P L D 1993 Peshawar 43 (PLP)

Date of hearing: 19th September, 1992. JUDGMENT. This is a revision petition under section 115 of the Civil Procedure Code, against an appellate order of the learned District Judge, Kohat dated the 26th March, 1986 whereby he accepted the appeal of the plaintiff‑respondent and reversed the judgment and the decree dated the 13th November, 1985 dismissing his suit filed against the defendant‑petitioner, arising out of the following circumstances. The perusal of the record of the case indicates that Kamal, defendant‑petitioner had admittedly entered into an agreement personally and as attorney of Mst. Mumtaz Begum her sister, which was reduced into writing on 7th January, 1980 for the sale of "56 Kanals of land out of the land situated in village Togh Payan, Tehsil and District, Kohat" to the plaintiff‑respondent for a consideration of Rs.2,31,

000. It is also not denied that a sum of Rs.20,000 was paid as earnest money. It was, inter alia, stipulated in the agreement deed photo copy Exh.P.W.2/1 that in case of breach of contract by the defendant‑petitioner, the plaintiff‑respondent would be entitled to recover from the former a sum of Rs.20,000 as damages and also to refuse the earnest money. As alleged by the plaintiff‑respondent he was prepared to pay the balance of the price and was ready to fulfil his part of the contract and had served a notice upon him yet the defendant‑petitioner did not respond. The grievance of the plaintiff‑respondent is that the defendant‑petitioner and the successors‑in‑interest of his sister, Mst.Mumtaz Begum, had sold the agreed land to someone else. The defendant‑petitioner contested the suit by admitting the execution of the agreement to sell photo copy Exh.P.W.2/1 and taking up the plea that he too was ready to perform his part of the contract by transferring the land to the plaintiff‑respondent but he had declined to purchase it. Necessary issues were set down for trial and after recording the evidence. of the parties, the learned trial Judge held that as the defendant petitioner was prepared to transfer his land to the plaintiff‑respondent on receipt of the balance of the sale consideration, the latter was not entitled to the amount of damages. He, however, passed a decree for recovery of Rs.20,000, the receipt whereof had been admitted by him, but dismissed the claim for damages. On appeal by the plaintiff‑respondent, the learned District Judge after appraising the evidence adduced by the parties, as stated earlier, reversed the judgment and the decree of the learned trial Judge and held that "the defendant‑petitioner had admitted that the land which had been agreed upon between them has been disposed of by him and the legal heirs of Mst.Mumtaz Begum" and that the Patwari Halqa had similarly deposed. In consequence, the suit for damages amounting to Rs.20,000 was also decreed.

2. Feeling aggrieved of the appellate judgment, the defendant‑petitioner has come up in revision.

3. The only controversy surviving for determination is as to whether the defendant‑petitioner had agreed to sell the same land to the plaintiff -respondent which he and the successors‑in‑interest of Mst. Mumtaz Begum had sold to one Mst. Khurshid Begum by virtue of Mutations Nos.1727 and 1'728 respectively attested on the 25th June, 1981 and 27th September, 1981.

4. Haji Muhammad Zahir Shah, learned counsel for the petitioner, contends that a bare reading of the agreement to sell photo copy Exh.P.W.2/1 would make it abundantly clear that no specific and was agreed to be sold by the defendant‑petitioner to the plaintiff‑respondent but land measuring 56 Kanals belonging to the vendors situate in village Togh Payan was described to be sold which they were still prepared to sell. According to him, there was nothing either in the agreement or in the plaint that the land which he and the successors‑in‑interest of Mst. Mumtaz Begum had sold to Mst. Khurshid Begum was specifically subject to sale in the agreement aforesaid.

5. Syed Rifaqat Ali Shah, learned counsel for the respondent, on the other hand, while defending the appellate judgment and the decree, maintained that undoubtedly the land intended to be sold to the plaintiff- respondent was not described with exactitude due to cleverness of the petitioner and ignorance or simplicity of the respondent, still there was nothing against him to lead oral evidence to substantiate his plea that a specific plot measuring 56 Kanals was agreed upon between the parties to be sold.

6. No doubt section 91 of the Evidence Act (since repealed) corresponding to Article 102 of the Oanun‑e‑Shahadat, 1984 excludes extrinsic evidence in proof of the terms of a contract, grant or other disposition of property or in proof of a matter required by law to be reduced to the form of a document. Section 92 of the Evidence Act corresponding to Article 103 of the Qanun‑e‑Shahadat, on the contrary, lays down that when the terms of any such contract, grant or other disposition of property, or of any matter required to be reduced to writing have been proved, evidence of any oral agreement or statement shall not be given for the purpose of contradicting, varying, adding to, or subtracting from the terms of the document. Nonetheless, under proviso (2) to Article 103 ibid parties to a document may show by other evidence that a writing executed by them does not represent a completed transaction. Similarly extrinsic evidence to determine the effect of an instrument is permissible where there remains a doubt as to its true meaning. Likewise, if a document is obscurely framed, or any of its clauses contains a real ambiguity conduct of the parties is admissible to construe the document. Their Lordships of the Privy Council have decided in: (1) Venkata Subhadrayymma v. Venkatapati Raju AIR 1924 PC 162 and (2) Ma Thaung v. Ma Than AIR 1924 PC 88 that where a written contract was doubtful in its meaning the surrounding circumstances existing at the creation of the contract and the subject‑matter to which it was designed and intended to apply shall be looked into. (Underlining is by me). These cases apply clearly to the facts of this case and notwithstanding omission in the agreement to sell to describe the property which was intended to be sold can be validly proved by oral evidence that specific property was agreed to be sold. That is exactly what has been proved by the evidence of Ramzan P.W3 and Jan Muhammad P.W.5 who are respectively the scribe and marginal e witnesses of the sale to show that the land sold to Mst. Khurshid Begum was the one which had been agreed to be transferred to the plaintiff‑respondent herein. Their evidence is, therefore, admissible under provisos (2), (3) and (4) Article 103 of the Oanun‑e‑Shahadat. The learned appellate Court had rightly decided the proposition that defendant‑petitioner had been guilty of breach of contract and was also liable to pay agreed amount of damages.

7. The result is that this petition having no substance fails and I hereby dismiss it with costs throughout. AA./1423/P Revision dismissed.