2006 PLP 2620 (YLR)

UMAR ATA BANDIAL, J.

This petition is filed to revise the judgment by the learned Additional District Judge dated 13-7-2005 allowing the appeal by the respondents/defendants and dismissing the petitioners /plaintiffs suit for specific performance of agreement to sell land that had earlier been decreed by the learned trial Court by judgment dated 21-6-2001.

2. The learned lower appellate Court below took up three points for consideration concerned essentially with Issue No.6, which pertain to whether the respondents /defendants entered an agreement to sell dated 19-11-1991 with the predecessor-in-interest of petitioners/ defendants. The first point is whether the disputed agreement to sell can be stated to have been proved in evidence without production of two attesting witnesses to its execution. Secondly, whether it was lawful for the learned trial Court to permit secondary evidence of the said disputed agreement to sell to be produced on record without establishing the loss of the said document and without awaiting the respondents/defendants reply/ stand on the petitioner's prayer for leading secondary evidence by way of a photocopy for proof of the said document. Thirdly, that the disputed agreement to sell a sale-deed and there fore, void under the provision of section 19 of the Colonization of Government Lands Act, 1912.

3. The learned lower appellate Court has carefully considered the application by the petitioners/plaintiffs to produce secondary evidence as presenting a flimsy and superficial ground fur non-production of the original document. There is nothing in that application to suggest that the document in question has been lost or destroyed. It is noted that the reasoning given by the learned lower appellate Court is sound and pertinent. Quite apart from said defect in the petitioner's case, their failure to produce the second attesting witness of the aforesaid document for proving it on record without establishing his non-availability to the satisfaction of the learned trial Court is another serious flaw in the petitioner's case. Where the production of the second attesting witness is not shown to be beyond the control of the A petitioners /plaintiffs, the requirement under Article 79 of the Qanun-e-Shahadat Order, 1984, is not met and pursuant to a settled line of Iaw relied by this Court in its judgment in the case of Qasim Ali v. Khadim Hussain PLD 2005 Lahore 654, this failure is fatal for treating the scribe of a document to be an attesting witness to the execution thereof. On this score also the finding given by the learned lower appellate Court is justified.

4. In light of the foregoing findings a consideration of third point arising under section 19 of the Colonization Government Lands Act, 1912, is not necessary.

5. Learned counsel for the petitioners has been unable to point out any legal defect in the impugned order whether by way of misreading or non-reading of the record or by the commission of any illegality in the exercise of jurisdiction by B the learned lower appellate Court. As such this Court does not find merit in the present petition for modifying or otherwise revising the impugned order. Resultantly this petition is dismissed without any order as to costs. H.B.T./R-1/L Revision dismissed.