2002 PLP 722 (CLC)

(3) Whether this suit has been filed as counterblast to the ejectment petition filed by the defendant? OPD (4) Whether this suit is false, frivolous vexatious, baseless and as such the defendant is entitled to recover special costs under section 35‑A, C.P.C.? OPD (5) Whether the defendant validly into an agreement to sell, dated 30‑6‑1997 with the plaintiff regarding the disputed shop and as such the plaintiff is entitled to a decree for specific performance of contract? If so, on what terms and conditions? OPP (6) Whether the tenancy between the parties has terminated in view of agreement to sell dated 30‑6‑1997?.OPP (6‑A) Whether the part consideration of Rs.7,00,000 was paid? OPP (6‑B) Whether the plaintiff/respondent is tenant under the defendant/respondent? OPD (6‑C) If above issues are proved, whether the plaintiff is liable to be evicted from the disputed shop, if so, on what ground? OPD (7) Relief.

5. The appellant presented P.W.1 to P.WA0 as witnesses and EXh.P.l to Exh.P.12 as documentary evidence to prove his case. The respondent produced D.W.1 to D.W.6 as well as documentary evidence comprising Exh. D.1 to Exh.D.27.

6. The learned Civil Judge vide judgment and decree, dated 22‑1‑2001, dismissed the appellant's suit with special costs and accepted respondent's ejectment petition, directing the appellant to vacate the premises within a period of three months by handing over the possession of the, suit shop to the respondent who was also held to be entitled to recover the rent due to Rs.3,000 per month.

7. Against his ejectment, appellant preferred an appeal which is pending before the District Judge, Sheikhupura.

8. Against the judgment and decree dismissing his suit, appellant has filed the present regular first appeal.

9. Learned counsel for the appellant contended that the learned civil Judge failed to appreciate and evaluate the evidence in peculiar perspective of the present case in particular the statement of scribe/stamp vendor (P.W.3) and agreement's marginal witness (P.W.7). And that although appellant has presented other witnesses to the agreement though not signatories but the peculiarity of evidence of P. W .3 and P. W .7 required special appreciation and learned Civil Judge failed to attend to the other evidence proving the agreement apart from evidence of P.W.3 and P. W .7 who had not supported the agreement as having been won- over. Reference thereto was made to Article 82 of the Qanun‑e‑Shahadat Order, 1984 and to 1993 SCMR 1073, to contend that where attesting witness denies execution of document, the same could be proved through other relevant evidence.

10. We have considered the submissions of the learned counsel for the appellant as well as the case record. Learned counsel had repeatedly emphasized the extraordinary peculiar nature of the case, where witnesses of the appellant had not supported the case of the appellant. The peculiarity that the learned counsel for the appellant tried to dilate upon, is that appellant's most important and material witnesses i.e. the scribe (P.W.7) and only attesting witness of the agreement (P.W.3), in their statements made such admissions as ‑ were disastrous to the case of the appellant qua the proof of alleged agreement to sell (Exh.P.2). Malik Niamat Ali (P.W.3) i.e. a petition‑writer and stamp vendor, though admitted sale of non judicial stamp paper at Serial No.777, dated 30‑6‑1997 of the register, yet stated that his helper/assistant had taken the register along with stamp papers to the appellant's house, wherefrom, after obtaining respondent's signatures, he brought the register back and that he had written Iqrar Nama (Exh.P.2) upon the request of the appellant who told him that respondent was sitting at his shop from where he will obtain respondent's signatures. This witness, in continuation of his examination‑in‑chief, further stated that text of Exh.P.2 was made and written by his assistant Taj Din in his presence, as he was not feeling well, but neither the seller nor purchaser or witness had signed Exh.P.2 in his presence and deal/payment had riot been made or finalized before him. Further stated that on the next day, respondent has met him and told him of fraudulent nature of the agreement and that he had not obtained any signatures which were obtained by his helper who had informed him that appellant had not allowed him to enter his Baithak, where statedly the executant and witnesses were sitting. It was at his stage, that the said witness, upon request of the learned counsel for the appellant, was declared hostile and was cross‑examined by the learned counsel for the parties. Cross‑examination of this witness does not show any material deviation from the above‑stated examination‑in‑chief except that he affirmed his above statement and added that a criminal case had been registered and the stamp vending register was taken in possession by police and re‑admitted sale of the stamp paper against the above said Entry No.777.

