1989 PLP 2002 (MLD)

(7) to what relief is the plaintiff entitled? (8) What should be the decree ? Issues 1. 2 and 3. 1 would take up issues 1, 2 and 3 tether as they are interlinked. So far as these three issues are concerned, the plaintiff has examined himself, his brother Hafeezuddin, Abdul Waheed broker and filed certain documents. The plaintiff has stated that he is a developer by profession and buys open plots. He had asked his broker Abdul Waheed to get him a plot somewhere in the neighbourhood of his brother's house for his personal use. The broker thereafter pointed out a plot to him. This purchase was arranged through the broker on 28-10-1974. The price was settled at Rs.84,000 he had paid Rs.8,400 as advance money on 29-10-1974, Ext.P/6-1 was the receipt issued by the defendant. This receipt was actually written by him at the instance of Mr. Rizvi. The defendant had signed the receipt in his presence on 29-10-1974. The plaintiff has stated that they had concluded the deal on 28-10-1974 and the receipt could not be executed the same day because the defendant was not at home on that day. Abdul Waheed broker stated that he knows the plaintiff and he arranged for the sale of plot in suit. He stated that Mr. Rizvi was demanding Rs.90,000 as the price of the plot but after he took the purchaser to their house, the bargain was settled for Rs.84,

000. He stated that on the first time he himself. P.W. Hafeezuddin and the plaintiff went to the house of Mr. Rizvi the seller. Mr. Rizvi was present and he discussed the matter with them. The defendant was not present. After the price was settled at Rs.84,000 he advised them to come again the next day when the defendant would be present. This witness further stated that after they delivered the cheque they demanded the receipt. Mr. Rizvi asked them to write out the receipt on a slip. The plaintiff wrote a receipt in his handwriting and then it was signed by the defendant. It was settled between the parties that the registration would take place within six months from 29-10-1974. This witness to a question in cross-examination replied that "No it is not so, they are the genuine signatures of Mst. Noor Jehan." Hafeezuddin has stated that the transaction concluded on the same day. The defendant stated that she does not know any person by the name of Abdul Rehman or Abdul Rahim. It is incorrect that she ever entered into an agreement of sale of her plot with either of the above-named two persons. She stated that "I never received a cheque for Rs.8,400 from any body. The question of depositing the cheque in bank account by me does not arise as I never received the cheque. I see Ext.P6/1. This letter does not bear my signature." From the oral evidence and the documents produced by the plaintiff on record it clear that the defendant does not dispute that she had agreed to sell the property in suit for a sum of Rs.84,000 and she received a sum of Rs.8,400 from the plaintiff towards the sale price of the property in suit. The defence of the defendant in the suit is two-fold. It is firstly contended that she never entered into any agreement with the plaintiff. Secondly it is asserted that she never executed the receipt Ext.P6-1. The receipt is already reproduced in the early part of this judgment. The above receipt is signed by the defendant and witnessed by Abdul Waheed Estate Broker. The payment of Rs.8,400 is shown as earnest money out of the total sale consideration of Rs.84,000 in respect of the sale