2023 PLP 654 (MLD)

CH. MUHAMMAD MASOOD JAHANGIR, J.

The judgments dated 29.10.2010 and 03.07.2013, whereby suit for specific performance of oral contract instituted by the respondents/plaintiffs was unanimously decreed by learned lower fora, are subject of Appeal in hand.

2. Inessential detail apart, respondents/plaintiffs instituted aforenoted suit asserting that appellant No.1 (now deceased and represented through L.Rs) along with his two brothers and sister-in-law owned 80 KanaIs, who jointly entered into oral sale agreement dated 14.11.2004 against Rs.35,00,000/-, out of which Rs.17,50,000/- in advance were paid and possession was also delivered by said vendors to vendees/plaintiffs; that brothers and sister-in‑law of appellant No.1/defendant while honouring their part of oral sale contract transferred their shares 53 Kanals 6 marlas via mutation No.692 dated 28.02.2005 (Ex:P7), but appellant No.1/defendant refused to transfer his share viz. 26 Kanals 13 marlas in performance of his commitment, which caused plaintiffs to approach learned Civil Court seeking decree for specific performance of oral sale contract dated 14.11.2004. It was matter of fact and record that appellant No.1 (original defendant) alienated disputed property to appellant No.2, thus he was not only added in group of defendants, rather further alienation in his favour was also challenged.

3. The suit was contested by appellants asserting that neither any oral sale transaction settled nor consideration received, rather false, fictitious and concocted story was planted to usurp the valuable land. Owing to divergent pleadings of parties, issues were settled, evidence from respective parties collected and as a result of its appreciation, suit of respondents/ plaintiffs decreed, whereas appeal of appellants/ defendants was dismissed via concurrent judgments cited in preceding para, thus this appeal on behalf of the latters to check the legality thereof.

4. Mr. Tariq Zulfiqar Ahmad Chaudhary, ASC/worthy counsel for appellants argued that essential detail viz time, venue and names of witnesses with regard to alleged oral sale transaction was not provided by respondents/ plaintiffs in their plaint, but both the Courts below while ignoring that apex Court had already declared such elision drastic/fatal for the party relying on oral transaction, erred in law to decree suit; that there were material contradictions in statements of PWs, who failed to prove purported transaction, but fora below while twisting the same passed impugned decrees, which being tainted with misreading/ non‑reading of evidence besides suffering from jurisdictional defect are liable to be set aside; that best evidence viz Ch. Shaukat Ali alleged Dealer as well as other Vendors before whom said deal finalized were withheld by the Vendees and for the said lapse suit was bound to fail as well, therefore this appeal deserves acceptance.

5. In contra, Ch. Khushi Muhammad Arshad, Advocate, worthy counsel for respondents/plaintiffs Nos.3 and 4 (whereas respondents Nos.1 and 2 already proceeded against ex parte on 22.04.2014) contended that trustworthy evidence was examined and both the Courts below through impugned concurrent decisions perfectly appreciated the same per its pith and substance, which cannot be disturbed while attracting jurisdiction provided under section 100 of the Code, 1908, especially, when those are neither contrary to law nor failed to determine any legal issue.

