2025 PLP 1291 (CLC)

ANWAAR HUSSAIN, J.

Through this Regular Second Appeal, under Section 100 of the Code of Civil Procedure, 1908 ("C.P.C."), the appellant, has laid challenge to the impugned judgments and decrees dated 22.04.2014 and 18.10.2016. Through the former judgment, the suit of the respondent, for specific performance of contract instituted on the basis of agreement to sell dated 24.63.2009 ("the agreement") in respect of the suit property was decreed by the Trial Court and through the latter judgment, the appeal preferred by the appellant against the former judgment was dismissed.

2. Learned counsel for the appellant submits that the concurrent findings of the Courts below are against law inasmuch as the suit of the respondent has been decreed merely on the statement recorded in the prior suit, instituted by the respondent, without appreciating that the second marginal witness of the agreement did not appear and, hence, the appellant failed to prove the agreement in terms of Art. 79 of the Qanun-e-Shahadat Order, 1984 ("QSO"). Further contends that the appellant is still in.possession of the suit property and it belies all logic that the entire sale consideration was paid by the respondent without receiving the possession. Places reliance upon the cases reported as "Mst Saeeda Anwar and 3 others v. Malik Bashir Ahmad and others" (2009 MLD 1314), "Sheikh Muhammad Munir v. Mst. Feezan" (PLD 2021 SC 538) and "Muhammad Amjad and others v. Abdul Ghafoor and others" (PLJ 2021 Lahore 577). Conversely, learned counsel for the respondent supports the impugned judgments with the averments that the appellant appeared in person in the prior suit instituted by the respondent and conceded the claim of the respondent and the thumb impression was affixed. Adds that thumb impression had been duly verified through examination by the Finger Expert, hence, the appellant has no case and the present appeal merits dismissal.

3. Arguments heard. Record perused.

4. In view of the submissions of learned counsel for the parties, following question of law is formulated, which requires determination by this Court in terms of Section 100, C.P.C. "Whether the suit for specific performance of the contract based on an agreement to sell can be decreed when the second marginal witnesses of the agreement is not produced by the vendee, in compliance of Article 79 of QSO?

5. There is no cavil to the proposition that for the purposes of proof of a document falling under the purview of Article 17 of the QSO, two attesting witnesses must be examined as per requirement of Article 79 thereof. However, the rigors and clutches of the said requirement envisaged under Article 17, read with 79 of QSO, subside where the execution of a document is admitted. In such like situation, the plaintiff is not bound to produce both the marginal witnesses in order to prove the execution of the agreement. In case reported as "Abbas Ali v. Liaqat Ali and another" (2013 SCMR 1600), it has been held that the documents are required to be attested by two witnesses but where the executant admits the execution of the document, then in terms of Article 81 of the QSO such document can be used against him though it was required by law to be attested. The said Article reads as under: "

81. Admission of execution by party to attested document.- The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested." Article 81 is an exception to the general rule that where a document is required by law to be attested, the same cannot be used in evidence unless two attesting witnesses are called for the purposes of proving its execution. The simple reading of Article 81 shows that where the execution of a document is admitted by the executant himself, the examination of attesting witnesses is not necessary. As the agreement in the instant case had been admitted in the prior suit filed by the respondent against the appellant, by recording statement before the Trial Court, the non-production of both the marginal witnesses is not fatal to the case of the respondent. Moreover, in terms of Article 91 of the QSO, presumption of genuineness is attached to documents forming part of the judicial proceedings, which reads as under: "

91. Presumption as to documents produced as record of evidence: Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate or by any such officer as aforesaid, the Court shall presume that the document is genuine; that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken." The statement dated 30.05.2009 (Ex.P3) pertaining to the agreement was recorded during the judicial proceedings that took place in the prior suit and falls under the purview of Article 91 read with Article 81 of the QSO and its effect cannot be brushed aside lightly. Assertion of the appellant that the said statement recorded in the prior suit does not belong to him and his signature and thumb impression have been forged and fabricated by playing fraud upon the Court is belied by the report of Finger Expert Bureau that is also available on the record as Ex.P7 duly corroborated by testimony of PW-4/Inspector Police Finger Expert Print Bureau, Punjab, according to which the thumb impression available on the agreement are identical to the specimen thumb impression marked as D, D/1 and D

12. This Court is of the opinion that mere assertion of the appellant that he did not appear in the prior suit and has not recorded any statement and affixed his thumb impression on the order sheet, of the prior suit, cannot be relied upon nor the same is sufficient and cogent reason to rebut the presumption of truth attached to the judicial proceedings. In case reported as "Abdul Aziz v. Abdul Hameed (deceased) through LRs." (2022 SCMR 842), the Supreme Court of Pakistan has held that sanctity of highest order is attached to the judicial proceedings and to is outweigh the same, strong and unimpeachable evidence is to be produced. The appellant has failed to bring on record any such evidence.

6. In the given facts and circumstances, this Court is of the opinion that the suit for specific performance of the contract based on an agreement to sell can be decreed even if the second marginal witnesses of the agreement is not produced by the vendee in compliance of Article 79 of QSO in cases which fall within the purview of Article 81 which is an exception to the rule contained under Article 79 of the QSO. The case law cited by the learned counsel for the appellant has been considered but the same has no application as Article 81 is attracted in this case.

7. The matter can be examined from another angle. The appellant never assailed the proceedings and the statement recorded on 30.05.2009 in the prior suit by initiating appropriate proceedings rather denied the same in an oblique manner while filing written statement in the suit instituted by the respondent from which the present second appeal has emanated, which cannot denude the earlier proceedings of its genuineness and/or existence unless the same is held to be fraudulent by the said Court. The proceedings carried out in prior suit particularly statement recorded on 30.05.2009 still holds the field and exist in judicial record. In such situation, it is for the Court to look into peculiar facts and circumstances of each case as also the conduct of the parties and their credibility while appreciating the evidence available on record and both the Courts below have correctly appreciated the controversy while decreeing the suit of the respondent.

8. In view of what has been discussed above, this R.S.A. is found to without merit and hence, dismissed. MQ/M-125/L Appeal dismissed.