2020 PLP 1600 (CLC)

SYED ARSHAD ALI, J.

Impugned herein is the judgment and decree of the learned Appeal Court dated 24.11.2011, whereby the learned Appeal Court while accepting the appeal of the respondent has reversed the judgment and decree of the learned trial Court dated 12.05.2010 decreeing the suit of the petitioner.

2. Brief but essential facts of the case are that on 20.12.2008, Fazal Wahid, the present petitioner, had filed a suit for declaration to the effect that an amount of Rs.780,000/- is payable to him by the respondent Saeed Ahmad alias Ahmad Saeed as a guarantor on the basis of guarantee agreement No. 781 dated 30.07.2007 and until the respondent pays him the said amount, the defendant is not entitled to alienate his property comprised of Khasras Nos. 694, 695 and 715.

3. This suit was contested by the respondent in his written on various grounds. After framing issues from the divergent pleadings of the parties by the learned trial Court, they were asked to produce their respective evidence.

4. On the conclusion of the trial, the learned trial Court decreed the suit in favour of the petitioner vide judgment and decree dated 12.05.2010, however, the said judgment and decree was reversed by the learned Appellate Court vide judgment and decree dated 24.11.2011, hence, this petition.

5. Arguments heard and record of the case was perused with the able assistance of learned counsel for the parties.

6. The precise claim of the petitioner/plaintiff is that the respondent/defendant had undertaken to pay an amount of Rs.780,000/- to him through agreement No.781 dated 30.10.2007 ("Agreement"). According to the agreement, the respondent had undertaken that his son Muhammad Hameed owed an amount of Rs.780,000/- to Ghulam Nabi, the father of the petitioner as a barren money and since the said Muhammad Hameed was in a foreign country, therefore, on behalf of his son, the respondent Saeed Ahmad will pay the said amount of Rs.780,000/- to the petitioner within a period of 2 1/2 years either in instalments or lump sum, failing which, the property mentioned in the agreement will be handed over to the petitioner. This agreement was produced in the learned trial Court as Ex PW3/1, which was scribed by Sartaj Khan (PW-2) and witnessed by Wali Ullah (PW-4) and Nazir Ahmad (not produced).

7. The petitioner/plaintiff in support of his claim has produced Abdul Malik, Patwari Halqa as PW-1, who has placed on file the detail of the property owned by the respondent/defendant as Ex.PW1/1. According to the record, Ahmad Saeed, the defendant, is recorded as owner of the property comprised of Khasra Nos. 694, 695 and

715. Sartaj Khan, the scribe of the agreement (Ex PW3/1) has appeared as PW-2 before the learned trial Court. He has stated to have reduced into writing the disputed agreement and after reading over the contents whereof to them, the parties as well as the witnesses have signed/thumb impressed the same in his presence. In support of his claim, the petitioner/plaintiff himself has appeared before the learned trial Court as PW-3. Waliullah who is the marginal witness of this agreement has also appeared as PW-4 before the learned trial Court. He has confirmed his signature on the disputed agreement.

8. Against that, the respondent/defendant himself appeared as DW-2. It is his contention in the statement that that he has no financial relation with the petitioner/plaintiff. However, he has admitted the fact that at the relevant time, his son was at Kuala Lumpur, Malaysia and the visa for travelling to Malaysia was arranged by the father of the petitioner/plaintiff. He has also stated that his son along with his wife had worked in a shop with the father of the petitioner/plaintiff for 2 1/2 years but without any remuneration. Regarding the agreement, he has stated that the petitioner had asked him (defendant) to put thumb impression on a plain paper for the purpose of facilitating his son to come back to Pakistan. In his cross-examination, he has confirmed that he was a School teacher and has also confirmed his thumb impression on the agreement. He has also confirmed his CNIC number on the same. In support of his claim, he has also produced Khan Zada as DW-3 but he is not material witness because in his cross-examination he has shown his ignorance about the issue.