11. The appellant also produced one attesting witness to the agreement i.e. Tariq Mehmood (P.W.7) who stated that appellant was his paternal‑uncle and he, since ten years, was working at his shop and that he knew no details of terms of tenancy, but he had signed on the agreement to sell which was not read to him. This witness admitted that the market price of the shop was Rs.30,00,000 and he did not know the respondent/owner but came to know him after registration of the F.I.R. In the cross‑examination, this witness categorically admitted that the agreement was not written in. his presence but his signatures were obtained by the appellant on a blank paper in his shop and that he had so signed owing to his employment with and faith on the appellant. He further stated that other attesting witness of the agreement namely Riaz was his uncle‑in‑law, who had not signed in his presence and that in fact no one had signed in his presence. The appellant neither produced the second attesting witness of the agreement nor the above -referred Taj Din i.e. assistant/helper of the petition‑writer (P.W.3). It‑is thus evident that appellant not only failed in proving the agreement but could not rebut the allegations that the same had been forged, fabricated and fraudulently set up as so‑called defence to his ejectment petition against him.

12. We are afraid, reliance of the learned counsel upon Article 82 of Qanun‑e‑Shahadat Order, 1984 is misplaced as the said Article comes into play to allow proof of the document through‑other evidence only when the attesting witness either denies or does not recollect the execution of the document. In the present case, the above said most important and material witness appeared to have made a truthful statement regarding the written execution, making of and signatures upon the above said agreement which they vividly remembered and recalled. These witnesses never denied the document but stated whatever was in their knowledge. Wherefore, Article 82 (ibid) cannot be successfully invoked by the appellant to place reliance upon other so‑called relevant evidence in preference to direct evidence of the scribe and the attesting witness. The appellant, in fact, withheld the most important witness i.e. Taj Din, Assistant/helper of the scribe and the other attesting witness. Wherefore, obvious inferable presumption was that had these witnesses been produced, their statement would have gone against the appellant. We have also examined the case titled Fazal‑e‑Ghafoor v. Chairman, Tribunal Land Dispute Dir and others 1993 SCMR 1073, upon which heavy reliance was placed by the learned counsel for the appellant. This case is not at all applicable here as the same relates to the principle that a decision can be rendered on high probability principles inferable from "other material" in cases where evidence in stricto senso is not available or where "evidence" as defined in the Evidence Act is not forthcoming. The reliance upon this case seems to be only a device to deviate the focus from appellant's fraud and fabrication as disclosed by his own evidence, otherwise this judgment is neither relevant to the case of the appellant nor is it at all helpful to the appellant. It will be pertinent to reproduce the ‑‑following extracts from the judgment of the learned Civil Judge:‑‑ "The plaintiff was to prove his case of execution of Exh.P.2/ agreement to sell in his favour on behalf of defendant through direct evidence that is through scribe and marginal witnesses as required by law under Article 79 of Qanun‑e‑Shahadat Order, 1984 and not through any philosophy or psychologist opinion as urged by counsel for plaintiff. So, I am not convinced by the arguments of the counsel for plaintiff which are hereby rejected. So, my finding is that Exh.P.2 is forged. In the light of above discussion, I am of the opinion that plaintiff has miserably failed to prove EXh.P.I in his favour. As far as payment of part consideration of Rs.7,00,000 is concerned, it is the claim of plaintiff that transaction was struck at Rs.8,00,000 out of which he paid Rs.7,00,000 as earnest money/part' consideration in the presence of marginal witnesses. Arshad and Riaz marginal witnesses have not been produced the story of plaintiff narrated in plaint that he paid Rs.7,00,000 to defendant on 30‑6‑1997 in the presence of marginal witnesses, falls on earth Other P.Ws. are chance witnesses plaintiff has managed to prepare a forged and anti‑dated document Exh.P.2. which is also proved from the statement of P.W.3, P.W.7 and Exh.D.15 and Exh.D.17, Exh.D.13 to Exh.D.23 prove fraudulent conduct of the plaintiff not in this case but also in other cases in post."

13. In view of the above, we uphold the judgment and decree passed by learned Civil Judge and dismiss this appeal. Office is directed to send a copy of this judgment to respondents as well. H.B.T./B‑70/L Appeal dismissed.