Required to prove agreement through concrete convincing and unimpeachable evidence

 PLJ 2015 Lahore 1098

[Multan Bench Multan]

Present: Amin-ud-Din Khan, J.

MATLOOB HUSSAIN and 6 others--Petitioners

versus

ALAMGIR and 2 others--Respondents

C.R. No. 1046-D of 2001, heard on 11.5.2015.

Agreement to Sell--

----Inheritance--Retransferred--Required to prove agreement through concrete convincing and unimpeachable evidence--Suit for specific performance on basis of agreement to sell is a discretionary relief with Court to grant a party who is coming to Court for specific performance and therefore Court is required to consciously scrutinize evidence and only in that case grant a decree when plaintiffs fully prove case and prove that they are entitled to a decree in their favour--If agreement to sell is proved, Court was not bound to grant a decree for specific performance in every suit as it is discretion of Court and when even there is a slightest doubt in mind of Court that agreement was not genuine one, Court can refuse to grant a decree--For proving an agreement to sell stamp vendor along with his record be produced to prove that stamp paper was issued on a specific date and who was purchaser of stamp paper, then petition writer along with his register of petition writing to prove that same was written on specific date--Register and record of petition writer is also helpful to prove writing of a document at specific date, then two marginal witnesses to prove agreement and struck of bargain and then execution of document--Contents of agreement to sell were read over to her and after she accepted true, thumb marked same, therefore, agreement is bad in law.         [Pp. 1100 & 1102] A, B, C & D

Ch. Khalid Ayaz, Advocate for Petitioners.

Malik Muhammad Latif Khokhar, Advocate for Respondents.

Date of hearing: 11.5.2015.

Judgment

Through this civil revision petitioners have challenged the judgment and decree dated 27.7.2001 passed by the learned Additional District Judge, Lodhran whereby appeal filed by the respondents-plaintiffs was accepted and the judgment and decree dated 10.11.2000 passed by the learned Civil Judge, Lodhran, dismissing the suit for specific performance was reversed.

2.  Brief facts of the case are that plaintiffs-respondents on 15.2.1995 filed a suit for specific performance on the basis of agreement to sell dated 9.8.1990. Respondents-plaintiffs claimed an agreement to sell of the suit property from Mst. Basri who was real sister of the plaintiffs. According to the agreement, the date for performance was 30.12.1992 and the suit has been filed on 15.2.1995 after the death of alleged seller. As per record she died in November, 1994. Written statement was filed. Suit was contested. Learned trial Court recorded the better statements and after that framed issues, invited the parties to produce their evidence. Both the parties produced their respective oral as well as documentary evidence. Vide judgment and decree dated 10.11.2000 learned trial Court dismissed the suit. Appeal was preferred which was accepted by the learned Additional District Judge vide judgment & decree dated 27.7.2001. Hence, this civil revision.

3.  Learned counsel for the petitioners argues that Mst. Basri was real sister of the plaintiffs/respondents and suit has been filed on the basis of forged and fictitious agreement to sell to grab the property received by her in inheritance and further that there are material contradictions in the evidence of the plaintiffs-respondents and they have failed to prove the execution of agreement to sell, payment of consideration amount, therefore, learned trial Court reached to a right conclusion when the suit was dismissed and findings recorded by he learned first appellate Court while reversing the well-reasoned findings of the learned trial Court without any sufficient reason are not sustainable under the law. Prays for acceptance of this civil revision and setting aside the judgment and decree passed by the learned first, appellate Court.

4.  On the other hand, learned counsel for the plaintiffs-respondents states that two marginal witnesses as well as scribe have been produced and one of the plaintiffs appeared as a witness, therefore, findings of learned first appellate Court are in accordance with the record.

5.  I have heard learned counsel for the parties at length and gone through the record, evidence produced by both the parties oral as well as documentary, findings recorded by both the Courts below and the applicable law and the case law submitted by learned counsel for the petitioners.

