2003 PLP 131 (MLD)

CH. IJAZ AHMAD, J.‑‑‑The brief facts out of which the present appeal arises are that Ghulam Abbas original owner of the land in question executed an oral agreement with the appellant on 6‑8‑1989. Subsequently Khadim Hussain father of the original owner. Ghulam Abbas executed written agreement to sell with the appellant on 3‑9‑1989. Agreement to sell was witnessed by Haji Ghulam Nabi and Tauseef‑ur -Rehman and the agreement to sell was written by Ghulam Sabir Sulehria, Advocate' P.W.1. The respondents failed to execute sale‑deed in favour of the appellant. The appellant being aggrieved, filed suit for possession through specific performance before the learned Civil Judge 1st Class, Wazirabad on 30‑1‑1990. The respondents filed written statement and controverted the allegations levelled in the plaint. Out of the pleadings of the parties the learned trial Court framed the following issues:‑‑ (1) Whether the defendant No. 1 had orally .entered into an agreement of sale, in relation to the land in dispute, with the plaintiff? OPP (2) If Issue No. 1 is answered in the affirtmative, whether the plaintiff is entitled to the specific performance of the oral agreement of sale, entered into between the defendant No. 1 and the plaintiff? If so, on what terms? OPP (3) Whether the plaintiff has got no locus standi and cause of action to file the present suit? OPD (4) Whether the plaintiff is estopped to file the present suit? OPD (5) Whether the present suit is not maintainable, in its present form, in view of preliminary Objection No.5 of the written statement? OPD (6) Whether the suit is frivolous and vexatious and as such the defendant No.3 is entitled to special costs under section 35‑A. C.P.C.? OPD (7) Relief.

2. At the end of the trial the learned trial Court dismissed the suit vide judgment and decree dated 12‑1‑1995. The appellant being aggrieved filed this appeal.

3. The learned counsel of the appellant submits that the oral agreement was proved by the appellant by producing P.W.2 Arshad, P.W.3 Muhammad Tufail and P.W.4 Qazi Muhammad Saqib and the written agreement was proved by producing Ghulam Sabir writer as P.W.1. He further submits that agreement to sell was exhibited as Exh. P. I. and the respondents did not raise any objection at the time of exhibiting the aforesaid agreement to sell. Therefore, the learned Court below was erred in law to discard the agreement to sell which was placed on record in accordance with law and therefore, judgment of the learned trial Court is not in accordance with law and the principle laid down by the Hon'ble Supreme Court. In support of the contention he relied upon Bashir Ahmad v. Muhammad Yousaf (deceased) represented by Muhammad Shafique (1993 SCMR 183). He further submits that Exh. P.I was exhibited without any objection by the respondents and the learned trial Court was erred in law to discard the same. In support of his contention he relied on Gulzar Hussain v. Abdur Rehman and Muhammad Yamin (1985 SCMR 327). He further submits that respondents Nos. 1 and 2 did not appear in witness‑box to rebut the aforesaid agreement, therefore, the learned trial Court was erred in law to ignore the factum of the execution of the agreement. In support of this contention he relied on Abdul Majid v. Syed Muhammad Ali Shamim (2000 SCMR 1391). He further submits that respondent No. 1 had written a letter to the appellant on 9‑9‑1989 that he would come in the month of December and would execute sale‑deed in favour of the appellant. The learned trial Court was erred in law to ignore this letter on the basis of surmises and conjectures while giving finding against the appellant in para. 6 of the impugned judgment. He further submits that the appellant had made an offer to the respondents before the learned trial Court to decide the controversy between the parties on oath but the respondents failed to accept the offer of the appellant. This fact was not considered by, the learned trial Court in the impugned judgment, therefore, the judgment of the learned trial Court is not valid in the eyes of law in view of the provisions of Qanun‑e‑Shahadat Order, 1984. He further submits that the trial Court restrained respondents Nos. 1 and 2 to alienate the land in question‑till the decision of the suit vide order dated 3‑1‑1990. Respondent No. 3 filed a suit for pre‑emption against respondents Nos. 1 and 2 which was decreed by the learned trial. Court vide judgment and decree, dated 27‑1‑1992; the decree was passed in favour of respondent No.3 by way of a compromise and that this fact is sufficient to show that the decree was procured collusively. He further submits that appellant submitted an application before the learned District Judge to consolidate both the suits which was accepted by the learned District Judge vide order, dated 10-2‑1990; that the trial Court decided the pre‑emption suit of respondent No.3 on 27‑1‑1992 in violation of the order of the learned District Judge and that this fact also shows that the decree was procured by respondent No.3 by way of fraud and misrepresentation. The learned counsel of the respondents submits that oral agreement was not executed between the original owner and appellant and the trial Court had given cogent reasons while giving findings against the appellant in para. 6 of the judgment. He further submits that the agreement to sell has no sanctity in the eyes of law as the father of the original owner had no right to execute agreement in favour of the appellant as the original owner had not executed any Power of Attorney in favour of his father to execute agreement to sell on his behalf qua his land. He further submits that the father of the original owner was not a co‑sharer even in the land in question. He further submits that order, dated 10‑2‑1990 of the learned District Judge was not produced before the learned trial Court as is evident from the proceedings of the learned trial Court. He further urges that written agreement to sell does not fall in the definition of an agreement as described in section 10 of the Contract Act.