of a plot No.4-F measuring 2,000 Sq. Yds. situated in North Nazimabad. The amount is shown to have been received by the defendant from Muhammad Abdul Rehman son of Haji Fariduddin. The defendant has contended that she never entered into any agreement with the plaintiff. The plaintiff on the other hand contended that the defendant had agreed to sell the property in suit to the plaintiff and he agreed to purchase the same from the defendant. On a careful consideration of the evidence and the circumstances under which the deal was made I hold that there was a concluded contract between the parties. Mr. Rehman-ul-Hassan Farooqui the learned counsel for the defendant has contended that the receipt Ext.P.6/1, is a forged document and it does no, 11car the signature of the defendant. On the other hand Mr. Iqbal Kazi the learned counsel for the plaintiff has submitted that P.W.7, Muhammad Abdul Rehman plaintiff stated in his evidence that the defendant put her signature on Ext.P.6/l, in his presence, P.W.6, Abdul Waheed, estate broker stated in his evidence that the plaintiff wrote a receipt in his handwriting and then it was signed by the defendant. P.W.6 to a question in cross-examination replied that the defendant signed Ext.P.6/l, in his presence. Section 67 of the Evidence Act or Article 78 of the Qanun-e-Shahadat Order, 1984 provides that if document is alleged to be signed or to have been written wholly or in part by any person the signature or the handwriting of so much of the documents as is alleged to be in that person's hand-writing must be proved to be in his handwriting. Section 47 of the Evidence Act or Article 61 of the Qanun-e-Shahadat Order lays down the mode of proving such signature or handwriting. It provides that when the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact. The explanation to this Section or Article clarifies as to who can be said to be acquainted with the handwriting or signature of another person. According to this explanation a person be acquainted with the handwriting of a person in three ways: (1) when he has seen a person writing, (2) when he has received documents purporting to be written by the person in answer to documents written by himself, (3) when in the ordinary course of business documents purporting to be written by that person have been habitually submitted to him. It is seen from the provisions of Section 47 or Article 61 that if a person has seen another person signing or writing a document he can be said to be acquainted with his handwriting and so he is competent to prove that it is in the handwriting and/or signature of that person. Section 67 of the Evidence Act or Article 78 of Qanun-e-Shahadat does not lay down any particular kind of proof for providing that a particular writing or signature is in the hand of a particular person. The fact that a particular person has written a particular writing can be proved by the direct evidence of those persons who have seen him making the writing on' a particular document irrespective of whether or not they can read what was written. The question, therefore, is whether P.Ws. 6 and 7 can be said to be in a position to identify the document Exh.P-6/1, to be able to prove the same to be in handwriting and/or signature of the defendant. It is the evidence of P.W.6 that Mr. Rizvi, the husband of the defendant was demanding Rs.90,000 as the price of the plot in suit but after he took purchaser (P.W.7) to their house, the bargain was settled for Rs.84,

