2006 PLP 864 (CLC)

JAWWAD S. KHAWAJA, J.

This revision petition filed by Talib Hussain petitioner/plaintiff impugns the appellate decree, dated 8-9-2003, whereby a suit filed by him seeking cancellation of alleged agreement to sell dated 12-7-1995 has been dismissed.

2. The facts of this case are simple. The case of the petitioner/plaintiff is that Siraj respondent/defendant was on friendly terms with him. Siraj had promised to obtain a loan for the 'petitioner for which purpose the petitioner had thumb-marked certain papers to enable Siraj respondent/defendant to obtain the Bank loan. It is further the petitioner's case that Siraj utilized the said thumb-marked papers for fabricating the aforesaid agreement dated 12-7-1995 (Exh.D. 1).

3. Upon coming to know of this fabrication, the petitioner/plaintiff filed the aforesaid suit. The suit was resisted by the respondent/ defendant. The learned trial Court framed issues on which the parties led evidence.

4. The learned trial Court, after considering the evidence on record, decreed the suit of the petitioner/plaintiff. It was observed by the Court that the two marginal witnesses to the agreement had not been examined to prove its execution. The respondent preferred an appeal, which, as noted above, has been allowed. The learned Appellate Court has proceeded on the basis of one sentence appearing at the end of the petitioner's cross-examination. The said sentence has been reproduced in the appellate judgment and reads as under:--

5. Learned counsel for the petitioner has taken me through the testimony of the petitioner, who appeared as P.W.2 to support his own case. His entire evidence is to the effect that the agreement has been fraudulently prepared and that he had never agreed to sell the disputed property to the respondent/defendant. In the context of the testimony of the respondent, it is argued that the above sentence can only be taken as an incorrect recording of the answer by the petitioner as his own witness. This contention, prima facie, appears to be well-founded. I note that in the sentence preceding the one noted above, the petitioner/plaintiff had expressly deposed that he had not executed any agreement to sell in favour of the respondent/defendant.

6. In addition, learned counsel has argued that on account of the failure of the respondent/defendant to produce the marginal witnesses to prove the agreement (Exh.D.1), the said agreement was inadmissible in evidence. To support this contention, he has referred to the provisions of Article 17 of the Qanun-e-Shahadat Order. This contention also appears to be well-founded.

7. I have gone through the evidence on record with the assistance of both learned counsel. Learned counsel for the respondent was unable to advance any serious argument against the submissions made on behalf of the petitioner. He merely reiterated the emphasis placed on the concluding sentence of the petitioner's cross-examination which has been noted in paragraph 4 above. For the reasons noted above, I am not in any doubt that the said sentence represented an inaccurate recording of the answer given by the petitioner to the suggestion put to him.

8. Learned counsel for the respondent was also unable to explain the reason for not producing either Azam or Bashir the two marginal witnesses to the agreement (Exh.D.1). In the circumstances, the learned trial Court was justified in decreeing the suit filed by the petitioner/ plaintiff. The learned Appellate Court has placed reliance on the concluding sentence of the petitioner's testimony, which I have noted, was not a correct recording of the petitioner's evidence.

9. In view of the foregoing discussion, this petition is allowed and the impugned appellate decree dated 8-9-2003 is set aside. As a consequence, the decree of the learned trial Court dated 28-7-2001 stands restored. F.B./T-32/L Petition accepted