2017 PLP 364 (YLRN)

CH. MUHAMMAD IQBAL, J.

Through this common judgment, we intend to dispose of this RFA No.199 of 2013 titled as "Muhammad Aslam v. Muhammad Mansha" as well as RFA No.46 of 2013 titled as "Muhammad Mansha v. Muhammad Aslam" as both the appeals arise out of the same consolidated judgment and decree dated 15.12.2012 passed by the learned Civil Judge, Pattoki District Kasur whereby suit of the appellant/plaintiff (Muhammad Aslam) for specific performance and permanent injunction was decreed whereas suit of the respondent/ defendant (Muhammad Mansha) for declaration and cancellation of document was dismissed.

2. Brief facts of the case are that the appellant filed a suit for Specific Performance against the respondent/ defendant in respect of land measuring 35 Kanals bearing Khewat No.75, Khatooni Nos. 366 and 372 situated in Chak No. 31, Hanjerwal, Chak No.31 Tehsil Pattoki District Kasur. The appellant/plaintiff contending in the suit that the respondent/ defendant executed agreement to sell dated 16.03.2008 with the appellant/plaintiff in respect of land mentioned above against a consideration of Rs.25,37,500/- out of which the appellant/plaintiff paid Rs. 10,00,000/- to the respondent/defendant as earnest money. Thereafter the respondent/defendant received further amount of Rs.4,36,000/-. The appellant/plaintiff time and again requested the respondent/defendant to execute the Sale Deed after receiving the remaining sale consideration but the respondent/ defendant refused to do the same. Thereafter the appellant/plaintiff filed a Suit for Specific Performance on 11.06.2008. The respondent/defendant filed a Suit for Declaration and Cancellation of Documents i.e. Agreement to Sell dated 16.03.2008. The learned trial Court after consolidating both the suits framed the following issues:- "

1. Whether the plaintiff has got no cause of action to bring the instant suit?OPD

2. Whether the plaintiff has come to the court with unclean hands, if so, its effect?OPD

3. Whether the instant suit has been filed just to harass and pressurize the defendant as such he is entitled to recover Special Costs under section 35-A, C.P.C., if so, up to what extent ?OPD

4. Whether the instant suit is not maintainable in its present form? OPD

5. Whether the defendant entered into agreement to sell the suit land vide written agreement No. 745 dated 16.03.2008 against the total consideration of Rs.25,37,500/- out of which Rs.10,00,000/- were paid by the plaintiff to the defendant and the defendant further received Rs.4,36,000/- from the plaintiff as earnest money ?OPD

6. If the preceeding issue is replied in the affirmative, Whether the plaintiff is entitled to the decree of specific performance and permanent injection as prayed for? OPP

7. Whether the connected suit is not maintainable in its present form ?OPP

8. Whether the plaint of the connection suit is liable to be rejected under Order VII, Rule 11, C.P.C. ? OPP

9. Whether the connected suit has been filed on the basis of collusiveness, if so, its effect ? OPP

10. Whether the connected suit has been filed as a counterblast, if so, its effect?OPP

11. Whether the connected suit is liable to be dismissed in view of preliminary objection No.6 taken in the written statement of the connected suit ?OPP

12. Whether the connected suit has been filed just to harass and pressurize the plaintiff as such he is entitled to recover Special Costs under section 35-A, C.P.C., if so, up to what extent ?OPP

13. Whether the defendant is entitled to the decree of declaration and permanent injunction as prayed for in the connected suit? OPD

14. Whether the written agreement No. 745 dated 16.03.2008 is based on fraud, misrepresentation, inoperative and void qua the rights of the plaintiff, hence, the same is liable to be cancelled ? OPD

15. Relief."

3. The appellant/plaintiff Muhammad Aslam appeared as PW.1, and in his support he produced the witnesses namely Akbar Ali as PW .2, Niyamat Ali as PW.3, Muhammad Ahmad Farazi as PW .4, Haji Muhammad Sarwar as PW.5, Manzoor Ahmad PW.6 Sardar Ali as PW.7, Malik Ashisq as PW.8 and Muhammad Riaz as PW.9. The appellant/plaintiff produced in his documentary evidence the Agreement to Sell dated 16.03.2008 as Ex. P.1, copy of petition filed before the learned Additional District Judge as Ex. P/2, copy of Register Haq Daran-e-Zamine for the year 2005-2006 as Ex.P/3, copy of register of stamp vender as Ex.P/4, Original Agreement to Sell No. 166 as Ex.P/5, original agreement to sell No.3400 dated 26.09.2009 as Ex.P/6, copy of Petition under section 22-A Cr.P.C. filed by Malik Ashsiq Ali as Ex.P/7, copy of order dated 11.05.2011 passed by the learned Additional Sessions Judge, Lahore as Ex.P/8, Copy of NIC as Ex.P/9, copy of Computerized National Identity Card of Muhammad Ashraf as Ex.P/10, Original Document No. 426 dated 28.08.2008 as Ex.P.11, original document No. 392 dated 16.08.2008 as Ex.P/12, copy of FIR No. 1696/2011 as Ex.P/13, copy of registration book of vehicle No. 6654/LRH as Ex. P/14 and copy of Registration Book regarding Vehicle No.6654/LRH as Ex.P/15.

4. The respondent/defendant himself appeared in the witness box as DW.1, Muhammad Arif as DW.2 and Muhammad Riaz appeared as D.W.3. In documentary evidence he placed on record copy of Register Haq Daran-e-Zamine for the year 2005-2006 as Ex.D/1, copy of Khasra Girdwar of Chak No. 31 as Ex.D/2 and copy of Order dated 22.03.2012 as Ex.D/3.