000. The defendant was not present. After the price was settled at Rs.84,000 Mr. Rizvi, advised them to come again the next day when the lady would be present. On 29-10-1974, after they delivered the cheque they demanded receipt. Mr. Rini asked them to write out the receipt on a slip. P.W.7, wrote a receipt in his handwriting and then it was signed by the defendant. P.W.6 in his cross examination stated that the defendant signed EA.P-6/1 in his presence. He witnessed this document. P.W.7, stated that Mr. Rizvi, had told him to write a receipt and he would put his signature thereon. The defendant had signed the receipt in his presence on 29-10-1974. Evidently this document was in the possession of the plaintiff since execution and it was produced in the Court from his possession. There can, therefore, be no reason as to why P.Ws. 6 and 7 would not be able to identify the document Ext.P-6/1 and to say that it was signed in their presence by the defendant. The position however might have been otherwise if the document after execution, remained, in possession of some other person. Then main it may be mentioned here that the receipt Ext.P./ 1. was marked as exhibit without any objection from the defendant. As observed by the Privy Council in Gopal Das and another v. Sri Thakurji and others AIR 1943 P.C. 83:- "Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof." A similar view was taken by Supreme Court in Malik Din and another v. Muhammad Aslam PLD 1969 SC

136. It was held that:- "It is now well-settled that an objection, as to the formality of proof must be taken at the earliest stage and if it has not been taken then, it cannot be allowed to be taken at the appellate stage." In the instant case the evidence of P.Ws. 6 and 7 satisfies, in my opinion, the technical requirements of proof as laid down in Sections 47 and 67 of the Evidence Act or Articles 61 and 78 of the Qanun-e-Shahadat. However, these Sections or Articles deal only with the admissibility of a variety of opinion evidence and mode of proof and not with the value of such evidence. The value of the evidence is to be judged from the attending facts and circumstances. In her evidence the defendant stated that Ext.P.6/1 does not bear her signature. In her written statement the defendant stated that she never entered into any agreement/transaction with the plaintiff for the sale of the plot in suit nor ever authorised an person to sell the same. In a Civil Suit the plaintiff is not required to prove his case beyond reasonable doubt, as in a criminal case. A suit can be decreed merely on preponderance of probability. As already pointed out the plaintiff has made out a prima facie case by his evidence that the defendant executed the receipt in his presence. P.W.6 has corroborated this fact and stated that the defendant executed the receipt in his presence and he witnessed the same. The defendant however did not adduce any evidence to rebut the same. The defendant's case is that she never entered into any agreement/transaction with the plaintiff for the sale of the plot in suit nor ever authorised any person to sell the same. The plaintiff stated that he asked the P.W.6, Broker Abdul Waheed to gel him a plot some where in the neighbourhood of his brother for his personal use. The broker thereafter pointed out a plot to him. This purchase was arranged through the broker on 25-10-1974. The price settled was Rs.84,

000. This witness has stated that they had concluded the deal on 28-10-1974 and receipt could not be executed the same day because the defendant was not at home on that day. This witness admitted that P.W.6 had arranged several transactions for the members of his family. This witness replied to a suggestion that he had seen the documents relating to the plot in suit on 28th and 29th October, 1974 and they were shown to them on both these occasions. The entire basis of the defendants defence is that she never entered into any transaction. As I have stated earlier that she executed receipt Ext. P-6/

1. The other decisive circumstance is that the defendant encashed the cheque for Rs.8,

400. The amount of Rs.8,400 being ten per cent of the total price. It has neither been put to the plaintiff nor his witness P.W.6, Abdul Waheed that Mr. Rizvi had no authority to negotiate for the sale of the plot in suit. It has come in evidence that the receipt Ext.P-6/1 was written by the plaintiff and the defendants signed the same in their presence. I accordingly hold that the defendant entered into an agreement of sale with the plaintiff of her lease-hold plot in suit for total; sale consideration of Rs.84,

000. The defendant received Rs.8,400 as earnest money. It was agreed that the sale was to be completed within six months from 29-10-1974. Issue No.3. As 1 have already held in issues 1 and 2 that the plaintiff issued a cheque for Rs.8,400 in favour of the defendant. P.W.1 Easa stated that the plaintiff had been operating a current account in the Jodia Bazar Branch. He has produced statement of account and a cheque for Rs.8,400 in favour of the defendant. The cheque was received for clearance through Habib Bank, Foreign Exchange Branch. The cheque was honoured on 3-1-1975. P.W.2 Rafiuddin is a bank officer working in Foreign Exchange Branch. He stated that the defendant is wife of S. Mahboob who was operating in their bank Account No.23928 (old) 9907 (new). He stated that a cheque for Rs.8,400 was presented for collection in the account of the defendant. The cheque was cleared and the amount thereof was credited in the account of the defendant. P.W.3 Sped Faizur Rehman is the Second Officer Habib Bank Ltd., Ghalib Library. Syed Faizur Rehman stated that Account No.2.3928-7, was transferred to Ghalib Library Branch frown the Foreign Exchange Branch. This account was maintained by one lady Mrs. Noor Jehan Begum. The defendant admitted in her cross-examination that she had a bank account in Habib Bank Ghalib Library Branch. The defendant sated that "1 do not recollect whether this account was transferred from Foreign Exchange Branch. All matters are done by my husband or my sons." I hold that cheque for Rs.8,400 was credited in the account of the defendant. Issue No.5. I have held in Issue No.1 that the defendant agreed to sell and the plaintiff agreed to purchase the suit plot for a sum of Rs.84,

