2015 PLP 1964 (YLR)

AMIN-UD-DIN KHAN, J.

Through this appeal, appellant-plaintiff has challenged the judgment and decree dated 12-11-2009 passed by learned Addl: District Judge, Lahore, whereby the appeal filed by the respondents was accepted, by way of which, judgment and decree dated 22-11-1992 passed by learned Civil Judge, Lahore, decreeing the suit for specific performance filed by the plaintiff-appellant, were set aside.

2. The brief facts necessary for determination of this appeal are that the plaintiff-appellant (Abdul Sattar) on 29-3-1983 filed a suit for specific performance on the basis of an agreement to sell dated 9-8-1975 by Fazal Din with regard to the suit property fully mentioned in the plaint for a consideration of Rs.5,00,000 (five lacs). Fazal Din died on 21-10-1976, survived by Abdul Hameed his son, Zohra Bibi and Hameeda Bibi his daughters. His son Abdul Hameed was also murdered on 25-6-1981. One Muhammad Nawaz also filed a suit for specific performance about the same suit property. The suit for administration of property of deceased was also filed by some of the legal heirs of Fazal Din. All the three suits were consolidated and the proceedings were ordered to be conducted in the suit for specific performance filed by the present appellant Abdul Sattar. Learned trial court after recording the evidence of parties on consolidated issues vide judgment and decrees dated 22-11-1992 decreed the suit of present appellant and dismissed two other suits. An appeal was preferred by some of the legal heirs of original owner Fazal Din, which was accepted by the learned Addl. District Judge, Lahore on 12-11-2009. Hence, this second appeal by the plaintiff of suit for specific performance. Two other suits are not relevant for determination of this appeal, as either have not challenged the orders passed in those two suits, or the proceedings of that two suits are no more pending before any court according to the learned counsel for the parties.

3. Learned counsel for the appellant-plaintiff (Abdul Sattar) argues that the plaintiff has fully proved his case and the learned trial court was having the opportunity to see the witnesses and their conduct, therefore, has rightly decreed the suit and learned first appellate court has not only misinterpreted the evidence but also has ignored the law and has not given any justifiable reasons for setting aside the well reasoned findings of learned trial court; that as the original document was lost, therefore, a permission was sought from the learned trial court to produce secondary evidence and when the original documents were found by the appellant after the lost as in the newspaper it was published, therefore, the same were produced before the trial court; that the minor discrepancies in the statements of witnesses were natural which were recorded after such a long time, therefore, the same should have been ignored by the learned first appellate court. Learned counsel further argues that legal heirs of Abdul Hameed have accepted his claim and that Abdul Hameed was owner to the extent of 1/2 share in the suit property, therefore, to that extent the suit should have been decreed by the learned first appellate court if the full suit was not proved in the opinion of learned first appellate court.

4. On the other hand, learned counsel for respondents Nos.1 and 2 has referred the order dated 9-9-1987 whereby the learned trial court while dealing with the application for permission to produce secondary evidence with regard to the disputed agreement to sell and the receipts ordered (sic) that the plaintiff to prove the existence of documents as the same have been denied by the other side with the allegation that the same are forged and fictitious documents, plaintiff also to prove the execution and genuineness of these documents and then their lost and after that he can be permitted to produce secondary evidence. Then learned counsel for the respondents has referred the order dated 6-10-1987 whereby the right to produce evidence of plaintiff with regard to loss of documents was closed. Argues that when his right to produce the evidence with regard to loss of documents was closed, therefore, the plaintiff- appellant was forced to bring on record the original forged documents and thereafter he produced his evidence as well as said documents. Argues that the plaintiff never appeared before the court and his attorney Aashiq Hussain (P.W.3) does not claim to be present at the time of receipts or the alleged agreement of sale; that no ground for setting aside the judgment and decree passed by learned first appellate court on the touchstone of Section 100 of the C.P.C. has been made out, therefore, there is no substance in the appeal in the above circumstances and thus the appeal be dismissed with costs.

5. I have heard the learned counsel for the parties at full length and also gone through the voluminous record minutely with their able assistance.

6. The alleged agreement is dated 9-8-1975 by Fazal Din, the original owner, in favour of plaintiff-appellant Abdul Sattar. Admittedly said Fazal Din died on 21-10-1976. When his date of death is not denied by the plaintiff-appellant, at least from the date of his death the limitation starts if there is no date mentioned in the agreement for performance but the suit was filed on 29-3-1983. For filing a suit for specific performance under Article 113 of the Limitation Act, 1908, limitation of three years starts from the accrual of cause of action when the date for performance is mentioned or if not mentioned from the date of refusal of party against whom the suit for specific performance has been filed. In this case admittedly the original owner (alleged vendor) died on 21-10-1976 and even one of his legal heirs, Abdul Hameed, was murdered on 25-6-1981, despite that filing of suit on 29-3-1983 was not within the prescribed period of limitation, therefore, the same was barred by limitation. I have noticed that the pleading of acknowledgement of agreement on 19-5-1980 which has been pleaded in Para 7 of the plaint was never confronted by the plaintiff-appellant to one of the defendants namely Zohra Bibi when she appeared as DW-4. In this way, the pleading of acknowledgement for bringing the suit within the prescribed period of limitation has neither been proved through evidence by the plaintiff nor the same has been confronted to one of the defendants when she appeared as a witness, therefore, the plaintiff was bound to file the suit for specific performance on the basis of agreement within three years after the death of original owner and filing of suit long after the prescribed period was not maintainable and barred by limitation.