4. We have considered the contentions of the learned counsel of the parties and perused the record ourselves.

5. The first contention of the learned counsel of the appellant is that oral agreement is a valid agreement in the eyes of law. There is no cavil with this proposition of law but the oral agreement which does not specify terms and conditions of the agreement, is not valid in the eyes of law. None of the witnesses of the appellant/plaintiff mentioned that respondent No. 1 had received earnest money from the appellant. In this view of the matter, we uphold the finding of the learned trial Court. The judgments cited by the learned counsel of the appellant are distinguished on facts and law. Now we intend to decide the written agreement executed by respondent No.2, father of the original owner, is valid in the eyes of law or not. The appellant and appellant's witnesses admitted in the cross‑examination that agreement was executed by the father of the original owner, respondent No.2, who did not produce general power of attorney at the time of execution of agreement to sell. It is pertinent to mention here that agreement to sell was not signed by the appellant/plaintiff. It is well‑settled law that agreement which was executed between appellant and respondent No.2 is not agreement in the eye of law unless and until the same was signed by the appellant/plaintiff coupled with the fact that agreement to sell creates financial liabilities. Therefore, it is the duty of the appellant/plaintiff to produce two attesting witnesses in view of Articles 17 and 79 of the Qanun‑e‑Shahadat Order, 1984. In arriving to this conclusion we are fortified by the law laid down by this Court in Suleman Ali v. Maqbool Hussain (2000 YLR 1938). In case the whole evidence of the appellant be read as a whole then appellant/plaintiff failed to prove agreement qua the land in question executed between the appellant and respondents Nos. 1 and

2. It is also settled proposition of law that appellant/plaintiff has to prove its case independently and cannot get benefit of shortcoming of the respondents/defendants. Since the appellant/plaintiff failed to prove his case in terms of the parameters prescribed by the superior Courts and in view of the aforesaid provisions of law, therefore, we uphold the findings of the learned trial Court on Issues Nos. 1 and

3. It is pertinent to mention here that the letter relied upon by the learned counsel of the appellant (Exh.P.2) relates to some pre‑emption suits filed by the appellant against father of defendant No.1. Therefore, trial Court was justified to ignore the said document. Issues Nos.4, 5 and 6 were not pressed at the time of arguments before the learned trial Court, therefore, appellant has no right to assail the findings on the aforesaid issues before this Court. The last contention of the learned counsel of the appellant that appellant submitted an application that the case be decided on oath and the respondents failed to accept the offer of the appellant, therefore, presumption be taken against, the respondents on the basis of Article 163 of Qanun‑e‑Shahadat Order, 1984. The aforesaid article was interpreted by the superior Courts and laid down a principle that no doubt decision of a case on oath is one of the established modes for disposal of the case, but at the same time the Courts are bound to handle such cases with great care because such cases involve sensitiveness and to avoid haste and rationalize emotional outbursts. The superior Courts also laid down a principle by interpreting Article 163 of aforesaid Order that when evidence is available and can be produced then resort to Article 163 cannot be made. In this case both the parties had led evidence and therefore, the provisions of said Article could not apply to it. Therefore, no adverse presumption against the respondents/defendants could be drawn. In arriving to this conclusion we are fortified by the following judgments: ‑‑ (1) Shakir Ullah's case (1999 MLD 389). (2) Muhammad Sharif's case (1987 CLC 2006). (3) Sher Bahadar Khan's case (1992 MLD 46). (4) Bashir Ahmad's case (1999 SCMR 378). The appellant/plaintiff failed to establish his case therefore, the fact that respondent No.3 secured a collusive decree in a pre‑emption case does not change the fate of the case, coupled with the fact that respondent No.3 secured a decree in presence of the restraining order. The said decree is nullity in the eyes of law but keeping in view the aforesaid circumstances the fate of the case cannot be changed. As mentioned above the appellants failed to prove that there was any oral and written agreement validly executed between the appellant/plaintiff with respondents Nos. 1 and 2/defendants. It is pertinent to mention here that by order of the District Judge both the suits were consolidated vide order, dated 10‑2‑1 90 has also no force as the proceedings of the trial Court do not show that aforesaid order was brought, into the notice, of the trial Court. It is pertinent to mention here that section 4 of the specific Relief Act provides that except where it is otherwise expressly enacted nothing in the Act shall be deemed to give any right to relief in respect of any agreement which is not a contract. The object of this provision is to exclude agreements which are not enforceable by law. Section 2(b) of the Contract Act defines contract as an agreement enforceable by law. An agreement or a contract made between the competent parties with their consent for lawful consideration and lawful object is binding on the parties. The Legislature thus intends that there should be a concluded valid contract. The contract can be in writing as well as oral. Oral agreement is a valid and enforceable as written agreement provided it fulfils all the requirements of a valid contract. An oral agreement which is valid in law is enforceable and specific performance of such agreement can be granted. In the present case the oral agreement does not fall within the definition prescribed by the legislator in aforesaid section 2(b) of the Contract Act. As mentioned above, in. the present case the plaintiff failed to bring on record any material to show that earnest money was paid to the original owner. We have already held above that written agreement was not executed by competent persons and appellant also failed to prove the same in terms of Articles 17 and 79 of the aforesaid Order. In this view of the matter, the findings of the trial Court qua the oral agreement as well as written agreement are upheld, as the burden of proof is upon the shoulders of the appellant/plaintiff which was not discharged by him as mentioned above. In view of our findings on Issues Nos. 1 and 3 the appellant is not entitled to any decree for specific performance in his favour. The judgments cited by the learned counsel of the appellant in view of the special circumstances of this case are distinguished on facts and law. In view of what has been discussed above, this appeal has no merits and the same is dismissed. S.A.K./M‑1225/L Appeal dismissed.