2005 PLP 1611 (YLR)

Muhammad Din Hashmi for Respondents. Dates of hearing: 2nd and 8th December, 2004. On 7-12-1994 the appellant filed a suit against the respondents. In the plaint it was stated that the suit shop, described in the plaint, was owned by Khushi Muhammad, who died on 31-10-1994. On 23-4-1994 he entered into an, agreement with the appellant for the sale of the shop in his favour for Rs.4,00,

000. He received Rs.375,000 in advance and executed an agreement, in his favour and also delivered him the possession. In a portion of the shop, there was a tenant who accepted the appellant as landlord and started attorning into him. It was stated that respondents/L.Rs. of Khushi Muhammad have refused to perform their part of the contract. A decree for specific performance of the agreement with possession of the suit shop or in the alternative for recovery of Rs.375,000 was prayed for. The respondents filed written statement. They for denied that Khushi Muhammad had ever agreed to sell the property to the appellant or to have received any amount from him. It was also denied that possession was ever delivered. It appears that the person said to be tenant namely Latif was initially impleaded as defendant No.8 in the plaint and later he was deleted. Be that as it may, it was stated in the written statement that the said defendant No.8 is not in possession as a tenant and has never paid any rent to the appellant. It was, of course, denied that Khushi Muhammad executed any agreement. Issues were framed. Evidence of the parties was recorded. The learned trial Court dismissed the suit vide judgment and decree dated 25-7-1997. A learned A.D.J., Kehror Pacca dismissed the first appeal filed by the appellant on 17-1-2004.

2. Learned counsel for the appellant contends that the impugned judgments suffer from misreading as well as non-reading of the evidence on record by the learned Courts below. According to him, in the first instance there were no discrepancies and in the second they were so minor as to hardly matter, while determining the effect of the entire evidence on the record. He has taken me through the evidence to point out the said misreading and non-reading of the evidence and also has pointed out that material statements made by some of the witnesses were not challenged in cross-examination. He has also complained that the learned Additional District Judge has not decided all the issues separately. He has questioned the opinion formed by the learned Additional District Judge upon comparison made by him of the disputed and undisputed signatures of Khushi Muhammad. He also seriously questions the observations made by the learned Additional District Judge 'in his judgment regarding proceedings to be for initiated under section 476, Cr.P.C. Finally he presses C.M. No.2 of 2004 purported to have been filed under Order LXI, rule 27, C.P.C. but, in fact, praying that the signatures on Exh. P.1 through an expert be got compared with signatures on a lease deed produced by the respondents.

3. Learned counsel for the respondent, on the other hand, contends that the appellant failed to prove the execution of the' said agreement or payment of the amount thereunder. He supports the impugned judgments and decrees and contends that the evidence has been properly read. According to the learned counsel, the learned Additional District Judge was fully competent to compare the signatures and the conclusion arrived at cannot be questioned in this RSA. Opposes the said C.M. with the same contention. According to him, the learned Additional District, Judge was competent to make observations as to initiating criminal proceedings against the appellant.

4. I have gone through the copies of the trial Court records with the assistance of the learned counsel for the parties. I have also examined the evidence on record. As noted by me above, while noting the Contentions of the learned counsel for the appellant. Having thus examined the said evidence on the record, I do not find any misreading or non-reading thereof by the learned Courts below. I may here state that. It was alleged by the respondents in their written statement that the document has been fabricated' after the death of late Khushi Muhammad. Now P.W.5 is Abdul Rasheed. He was aged 30 years on 9-1-1996 when his statement was recorded. He is also a marginal witness of Exh.P.1, which, according to him, was executed by Khushi Muhammad in his presence. In his cross-examination he has stated that the agreement was written on 24-12-1994. He has also stated that Khushi Muhammad died on 15-12-1994. There is no ambiguity at all in the statement made by a person who claims that he was a marginal witness and in his presence Khushi Muhammad executed the document. It is an admitted fact on record, rather fu the plaint itself that Khushi Muhammad died on 31-10-1994. Now this cannot at all be said to be a minor discrepancy'. Rather it goes to the very root of the case, particularly in view of the said specific allegation. Similarly, the discrepancies pointed out by the learned Courts below with reference to the persons who were present at the time of payment allegedly made to Khushi Muhammad also make the statements of the witnesses unbelievable, particularly in the circumstances that admittedly the appellant is not stated to be a man of means. He is employed in some Bakery. The learned Courts below have very rightly wondered as to why almost the entire consideration amount was paid and the sale-deed was not got registered. I may further state here that the allegation that possession was delivered has also been proved to be wrong, as Latif was produced as D.W.2, who stated that he was never asked to attorn to the appellant and he never attorned to the appellant.

5. Now according to the trial Court's records, in fact, it was the respondent who filed an application on 25-6-1996 that they have produced the records pertaining to the NIC of Khushi Muhammad, in Court through a witness of the department in question and that signatures be got compared through an expert. The learned trial Court allowed this application and did send the documents to the Director, Forensic Science Laboratory, Punjab Police, Lahore, but the said office started calling for some more signatures which, of course, were not possible to be provided, and consequently vide order dated 26-3-1997 the earlier order was recalled. Now the learned ADJ proceeded to compare the signatures on Exh. P.1. with undisputed signatures of Khushi Muhammad on the said forms from the Registration Office as also on document Exh.P.4 which was produced by the appellant himself and concluded that the signatures are not identical. Now under Article 84 of the Qanun-e-Shahadat, 1984, a Court is fully competent to make the said comparison. Reference may be made to the case of Ghulam Rasool and others v. Sardar-ul-Hassan and another 1997 SCMR

976. Apart from the said legal position, this is an RSA to be dealt under section 100, C.P.C. The finding of the learned Additional District Judge based on comparison of signatures would not at all constitute a question of law which can be decided in an RSA. Reference may be made to the case of Balak Ram v. Muhammad Said AIR 1923 Lahore

695. The C.M. for additional evidence is accordingly dismissed.

6. This leaves the matter of the observations made by the learned Additional District Judge in para.35 of his judgment. I do find that one does gather the impression that the learned Additional District Judge has directed the respondents in this case to initiate criminal proceedings under sections 208/209 P.P .C. against the appellant and others by filing an application under section 476, Cr.P.C. A certified copy on the said application has been placed on record by the learned counsel for the appellant. I find that it is mentioned therein that a direction has been so issued by the learned Additional District Judge. To my mind, the said observations or directions are not at all warranted by law, particularly the provisions of section 476, Cr.P.C., which contains a complete code for the Courts to proceed under the said provisions of law. The said observations are accordingly struck off.

7. As to the technical defect pointed out by the learned counsel regarding separate decision of issues, I find that there were five issues. Issue No.5 pertains to special costs with burden upon the respondents and they did not press the said issue. The remaining Issues Nos.1 to 4 which are germane to the factum of execution of the agreement, payment of consideration, delivery of possession under the agreement and willingness of the appellant to perform the same stand duly answered in the impugned judgment. The RSA is accordingly dismissed without order as to costs.

8. The trial Court records be remitted back immediately. H.B.T./A-398/L Appeal dismissed.