2019 PLP 125 (YLR)

AMIN-UD-DIN KHAN, J.

Through this Civil Revision, petitioner who is defendant in the suit for specific performance has challenged the judgment and decree dated 20.12.2016 passed by a learned Additional District Judge, Sialkot whereby the appeal filed by the petitioner was dismissed as well as the judgment and decree dated 14.09.2013 passed by a learned Civil Judge 1st Class, Sialkot whereby suit for specific performance filed by the plaintiff-respondent was decreed.

2. Brief facts of the case are that plaintiff-respondent on 16.12.2002 filed a suit for specific performance on the basis of agreement to sell dated 06.07.2001. Written statement was filed. The suit was contested. Petitioner-defendant denied the execution of agreement to sell in favour of plaintiff-respondent pleading that actually there was some dispute with regard to payment of money between son of the petitioner-defendant with Muhammad Asghar, husband of the plaintiff, therefore, on 06.07.2001, for preparation of guarantee deed ( ) stamp paper valuing Rs. 100/- was purchased by the defendant and on the blank stamp paper, he put his signatures and denied the receipt of earnest money. Learned trial Court vide its order dated 21.10.2004 appointed a local commission for site inspection and to report about the present position of the suit property. Through a report dated 01.09.2005, it was apprised by the local commission that plaintiff was in possession of the suit property. Learned trial Court framed the issues on 16.06.2008 and invited the parties to produce their respective evidence. Both the parties produced their oral as well as documentary evidence. Case of the plaintiff-respondent was that the original agreement to sell was procured by the petitioner-defendant on the plea that he wanted to get the sale deed prepared and handed over the previous original sale deed to the defendant-petitioner. Therefore, permission was granted to the plaintiff-respondent to produce secondary evidence with regard to the agreement to sell which was produced as Ex.P-1.

3. In the first round of litigation, learned trial Court decreed the suit vide judgment and decree dated 23.10.2010. An appeal (R.F.A. No. 1036 of 2010) was filed which was allowed by this Court and case was remanded to the learned trial Court. After remand, both the parties produced further oral as well as documentary evidence to strengthen their claim. The remaining consideration amount was also paid under the orders of the Court and learned trial Court decided the application for temporary injunction.

4. Learned counsel for the petitioner argues that when the petitioner-defendant denied the execution of agreement to sell, it was the responsibility of the plaintiff-respondent to prove the same in accordance with law and in the light of the standard for proving the document enunciated by the superior courts. States that plaintiff-respondent miserably failed to prove the execution of agreement to sell as both the learned Courts below as much weight was given to the statement of PW-1, the Notary Public. Further submits that the original agreement to sell was not produced with the explanation that same was handed over to the petitioner-defendant cannot be accepted. States that grant of relief of specific performance is a discretionary relief, therefore, prays for acceptance of this Civil Revision by setting aside the concurrent findings of learned two Courts below. Learned counsel has relied upon "Muhammad Rasheed Khan v. Mst. Mehr-Un-Nisa" (2009 SCMR 740), "Muhammad Sharif and others v. Nabi Bakhsh and others" (2012 CMR 900), "Liaqat Ali Khan and others v. Falak Sher and others" (PLD 2014 Supreme Court 506) and "Farid Bakhsh v. Jind Wadda and others" (2015 SCMR 1044).

5. On the other hand, learned counsel for the respondent argues that plaintiff-respondent successfully proved the agreement to sell as well as payment under the agreement and possession over the suit property. States that there are concurrent findings of fact recorded by both the learned Courts below and petitioner-defendant failed to show any mis-reading and non-reading of evidence by both the learned Courts below while handing down the judgments, therefore, argues that no case for interference by this Court is made out. Further, learned counsel has produced photostat copies of Ex.P-2 and report of local commission stating that petitioner-defendant has intentionally not appended these documents with this Civil Revision. Argues that it is a fatal defect and Civil Revision can be dismissed on this score alone. Prays for dismissal of the Civil Revision stating it meritless and defective one. To strengthen his arguments, learned counsel has placed reliance upon "Ghulam Nabi and others v. Seth Muhammad Yaqub and others" (PLD 1983 Supreme Court 344), "Rab Nawaz and 13 others v. Mustaqeem Khan and 14 others" (1999 SCMR 1362), "Bashir Ahmed through L.Rs. and another v. Muhammad Ali through L.Rs. and another" (2007 SCMR 1047) and "Muhammad Sattar and others v. Tariq Javaid and others" (2017 SCMR 98).

