2011 SCMR 758 (PLP)

SARDAR MUHAMMAD ASLAM, J.

This appeal, through leave of this Court, by defendants is directed against the Judgment dated 13-1-2000, passed by a learned Judge-in-Chamber of Lahore High Court, Multan Bench, Multan, accepting Civil Revision by setting aside concurrent Judgments and decrees of the First Appellate Court as well as of trial Court and decreed the suit for specific performance of contract.

2. Respondents-plaintiffs instituted a suit for specific performance of an agreement dated 8-5-1982. The appellant-defendant Hazara, also filed a suit for cancellation of the very same agreement. Trial Court consolidated both the suits and framed issues. Parties produced their respective evidence in support of their plea. The suit was dismissed by the learned trial Court on 21-11-1991, an appeal was preferred by the respondents-plaintiffs which, too, ended in dismissal on 10-12-1995. Decision of the Courts below were assailed in Civil Revision, which was allowed on 13-1-2000.

3. Leave was granted on 18-2-2003 to consider the following questions: (i) Whether the High Court has not exceeded the limits of revisional jurisdiction, as laid down by this Court in a number of cases including "Abdul Hakeem v. Habibullah and 11 others" (1997 SCMR 1139)? (ii) Whether the High Court has arrived at correct findings on the disputed questions? (iii) Whether the Judgment of the High Court has not caused a failure of justice?

4. Learned counsel for the appellants argued that well reasoned concurrent Judgments of the learned Courts below have been set-at?-naught in the absence of any misreading and non-reading of evidence or any illegality, affecting the jurisdiction of the Court and that the plaintiffs having failed to prove the execution of the agreement were not entitled to decree for specific performance of the agreement.

5. In reply, learned counsel for the respondents submitted that the concurrent findings of fact are not sacrosanct, when grave injustice has occurred to a litigant and that all procedures and mechanism in law are meant to provide substantial justice.

6. We have heard learned counsel for the parties at length, perused the impugned Judgment and examined the evidence oral as well as documentary.

7. Learned High Court in setting aside the concurrent Judgments of the Courts below found: (i)???????? that agreement was executed by defendant; (ii)??????? that the plaintiffs were in possession of a suit property; (iii)?????? that the Petition Writer supported execution of agreement, notarized by P.W.2 an Advocate/Notary Public; (iv)?????? positive opinion of the Handwriting Expert that thumb impressions of defendant, on the register of Petition Writer were similar in characteristic with the admitted thumb impressions; and (v)??????? that agreement to sell contained National Identity Card of defendant.

8. Before proceeding further; reference is necessary to the evidence of the plaintiffs. Exh.P.1 is an agreement to sell dated 8-5-1982. It was written on a stamp paper, allegedly executed by defendant. Ch. Qasim Ali is stamp vendor, and Abdul Ghafoor Chughtai, a marginal witness. It was notarized by Ihsan Karim Sheikh, Advocate. Yar Muhammad signed as one of the vendee.

9. Abdul Ghafoor Chughtai, P.W.1, Petition Writer, deposed that he authored the agreement to sell dated 8-5-1982, at the instance of defendant. He entered it in register at Serial No.405. He himself secured its attestation from Notary Public. Defendant was personally known to him. His Identity Card Number was written on Exh.P.1. He admitted, in cross-examination, of having been summoned in the Police Station on the complaint of defendant of having attested the agreement, by way of fraud, and, that no amount of consideration was paid. P.W.2 Sheikh Ihsan Karim, Advocate, is Notary Public. Defendant appeared before him but concealed in cross-examination that he has no knowledge whether Petition Writer had produced a fictitious person. Khuda Bakhsh has thumb marked the agreement. He denied the suggestion that a fictitious person was produced in place of defendant. Haji Muhammad Usman, one of the plaintiffs appeared, as P.W.4, and sated that he thumb marked the agreement Exh.P.1. A sum of Rs.18,000 was paid to the defendant at the seat of the Petition-Writer. Muhammad Nawaz P.W.5, stated that earnest money in the sum of Rs.18,000 was paid by Haji Muhammad Usman P.W.4. Defendant entering into witness box as D.W.3 denied the execution of Exh.P. 1 and his thumb mark over it. He deposed that plaintiffs were given possession of the suit land as tenants prior to the alleged agreement and not under the agreement. He had instituted a suit for recovery of produce and ejectment against them which has been decreed in his favour by Revenue Court.

10. The pivotal question for determination is as to whether defendant No.1 executed an agreement to sell dated 8-5-1982 for consideration?

11. Learned trial Court answering the above issue, found that Exh.P.1 contained recital that earnest amount has already been paid. P.W.3, marginal witness of Exh.P.1 also supported the above recital. There are three thumb impressions of defendant on Exh.P.1. One is affixed on the front page while two are on the reverse of it. The Identity Card number "317-40-091554" is written on agreement which was denounced by the defendant and produced rational Identity Card which is "317-87-045543".

12. First Appellate Court held that three thumb impressions of defendants on Exh. P.1 were tampered and not capable of identification. Stamp vendor was not produced by the plaintiffs. Petition Writer, author of Exh.P.1, stated that payment of Rs.18,000 was made before him, at 'the time of writing of agreement, but the same was contradicted by P.W.3. Haji Muhammad Usman; P W4 stated that earnest money was paid at the seat of the Petition Writer, whereas Exh.P.1 shows that it was paid prior to execution of the agreement.

13. Alleged thumb impression obtained on the register of the Petition-Writer, though tallies with thumb impressions of the defendant, per expert report yet his non-appearance in the witness box, in support of his report, will render no help to the plaintiffs. Reference can be had to "Allah Dino v. Muhammad Umar and 2 two others" (1974 SCMR 411).

14. Execution of agreement of sale was not proved by plaintiffs and their evidence in regard to payment of earnest amount is contradictory. Possession of the plaintiffs was in capacity as tenants, not under an agreement of sale and suit for ejectment and produce against the plaintiffs has been decreed in favour of defendant, negating the stand of plaintiffs' possession under agreement. Evidence available on record was thoroughly examined by trial Court as well as First Appellate Court, as mentioned in the preceding paragraphs. The learned High Court, in exercise of its revisional jurisdiction, was not called upon to re-appraise and re-evaluate the merits of evidence of the parties in the absence of any illegality or non-reading/misreading of evidence. It travelled beyond its jurisdiction in re-examining the entire evidence, searching support, for another possible conclusion. This approach has not been approved by this Court and warrant interference. Reference can he had to "Abdul Hakeem v. Habibullah and 11 others" (1997 SCMR 1139).

15. For the above discussion, we are of the view that interference by the learned High Court in exercise of its revisional jurisdiction was not called for. Consequently, the appeal is allowed; impugned Judgment is set aside and that of the First Appellate. Court and trial Court are restored. There shall be no order as to costs. ?M.H./H-6/SC????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.