1985 PLP 1232 (SCMR)

NASIM HASAN SHAH, J‑‑This petition is directed against the judgment, dated 10‑4‑1983 passed by a Division Bench of the High Court of Sind at Karachi in High Court Appeal No. 31 of 1979. The relevant facts are that the respondent, Ahmad‑ul‑Haq Siddiqui, filed a suit for specific performance of a sale agreement dated 23‑12‑1972, which was executed by the petitioner in his favour. The suit was decreed by a learned Single Judge of the High Court by its judgment, dated 8‑11‑1978. The petitioner challenged the said order by an Intra‑Court appeal (High Court Appeal No. 31 of 1979) but here too the petitioner was unsuccessful and his appeal was dismissed on 10‑4‑1983. Hence this petition for leave to appeal. The sale agreement between the parties was in respect of the sale of a commercial plot bearing No. SD‑36 measuring 1000 sq. yds. situated in Block "Q" North Nazimabad, K .D . A . Scheme No. 2, Karachi. The petitioner being the owner of this plot agreed to sell it to the respondent on 23‑12‑1972 for a total sale consideration of Rs. 60,000 and a sale agreement was executed on the same date by the petitioner. He received Rs. 23,000 as advance towards the sale consideration and the sale agreement stipulated that a further sum of Rs. 7,000 shall be paid by the respondent herein to the vendor/ petitioner in the next week (for which the petitioner was to issue a separate receipt). The balance of Rs. 30,000 was agreed to be paid on registration of the sale deed or on execution of an irrevocable general power‑of‑attorney in favour of the vendee/ respondent. The petitioner also undertook to obtain all the relevant clearance certificates which were necessary for the registration of the sale‑deed. The case of the respondent, in the suit, was that he was anxious to pay the amount of Rs. 7,000 to the petitioner as per terms of the agreement but the latter could not be found as he became 'scarce'. Ultimately, he succeeded in tracing out the petitioner on 9‑1‑1973 with the help of the residents of the locality. On this date, although the agreement could have been rescinded by the petitioner by returning the amount of Rs. 23,000 received as advance consideration but the petitioner did not do so because he was not in a position to return the said amount. The parties, instead agreed that the petitioner may either return the amount of Rs. 23,000 to the respondent within a fortnight i.e. by 5‑1‑1973 and thereby put an end to the agreement; in case he was not able to return the said amount he would accept the balance sum of Rs. 7,000 (which could not be paid by the respondent in time) and execute a receipt to that effect in his favour. An endorsement to the above effect was made by the petitioner below the sale agreement in his own hand and was duly signed by him. The resident of the Mohallah, namely, Rashiduddin, Mirza Wilayat Ali Baig, Mujibur Rehman, Sabir Hussain and others also signed the endorsement as witnesses to this writing. The exact terms of the endorsement, which was written by the petitioner in Urdu was to the following effect:‑ "Today the 9th January, 1973, it was mutually decided that Rs.23,000 shall be returned by me and if not so returned I will receive Rs. 7,000 and execute a receipt." The question which has been agitated in the Courts below was to what the effect of the said writing was and whether, in the facts and circumstances that occurred after execution of the above writing, the respondent was entitled to seek specific performance of the contract? In the evidence before the trial Court, the respondent led evidence to show that he was eager to pay Rs. 7,000 to the petitioner within the stipulated period but the petitioner refused to accept the said amount by making himself 'scarce'. Thereafter, the respondent with great difficulty was able to contact the petitioner with the assistance of the residents of the Mohallah and in their presence an agreement was entered into between the parties that in case the petitioner returned the amount of ‑Rs. 23,000 to the respondent within two weeks, the agreement would stand rescinded, otherwise the petitioner despite the expiry of the time within which he was to be paid the balance of Rs.7,000 would accept the aforesaid amount and execute a receipt in that connection. The view of the Courts below appears to be that the petitioner was not in position to return Rs.23,000 received by him on the execution of the agreement within the stipulated period of two weeks as he had no funds; that the respondent despite his anxiety to pay the balance sum of Rs.7,000 to the petitioner was unable to do so because the petitioner had made himself 'scarce'. On the other hand, the petitioner endeavoured to show that he was keen to return Rs.23,000 paid as advance by the respondent as provided for in the supplementary agreement executed on 9‑1‑1973 but the respondent was avoiding contact with him, he, therefore, deposited, Rs. 23,000 with one Ghulam Nabi, a resident of Mohallah in the presence of Mr. Iqrar Ahmad Zaidi, Advocate. This conduct established his bona fide intention to return the amount of Rs. 23,000 within the stipulated period of two weeks. Unfortunately, neither Ghulam Nabi nor Mr. Iqrar Ahmad Zaidi were produced as witnesses before the learned trial Court by the petitioner and indeed some of the residents of the Mohallah, who did appear before the learned trial Judge, did not support this version. Since the petitioner could succeed only if he could establish that he was willing and able to return the amount of Rs. 23,000 before 25‑1‑1973 and that he had, in fact, deposited this amount with Ghulam Nabi before the said date, the failure to produce him as a witness seriously weakened his case. In an attempt to repair the damage the petitioner submitted an application before the appellate Bench under rule 27 of Order XLI, C . P . C . for permission to produce additional, evidence, namely, Ghulam Nabi and Iqrar Ahmad Zaidi. This application was, however refused and the learned Judges observed in this connection That: ‑ "Rule 27 of Order XLI, C.P.C. does not envisage filling up of the lacunas left by a party in the evidence before the trial Court. Additional evidence under the above rule may be allowed to be recorded if the appellate Court itself so requires. Additional n evidence cannot be allowed in order to enable a party to patch up the weaker part of its case or to fill up omission or to enable it to raise a new point. It can be allowed only if it is required by the appellate Court itself on the basis of its own appreciation of the evidence already on record." On this view of the matter, the learned Judges held that they were not inclined to hold that it was necessary or expedient in this case to allow the petitioner to produce any additional evidence. The application for permission to produce additional evidence was, accordingly, dismissed. In the result, hardly any evidence to establish that he was willing and desirous of returning the advance sum of Rs. 23,000 received by him as per terms of the writing dated 9‑1‑1973 having been brought on the record by the petitioner, he obviously had no case. His appeal was, therefore, dismissed with costs. Mr. Khalid M. Ishaq, learned counsel for the petitioner has, therefore, endeavoured before us to show that the view of the learned Judges of the Division Bench refusing to allow the petitioner to produce Ghulam Nabi and Mr. Iqrar Ahmad Zaidi as witnesses in the appeal proceedings was erroneous and that additional evidence should have been allowed to be adduced by them as this would have helped to clarify the position and enabled complete justice to be done in the case. We have perused the judgments on this point which were relied upon before the Division Bench by the parties, namely, M/s. Muhammad Siddiq Muhammad Umer and another v. Australasia Bank Ltd. P L D 1966 S C 684, Khan Iftekhar Ahmad v. M/s. Ghulam Nabi Corpn. P L D 1971 S C 550 and Secretary to Government of West Pakistan and another v. Gulzar Ahmad P L D 1969 S C 60, as also the earlier judgment delivered by this Court in the case of Muhammad Ikhlas v . Muhammad Ismail P L D 1983 S C 466 and are satisfied that in the facts and circumstances of this case the view taken by the learned Judges in the High Court refusing permission to the petitioner to produce additional evidence at the appellate stage, was quite correct and cannot be faulted. In this view of the matter, this petition must fail and is dismissed hereby. M. I. Petition dismissed.