1999SCMR2605 (PLP)

KHALIL-UR-REHMAN KHAN, J.

This petition for leave to appeal arises out of a suit for specific performance, filed by the respondent, of agreement to sell dated 2-3-1986 statedly executed by Mst. Nasreen Fatima wife of Zaheer Ahmed Qureshi in the capacity of attorney of her husband, against a consideration of Rs.4,50,000 out of which Rs.3,00,000 were received as earnest money. The suit was resisted by the petitioners/defendants, inter alia, denying the execution of the sale agreement by Mst. Nasreen Fatima, wife and attorney of Zaheer Ahmad Qureshi, as the plea taken was that the signature of Mst. Nasreen Fatima, defendant No.2 on agreement to sell (Exh. P.1) were forged.

2. Learned trial Judge framed necessary issues arising out of pleadings of the parties, including the issue "Whether the agreement was not signed by defendant No.2 and is forged one?". The plaintiff/respondent examined Syed Aftab Ahmad Naqvi P.W.1, Mohsan Zafar P.W.2 the two attesting witnesses, Sabir Ali Shah P.W.4", Syed Haroon Iftikhar P.W.5 and himself as P.W.3, while the defendants/petitioners, husband and wife, appeared as D.W.1 and D.W.2 respectively.

3. Learned trial Court after hearing the arguments decreed the suit on 23-5-1991 and held the plaintiff/respondent entitled to recover possession from the defendants/petitioners. The appeal filed by the defendants/petitioners was dismissed by the learned Judges of the High Court vide impugned judgment and decree dated 28-7-1998. Hence this petition.

4. Learned counsel for the petitioners argued that burden to prove the issue as to execution of the agreement to sell was wrongly placed on the defendants/petitioners and this wrong placing of onus to prove has seriously prejudiced the case of the defendants/petitioners. It was submitted that it is the duty of the person who asserts a fact, on which the relief sought for is based, to prove that very fact and as such it was the plaintiff who should have been called upon to prove the execution of the agreement to sell dated 2-3-1986.

5. Learned counsel was asked as to whether any objection was taken to the framing of the said issue placing onus to prove on the defendants and the reply given was that no such objection was raised either before the learned trial Court at the time of framing of the issues or any time thereafter, Placing of onus to P` prove the issue on the defendants in the instant case is inconsequential as despite the fact that the onus of the issue was on the defendants, the plaintiff was called upon to produce his evidence first. The plaintiff accordingly produced his evidence in the first instance and it was thereafter that the evidence was produced by. the defendants. Again, when both the parties have led their evidence in respect of an issue, the same is to be decided on the basis of the C evidence produced, and placing of onus to prove on one or the other party looses significance as the issue is to be decided on the basis of preponderance of evidence. Moreover, learned counsel has failed to show as to the prejudice caused, if any, to the petitioners/defendants by placing the onus to prove the issue on the defendants. These very propositions were noticed by this Court in Mehr Din (represented by his Legal Heirs v. Dr. Bashir Ahmad Khan and 2 others (1985 SCMR 1) and it was observed that throughout the trial the parties were fully cognisant of the issue which really arose out of the pleadings of the parties and they had also adduced their evidence in respect thereof, so no prejudice was done to any of the parties in the failure of the Court to frame a proper issue in the suit arising out of the pleadings of the parties. Reference may also be made to Zakaullah Khan v. Muhammad Aslam and another (1991 SCMR 2126) wherein on the question of importance of onus and the discharge of it, it was observed that there is abundant authority that where evidence has been led by both the parties, the question of onus of proof is immaterial. It becomes important where no evidence is led or the evidence on both the sides is evenly balanced. In the instant case the question whether the plaintiff has succeeded in establishing execution of agreement to sell by Mst. Nasreen Fatima, the attorney of Zaheer Ahmad Qureshi; who happens to be the predecessor-in-interest of the petitioners, has .been gone into by the learned trial Court as well as by the learned Judges,of the High Court and both the Courts have concurrently answered this question in favour of the plaintiff/respondent: 1 8 The concurrent findings of fact so recorded were not shown to be suffering from any misreading or non-reading of any material piece of evidence. These findings of fact are not only concurrent but are also based on material on record and as such interference by this Court is not warranted.

6. Leave to appeal is, therefore, refused and the petition is dismissed. The interim order staying execution of the impugned judgment and decree to the extent of possession over the property in dispute is recalled. H.B.T./Z-25/S I61 Petition dismissed.