6. Arguments heard. Record perused.

7. Per contents of plaint as well as evidence brought on record, the respondents were relying upon oral transaction of sale allegedly settled on 14.11.2004. In defence, the original defendant via written statement notably controverted/wrangled said transaction as well as receipt of any token price. The subsequent transferee/defendant No.2 also introduced the same defence. In such state of situation the respondents solely rested their claim upon oral sale, whereas per law laid down by the Hon'ble Supreme Court in catena of reported judgments including "Binyameen and 3 others v. Ch. Hakim and another" (1996 SCMR 336), "Muhammad Yaqoob through legal heirs v. Feroze Khan and others" (2003 SCMR 41), "Ameer v. Shahadat" (2005 SCMR 1147), "Bashir Ahmad v. Mst. Taja Begum and others" (PLD 2010 SC 906), "Aziz Ahmad and others v. Muhammad Ramzan and others" (2011 SCMR 921), "Nazir Ahmed and another v. Yousaf (PLD 2011 SC 161), "Muhammad Nawaz through L.Rs, v. Haji Muhammad Baran Khan (2013 SCMR 1300) and "Moiz Abbas v. Mrs. Latifa and others" (2019 SCMR 74), it was imperative for them to specifically provide the essential detail viz time, date, venue and names of witnesses so as to prove when, where and before whom alleged oral transaction effected. The object behind said principle was to subvert the gate of frivolous litigation besides to discourage the production of shocking as well as surprising evidence, but perusal of the record affirmed that neither time, venue nor names of witnesses were provided in the plaint, which alone was fatal to non-suit the respondents/ plaintiffs. Anyhow, strict onus was upon latters to prove that alleged oral deal inter se parties ever settled, who to discharge their onus examined Muhammad Rafique and Muhammad Aslam (PW1 and 2) as witnesses of alleged oral sale. No doubt, they in their statements-in-chief uttered that deal was settled before them against consideration of Rs.35,00,000/- out of which Rs.17,50,000/- were paid in advance and appellant No.1 received Rs.5,84,000/- as his share, but they lost their credibility, when during cross-examination they contradicted each other on some major aspects. The glimpses of their contradiction is reproduced in the box as follows:- Moreover, there was conflict between the plaintiff (PW3) and PW

2. The former stated that:- but to this extent PW2 deposed that:- The next major drawback of the respondents case was that per contents and statement of plaintiff (PW3), out of total consideration viz Rs.35,00,000/-, half of it, i.e. Rs.17,50,000/-in advance was paid to all the Vendors, yet the PW1 in his cross-examination worded that entire sale price had been paid. He also provided its detail to the effect that thirty lacs consisted of Rs.1000/-denomination note each, whereas rest five lacs were in the shape of Rs. 500/- notes. This all showed that the evidence on the part of plaintiffs was inconsistent, uncertain and variable, which was not enough to prove the alleged oral transaction.

8. The other fatal aspect of case was that per statement of Muhammad Aslam (PW2) transaction inter se parties was settled through one Ch. Shaukat Ali, but despite availability he was not produced. Moreover, it was clear stance of plaintiffs that defendant No.1 along with his two brothers and sister-in-law jointly settled verbal sale. Despite that rest of the vendors, who by transferring their shares had already stood with the plaintiffs could be best persons to support their stance, but they too were withheld, therefore under Article 129 illustration (g) of Qanun-e-Shahadat Order, 1984 hostile inference was to be drawn that had they been examined, might have negated stance of plaintiffs.

9. The other drawback of case was that oral sale mutation No.692 (Ex:P7), whereby sale to the extent of brothers and sister-in-law of appellant No.1 was matured in favour of plaintiffs, was sanctioned on the attestation of Shaukat Mehmood and Muhammad Shafique, meaning thereby that transaction detailed in Exh.P7 was witnessed by them, but they were not examined, rather entirely different set of witnesses (PW1 and PW2) was brought in the witness-box, which aspect was sufficient to assume that appellant No.1 had never settled alleged oral sale in favour of respondents/plaintiffs, who concocted false story to take over the suit property.

10. There is no cavil, that though scope of Second Appeal is restricted, yet it could be exercised if findings of fact arrived at by Courts below are found to be based upon misreading, non-reading or misinterpretation of the evidence on record. See Akhtar Aziz v. Shabnam Begum (2019 SCMR 524) wherein criteria of second appeal stood defined as under:- "14.***Although in second appeal, ordinarily the High Court is slow to interfere in the concurrent findings of fact recorded by the lower fora. This is not an absolute rule. The Courts cannot shut their eyes where the lower fora have clearly misread the evidence and came to hasty and illegal conclusions. We have repeatedly observed that if findings of fact arrived by Courts below are found to be based upon misreading, non-reading or misinterpretation of the evidence on record, the High Court can in second appeal reappraise the evidence and disturb the findings which are based on an incorrect interpretation of the relevant law.***" In such situation, when not only available evidence was not appreciated in its true perspective, rather law on the subject was also ignored, case of appellants fully falls within exceptions of section 100 of the Code ibid. Thus this appeal has merit and force, which is allowed, impugned concurrent judgments are set aside and suit of respondents/plaintiffs is dismissed with cost of Rs.2,00,000/-. MHS/M-73/L Appeal allowed.