5. The learned trial Court after recording the evidence decreed the Suit for Specific Performance and Permanent Injection of the appellant/plaintiff and dismissed the suit for declaration and cancellation of documents of the respondent/defendant vide the impugned Consolidated Judgment dated 15.12.2012.

6. The appellant/plaintiff challenged the judgment & decree dated 15.12.2012 through RFA No. 199 of 2013 for modification of above mentioned judgment & decree to the extent of amount of Rs.4,36,000/- and the respondent/defendant also challenged the above said judgment and decree through R.F.A. No. 46 of 2013.

7. The learned counsel for the appellant/plaintiff in R.F.A. No.199 of 2013 (Muhammad Aslam) submits that the Suit for Specific Performance and Permanent Injunction was rightly decreed by the learned trial Court in favour of the aforesaid appellant after appreciating the evidence brought on record by both the parties and dismissed the suit of the respondent/defendant (Muhammad Mansha) for declaration and cancellation of the documents. He also contended that the appellant/plaintiff proved his case from the four corners and produced the evidence in this respect, as such, the R.F.A. No. 46 of 2013 filed by the respondent/defendant may be dismissed and RFA No. 199 of 2013 may kindly be allowed.

8. The learned counsel for the respondent/defendant (Muhammad Mansha) submits that the defendant never executed the agreement to sell nor he received any consideration amount. The appellant/ plaintiff prepared the agreement to sell only to usurp the valuable property of the respondent/defendant. He also contended that the appellant/plaintiff produced agreement to sell Ex.P.1 and to prove the alleged agreement to sell produced Akbar Ali only one marginal witness as PW.2 and other witness namely Manzoor Ahmad Dogar has not been produced by the aforesaid appellant/ plaintiff which is a mandatory under Articles 17 and 79 of the Qanun-e-Shahadat Order 1984.

9. We have given our anxious consideration to the arguments of the learned counsel for the parties and have examined the record appended herewith.

10. The respondent/ defendant specifically denied execution of agreement to sell dated 16.03.2008. It was the duty of the appellant/plaintiff to prove the agreement to sell under Article 17 read with Article 79 of the Qanun-e-Shahadat Order, 1984. The appellant/plaintiff produced only one marginal witness of the alleged agreement to sell as PW.2 namely Akbar Ali son of Meraj Din. The other witness namely Manzoor Ahmad Dogar has not been produced by the appellant/ plaintiff, as such, the appellant/plaintiff has failed to prove the agreement to sell. The Stamp Vender appeared as Scriber of Ex.P.1 as PW.4 but the appellant/plaintiff did not fulfill the requirement of Article 17 read with Article 79 of the Qanun-e-Shahadat Order, 1984. The relevant portion of Article 17(2) (a) of the Order 1984 reads as follows:- "(1) ............ (2) Unless otherwise provided in any law relating to the enforcement of Hadood or any special law,-- (a) in matter pertaining to financial or future obligation, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly"

11. According to the above mentioned Article 17 it was mandatory duty of the appellant/plaintiff to prove the alleged agreement to sell by producing two marginal witnesses but the same has not been done by the appellant/plaintiff, as such, the appellant/plaintiff has not proved alleged agreement to sell. Reliance is placed on the case of Hafiz Tassaduq Hussain v. Muhammad Din through legal heirs and others (PLD 2011 SC 241). Relevant portion is reproduced as under:-- "The provisions of this Article are most uncompromising, so long as there is an attesting witness alive capable of giving evidence and subject to the process of the Court, no document which is required by law to be attested can be used in evidence until such witness has been called, the omission to call the requisite number of attesting witnesses is fatal to the admissibility of the document. See Sheikh Karimullah v. Gudar Koeri and others (AIR 1925 Allahabad 56). The purpose and object of the attestation of a document by a certain number of witnesses and its proof through them is also meant to eliminate the possibility of fraud and purported attempt to create and fabricate false evidence for the proof thereof and for this the legislature in its wisdom has established a class of documents which are specified, inter alia, in Article 17 of the Order, 1984. (See Ram Samujh Singh v. Mst. Mainath Kuer and others (AIR 1925 Oudh 737). The resume of the above discussion leads us to an irresistible conclusion that for the validity of the instruments falling within Article 17 the attestation as required therein is absolute and imperative. And for the purpose of proof of such a document, the attesting witnesses have to be compulsorily examined as per the requirement of Article 79, otherwise, it shall not be considered and taken as proved and use in evidence. This is in line with the principle that where the law requires an act to be done in a particular manner, it has to be done in that way and not otherwise."

12. Other aspect of the case is that it was also mandatory duty of the appellant/plaintiff to prove the consideration. In this regard we examined the evidence of PW.2 (Akbar Ali) minutely. The said witness states as under:-- PW.4 Muhammad Ahmad Fariazi Stamp Vender (Scriber) states as under:-- In this way, appellant/plaintiff has not proved consideration mentioned in agreement to sell.

13. In view of above discussion, the RFA No.199 of 2013 filed by the appellant/plaintiff is hereby dismissed. The RFA No.46 of 2013 filed by respondent/ defendant is hereby allowed. Resultantly, the Suit for Specific Performance of Agreement to Sell of the appellant/plaintiff is hereby dismissed. There is no order as to costs. ZC/M-81/L Appeal allowed.