Muhammad Anwar Waraich. Advocate to conduct defence on his behalf who filed his power of attorney. It was dated 7-5-1985. Court diary recorded presence of his counsel on 7-5-1985 and proceedings were adjourned to 5-6-1985 for filing of written statement and reply to the application filed under Order 39, C.P.C. However, much before it on 30-5-1985, the plaintiff by a miscellaneous application signed by him withdrew the suit from the trial Court. Institution of the suit by the plaintiff was denied by him in his evidence. Certified copy of the plaint and the order of the trial Court showing withdrawal of the suit were put in evidence as Exli.D 3/2, Exh.D.W. 3/3. In order to verify the genuineness of the above documents, I had sent for the original file of the civil suit and have looked info it carefully. Weight of probability anal circumstantial evidence was in favour of the plaintiff having filed that suit. A remote possibility of the suit having been engineered at the instance of the defendant for creating false evidence was belied by the circumstances available on the record. Had the defendant contributed to the false filing of the civil suit, he may not have readily appeared in it to contest it, and, then there was no real fun in the plaintiff withdrawing the suit before the date of hearing fixed in it. An effort by the plaintiff for a favourable decision in the suit without much contest by the defendant was foiled by his appearance in Court. From an overall view of the record, the plaintiff was found to have failed to prove agreement to sell the house by the defendant in his favour and, therefore, he was rightly non-suited in the lower Courts. There was no defect in the appreciation of evidence or any infirmity in the findings recorded on material issues in the lower Courts. Civil revision, therefore, was without force. In the result, revision petition is dismissed with costs. Original records shall be returned. AA./M-1216/L Revision dismissed.