2013 PLP 2345 (YLR)

IBAD-UR-REHMAN LODHI, J.

Earlier this Court on 7-10-2004 proceeded to dismiss this R.S.A. on stated non-compliance of the provisions of Order XLII Rule 2 of C.P.C., which findings were challenged before the Hon'ble Supreme Court of Pakistan, where on 2-11-2006, Civil Appeal No.2626 of 2006 was allowed and the judgment passed by this Court on 7-10-2004, as noted above, was set aside and the appeal was remanded back to this Court for its decision afresh on merits.

2. On 22-7-1984, a suit titled "Shafa-ul-Haq and another v. Iftikhar Salim and 4 others" was filed before the Civil Court seeking specific performance of an agreement to sell statedly arrived at on 9-6-1979 in between the plaintiffs of the suit and one Salim-ud-Din Ahmad Siddiqui, predecessor-in-interest of the defendants in the suit. It was the case of the plaintiffs that by means of such agreement, late Salim-ud-Din Ahmad Siddiqui promised to transfer a part of his estate known as Rink Estate/ Salim Estate, situated in Murree to the extent of 1-kanal. The consideration amount, according to the plaintiffs, was settled as Rs.60,000, out of which as earnest money, an amount of Rs.15,000 was paid by the plaintiffs and received by said Salim-ud-Din Ahmad Siddiqui and with regard to remaining Rs.45,000, it was settled that the same will be paid at the time of getting the sale-deed registered. According to the plaintiffs, the possession of the promised land was handed over to the plaintiffs in part performance of such agreement.

3. Defendants Nos.2 to 5 never contested the suit and it was only defendant No.1-Iftikhar Salim, who by filing a written-statement, contested the suit by specifically denying any alleged agreement on the basis of which the suit was filed. Filing of the suit was attacked on the point of limitation and on the ground that in fact property vests in the Central Government, and it was only leasehold rights, which late Salim-ud-Din Ahmad Siddiqui was holding and unless there is No Objection Certificate issued by the Cantonment Board, Murree, which in the relevant area represents the Central Government, the transaction could not have been materialized. In the first round of litigation, in order to prove the execution of "agreement to sell", Raja Imtiaz Ahmad Taj, Advocate, a Member of Murree Bar, was produced as P.W.1, whose statement was recorded without administering oath to the said witness and he was introduced in the evidence sheet as counsel representing the plaintiffs, whereas, plaintiff No.1 appeared as P.W.2, who deposed to the effect that before entering into agreement to sell with Salim-ud-Din Ahmad Siddiqui (deceased), he never attempted to see the title deed of said Salim-ud-Din Ahmad Siddiqui and it was only on the satisfaction of Raja Imtiaz Ahmad Taj, Advocate, with regard to the title of Salim-ud-Din Ahmad Siddiqui that the said witness accepted the same as valid and entered into agreement. The contesting defendant appeared as DW.3.

4. The learned Civil Judge, seized of the matter, proceeded to decree the suit of the plaintiffs vide judgment and decree dated 4-5-1988 and accepted the agreement Ex.P.1 as a valid document for the simple reason that Raja Imtiaz Ahmad Taj, Advocate, a Senior Member from Murree Bar, appeared as P.W.1 and his statement cannot be disbelieved. Such findings were arrived at by the learned Civil Judge notwithstanding the fact that the statement of P.W.1 was recorded without any oath.

5. The learned first appellate court has appreciated this fact that the statement of P.W.1, as was recorded, has no value under the law and, thus, on 24-3-1991 allowed the appeal, set aside the judgment and decree passed by the learned trial Court and remanded the matter back with a direction to record the statement of P.W.1 on oath and then to decide the case afresh. To the extent of the direction to decide the suit afresh by the learned trial Court, the judgment of the learned first appellate court was challenged before this Court in FAO No.40 of 1991 and the same was allowed on 6-8-1991, when it was directed that the learned trial Court would only record the statement of P.W.1 on oath and then transmit the file of the matter to the learned first appellate court, which will be deciding the appeal afresh on merits. After recording the statement of P.W.1 on oath on 27-10-1981, the file was placed before the learned first appellate court, where again on 27-7-1992, the appeal was dismissed maintaining the decree passed by the learned trial Court; hence, this present appeal.

6. The document on the basis of which whole of the matter is to be decided is Exh.P.1, which has been termed as an "agreement" by the plaintiffs and on refusal on the part of the defendants to accept the validity of the same and to act according to the settled terms therein, the specific performance was prayed for by filing the suit before the court of civil jurisdiction.

7. Exh.P.1 is before this Court. Although the names of the plaintiffs are mentioned in the title of this document as promisees, whereas, Salim-ud-Din Ahmad Siddiqui is mentioned in the said document as promisor, but the fact remains that this document contains apparently the signatures of Salim-ud-Din Ahmad Siddiqui, the promisor, and two witnesses only. The plaintiffs, who have been shown as promisees in Exh.P.1 have never put their respective hands on the said document.

