2003 PLP 673 (YLR)

Art, 79-‑‑Execution of document, proof of

Requirements of Art.79, Qanun-e-Shahadat, 1984 stated. It is the requirement of Article 79 of Qanun‑e‑Shahadat, 1984, that if the document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least, have been called for the purpose of proving its execution, if they are alive, and subject to the process of the Court and capable of giving evidence. The explanation provides that it shall not be necessary to call the attesting witnesses in proof of the execution of any document, not being a will, which has been registered it: accordance with the provisions of Registration Act, 1908 unless its execution by the person by whom it purports to have been executed is specifically denied. In the present case the sale agreement was not registered document and the plaintiff had produced one attesting witness only, but the other attesting witness was not called for the purpose of proving the execution of the sale agreement. The plaintiff had stated in his cross examination that one witness died four years after the execution of the sale agreement. However, he had conceded that no death certificate or any other evidence had beer, furnished to prove the death of the second attesting witness. Since calling of at lea two attesting witnesses to prove the execution of a document, was mandatory requirement of law under Article 79 of Qanun‑e‑Shahadat, 1984, the burden was on the person who .wanted to prove the execution of document to produce the evidence that one or more attesting witnesses had died. In the absence of such evidence the requirement of Article 79 of the' Qaaun‑e -Shahadat, 1984, would not be taken to have been fulfilled. (e) Civil Procedure Code (V of 1908)‑‑‑

S,115

Qanun-e-Shahadat (10 of 1984), Art 79- Revision Scope

Execution of sale agreement

‑Proof‑‑No attesting witnesses were produced

Effect

Where the two Courts below had not adverted to the mandatory requirement of law, High Court, in revision was not precluded from taking the same into consideration. David Lawrence for Applicant. Respondent No. l in person. Date of hearing: 17th December, 2002. This revision application under section 115, C.P.C. is directed against the judgment and decree, dated 16‑11‑2001, by the learned District Judge, Sukkur in Civil Appeal No. 1 of 2002, whereby he has up held the judgment and decree passed by the teamed 1st Senior Civil Judge, in Second Class Suit No. 13 of 1997, dismissing the suit filed by the applicant for the specific performance of contract and permanent injunction. Mr. David Lawrence learned counsel for the applicant has assailed the concurrent findings of the learned two Courts below mainly on the two grounds, first, that the two learned Courts below have fallen in error in holding that the suit is barred by limitation under Article 113 of Limitation Act. The sale agreement between the applicant and Nawab Bhandhani father of the respondents was executed on 5‑1‑1988. The suit was filed on 27‑8‑1997. He has submitted that no specific date for performance of contract was fixed between the parties and therefore, first part dealing with the commencement of limitation period under Article 113 of Limitation Act is not attracted. The second part of Column No,3, prescribes the commencement of the limitation period, when the plaintiff has notice that performance is refused. Mr. David Lawrence, learned counsel for the applicant has submitted that later Nawab Bandhani did not specifically refuse the performance of the contract and likewise his successors (the respondents herein) did not specifically refuse the performance of contract and the applicant was kept on hopes, therfore, the period of limitation did not start running. After perusal of the material/evidence available on the record, I am not persuaded to agree with the contention because applicant Zafar Iqbal in his deposition Exh. 17 has stated in his cross examination, that he approached the deceased Nawab Bandhani, through Jalal Bandhani and through (Nekmards) after lapse of two months continuously, up to the period of two years after execution of sale agreement. This statement clearly shows that the applicant approached deceased Nawab Bandhani who died 8 years before the filing of the suit and continued to persist for the execution of the sale‑deed but the deceased Nawab Bandhani did not perform the contract. Thus it was sufficient notice to the applicant that the performance of contract was being refused. The second contention is that the learned two Courts below dismissed the suit for the reason that the sale agreement was not duly registered and was not proved to be attested by the Notary Public. Mr. Lawrence has submitted that the sale agreement is not required to be compulsorily registered under the Registration Act and is not required to be necessarily attested by the Notary Public or Oath Commissioner. In support of his contention, he has placed reliance on the judgment of Honourable Supreme Court in the case of Sahib Khan v. Muhammad Panah PLD 1994 SC

162. I find substance in the contention of Mr. David Lawrence that the sale agreement is not required to be registered or necessarily attested by the Notary Public. The sole requirement of law is that the sale agreement should be signed by the parties and be attested by at least two attesting witnesses. However, acceptance of this contention alone, shall not provide justification for interference by this Court in exercise of revisional jurisdiction. The reason being that first, the suit appears to be barred by limitation and secondly, the learned 1st Appellate Court has fully examined the sale agreement, as well as the evidence led by the applicant to establish the execution of sale agreement, and has reached to the conclusion that the execution of the sale agreement has not been proved. This finding of fact is neither perverse nor against the material available on the record, and no part of the evidence has been ignored or misread by the learned 1st Appellate Court. By now it is established principle of exercise. of Revisional jurisdiction, that even if there is a possibility of arriving at any other conclusion on fresh assessment and appreciation of evidence, the revisional Court shall not resort to such exercise and shall not come to the other conclusion, until and unless C the impugned finding of the lower Court is totally perverse or against the principle of appreciation of evidence or is the result of non‑reading and misreading of the evidence. Moreover, it is the requirement of Article 79 of Qanun‑e‑Shahadat Order, 1984, that if the document is required by law to be attested, it D shall not be used as evidence until two attesting witnesses at least, have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the' Court and capable, of giving evidence. The explanation provides that it‑ shall not be necessary to call the attesting witnesses in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of Registration Act, 1908 unless its execution by the person by whom it purports to have been executed is specifically denied. In the present case the sale agreement is not registered, document and the plaintiff has produced one attesting witness only, namely Muhammad Shafi but the other attesting witness namely. Ishratullah was not called for the purpose of proving the execution of the sale agreement. Mr. Lawrence has pointed out that the applicant d has stated in his cross‑examination that Ishratullah died four years after the execution of the sale agreement. However, he has conceded that no death certificate or any other evidence has been furnished to prove the death of the second attesting witness namely, Muhammad Ishratullah. Since calling of at least two attesting witnesses to prove the execution of a document is mandatory requirement of law under Article 79 of Qanun‑e‑Shahadat Order, 1984, therefore, the burden is on the person who wants to prove the execution of document to produce the evidence that one or more attesting witnesses have died. In the absence of such evidence the requirement of Article 79 of the Qanun‑e‑Shahadat Order, 1984, shall not be taken to have been fulfilled. The provisions contained in Article 80 are very clear and require no interpretation, which read as follows: "

80. Proof where no attesting witness found.‑‑‑If no such attesting witness can be found, it must be proved that the witnesses have either died, or cannot be found and that the document was executed by the person purports to have done so." I would like to mention here that although the learned two Courts below have not adverted to this proposition of law, but being a mandatory requirement of law, this Court is not precluded from it taking into consideration at this stage. For the foregoing reasons I am of the considered opinion, that there is no justification for interference by this Court, with the concurrent judgments of the learned two Courts below, in exercise of Revisional jurisdiction under section 115, C.P.C. The revision application stands dismissed in limine alongwith the listed applications. M.B.A./Z‑39/K Applications dismissed.