2006 PLP 1796 (MLD)

MIAN SAQIB NISAR, J.

Muhammad Hanif, predecessor-in- interest of the appellants, brought a suit for the specific performance of an agreement to sell, dated 21-6-1989 against respondents Nos. 1 to 4, respondents Nos. 1 to 4 asserting that they had agreed to sell the suit-land to him, whereas respondents Nos. 5 and 6 were impleaded as the subsequent purchasers of the suit property. The suit was contested; the alleged vendors denied the execution of the agreement to sell and the receipt of any consideration, whereas respondents Nos. 5 and 6 took up the plea of' being the bona fide purchasers and thus, sought the protection under section 27(b) of the Specific Relief Act. Issues were framed; parties were put to trial; evidence was recorded and the learned Civil Judge, while returning his findings mainly on the issue of valid execution of the agreement in favour of the plaintiff and deciding issue No.8 against respondents Nos. 5 and 6, allowed the suit, which judgment and decree was challenged by the respondents/defendants in appeal and has been accepted'. The learned Additional District Judge has taken pains in discussing the evidence and has also given valid reasons to reverse the findings of the Trial Court.

2. I have considered both the decisions of the two Courts below and find that the rcaaons, given by the learned Appellate Court as the superior Court of fact, are more cogent, convincing and based upon proper appreciation of the evidence. It is settled law that a superior Court of fact can always upset the findings of the Court subordinate to it, however, the reasons given by the appellate Court must be powerful enough to distinguish and discard the reasons of the Trial Court. This is so very clear from the judgment of the Court of appeal. No misreading and non-reading has been shown. The reasoning of the appellate Court, that there is no authorization in favour of Siraj by the other co-owners of the property, who is allegedly claimed by the appellant/plaintiff to have entered into the sale agreement, is absolutely in consonance with the evidence and the plaintiff has failed to establish any valid authorization in his favour on behalf of the other co-owners to sell the property. Moreover, that respondents Nos. 5 and 6 have been adjudged to be the bona fide purchasers of the suit property and Munawar Ahmad defendant, while appearing as D. W.3, in his statement, has clearly and unequivocally deposed that they had not knowledge about the sale. Instead of leading the evidence in rebuttal on this issue, the counsel for the plaintiff made a statement on this issue, the counsel for the plaintiff made a statement on 15-2-1992 that the plaintiff shall not avail the opportunity of leading the rebuttal evidence. Thus, in the light of the judgment reported as Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others (PLD 1972 SC 25), respondents Nos. 5 and 6 having a clear case on issue No.8, therefore, the decree for the specific performance, in no way could be passed in favour of the appellants. Thus, I do not find any illegality in the impugned judgment and decree.

3. The appeal is 'also being dismissed as being barred by time, because the impugned judgment and decree was passed in this case on 10-1-2004. The appellants, predecessor Muhammad Hanif applied for the certified copies on 24-1-2004, which were delivered on 31-1-2004. The present appeal, while excluding the time spent in obtaining the copies, should have been filed on or before 18-4-2004, but was instituted on 22-6-2004. Along with the appeal, an application (C.M. No.1-C/2004) under section 5 of the Limitation Act has been moved, in which it is stated that Muhammad Hanif was a heart patient and suffered an heart attack oh 25-3-2004 and ultimately died on 5-5-2004. Along with the application, three prescriptions of the doctor from Qasim Hospital, Sambarial Road, Daska have been appended. But it is clear from these prescriptions that only medicines were prescribed to Muhammad Hanif and he has never been admitted to any hospital for the treatment of his heart problem. It is also not indicative or suggestive from these prescriptions that Muhammad Hanif was so indisposed that he was unable to move. Moreover, the prescriptions indicate that there are number of doctors including the Heart Specialist working in the said hospital, but the treatment prescribed is by a surgeon. Besides the above, the death certificate appended along with the application postulates no mention about Muhammad Hanif suffering from any ailment, rather his death has been staled to be instant. It is also not mentioned in the relevant column No.12, if he has been under treatment of any doctor or was ever hospitalized. Therefore, I do not find that any sufficient cause has been made out for the condonation of delay. In the light of above, C.M. No.1-C/2004 is dismissed, with the result that the present appeal, besides on merits, also stands dismissed as barred by time. H.B.T./M-401/L Appeal dismissed.