6.  The alleged agreement to sell is dated 9.8.1990. Consideration amount is Rs. 2,00,000/- whereas as per agreement to sell an amount of Rs. 1,90,000/- has been shown to have been paid, which has been produced as Exh.P.1, the date for performance of the sale deed has been mentioned as 30.12.1992 whereas only a meager amount of Rs. 10,000/- is outstanding. I am unable to understand why such a long time was fixed for performance of agreement to sell when a meager amount of Rs. 10,000/- was outstanding and further there is no reason mentioned in this agreement that why direct sale transaction is not being arrived at between the parties and further the suit has been filed on 15.2.1995 when the alleged seller lady was already expired in November, 1994. A suit for specific performance on the basis of agreement to sell is a discretionary relief with the Court to grant a party who is coming to the Court for specific performance and therefore Court is required to consciously scrutinize the evidence and only in that case grant a decree when plaintiffs fully prove the case and prove that they are entitled to a decree in their favour. Even if an agreement to sell is proved, the Court is not bound to grant a decree for specific performance in every suit as it is discretion of the Court and when even there is a slightest doubt in the mind of the Court that the agreement is not genuine one, the Court can refuse to grant a decree. In this case the alleged seller is real sister of the plaintiffs and the suit property is the same which she received in inheritance and in our society we as a student of law everyday see that in the matters of inheritance the male members want to retain the property of the females with them and in most of the cases the intention remains that the female members be excluded from the inheritance or in some cases through various modes the property is re-transferred in favour of the male members. When in this case the plaintiffs have filed a suit for specific performance on the basis of agreement to sell, they were required to prove the agreement through concrete, convincing and unimpeachable evidence. For proving an agreement to sell the standard prevalent in our judicial system is that the Stamp Vendor along with his record be produced to prove that stamp paper was issued on a specific date and who was the purchaser of the stamp paper, then the Petition Writer along with his register of petition writing to prove that the same was written on specific date. This fact is proved when he produces the original record of petition writing i.e. his register to show chronological writing of deeds which are available date-wise in his register. The register and the record of the Petition Writer is also helpful to prove writing of a document at specific date, then two marginal witnesses to prove the agreement and struck of bargain and then execution of the document. In this case PW-1 the alleged Petition Writer appeared to prove Exh.P.1 the alleged agreement to sell and receipt Exh.P.2 but he did not bring his register to prove the specific time of writing of these documents. In the cross-examination he has admitted that the money was not paid before him. He does not know Mst. Basri and further that she was a “Pardah Nasheen” lady, therefore, his statement is not much helpful for the plaintiffs. One of the plaintiffs appeared as PW-2. he has admitted that the possession of the land is with them even before the writing of Exh.P.1. He has stated that Mst. Basri purchased the stamp of Exh.P.1 and she thumb marked in the register of Stamp Vendor. As per case of the plaintiffs at the time of execution of Exh.P.1 and Exh.P.2 Matloob Hussain/defendant, husband of Mst. Basri, was available but he was not made a witness. PW-3 also states that the stamp was purchased by Mst. Basri and he thumb marked the register of Stamp Vendor. This witness states that the payment was made to Mst. Basri in the plot of Tehsil office whereas PW-2 does not state that where the amount was paid. Perusal of Exh.P.1 agreement to sell shows that the stamp paper of Exh.P.1 was not purchased by Mst. Basri herself, there is no thumb impression to show that she purchased the same. Against the evidence of the plaintiffs, defendants produced DW-1 the Stamp Vendor, who came with his register to show that Muhammad Iqbal purchased the stamp, who is junior to the Petition Writer and Mst. Basri never came to him and stamp was never purchased by Mst. Basri. Even the front side of this document shows that no place for signatures or thumb impression of Alamgir and Muhammad Jamil has been fixed but at the end of this document without mentioning their names their signatures are available which shows that actually this document was prepared unilaterally on behalf of Mst. Basri and then to cure the legal defect plaintiffs have put their signatures at the end of this document.

7.  As I have discussed supra, the evidence of the plaintiffs is contradictory and further that I am unable to understand that why this document was written when almost 95% of the amount was being paid and there is no reason that why the sale was deferred and further when document is allegedly dated 9.8.1990 and for performance of agreement the date has been mentioned as 30.12.1992, whereas Mst. Basri died in November, 1994 and suit has been filed on 15.2.1995, series of the facts show that this document is not genuine one and further only this document was not to be proved by the plaintiffs, they were required to prove the struck of bargain, how it struck and payment of consideration, Exh.P.1 and Exh.P.2 which they failed to prove. They were required to prove the delivery of possession of the suit property in part performance of agreement to sell, this fact also has not been proved.

8.  Admittedly, Mst. Basri was a “Pardah Nasheen”, illiterate lady as has been admitted by one of the plaintiffs when appeared as PW-2/Muhammad Jameel and it is case of the plaintiffs that her husband was accompanying them when Exh.P.1 and Exh.P.2 were executed. Astonishingly he is neither marked anywhere present as a witness or identifier nor his presence is visible from these documents. It means that the story of presence of Matloob Hussain introduced by the plaintiffs is false. When Mst. Basri was having her husband and children, there was no reason why she sold her inherited property. To strengthen the findings I am fortified by the judgment of the Privy Council reported as A.I.R 1940 PC 147 “Bank of Khulna, Ltd. V. Jyoti Prokash Mitra and others”, wherein it has been held:--

“Where the execution of a mortgage deed by a pardanashin lady is found not to be her mental or conscious act, there being no room for a semi-conscious act, the whole deed is affected and must be set aside.”

