2005 PLP 2456 (YLR)

This civil revision assails judgment and decree dated 16-9-2000 passed by the learned Additional District Judge, Chunian, whereby appeal of the respondents was accepted and suit of the petitioners for specific performance was dismissed, by setting aside judgment and decree dated 25-9-1994 passed by the trial Court.

2. Precisely, relevant facts are that petitioners filed a suit for specific performance of the agreement dated 4-12-1981 executed by the owners for an amount of Rs.30,000, out of which they paid an amount of Rs.1,000, as earnest money. It was agreed between the parties that petitioners will further pay an amount of Rs.29,000, whereafter the owner will seek permission from G.H.Q. for sale in favour of the petitioners and would execute the documents transferring title of the land. It was also recited that in case, permission was not granted to the owner, he would transfer his land whenever the same is given. Petitioners asserted that the owner failed to perform his part of contract, necessitating filing of suit.

3. Respondents being defendants contested the suit, raising certain preliminary objections regarding it being barred by limitation, its maintainability, estoppel and cancellation of agreement through their written statement. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned trial Judge, who was seized of the matter, after doing the needful, vide his judgment and decree dated 25-9-1994 decreed the suit of the petitioners subject to payment of remaining sale price of Rs.29,000, within 30 days.

4. Mauj Khan the owner aggrieved of the decision of the trial Court dated 25-9-1994 filed an appeal before the learned Additional District Judge, where he succeeded as the same was accepted and suit filed by the petitioners was ordered to be dismissed by reversing the judgment and decree of the trial Court dated 25-9-1994. Thereafter, petitioners filed instant revision petition which was admitted to regular hearing and after completion of record, has now been placed for final determination.

5. Learned counsel for the petitioners submitted that neither the cancellation of agreement, as asserted by the respondents, was proved on the file nor the note on the back of the agreement dated 4-12-1981 was proved in accordance with law. He further submitted that respondents could not prove thumb-marking of cancellation note by Mauj Khan, thus it could not have been acted upon to non-suit the petitioners. He also relied on Article 79 of Qanun-e-Shahadat Order, 1984 to contend that in absence of examination of two marginal witnesses a document is not proved and as the respondents produced only one marginal .witness of the cancellation note besides its scribe, who was not a marginal witness, the same remained unproved.

6. Learned counsel appearing on behalf of the respondents refuted the arguments of the petitioners, supported the appellate judgment/decree and urged that both the agreement to sell and its cancellation, were executed earlier to the coming into force of Qanun-e-Shahadat Order, 1984, thus proof of those was to be given under the Evidence Act, 1872. According to him, one witness produced to prove the cancellation was enough, besides which respondents also produced scribe of the note, which further strengthened their case. He further submitted that petitioners denied thumb-impression of Mauj Khan and signatures of Subay Khan over the note, but they never attempted to have comparison of those with the one admitted appearing on the .record and this lapse negatively reflected on their part. Learned counsel for the respondents also argued that in terms of the agreement, petitioners were to make payment of balance sale price of Rs.29,000, within two months' time i.e. before 4th May, 1982 and on payment of this amount Subedar Muhammad Zaman. Khan, the owner was to get permission of sale from the G.H.Q. According to his submissions, it is the petitioners who themselves failed to perform their part of contract, thus could not maintain suit for specific performance. He referred to section 34 of the Contract Act to contend that the agreement in question was contingent and was to take effect on happening of two factors i.e. payment of Rs.29,000, and permission by the G.H.Q. He further elaborated his arguments by urging that permission was granted by the G.H.Q. pending suit by the petitioners, but by that time, the agreement stood already cancelled and in this manner the Appellate Court has taken a correct view which deserves no interference.

7. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Undeniably, both the agreement dated 4-12-1981 and cancellation note appearing on its back dated 17-5-1982 were executed earlier to promulgation of Qanun-e-Shahadat Order, 1984. Controversy regarding proof of the document executed earlier to coming into force of Qanun-e-Shahadat Order, 1984 is settled whereunder said document had to be proved in accordance with the provisions of Evidence Act, 1872 and its section 68 envisaged proof of document by producing only one marginal witness. Reference in this behalf can conveniently be made to Zafarul Hassan Qureshi v. Messrs Pakistan Tobacco Company Ltd. and 6 others (1991 CLC 1580), Syed Muhammad Sultan v. Kabir-ud-Din and others 1997 CLC 1580 and Mst. Rasheeda Begum and others v. Muhammad Yousaf and others (2002 SCMR 1089). Though respondents have produced Abdul Aziz son of Muhammad as D.W.2, who specifically stated that he thumb-marked the cancellation note Exh.D.2, as a marginal witness, whereby bargain between the parties was brought to an end on account of refusal of G.H.Q. to grant permission of sale and that earnest money of Rs.1000, was returned to the petitioners, yet respondents also examined Sher Muhammad (D.W.1) scribe of the note, who rendered material corroboration to the statement of D.W.2. Both these D.Ws. categorically deposed that the original agreement was cancelled and was returned to Muhammad Zaman the owner. Besides this, the other fact which goes to substantiate the case of the respondents is that original agreement to sell containing the cancellation note was produced in evidence as Exh.D.2 by the respondents whereas, it having not been cancelled, B should have been in possession of the petitioners. An attempt has been made to prove, during the hearing of the case, that this agreement was given to the respondents for seeking permission from the G.H.Q. but this plea was neither taken in the plaint nor was brought on record in evidence and the same was also not taken up before the two Courts below. Petitioners who had denied signatures of respondents Nos.3 and 4, who were prospective purchasers along the petitioners, never attempted to have comparison of thumb-impression of Mauj Khan and signatures of Subay Khan appearing on the cancellation note and after proof of this cancellation note, as observed above, the only course, which left with the petitioners, was to have the comparison from some handwriting/thumb-impression expert. Suit by the petitioners to which respondents Nos.3 and 4 their co-vendees did not join as plaintiffs, was filed on 2-12-1989 for performance of an agreement dated 4-12-1981, after lapse of eight years. Besides the fact that the suit was barred by limitation, laches in filing it and non-joining of two of the perspective purchasers negatively reflected on the claim of the petitioners. Original agreement to sell dated 4-12-1981 was in custody of the respondents, but no effort was made for its production only for the reason that it contained a cancellation note. Its possession by the respondents leads to no other conclusion except that it was returned after cancellation. Since execution of agreement to sell is not denied by the respondents, evidence of the petitioners brought to prove it, loses substance. Agreement also shows that balance sale price of Rs.29,000 was to be paid within two months i.e. till 4-2-1982, but file is absolutely thirsty of the proof that petitioners performed their part of contract by paying this much amount to the owner. In absence of such proof in terms of the agreement itself, respondent No.1 was not obliged to seek permission from the G.H.Q. for sale in favour of the petitioners. It has rightly been pointed out by the learned counsel for the respondents that the agreement, as it stands was contingent in nature and non-fulfilling of the condition, of which it was made contingent, it died of its own death.

8. For what has been discussed above, I feel no hesitation in holding that Appellate Court took a lawful view emerging out of the file, no part of which has been misread or non-read, without it, no interference in revisional jurisdiction of this Court is permissible, under law. This petition has no merit and is accordingly dismissed, leaving the parties to bear their own costs. M.I../J-44/L Petition dismissed