2003 PLP 1612 (MLD)

ABDUL SHAKOOR PARACHA, J.

This appeal impugns the judgment arid decree dated 18-1-2000 passed by Senior Civil Judge Sialkot, whereby he proceeded to .decree the suit for specific performance filed by Abdul Aziz, respondent plaintiff, on the basis of the agreement to sell dated 16-5-1995.

2. The dispute relates to the safe of property consisting of three shops measuring 29 ft x 44 ft situated in Mauza Budhiana, Tehsil and District Sialkot, which were owned by the appellant. It was alleged by the respondent-plaintiff Abdul Aziz in the plaint that the appellant executed an agreement to sell dated 16-5-1995 in his favour with regard to the sale of the above-stated property in consideration of Rs.9 lacs. The amount of sale consideration was paid at the time of execution of the agreement to sell on 16-5-1995 and the possession was delivered. No time was fixed for completion of sale and it was settled between the parties that the agreement to sell would be got completed as and when required by said Abdul Aziz, respondent. The appellants also executed general power of attorney in favour of one Muhammad Riaz in respect of the same property with consultation of Abdul Aziz. They were asked to complete the sale-deed in terms of the agreement. Through telegraphic notice, the appellant was asked to execute the sale-deed, which was not done and therefore Abdul Aziz, respondent, brought the suit for specific performance.

3. The appellants-defendants contested the suit by filing the written statement. It was contended that they did not enter into any agreement to sell with the plaintiff Abdul Aziz and no amount was paid. The agreement to sell was executed in favour of Muhammad Riaz in consultation with Abdul Aziz, plaintiff for the purposes of selling the shops and it was settled that Abdul Aziz and Muhammad Riaz would arrange the sale and would receive the commission. As the agreement was not performed in its true spirit, the defendant appellants cancelled the above general power-of-attorney and issued a notice to the respondents-plaintiff on 4-6-1995. The precise defence of the appellant defendant was that the agreement to sell in dispute is without consideration and that they were in possession of the disputed property.

4. From the divergent pleadings of the parties, the learned Civil Judge proceeded to frame the following issues:-- (1) Whether the defendants- Nos.1 to 6 agreed to sell the suit-land for a consideration of Rs.9,00,000/?OPP. (2) Whether the defendants executed the agreement to sell dated 16-5-1995 and received the sum or Rs.9,00,000/ as sale price? OPP. (3) If the above issue is proved in affirmative whether the plaintiff is entitled to specific performance of the contract dated 16-5-1995 OPP., (4) Whether this Court lacks territorial jurisdiction? OPD (5) Whether the defendant No.7 is unnecessary party and the suit is bad for misjoinder of parties? OPD. (6) Whether the plaintiff has not come to the Court with clean hands? OPD. (7) Relief.

5. Parties led their evidence. The original agreement to sell Exh. P.1 and general power-of-attorney Exh. P.2 were produced by plaintiff respondent. He also examined six witnesses, including himself who appeared as P.W.6. P.W.I Sukhawat Ali and P.W.3 Muhammad Ashiq were marginal witnesses of the agreement to sell, whereas Ghulam Hussain Bhalli, petition writer, District Court, Sialkot who scribed the disputed document Exh. P.1 appeared as P.W.2. Muhammad Rafique, Branch Post-Master, Mauza Gunna Kalan, Tehsil and District Sialkot, appeared as P.W.-4 and proved the postal certificate Exh. P.4/1. Muhammad Shakeel, P.W.-5 tendered receipts Exh.P.3 to P.8 and receipts of telegrams Exh. P.9 to P.14. The appellants-defendants produced Shamas son of Siraj Din and Nisar Ahmad as D.Ws.1 and 2, whereas one of the appellants-defendants Muhammad Yaqub appeared as D.W.-3, Photo-copy of the notice was tendered in evidence by the counsel under objection as Exh. D-1.