8. The term "agreement" for disposal of the present appeal would be of much significance. According to the Black's Law Dictionary, Ninth Edition, the agreement means "A mutual under-standing between two or more persons about their relative rights and duties regarding past or future performances", whereas, "agreement of sale" is defined as "An agreement that obligates someone to sell and that may include a corresponding obligation for someone else to buy".

9. As noted above, Exh.P.1, which has been treated as an agreement to sell, does not show the presence of the plaintiffs at the time of alleged execution of the said document and, thus, the element of mutual understanding in between two or more persons, which is a sine qua non for a valid agreement, is conspicuously missing. Similarly, Ex.P.1 does not show to create any corresponding obligation for the plaintiffs to commit themselves to buy the property on certain terms and conditions. The document, therefore, lacks the basic requirements, which are necessary to constitute a document as a valid agreement.

10. Even if, for a moment, it is presumed that Exh.P.1 was a document arrived at in between the parties and witnessed by two persons, the same again would lose its any relevance and validity, if tested on the touchstone of Article 17 of the Qanun-e-Shahadat, 1984, which in view of Article 17(2)(a), require that in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary and evidence shall be led accordingly. This clearly means that a document introduced in the litigation as agreement to sell, pertains to financial and future obligations, which necessarily to be proved by production of at least two marginal witnesses, as it is a mandatory requirement that evidence is to be led accordingly.

11. In this case, the document Exh.P.1 has been shown to have been witnessed by two persons i.e. Raja Imtiaz Ahmad Taj, Advocate and Zahid Zaman, out of them, only the first one appeared as P.W.1 and there is no explanation as to why Zahid Zaman was not produced. This has also not been the case of the plaintiffs that at the time of recording evidence, said witness Zahid Zaman was not alive. Not only the best evidence, which should have been produced to prove the execution of document Exh.P.1 has been withheld but also no explanation of its non-production has been placed before the courts.

12. Although P.W.1 has stated in his statement that the document Ex.P.1 was got typed by plaintiff No.1 Shafa-ul-Haq, but no Typist was named, nor any one was produced. Similarly, no stamp vendor from whom the stamp paper for execution of Exh.P.1 was purchased, appeared in the witness-box.

13. It is also noted that the total measurement of the estate has been shown as 1.57 acres and out of whole of the estate, 1-kanal was shown to have been subject-matter of the agreement, but no description or boundaries of the said agreed 1-kanal of land have been provided. In view of section 12(c) of the Specific Relief Act, 1877, a contract is not specifically enforceable, terms of which are not available with reasonable certainty; hence, findings of the courts-below on Issue No.7 are not in accordance with law and are liable to be reversed, which are held accordingly.

14. On the point of limitation, which is reflected in Issue No.5, the courts-below again fell in an error while holding the suit within time. According to the plaintiffs' own showing, the agreement was arrived at on 9-6-1979 and in the month of June 1980, defendant No.1 was confronted by the plaintiffs with their entitlement, when the defendants refused to accept their any such status. Article 113 of the Limitation Act, 1908 provides a limitation for filing a suit for specific performance as three years either from the date fixed for the performance, or, if no date is fixed, from the time, when the plaintiff has notice that performance is refused.

15. In the present case, for the reason that in Exh.P.1, no time was fixed for performance of said agreement, the second part of the last column of Article 113 will be applicable and the limitation for filing a suit for specific performance would deem to be started from June, 1980, when the intention of the defendants in not accepting the agreement as valid one was expressed and performance of the same was refused by defendant No.1, as such, the suit filed on 22-8-1984 was certainly hit by limitation.

15. Although the parties have addressed their arguments touching the merits of the case on factual aspects, but this Court is conscience of the fact that R.S.A. is being heard, under section 100 of C.P.C., which provides the yardstick as to what is to be considered and decided in second appeal, which include the grounds as under:- (a) the decision being contrary to law; (b) the decision having failed to determine some material issue of law; and (c) a substantial error or defect in the procedure. and in view of section 101 of C.P.C., there is specific bar to consider any additional ground to determine the second appeal, therefore, I would restrict myself to such legal aspects of the matter and would not go in deep touching the factual aspects of the case.

16. The result of the above discussion is the judgments and decrees dated 4-5-1988 and 27-7-1992, passed by the courts-below respectively are contrary to law and the decision on the issues of law arrived at through the said impugned judgments and decrees, are not sustainable. This appeal is, therefore, allowed and the judgments and decrees passed by the courts-below, as noted above, are set aside and the suit filed by respondents Nos.1 and 2 stands dismissed, leaving the parties to bear their own costs. JJK/I-19/L Appeal accepted.