9. The fact that the respondent Saeed Ahmad had thumb impressed the agreement has not been denied by him. However, his assertion is that he had thumb impressed only a plain document, but his such assertion does not appeal to a prudent mind because he being an literate person as he was a School teacher, therefore, it is not expected of him to have thumb impressed a plain paper without any reason. Even the reason stated, in his statement, by the respondent/ defendant that he had thumb impressed the document to facilitate the arrival of his son to Pakistan appears to be an afterthought story. Moreso, today, the respondent/defendant present in the Court was asked about the whereabouts of his above named son, he has frankly stated that his son along with the wife is working for gain in Malaysia and he off and on use to send money for him.

10. The close perusal of the entire evidence would show that the defendant Saeed Ahmad had agreed to pay the outstanding liability of his son/debtor to petitioner/plaintiff Fazal Wahid, who is son of Ghulam Nabi, the creditor. This agreement was duly established by producing its scribe (PW-2) and one of the marginal witnesses namely Wali Ullah (PW-4). Thus, the requirements under Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984 have been complied with. Nevertheless to mention here that the scribe of the deed namely Sartaj Khan, who has appeared as PW-2, has in unequivocal terms stated that he had reduced into writing the disputed agreement which was read over to the parties and thereafter the parties as well as the witnesses had thumb impressed/signed the document. Thus, he qualifies to be an attesting witness of the deed. The term 'attested' has been defined in Section 3 of the Transfer of Property Act, 1882 as following. "attested" in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his marks to the instrument, or has seen some other person sign the instrument in the personal acknowledgment or his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the execution; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary. The august Supreme Court of Pakistan in the case of "Nazir Ahmad and another v. M. Muzaffar Hussain" reported as (2008 SCMR 1639) while considering the testimony of a scribe as the attesting witness to the deed held that. "No legal inherent incompetence exists in the writer of a document to be an attesting witness to it. Where in addition to one of the marginal witnesses, "Scribe" of the document appeared in the trial Court and deposed that the agreement was scribed by him and thumb impressions and signatures were put by the defendants such statement of the scribe can be considered to be a statement of marginal witness in the circumstances as laid down by the superior Courts in Raja Ram v. Jagannath and others AIR 1926 Oudh 209, Yakub Khan Daim Khan Serguro and others v. Guljar Khan Abdul Khan and others AIR 1928 Bom. 267, Thakurdas and another v. Topandas and others AIR 1929 Sindh 217, Ghanzham Singh Triath Singh and another v. Mohmed Yacoob AIR 1933 Sindh 257, Muhammad Zaman Khan v. Sher Afzal Khan and 8 others PLD 1984 SC (AJ&K) 138 and Mst. Noor Bibi and 9 others v. Ghulam Rasool 1991 SCMR 1281".

11. Moving on to the findings of the learned appeal Court that consideration of this agreement has not been independently established. The contents of the agreement would show that it is neither a contract of indemnity as defined in Section 124 of the Contract Act, 1872 nor a contract of guarantee/surety in a strict sense. As far as the consideration for the agreement in question is concerned, the term "consideration" has been defined in section 2(d) of the Contract Act in the following words. "When, at the desire of the promisor, the promisee or any other person has done or abstained from doing or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise". Thus, keeping in view the above definition of the word 'consideration', if a person undertakes to pay liability of another person is a valid consideration which is neither illegal nor opposed to public policy. Even in the cases of guarantee/surety, the surety does not receive anything for himself but stands as guarantor for the principal debtor to the creditor to discharge his liability in case of default by the principal debtor. Thus, in terms of section 10 of the Contract Act, the agreement in question is enforceable under the law and the findings of the learned appeal Court, in my humble view, are not based on correct appreciation of law and facts which are not sustainable, hence, accordingly set aside. Resultantly, the decree of the learned trial Court is restored with modification that the defendant Saeed Ahmad is liable to pay an amount of Rs.7,80,0000/- to the petitioner and thus the amount would be a charge on his property comprised of Khasra Nos. 694, 695 and 715 situated in village Chari, Tehsil Daggar, District Buner. ZC/134/P Revision allowed.