6. The learned Civil Judge recorded findings on Issues Nos. 1,2 and 3 in favour of the plaintiff-respondent by observing that, the appellants defendants Nos.1 to 6 agreed to sell the suit-land for a consideration of Rs.9 lacs to the plaintiff and they executed the agreement to sell dated 16-5-1995 therefore the respondent-plaintiff is entitled to the specific performance of the Contract, above mentioned. Regarding territorial jurisdiction, Issue No. 4 was also decided in favour of the respondent-plaintiff by observing that:-- "The Province of Punjab has been impleaded as party to this suit, so this suit is to be heard at District Headquarters. Even otherwise it is established law that Civil Court at Headquarters has jurisdiction all over the district to entertain such matters." The objection of the appellant regarding misjoinder of Province of the Punjab as necessary party was rejected while deciding Issue No.5 against the appellant-defendant. Since the findings of Issues Nos. 1 to 3 were it favour of the respondent-plaintiff, the learned Senior Civil Judge decided Issue No.6 against the appellants-defendants. He proceeded to decree the suit for specific performance of the agreement dated 16-5-1995 in favour of respondent-plaintiff Abdul Aziz.

7. Before us, the learned counsel for the appellants-defendant contends that the impugned judgment and decree of the learned Civil Judge is against law and facts and that the respondent-plaintiff had failed to prove that the appellant agreed to sell the suit-land/property for consideration of Rs.9 lacs in his favour. He further contends that fraud has been proved on the record and the judgment of the learned trial Court is result of misreading of evidence. The issue of territorial jurisdiction has been wrongly decided because the Province of the Punjab was impleaded as defendant No.7 in the plaint to file the suit a Sialkot.

8. Conversely, the learned Assistant Advocate-General states that no interest of the Government in the suit-land is involved and it is private case between the parties.

9. The learned counsel for the respondent plaintiff has argued that the plaintiff-respondent teas proved the execution of the agreement to sell Exh. P.1 and the general power-of-attorney Exh. P.2 by producing the scribe, namely Ghulam Hussain Bhalli, P.W.2, and marginal witnesses namely Sukhawat Ali and Muhammad Ashiq who appeared as P.W.1 and 3, respectively, in accordance with Article 79 of the Qanun-e-Shahadat Order, 1984. He states that the power-of-attorney was produced from the possession of the plaintiff and the same was tendered in evidence as Exh.P.2. On correct reading of evidence, the learned Civil Judge granted the impugned decree.

10. We have heard the arguments of the learned counsel for the parties and perused the record with their assistance. Since the learned trial Court firstly decided Issues Nos.1 to 3, we also proceed to discuss and decide the same. The dispute is regarding the execution of the agreement to sell dated 16-5-1995 Exh. P.1. The respondent-plaintiff has produced the original agreement to sell Exh. P.1 and the original power -of-attorney Exh. P.2. Since the power-of attorney has been, produced by the plaintiff Abdul Aziz, therefore, at the outset, there is some substance in the claim of the plaintiff Abdul Aziz that the general power-of attorney Exh. P.2 was executed in the name of Muhammad Riaz with his consultation.

11. According to Article 78 and 79 of the Qanun-e-Shahadat Order 1984, the following . are the modes of proving a signature or writing:-- (1) By calling the person who signed or wrote the document (2) By calling a person in whose presence the document was signed or written. (3) By calling a Handwriting Expert. (4) By calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written. (5) By comparing in Court the disputed signature or writing with some admitted signature or writing. (6) By proof of an admission by the person who is alleged to have signed or written the document that he signed or wrote it. (7) By the statement of a deed professional scribe made in the ordinary course of business, that the signature on the document is that of a particular person. (8) A signature is proved to have been made if it is shown to have been made at the request of a person by some other person, e.g. by the scribe who signed on behalf of the executant. (9) By other circumstantial evidence.