7. So far as the agreement to sell is concerned, it is denied by the legal heirs of original owner. At the time of filing of suit the plaintiff appended photocopies of the documents i.e. agreement and the receipts which are available at Pages Nos.493 to 505 of the trial court record. These documents are attested to be true by the Advocate who filed the suit. These attestations are of dated 28-3-1983, whereas at the time of filing the suit learned trial court has stamped these documents as "Filed" on 29-3-1983. Photocopy of Exh.P-1 is available at page No.503 of the trial court record, Exh.P-1 has been produced in evidence on 15-2-1992, it shows the name of witnesses on this document as Ch. Fateh Muhammad and Niemat Ali P.W.4, whereas on photocopy of this document which is attested by the counsel and filed in the court on 29-3-1983 at the time of filing of suit which is at page No.503 of the file, the name of Niemat Ali is not mentioned in the photocopy, which clearly shows that this Exh.P-1 is a forged document. Even the revenue receipts affixed on Exh.P-1 are different as is visible from the photocopy of this Exh.P-1. The fact that at the time of filing of suit photocopies of the documents were annexed with the plaint, after that it was the case of plaintiff that the original have been lost and when his right to produce the evidence with regard to the loss of these documents was closed, then the plaintiff filed an application to state that the same have been found by him and now he wants to produce the original documents in the court. The plaintiff was the star witness in his own case when he was the purchaser of suit property and one of the parties to the agreement, he opted not to appear before the court and produced his attorney to appear on his behalf in his favour. The power of attorney Exh.P-5 has also been produced from which it can be gathered that even the plaintiff himself is not ready to appear before the court and state his case on oath and face the cross-examination.

8. Furthermore, there is no explanation in the application that wherefrom the plaintiff has received the original documents which are in dilapidated condition. The upper part of the stamp paper of Exh.P-6 is torn. During the state-ment of Faizi Pirzada the alleged writer of stamp paper and writer of Exh.P-6 neither stamp register nor license or register of petition writing was with him, therefore, his statement is of no value, it cannot be believed without any shadow of doubt. In this way, a presumption can be drawn against the plaintiff in accordance with Article 129(e) of the Qanun-e-Shahadat Order, 1984. Neither identity card of any of the party nor witness was mentioned on this document. The thumb impressions are also not identifiable. Admittedly the plaintiff-appellant is not in possession of any part of the suit property. In these circumstances when the specific performance is a discretionary relief and the court come to the conclusion that the plaintiff failed to prove his agreement to sell and receipt without any shadow of doubt, the court cannot proceed towards the grant of a decree for specific performance to exercise its discretion, when there are the circumstances as discussed above, which create not only the doubt in the mind of court with regard to existence of agreement to sell and receipts of payment of money under the agreement to sell, at least one document of which is proved forged document (Exh.P-1) which is the first receipt of payment of Rs.2,00,000 (two lacs) allegedly paid on the day of agreement, therefore, no discretion can be used in favour of the appellant-plaintiff.

9. When this Court came to the conclusion that the agreement and the payment have not been proved, the conceding statement of any of the legal heirs of original owner in favour of plaintiff makes no difference. If they admit the plaintiff for entitled to the property they can transfer their share in his favour, the court cannot grant even a partial decree. Light can be taken from the judgments of august Supreme Court of Pakistan reported as "2005 SCMR 1408 (Sinaullah and others v. Muhammad Rafique and others)". I would like to quote part of Para 15 of the judgment as under:-- "In granting discretionary relief, Court has to act equitably in such a manner that no prejudice, loss or injury is caused to any other person. Partial performance of the agreement dated 26-9-1975, even if legally possible would be refused on the ground that the same would occasion prejudice, damage, loss and would be disadvantageous to respondents Nos.5 to 10 the female co-sharers." and "2012 SCMR 900 (Muhammad Sharif and others v. Nabi Bakhsh and others)". Part of Para 6 of the judgment is as under:-- It is acknowledged by both sides that the remedy by way of specific performance is an equitable relief. It cannot be claimed as of right. Under section 22 of the Specific Relief Act, this remedy is discretionary and "the Court is not bound to grant such relief merely because it is lawful to do so."

10. In the light of what has been discussed above, the appellant-plaintiff failed to make out a case for interference by this Court while exercising jurisdiction under section 100 of the C.P.C. in the impugned judgment and decree passed by the learned first appellate Court, whereby the suit of the plaintiff-appellant for specific performance has been dismissed. Resultantly, this appeal having no force stands dismissed with costs throughout. ARK/A-41/L Appeal dismissed.