2006 PLP 886 (MLD)

JAWWAD S. KHAWAJA, J.

The appellant/plaintiff impugns the appellate decree dated 11-7-2005, whereby the decree of the learned trial Court dated 8-3-2000 was set aside and as a result, the suit filed by the appellant seeking specific performance of agreement dated 15-11-1992 was dismissed.

2. Learned counsel for the appellant has argued that both the marginal witnesses to the agreement as well as the stamp vendor were produced to prove the execution of the agreement by the respondent No.1 but the learned appellate Court has dwelled upon inconsequential matters while disregarding the testimony of the aforesaid witnesses.

3. Since the decree of the learned Courts below are at variance, I have gone through the available evidence, with the assistance of both learned counsel. From the same, it is apparent that the appellant/plaintiff has failed to prove his case. The two marginal witnesses to the agreement (Exh.P.1), namely, Ahmad Raza (P.W.1) and Ghulam Rasool (P.W.2) have, in material particulars, contradicted the appellant/plaintiff, who appeared as P.W.S. While the plaintiff stated that the bargain was struck with the respondent/defendant in August in 1992 in the presence of the two marginal witnesses, the said witnesses categorically denied this fact. They stated that they were not present at the time of the bargain and nor were any terms of the transaction settled in their presence. Furthermore, the testimony of P.W. and P.W.2 has clearly been shown to be false inasmuch as they deposed that the agreement was executed on the day when the stamp paper was purchased. It is apparent from the record that the stamp paper was purchased on 14-11-1992, while the agreement is dated 15-11-1992. There are other discrepancies also in the testimony of the P.Ws.1, 2 and 5, which have been noted by the learned appellate Court while holding that they cannot be relied upon.

4. It was also the case of the appellant that a draft for a sum of Rs.1,00,000 had been delivered to respondent No.1 when the agreement (Exh.P.1) was executed. This fact was denied by the respondent. The appellant did not produce the Bank record or any functionary of the Bank to prove this assertion. This constitutes a material omission on the part of the appellant and justifies the inference that the assertion was false.

5. Learned counsel for the appellant had previously argued that there are only minor discrepancies in the testimony of the P.Ws. He had submitted that the learned appellate Court had given undue weight to the fact that the P.Ws. differed on the date on which stamp paper had been purchased. This was noted by me in the order dated 8-9-2005 and was one of the reasons which prevailed with me for admitting the appeal to regular hearing. The aforesaid contention, however, is inaccurate and misleading. It was important, as rightly noted by the learned appellate Court, that P.Ws.1 and 2 had deposed that the agreement was executed on the same day on which the stamp paper had been purchased. It is in this context that the discrepancy in the date of purchase of stamp paper i.e., 14-11-1992 and the date on which the agreement was c executed i.e., 15-11-1992 assumed material significance. The learned appellate Court was, therefore, justified in taking note of this discrepancy.

6. In the above circumstances, I find the impugned appellate decree to be unexceptionable. Furthermore, learned counsel for the appellant was unable to show the existence of any of the grounds mentioned in section 100 C.P.C., which would justify interference in the appellate decree. This appeal, as a consequence, is dismissed.

7. The respondents shall be entitled to their costs throughout. F.B./N-11/L???????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.