P L D 2005 Karachi 50 (PLP)

(4) Whether the Court has no jurisdiction to entertain the suit:? (5) Whether sale agreement in question is false, fictitious and prepared under false thumb impression of defendant No. 14 who are in peaceful possession, cultivation and enjoyment of the land? (6) Who had developed the suit-land? (7) Whether the plaintiffs are rightful owners of the suit-land as per record of rights? (8) Whether the sale consideration amount is shown in the sale agreement? (9) What should the decree be? The parties led evidence in support of their respective claims. After going through the evidence and hearing the parties counsel; the learned trial Judge decided the Issues Nos. 1 to 4 jointly in negative. Issue No.5 was also decided in negative. Issues Nos.6 and 7 were decided in favour of the respondent. Issue No.8 was decided in negative. Consequently, the suit, filed by the respondents was decreed. The appellants challenged the said judgment and decree by filing the appeal but their appeal met with the same result under the impugned judgment and decree. The applicants were dissatisfied with the said judgment and decree hence the present revision application. The learned counsel for the applicants has stated that the trial Court was not legally competent to decide the Issues Nos. 1 to 4 collectively as it is against the provisions of Order XX Rule 5 C.P.C and relied upon the case of Ali Muhammad v. Muhammad Hayat (1982 SCMR 816). He has further stated that there arc material contradictions in the evidence of witnesses: that the agreement of sale duet, not bear the signatures of the attesting witnesses that, the agreement of sale was without consideration; therefore, it is a void contract III view of section 25 of the Contract Act and relied upon the cases of Muhammad Yaqoob v. Naseer Hussain (PLD 1995 Lahore 395), Chairman, District Screening Committee v. Sharif Ahmad Hashmi (PLD 1976 SC 258) and Zaheeruddin Pathan v. Hajani Zainab (1999 YLR 728). On the other hand, the learned counsel for the respondents has stated that the trial Court had not committed any illegality in deciding the Issues. Nos. 1 to 4 collectively as they were interconnected with each other and relied upon the cases Aziz Ullah Khan v. Gul Muhammad Khan (2000 SCMR 1647) and Tahira Dilawar v. Ghulam Samdani (1995 SCMR 246). He has admitted that the agreement of sale does not bear the signatures of the attesting witnesses but their writings are available on the said deed; that both the witnesses have confirmed 'their said statements and stated that the agreement of sale was executed in their presence and they put their writing of confirmation on the said agreement. He has further stated that the agreement of sale was not a void contract as the same was executed with consideration but simply the amount of consideration was not mentioned which has been given by the witnesses in the evidence. He has further stated that the impugned judgment and decree do not require any interference and there is no misreading or non-reading of the evidence. I have given due consideration to the arguments and find that the Appellate Court had dealt with the arguments of the parties on the point of deciding the Issues Nos.1 to 4 collectively by the trial Court and formed correct opinion as the case was depending upon the agreement of sale which was found to be validly executed and with due consideration; therefore, the decision of the trial Court given on the Issues Nos.1 to 4 collectively was not violative of order XX Rule 5 C.P.C However, preferable the trial. Court should have given finding on each issue separately instead of deciding them collectively. Similar point i.e. effect of failure to consider each issue separately was considered by the Honourable Supreme Court of Pakistan in the case of Aziz Ullah Khan (supra) and observed that where certain issues were inextricable linked with each other and those were considered together, such consideration was not at all violative of mandate contained in Order XX, Rule 5, C. P. C. As regards the signature of attesting witnesses on the agreement of sale, it is an admitted position that the witnesses did not sign the agreement of sale but through their writings they confirmed that the agreement was executed in their presence and specifically mentioned the receipt of consideration of the land by Karim Bux. The attesting witnesses have been examined. They fully supported their writings and admitted that the same were written by them. Thus merely not putting their signatures on the documents would not affect the document when otherwise it has been proved. Reliance is placed on the case of Kamal Khan v. Gul Mat Khan (PLD 1993 Pesh. 43). As regards the argument that the agreement of sale was void as it was without consideration, the said stand is not correct because, the para. 4 of the agreement clearly shows that the consideration of the land was received by the applicant Karim Bux and nothing was due against late Muhammad Hussain. The said fact has been confirmed by all the three attesting witnesses in their writings as they have categorically written through their writings that Karim Bux had accepted the receipt of consideration of the land. Thus the agreement of sale was not without consideration but it was with consideration. Simply amount of consideration was not mentioned in the agreement of sale which was deposed by the witnesses in their statements before the trial Court being Rs.1600. The said evidence is admissible under first and second provisos to Article 103 of Qanoon-e-Shahadat, 1984, Privy Council in cases Venkta Subhadrayyma v. Venkata Pati Raju, AIR 1924 PC 162 and Mathaung v. Mathan, AIR 1924 PC 88 observed that where a written contract was doubtful in its meaning, the surrounding circumstances existing at the creation of the contract and the subject-matter to which it was designed and intended to apply shall be looked into. It has been held in the case of Mutyalu v. Veerayya AIR (33) 1946 Madras 452 at page 153 as under: "The prohibition in S.92 is only as regards evidence sought to be adduced for the purpose of contradicting, varying, adding to or subtracting from, the terms of a contract. So long as the passing of consideration is not a term of the contract, evidence adduced to show that it did pass, even though the contract does not recite it, is not within the scope of the prohibition in S.92." After considering the material available on the record, I am of the considered view that the Appellate Court has dealt with the case and examined each point raised before it in accordance with the settled principle of law. There is no misreading or non-reading, of the evidence; therefore, the impugned judgment and decree do not require any interference. Consequently, the revision application is dismissed along with the listed application. H.B.T./K-26/K Revision dismissed.