2008 PLP 1704 (CLC)

MAULVI ANWARUL HAQ, J.

On 21-12-1976 Sh. Muhammad Yaqoob (predecessor-in-interest of the appellants) (hereinafter to be referred to as the plaintiff) filed a suit against Sh. Muhammad Bashir, the deceased respondent (now represented by his L.Rs.) (hereinafter to be referred to as the defendant). In the plaint, it was stated that the suit-land described in the plaint was owned by the defendant who agreed to sell the same to the plaintiff for a consideration of Rs.15,668 and Annas 10 vide agreement to sell dated 20-4-1959. The entire amount of consideration was received by the defendant vide receipt, dated 20-4-1959. After the said agreement the plaintiff had to shift to East Pakistan where he later became a prisoner of war. After his release, he did not remain well. Ultimately, he approached the defendant for performance of the contract but he started dilly dallying. It was stated that a month ago, the defendant has refused to perform his part of the contract. A decree for specific performance was accordingly prayed for. The defendant in his written statement objected that the suit is time-barred. The plea taken by him was that the agreement was executed with an intention not to perform the same and the efflux of time, it has become void and defendant is no longer bound to perform the same. According to him, the documents were written in connection with some business matter. Following issues were framed by the learned trial Court:

(1) Whether the suit is within time? OPP (2) Whether the plaintiff has no cause of action and locus standi to bring the suit? OPD (3) Whether the suit is not maintainable in its present form? OPD (4) Whether the defendant had entered into an agreement to sell, with the plaintiff, if so, what that agreement is? OPP (5) If Issue No.4 is proved, whether the plaintiff has always been ready and willing to perform the part of contract but the defendant has not been so willing? OPP (6) Relief. Evidence of the parties was recorded. The learned trial Court decreed the suit on 3-3-1979. A first appeal filed by the defendant was allowed by a learned Additional District Judge, Faisalabad, on 23-1-1985, who dismissed the suit of the plaintiff.

2. Learned counsel for the plaintiff contends that the agreement and receipt having been admitted in the pleadings as also in the witness-box and there being no evidence that the document was executed with an intention other than the one disclosed in the same, the learned Additional District Judge has acted against the law while dismissing the suit. Learned counsel for the defendant has tried to support the impugned judgment and decree with reference to the reasons recorded therein.

3. I may note here C.M.A. No.1 of 1999 was filed by Syed Samar Hussain Shah, Advocate, on behalf of one Muhammad Amin Butt praying to be impleaded in the R.S.A. According to the contents of this C.M. Muhammad Bashir defendant executed an agreement for sale 2 Kanals, 17 Marlas out of the suit-land in favour of the said applicant on 17-2-1980 at the rate of Rs.2,000 per Marlas and received Rs.10,000 as earnest money. Performance was made subject to the result of the present suit. In view of the said contents of the application when the said applicant entered into the said contract with full knowledge of the present suit and on an express term that the performance of agreement would be subject to the present suit, the applicant hardly is a necessary or a proper party when there is no allegation of collusion and the matter has been duly contested by the defendant. Be that as it may, Mr. Samar Hussain Shah, Advocate, has been heard and he too has supported the impugned judgment.

4. I have gone through the trial Court records, with the assistance of all the learned counsel present. I have already narrated above the contents of the pleadings. There is no manner of doubt in my mind that the execution of the agreement as well as the receipt was admitted without any demur. The agreement Exh. P.1 and the receipt Exh.P.2 were admitted in the statement of Muhammad Akhtar Hussain, Scribe P.W.1 who appeared along with his record, without any objection whatsoever. Sh. Muhammad Yaqoob plaintiff appeared as P.W.2 to state his case in accordance with the plaint.

5. The defendant himself did not appear in the witness-box. However, his son-in-law and attorney, namely, Muhammad Shafiq appeared as D.W.1. He stated that the agreement executed in the year 1959 was fake and it was written only for business purposes. No payment was made and the agreement came to an end after 416 months. In his cross-examination, he was confronted with documents Exh.P. 1 and Exh. P.2 and he admitted that these were executed. According to him, no document was recorded as to the cancellation of Exh. P.1 and Exh. P.2.

6. It will be seen that whereas the execution of the said documents stands admitted, in the first instance, there is no evidence whatsoever as to what was the reason for execution of the said documents other than the one disclosed therein and, in the second, admittedly, no document having been written to disclose some other intention of the parties, the documents having been proved and admitted in evidence, Article 103 of the Qanun-e-Shahadat Order, 1984, places an express bar upon admission of any oral evidence between parties to a documents for the purpose of contradicting, varying, adding to or subtracting from its terms. Further in view of the admission of the said documents, no grounds stand made out, covered by any of the proviso to the said Article. Needless to state that Exh.P.1 lays down in clear term a promise by the defendant to transfer the suit-land to the plaintiff for consideration and acknowledges the receipt of the same. The receipt Exh.P.2 is further evidence of the receipt of consideration.

7. Coming to the judgment of the learned Additional District Judge, he has completely overlooked the said admissions in the pleadings and in the witness-box and further the said legal provision regulating the admission of evidence in the circumstances of the case. The impugned judgment is simply based on conjectures and surmises.

8. So far as the question of limitation is concerned, the matter is governed by the Second Part of Article 113 of the Schedule to the Limitation Act, 1908. No date having been fixed for performance, the period of limitation is to commence from the date of refusal which is one month prior to the institution of the suit, which accordingly was filed within time prescribed by law.

9. For all that has been discussed above, this R.S.A. is allowed, the judgment and decree, dated 23-1-1985 passed by the learned Additional District Judge, Faisalabad, is set aside and the one passed by the learned trial Court on 3-3-1979 is restored throughout.

10. The records of the learned Courts below be remitted back immediately. H.B.T./M-331/L Appeal allowed.