2006 PLP 1326 (MLD)

JAWWAD S. KHAWAJA, J.

Nazir Ahmad petitioner/plaintiff impugns the concurrent decrees of the trial Court dated 25-3-2003 and of the learned Appellate Court dated 13-2-2004, whereby a suit filed by him seeking specific performance of an oral agreement has been dismissed.

2. The facts of this case are relatively simple. The case of the petitioner/plaintiff is that he is owner of land adjacent to the 5 Marlas plot, which is subject-matter of this petition. According to the plaint and the evidence adduced by him, the suit-land was lying vacant and he was, therefore, tethering his buffaloes on it. Subsequently, the father of Mst. Khurshid Begum (respondent/defendant) visited the site and asked the petitioner to keep an eye on the suit-land. Thereafter, on 16-6-1995, according to the plaint and the evidence led by the petitioner, the aforesaid Mst. Khurshid Begum (respondent/defendant), visited the site along with her husband and two others. At the time, and oral agreement to sell the plot to the petitioner was entered into for a total consideration of Rs.25,

000. Out of this amount, a sum of Rs.15,000 statedly was paid to the respondent's husband in her presence, while the balance Rs.10,000 was agreed to be paid after two months at which time the respondent was to execute and register a conveyance in favour of the petitioner.

3. It is further the case of the petitioner that because he was not aware of the place of residence of the respondent, he was unable to trace her and, therefore, after the passage of a few months, was constrained to file a suit seeking specific performance of the oral agreement, referred to above. Being unaware of the address of the respondent, he gave the address of the suit-land as the respondent's address. The suit initially was decreed ex parte as the respondent did not appear despite substituted service through press citation. The decree, however, was set aside on 26-4-2000, whereafter a written statement was filed by the respondent through her special attorney, namely, Abdul Hameed and the suit was contested hotly. The learned trial Court framed seven issues, including that of relief. However, Issue No.6 is the only relevant issue which was framed in the following terms:-- "Whether the plaintiff is entitled to a decree for specific performance on the grounds mentioned in the plaint? OPP".

4. The mainstay of the defence set up by the respondent Mst. Khurshid Begum was that she had been residing in the UK between 1994 and 1997 and, as such, she could not possibly have been present .at the site on 16-6-1995 as alleged in the plaint and could not, therefore, have entered into any oral agreement with the petitioner.

5. Evidence was led by the parties. The respondent/defendant produced a certificate issued by Boyce Hatton Solicitors, UK wherein it has been stated that Abdul Ghani (husband of the respondent) has a Pakistani Passport and a UK Passport. It is also stated therein on instructions that the said Abdul Ghani left Pakistan for UK on 17-12-1994 and left UK for Pakistan on 13-2-1997. Along with the aforesaid certificate are the copies of pages 1 and 2 of the Passport of the respondent Mst. Khurshid Begum and her husband Abdul Ghani. These documents are not duly exhibited on record but the certificate of the Solicitor, noted above, bears mark 'A'.

6. According to learned counsel for the petitioner, the aforesaid documents are inadmissible in evidence because the certificate itself proceeds on the basis of instructions given to the above named Solicitor and is, therefore, hearsay. Secondly, even the Passports of the respondent and her husband have not been produced in original in Court to establish that the respondent was out of Pakistan and residing in the UK between 1994 and 1997. Furthermore, the relevant pages of the passports, which would have borne the exit and re-entry stamps of the Pakistan Immigration Authority, have not been brought on file.

7. Notwithstanding the above position, the Courts below have relied on the above referred certificate to hold that the respondent/ defendant was not residing in Pakistan between 1994 and 1997.

8. In addition to the above, it is, contended, the respondent or her husband have not taken the witness stand and have not testified on oath in respect of the allegations in the plaint which have been proved by the petitioner/plaintiff, who appeared as his own witness and testified on oath. On behalf of the respondent, her special attorney, namely, Abdul Hameed has appeared as D.W. and the respondent's brother, namely, Mukhtar Ahmad, has appeared as D.W.2 in support of her case. These two persons were not qualified to give evidence of the oral agreement of 16-6-1995 because, according to the case set up by the petitioner, they were not present at the site. The mere fact that Abdul Hameed was the attorney of the respondent does not enhance the quality of his evidence in respect of events, which according to the petitioner/plaintiff occurred on 16-6-1995. It also needs to be note that after the petitioner had testified on oath, the onus probandi of Issue No.6 shifted onto the respondent and had to be discharged by her.

9. On the basis of the above, it is submitted that both Courts below have committed illegality in the exercise of their jurisdiction by placing reliance on evidence which is inadmissible. It further appears that the respondent has withheld the best evidence by not appearing in the witness-box and not examining her husband and also be withholding the original passports and relevant pages thereof from evidence. In the circumstances, an inference, adverse to her, ought to have been drawn by the Courts below.

10. Learned counsel for the respondent is unable to controvert the submissions noted above. On 2-3-2006 he produced two Pakistani and two British Passports of the respondent and her husband Abdul Ghani with the object of showing that Khurshid Begum was not in Pakistan on 16-6-1995 when the oral agreement asserted by the petitioner was made. The original passports, however, do not relate to the relevant period and, therefore, cannot substantiate the plea of the respondent.

11. Learned counsel for the respondent had also contended on 2-3-2006 that the original passports for the relevant period had been produced before the trial Court which had examined and returned the same to the respondent after retaining photocopies of the same. This contention, however, is controverted by learned counsel for the petitioner who has stated that there is no such noting on the record of the learned trial Court. He also stated that copies of all documents, which were produced by the respondent as evidence, have been filed with the present petition. These documents do not prove that the respondent was not in Pakistan in June, 1995. At this juncture I may add that it was not difficult at all for the respondent to prove her absence from Pakistan in June, 1995. All that she was required to do to establish this fact was to produce her original passports (both Pakistani and UK) in Court. This she has failed to do and must therefore, suffer the consequences of her failure.

12. The learned Courts below have fallen in error by relying on inadmissible evidence. They have also failed to draw the adverse inference against the respondent referred to in paragraph 9 above. The impugned decrees as such are a result of misreading of evidence and failure to apply the law. The same are, therefore, set aside. As a consequence, the suit of the petitioner/plaintiff is decreed as prayed for. The petitioner shall be entitled to his costs throughout. M.H./N-32/L?????????????????????????????????????????????????????????????????????????????????????? Revision allowed.