Circumstances of the case show that no independent advice was available with the lady. I rely upon 2004 CLC 1026 “Muhammad Rasheed versus Mst. Saleema Bibi” and quote the dictum for ready reference:--

“Mere thumb-marking and especially of an illiterate lady is not sufficient to prove that the transaction contained in the document was understood by her. A person who is in a position to exert pressure or has got a relation of great confidence to wield influence upon the illiterate lady, if gets a transaction executed in his favour, that has to be seen with great doubt and in such case, the beneficiary of the document has to prove that the executant was emancipated from the above influence and had acted with an independent advice, with his free will and consent.”

Further it is not the case of the plaintiffs that contents of the agreement to sell were read over to her and after she accepted the true, thumb marked the same, therefore, the said agreement is bad in law in the light of judgment of august Supreme Court of Pakistan reported as PLD 1990 Supreme Court 642 “Janat Bibi versus Sikandar Ali and others''.

9.  For what has been discussed above, this appeal is accepted. The judgment and decree passed by the learned first appellate Court is set aside. The result is that the suit filed by the respondents-plaintiffs stands dismissed.

(R.A.)  Appeal accepted

Additional Evidence can be taken by Appellate Court

 PLJ 2014 Lahore 28

Present: Mehmood Maqbool Bajwa, J.

MUHAMMAD FAYYAZ (deceased) through LRs etc.--Petitioners

versus

SAEED AHMAD (deceased) through LRs. etc.--Respondents

C.R. No. 2907 of 2012, decided on 12.4.2013.

Civil Procedure Code, 1908 (V of 1908)--

----O. XLI, R. 27--Additional evidence--Suit for specific performance of executory contract of sale--Failed to perform part of contract--Document sought to be produced were essential for decision--Concept of filling gaps and lacunas in lis is no more recognized in civil administration of justice--Validity--Mere omission on part of petitioners to make an application for respondents would not be sufficient to non-suit the petitioner--No executory contract of sale was executed between adversaries and it was a lease agreement--Documents sought to be produced at instance of petitioners record of stamp vendor as well as petition writer in order to substantiate its content can is substantial cause--Application for production of additional evidence was allowed.    [P. 30] A & B

Raja Nadim Haider, Advocate for Petitioners.

Ms. Shaista Habib, Advocate for Respondents.

Date of hearing: 12.4.2013.

Order

Suit for specific performance of executory contract of sale was instituted by respondents against present petitioners claiming specific performance of said agreement maintaining that present petitioners failed to perform their part of contract. Since there was contest, therefore, after casting issues and recording evidence, learned trial Court granted decree in favour of respondents, which decree was called in question at the instance of petitioners by preferring an appeal before the learned District Court, in which application under Order XLI, Rule 27 of The Code of Civil Procedure, 1908 was made at the instance of petitioners for production of record of stamp vendor and petition writer, upon which statedly agreement to sell was written. After calling written reply, the said application was declined by the learned District Judge, vide order dated 25.7.2012.

2.  Learned counsel for the petitioners contended that the documents sought to be produced at the instance of petitioners were essential for just decision of the case and the learned District Judge while declining the application failed to exercise jurisdiction vested in it. Submitted that the opinion formulated by the learned appellate Court that the documents sought to be produced are not relevant is erroneous keeping in view the stance taken by the petitioners in written statement whereby it was specifically alleged that the property was leased out and period of lease has been terminated. Seeking help from the dictum laid down in "Zar Wali Shah v. Yousaf Ali Shah and 9 others" (1992 SCMR 1778), "Muhammad Younus and 2 others v. Abdul Ghaffar and others" (1998 MLD 1622), "Haji Abdul Ghafoor Akhtar v. Malik Tahir Mukhtar Asghar" (2001 CLC 1721), it was maintained that the application should have been allowed because the concept of filing gaps and lacunas in the lis is no more recognized in civil administration of justice.