6. I have heard learned counsel for the parties at length and gone through the record as well as the case-law referred to by learned counsel for the parties.

7. It is not disputed that stamp paper of Ex.P-1 was purchased by the petitioner-defendant. His signatures on the stamp paper have not been denied by him. On the other hand, the case pleaded by the plaintiff-respondent is that after completion of the agreement (Ex.P-1), petitioner-defendant approached for execution of sale deed in favour of plaintiff-respondent, therefore, he demanded the original agreement to sell which was handed over to him so that he may purchase the stamp papers and get the sale deed prepared. As a security, petitioner handed over the previous original sale deed of the suit property which was in his favour. This argument has weight.

8. Further, permission was granted to produce secondary evidence but there is nothing on the file of this Civil Revision that petitioner-defendant raised any objection or when permission to produce secondary evidence was granted, he challenged the order before any further forum. When it is so, I have no reason to think otherwise than the fact that permission was granted in accordance with law. Both the learned Courts below concurrently discussed the evidence available on the file while discussing Issues Nos. 1 to 3 onus of which was upon the plaintiff-respondent and against that, onus to prove Issue No. 5 was upon the defendant.

9. Needless to observe that when purchase of stamp paper of Ex.P-1 and signatures thereupon were admitted by the petitioner-defendant and he denied the purpose of purchase of stamp paper as well as contents of the document Ex.P-1, it was his duty to produce very strong and convincing evidence. It is a settled principle of law that when a person challenges some part of the contents of a document, the onus to prove the allegation is upon that person to prove the case pleaded by him. It is also a settled proposition that against the documentary evidence, simple oral evidence is not sufficient. In this case, it is the plea of the petitioner that he purchased the stamp paper but he has not appended Ex.P-2, copy of register of the stamp vender which was produced by the plaintiff when record was produced before the Court. It clearly shows that stamp paper was issued for an agreement by the petitioner in favour of respondent and brief detail of the document Ex.P-1 is also available in the column of brief summary in the register.

10. With regard to the possession, there is a report of local commission dated 01.09.2005 which has not been appended by the petitioner with this Civil Revision and photostat copy thereof has been provided by learned counsel for the respondent during the course of arguments before this Court. In the judgment of learned Civil Judge handed down on 23.10.2010 at Page-2 (para-2), it was noted that report of the local commission was available on the file and despite giving various opportunities to the defendant for submission of written objections thereupon, he did not file any objections, therefore, his right to file the objections was closed on 25.04.2006. Hence, the report of local commission is undisputed and can be read over in favour of the plaintiff-respondent to hold that she was in possession of the suit property.

11. The remaining consideration amount was paid in the Court at the time of grant of temporary injunction by the learned trial Court as recorded in its judgment.

12. So far as the statement of PW-1 is concerned, there is no cavil to the rule that scribe cannot be considered as an attesting witness but the facts and circumstances of this case are different. Statement of PW-1 is that Ex.P-1 was roughly drafted on his dictation and subsequently typed in Urdu on computer. Further, all the payment and signatures of the parties as well as witnesses took place before him, therefore, by no stretch of imagination, he was a witness to the transaction and as such his statement can be relied upon. By scrutinizing of evidence, it is clear that even major portion of the statement of witnesses of plaintiff-respondent has not been cross-examined. Needless to observe that if a major portion of the statement of witnesses is not cross-examined, it is presumed to have been admitted by the other side. Same is the position in this case.

13. It is noteworthy that petitioner also filed a suit for declaration to challenge the legality and validity of the agreement to sell but subsequently opted to withdraw the suit. This fact will also be beneficial for the respondent.

14. I am clear in my mind that for invoking the jurisdiction of this Court under Section 115 of the C.P.C., petitioner was required to show that the findings recorded by both the learned Courts below are a result of mis-reading and non-reading of evidence available on the file. Neither the said factors have been proved by the petitioner nor I have seen in the impugned judgments and decrees. Furthermore, this Civil Revision is defective one as Ex.P-2, the report of local commission, the statement of witnesses and the annexures thereof were not appended with the petition as required under Section 115 of the C.P.C.

15. Pursuant to above, I have no reason to disagree with the unanimous conclusion drawn by both the learned Courts below. No case for interference under Section 115 of the C.P.C. by this Court is made out and as such this Civil Revision being devoid of force stands dismissed with costs throughout. ZC/M-143/L Revision dismissed.