2006 PLP 2095 (YLR)

MUHAMMAD AKHTAR SHABBIR, J.

Facts giving rise to the filing of the present revision petition are to the effect that Khuda Yar plaintiff/ respondent herein had instituted a suit for specific performance of contract on the basis of an agreement to sell dated 2-2-1986 and 5-6-1984 for consideration of Rs.12,000 with regard to the land situated in Khata No.21/20 measuring 4 Kanals in Mauza Sadiq Pur Tehsil and District Rahimyar Khan. The suit was contested by defendants/present petitioners, who filed their written statement denying the averments of the plaint raising some preliminary objections.

2. From the factual controversy appearing on the pleadings of the parties, the learned Judge Family Court framed the following issues:-- (1) Whether the defendants agreed to transfer the disputed property to plaintiff vide agreement to sell dated 2-2-1986, if so, on what terms and conditions? OPP (2) Whether Rs.2,000 were paid in pursuance of agreement to sell and then Rs.4,000 were received by the defendants on 5-5-1986? OPP (3) Whether the suit is barred by time? OPD (4) Whether the suit is false, frivolous and vexatious and as such same is liable to be dismissed, if so, how much? OPD (5) Relief.

3. The learned trial Court, after recording and appreciating the evidence of the parties, pro and contra, decreed the suit vide his judgment and decree dated 24-1-2005. Feeling aggrieved, the defendants/petitioners preferred an appeal, which came up for hearing before the learned Additional District Judge, Rahim Yar Khan, who vide his judgment and decree dated 24-5-2005 dismissed the appeal affirming the findings of the learned trial Court.

4. I have heard the arguments of the learned counsel for the petitioner and perused the record.

5. The first agreement to sell had been executed by the executants/petitioners on 2-2-1986, wherein, the time for performance of the contract through mutation with regard to the disputed property had been fixed Rs.2,000 was received as an earnest money. In this context, time was essence of the contract. Thereafter, a subsequent agreement dated 5-6-1986 has further been executed. The executants received further Rs.4,000 and extended the period for performance of the contract. It was settled that the execution of the contract shall be made and the property shall be transferred after sanctioning of the mutation of inheritance in their favour. Admittedly, the petitioners received Rs.2,000 as per agreement to sell dated 2-2-1986 and Rs.4,000 vide the subsequent agreement dated 5-6-1986 and promised that as soon, as the mutation of inheritance is sanctioned in their favour, they would transfer the property through registered sale-deed/mutation in favour of the respondents.

6. Two documents i.e. agreement to sell Exh.P.1 and Exh.P.3 have been attested, by marginal/attesting witnesses namely Faiz Ahmad P.W. and Sardar Allah Ditta P.W.2. 'Both the P.Ws. have testified their signatures on the said documents and their testimonies were further corroborated by the petition writer Ch. Noor Ahmad P.W.3. There is sufficient evidence available on the record to establish execution of the documents in favour of the respondent by the petitioners. To controvert the documentary evidence no other evidence except their oral statements had been produced by the defendants/petitioners. Though in their pleadings, the petitioners have denied the execution of these documents but there is no denial to the fact that numbers of National Identity Cards are mentioned on these documents and the attested copies of the same were annexed with these agreements.

7. Muhammad Ibrahim while appearing as D. W.2 had stated in his cross-examination that his father had died in the year 1998 and this statement has been contradicted by a copy of the Death Register of his father Exh.P.6 showing the date of death of petitioners' father as 9-6-1970. Mutation of inheritance has been sanctioned in their favour in the year 1978. These mutations also bears the signature of Muhammad Ibrahim and others/petitioners.

8. From the above discussed evidence available on the record, it reveals that agreement to sell Exh.P.1 and Exh.P.3 executed by the petitioners and payment of receipts Exhs.P.2 and 4 have been established through sufficient cogent and convincing evidence. The attesting witnesses and petition writer are the independent witnesses and through the lengthy cross-examination nothing has been extracted from them.

