2006 PLP 1375 (MLD)

JAWWAD S. KHAWAJA, J.

Ghulam Rasool Shahzad appellant/plaintiff filed a suit seeking specific performance of agreement, dated 14-6-2001, which, according to him, was executed in his favour by Muhammad Saeed respondent/defendant. The learned trial Court has dismissed the suit, vide, judgment and decree, dated 11-3-2005. The said dismissal has been upheld by the Court of first appeal, vide judgment and decree, dated 23-11-2005.

2. Learned counsel for the appellant contends, firstly, that he has been non-suited on the ground that the appellant's signatures do not appear on the agreement. Secondly, the Courts below have picked on inconsequential differences in the testimony of the P.Ws. to hold against the appellant.

3. Learned counsel for the appellant also contends that in his written statement, the respondent had not expressly denied execution of the agreement. He had merely averred that the contents of the plaint, in the manner stated, were not correct. It is also argued that while appearing as D.W.1, the respondent/defendant gave testimony, which was contrary to the contents of his written statement and disclosed a new case.

4. Learned counsel for the respondent/defendant, however, controverted the above submissions. He argued that there were material discrepancies in the testimony of the P.Ws., which had rightly been relied upon by the learned Courts below to non-suit the appellant/ plaintiff. I have gone through the testimony of the P.Ws, with the assistance of both learned counsel, and find merit in the submission made on behalf of the respondent. It is noteworthy that Zulfiqar Ali (P.W.1), who was one of the marginal witnesses to the agreement (Exh. P-1), deposed that the appellant Ghulam Rasool had purchased the stamp paper. He also stated that he was not aware of the name of the stamp vendor from whom the stamp paper had been purchased. He went on to testify that one Qayyum was the scribe of the agreement and the same had. been prepared within the compound of the teshil. P.W. categorically stated that the stamp paper was not purchased in his presence and that the same had been purchased by Ghulam Rasool, who had the agreement drafted on his own. Ghulam Rasool appellant himself appeared as P.W.2 and stated that Zulfiqar (P.W.1) had brokered the sale between him and the respondent. He also testified that the stamp paper for the agreement (Exh. P-1) was purchased by Zulfiqar Ali and though he could not name the stamp vendor, he stated that he and Zulfiqar Ali (P.W.1) had together got the agreement inscribed by a lawyer, namely, Mian Muhammad Tayyab. These are material A discrepancies, which have been relied upon by the learned Courts below in support of their concurrent decrees.

5. Learned counsel for the respondent further argued that even if the respondent had not set out specific details in his written statement, he had denied the contents of paragraphs Nos. 1 and 2 of the plaint. It was further argued on behalf of the respondent that it was for the appellant as plaintiff to prove issues Nos. 1 and

2. Considering the discrepant testimony of the P.Ws., the learned Courts below were justified in holding that the appellant was not successful in discharging the onus of proof placed on him in respect of the said issues.

6. Learned counsel for the appellant stated that in view of the contents of the written statement in which there was no express denial of the agreement (Exh. P-1), the same stood proved. To support his contention, he referred to the case titled Mst. Zainab Khatoon v. Amir Abdullah Khan PLD 2004 Lah.

330. I have gone through the cited precedent and note that the facts of the case are clearly distinguishable from the facts of the present appeal. In the cited case, the person, denying the agreement, had produced a document claiming that the agreement in dispute had been rescinded. On this basis; the learned Court came to the conclusion that the document produced for the purpose of asserting rescission of the disputed agreement, itself constituted an admission that the agreement in question had, in fact, been executed. In the present ease, the respondent, as noted above, denied the contents of paragraphs Nos. 1 and 2 of the plaint wherein the agreement (Exh. P-1) had been relied upon by the appellant/plaintiff. Furthermore, the appellant took steps to prove the agreement (Exh.P-1) by producing the P.Ws. who have been disbelieved by the learned Courts below for valid reasons.

7. In this view of the matter, I find that the precedent, cited by learned counsel for the appellant, has no application in the present case.

8. In addition to the above, I am cognizant of the fact that this is a second appeal. The jurisdiction of the Court is, thus, circumscribed by the provisions of section 100, C.P.C. Learned counsel for the appellant was not in a position to show the existence of any the grounds mentioned in the said section, which would justify interference in the concurrent decrees of the learned Courts below.

9. In the foregoing circumstances, this appeal is dismissed. S.A.K./G-32/L???????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.