12. To meet the requirement of law and prove Issues Nos. 1 to 3, the plaintiff produced P. W.1 Sukhawat Ali and P.W.3 Muhammad Ashiq, both marginal witnesses of the disputed agreement to sell Exh. P.1. They stated that the appellant had executed the agreement to sell Exh. P.1 and himself affixed his thumb-impression on it. They also stated that the general power-of-attorney Exh. P.2 in favour of Muhammad Riaz was attested by them as marginal witnesses. The appellants-defendants put their signature on both the documents i.e. agreement to sell Exh.P.1 and the general power-of-attorney Exh. P.2. They also appeared before the Sub-Registrar. The plaintiff-respondent also produced Ghulam Hussain Bhalli, petition writer, District Court, Sialkot, as P.W.-2 who scribed the disputed document Exh. P.1. In this view of the matter, the plaintiff Abdul Aziz was able to prove the documents/agreement to sell and power-of-attorney Exh. P.1 and 2, respectively. Even otherwise, the execution of these documents has been admitted by the appellants in the written statement. The only objection in the written statement was that the appellants-defendants executed the agreement to sell in favour of Muhammad Riaz in consultation with Abdul Aziz, plaintiff-respondent for the purpose of sale of the disputed property and it was settled between the parties that Abdul Aziz and Muhammad Riaz would arrange the sale and would receive commission. The question arises why the consultation was made with Abdul Aziz, plaintiff-respondent when Muhammad Riaz had to sell the property on the basis of the general power-of-attorney Exh.P.2. The defendants-appellants have failed to prove the assertion made by them in the written statement. The sequence of events show that in fact the appellants agreed to sell the disputed property to Abdul Aziz plaintiff, received the amount and for this purpose executed the agreement to sell in question and appointed Muhammad Riaz as their attorney. Firstly, the stamp paper at Serial No.26875 for the purpose of execution of general power-of-attorney was purchased and, thereafter, vide Serial No.26876 of the same date, i.e., 16-5-1995, the stamp paper for the value of Rs.60 for execution of agreement to sell was purchased by' one of the appellants defendants, namely, Muhammad Yaqub. It has been admitted by him (D.W.3) that Rs.100 were given .by plaintiff Abdul Aziz for purchase of the stamp paper. Had there been any fraud, the appellant No.1 Muhammad Yaqub would have not purchased the stamp paper and the remaining appellants would have not signed and thumb-marked the agreement to sell Exh.P.1. The fact is that the power-of-attorney in the name of Muhammad Riaz, who was admittedly a companion of the plaintiff, was handed over to the plaintiff.

13. From the above-stated facts and evidence, we have come to the conclusion that the appellants did agree to sell the suit property for consideration of Rs.9 lacs and executed the agreement to sell in favour of plaintiff Abdul Aziz, who was entitled for the decree. for specific performance of the agreement: While interpreting the provisions of Article 79 of the Qanun-e-Shahadat Order, 1984, it has been ruled by the Hon'ble Supreme Court in the case reported as Sanaullah and another v. Muhammad Manzoor and another (PLD 1996 SC 256) as under:-- "Art. 79.

Proof of signature of person on document--Mode- Ordinary rule for proving signature of any person on document would be to call that person in evidence--Where person who was alleged to have executed document had denied his signatures, his signatures could be proved by calling that person in whose presence such document was executed--Signatures of executant could be proved by calling two attesting witnesses in whose presence, person concerned had signed those documents.--" The above-stated rule of interpretation of Article 79 of the Order has been reiterated by this Court in case reported as Siraj Din v. Mst, Jamila and another (PLD 1997 Lahore 633).

14. The appellants-defendants have failed to show any mala fide on .the part of the plaintiff Abdul Aziz in, bringing the suit at Sialkot and, therefore, the findings of the learned Civil Judge that the suit has been rightly filed at Sialkot because the Province of the Punjab has been, impleaded as a party and the Civil Court at Headquarters had the jurisdiction all over the district to entertain the matter, are also I maintained. Suffice to say that no suit can be dismissed for misjoinder or non-joinder of necessary parties. See case reported as Uzin Export Import Enterprises for Foreign Trade Karachi v. Union Batik of Middle East Ltd. Karachi and another (PLD-1994 SC 95). Resultantly, we also maintain the finding of the learned Civil Judge on the remaining Issues Nos.4 to

6. For the foregoing reasons, this appeal fails and is dismissed with costs. H.B.T./M-1981/L Appeal dismissed.