9. The other aspect of the case is that petitioners have taken the stand that the documents Exhs.P.1 and 4 agreements to sell and receipts of payment are result of fraud and misrepresentation but there is no such evidence to establish the fraud allegedly committed by the petitioners/ respondents. In the settled principle of law that fraud is not only to be alleged specifically in the pleadings but also to be proved by convincing evidence beyond any shadow of doubt like any other charge of a criminal offence whether made in the civil or criminal proceedings must be established beyond reasonable doubt and findings cannot be made on surmises and conjectures. In this context reference can be made to the case of Muhammad Tufail v. Muhammad Aslam Khan (1999 YLR 934). In case of Punjab National Bank Ltd., Lahore v. Dr. A.B. Arora and others (AIR 1933 Lah. 1024), it has been observed that if a person charges another with fraud or misrepresentation. It is incumbent on him to substantiate his allegations by making a statement on oath and by giving the other party an opportunity of cross-examination. In another case titled as Hansrai Gupta and others v. Dehra Dun Mussorie Electric Tramway Co. Ltd. (AIR 1940 Privy Council 98), it has been held that the parties alleging fraud is bound to establish it by cogent evidence and suspicion cannot be accepted as proof. Unless therefore the proved circumstances are incompatible with the hypothesis of the person charged with fraud having acted in good faith, they cannot be accepted as affording sufficient proof of fraud. In such-like case fraud would not be held proved. The Honourable Judges of the Supreme Court in case of Messrs Dadabhoy Cement Industries Ltd. and 6 others v. National Development Finance Corporation, Karachi (PLD 2002 SC 500) has also held that where allegation of fraud is levelled, the same must be specified and details thereof should be given.

10. In this case, the transaction of sale has been reduced into writing and is signed by the parties and in such circumstances, it becomes a binding contract and the parties cannot repudiate its terms or resile therefrom, later on and the parties cannot detract and lodge a claim over and above the terms of the contract. It is also settled principle of law that the documentary evidence cannot be excluded by the oral evidence to rebut Exh.P.1 to Exh.P.4 but there is no evidence from the petitioners' side available on the record except the oral statements.

11. As per Article 113 of the Limitation Act, 1908, for a suit for specific performance of contract, the limitation for three years was provided from the date fixed for performance or if no such date was fixed, then the time when the plaintiff has notice that performance was refused. This Article has two parts. The first part of the said Article would apply only when time was essence of the contract. It would I mean that the time is stipulated to be performed on a specified date and the limitation would be reckoned from that date and not from date of refusal. Where no date for performance of agreement is fixed and time is not essence of the contract, then, the time shall be reckoned from the date of knowledge about refusal by the executants to perform agreement to sell. Meaning thereby that plaintiff's knowledge of defendant's refusal would be date when notice served by plaintiff on defendant remains unacknowledged by defendant. In this context reliance can be made to the case of Bomanshaw Burjorji Gazdar and another v. Mst. Mumtaz Begum and others (1985 SCMR 554). In the instant case, it has been observed by the Honourable Judges of the Supreme Court that time of three years for suit seeking specific performance of agreement of sale which does not prescribe any time for completing sale transaction

Commences from date when plaintiff has notice that performance was being refused by defendant

Plaintiff's knowledge of defendant's refusal would be date when notice served by plaintiff on defendant remains unacknowledged by defendant.

12. In the subsequent agreement, period already fixed in the first agreement has been extended. It was settled that the property shall be transferred through registered sale-deed after sanctioning of the mutation in their favour. It means that there was no limitation in filing the suit for specific performance of contract fixed in the agreement.

13. It is proved on the record that no date was fixed for the performance of the subsequent agreement. The petitioners had issued no notice to the plaintiff/respondent refusing to perform the performance of contract, therefore, the suit was rightly filed by the respondents within limitation.

14. Both the Courts below have passed the concurrent findings of fact against the petitioners and this Court would not interfere in such findings of fact in exercise of its revisional jurisdiction as the Superior Courts have not permitted the Courts to re-appraise and re-evaluate the evidence of the parties as laid down in the cases of Guldar Khan v. Isa Khan (1993 SCMR 2099), Nazir Ahmad v. Boota (1989 SCMR 450), Riaz v. Muhammad Saleem (1989 SCMR 1491) and Haji Muhammad Din v. Malik Muhammad Abdullah (PLD 1999 SC 291). Learned counsel for the petitioner has miserably failed to point out any illegality or jurisdictional defect in the impugned judgments passed by the Courts below on the issues involved in the matter.

15. For the foregoing reasons, I do not find any illegality in the impugned judgments calling for interference in the same, hence, this revision petition being devoid of any force is dismissed, in limine. H.B.T./M-272/L Revision dismissed.