000. A sum of Rs.8,400 was paid as advance vide receipt Ext.P-6/1. It was agreed that the sale was to be completed within six months from 29-10-1974. There was a lull from 29-10-1974 to 11-1-1975, when the plaintiff contacted the defendant to finalise the deals thereafter on 20-2-1975 the plaintiff ironed a notice dated 20-2-1975. This notice was returned unserved. The plaintiff again sent another notice dated 1-3-1975 (Ext.P-7/4) through registered A.D. and under postal certificate. This was followed by notice dated 1-4-1975 (Ext.P-7/7). Admittedly there was no response and, therefore, the plaintiff filed suit for specific performance on 13-9-1975. I am of the opinion that the plaintiff was always ready and willing to perform his part of the contract and it was only the defendant, who evaded and, finally committed breach of the contract. Issue No.5, is accordingly decided in then affirmative. A faint attempt -was made by the learned counsel for the defendant stating that the defendant is a woman and enforcement of contract liable to cause hardship to the defendant- This contention is devoid of force for more than one reason. ` I have gone through the pleadings and I find that there is no plea raised in the written-statement that she is Pardanashin lady. The only plea is that she never entered into any contract for the sale of plot in suit. On these facts it cannot be presumbed that she is Pardanashin lady. If the defendant had raised that plea in the pleadings the plaintiff would have had an opportunity to challenge the same and evidence could have been produced not only in support of the allegation but it could have been shown also that even if she was outside that class the circumstances* were such that a person-dealing with her was bound to take special precautions and to prove that she had done so. The perusal of the receipt Ext.P6/1 shows that the defendant agreed to sell and the plaintiff agreed to purchase the plot in suit for Rs.$4,

000. The plaintiff, paid a sum of Rs.8,400 as part payment of consideration and the sale-deed was to be executed within six months. The plot in suit agreed to be sold for. Rs.84,000 when the prices of the properties were not very-high. The plaintiff examined Muhammad Khalid who purchased a plot of land admeasuring, for Rs:60,

000. This witness produced photostat copy of sate-deed/agreement as Ext:P/4-1. and in these circumstances the transaction cannot be said to be unconscionable. Therefore, I have now only to see whether at the time of the execution of the receipt the defendant was really suffering under any disability so as to lead to the conclusion that this transaction was vitiated. The plaintiff, his brother and broker Abdul Waheed have gone in the witness-box. Abdul Waheed the broker stated that Rizvi the husband of the defendant was demanding Rs.90,000 for the plot in suit but when the purchaser went to the house of Rizvi the transaction was settled at Rs.84,

000. At that time the defendant was not present; on 29-10-1974 the defendant was also present alongwith Rizvi. The transaction was finalised in the presence of the defendant. Cheque for Rs.8,400 Was given to her. The receipt was written by the plaintiff and she signed the receipt in the presence of the plaintiff and the estate broker Abdul Waheed. Defendant has also gone in the witness-box, she stated that "I do not t: now any person by the name Abdul Rehman or Abdul Rahim." She denied the suggestion that she ever entered-into an agreement of sate of her plot with either of the abovenamed two persons. So from the statement of defendant it follows hat she never agreed to sell the, plot in suit. The evidence is not sufficient to rebut the evidence which had been led by the plaintiff to substantiate the case that the defendant had full understanding at the time of 'signing the receipt. It is apparent from the pleadings that the defendant did not comply with the terms of the contract. She had agreed to execute .the sale-decd within six months from 29-10-1974. She had put the defence that she had not entered into the contract, she had not received cheque for Rs.8,400 nor signed the -receipt. Therefore, in these circumstances the conduct of the defendant clearly indicates that it was she who compelled the plaintiff to file the suit. Hence the costs must follow the verdict. The suit is decreed. The defendant is directed to execute a sale-deed in favour of the plaintiff in terms of the contract, on the plaintiff tendering Rs.75,600 and necessary expenses for execution and. registration of sale-deed within( two months from today. If the defendant fails to execute the safe-deed the plaintiff should deposit the requisition amount with the `Nazir' of this Court within three months from- today and apply for the execution of the decree for execution of the sale-deed. H.B.T./M-814/K Suit decreed.