On the other hand, learned counsel for the contesting respondents while endorsing the impugned order maintained that since no objection was raised at the instance of petitioners in the written statement regarding execution of lease agreement, therefore, the petitioners are estoped by their words and conduct to raise the plea by production of additional evidence before the learned appellate Court. Banking upon the dictum laid down in "Muhammad Tariq and others v. Mst. Shamsa Tanveer and others" (PLD 2011 Supreme Court 151), it was maintained that the petitioners are estopped to produce additional evidence as no such plea was taken in the written statement. Further maintained that the petitioners failed to point out any compelling circumstances due to which they were unable to produce the additional evidence before trial Court. Likewise, argued, no reason has been assigned why the application was not made before the learned trial Court. In this regard help was sought from the dictum laid down in Government of Khyber Pakhtunkhwa through Secretary, Forest Department v. Devli Kund Forest and others" (2011 MLD 1511).

3.  Provision of Order XLI, Rule 27 of The Code of Civil Procedure, 1908 can be pressed into service on the following grounds. (1) Improper refusal of trial Court to admit documents (2) Conclusion of appellate Court feeling the necessity of admission of such documents to enable it to pronounce judgment, and (3) for any other substantial cause. One of the grounds mentioned in Rule 27(1) of said order is that if the that Court has wrongly disallowed the application for additional evidence, reference of which has been made in the dictum laid down in "Government of Kyber Pakhtunkhwa through Secretary, Forest Department v. Devli Kund Forest and others" (2011 MLD 1511) cited at bar by learned counsel for the respondents. However, there are two other grounds as well mentioned in the provision of law under reference, according to which additional evidence can be admitted in evidence, if the Court feels that the evidence is required in order to reach a just conclusion, which opinion admittedly can be formulated by the appellate Court and not by this Court while exercising re visional jurisdiction.

4.  However, matter does not end here. There is another ground mentioned in the provision upon which appellate Court can also allow the application of additional evidence if there is "any other substantial cause". In view of the matter, mere omission on the part of petitioners to make an application before learned trial Court as argued by learned counsel for respondents would not be sufficient to non suit the petitioners.

5.  Stance taken by learned counsel for the respondents that factum of lease was not agitated in the pleading, therefore, keeping in view the doctrine of "Scendum Ellegata et-probata", petitioners are estopped to make an application for the admission of said documents can not advance the plea of respondents keeping in view para 4 of the written statement in which it was categorically mentioned that the property was leased by the petitioners and lease money was paid and lease period has been terminated.

6.  It is the case of petitioners that in fact no executory contract of sale was executed between the adversaries and it was a lease agreement. Documents sought to be produced at the instance of petitioners i.e. record of stamp vendor as well as petition writer in order to substantiate its contention is "substantial cause".

7.  Rule of law expounded in "Zar Wali Shah" (1992 SCMR 1778) substantiates the plea of petitioners regarding admission of documents in evidence sought to be produced.

8.  In view of discussion, learned District Judge while declining the application failed to exercise jurisdiction vested in it and as such while allowing the revision petition, application for additional evidence is accepted but without any order as to costs.

(R.A.)  Petition allowed

Statement of Witnesses and Marginal Witnesses

 PLJ 2019 Lahore 366

[Bahawalpur Bench Bahawalpur]

Present: Ch. Muhammad Masood Jahangir, J

Mst. ZENAB BIBI--Petitioner

versus

AHMAD YAR--Respondent

C.R. No. 17-D of 2012, heard on 16.05.2018

Civil Procedure Code, 1908 (V of 1908)--

----S. 115--Suit for specific performance of agreement--Concurrently decreed--Jurisdiction--Challenge to--Although, scope thereof is limited, but such findings can be distressed by this Court, if Courts below appeared to have either misread evidence on record or while assessing evidence had omitted from consideration some important piece of evidence, which had direct bearing on issue involved--It can safely be concluded that both Courts below while misconstruing evidence of parties to lis decreed suit of respondent, who designed Exh.P1 to deprive landlady of her valuable property and verdicts of Courts below being classic example of misreading and non-reading of evidence on record are illegal, unlawful and corum non judice, which cannot be sustained in eye of law--Resultantly, instant Civil Revision is allowed.                                                         [Pp. 372 & 373] H & I

2014 SCMR 914, 2016 SCMR 24, ref.

Civil Procedure Code, 1908 (V of 1908)--

----O. XX, R. 5 & XLI, R. 31--Concurrent findings--Without sensing pleadings and evidence--It was achy for me to observe that both Courts below without sensing pleadings and evidence of parties in its true perspective rendered their concurrent findings in favour of respondent in complete derogation of Order XX rule 5 as well as Order XLI rule 31 of Code, 1908.                                                                       [P. 369] A

Cross-examination--

----Statement of witnesses--It was claim of respondent that bargain was settled on 10.01.2003 and advance amount was paid then and there and in lieu thereof possession changed hands before witnesses, but respondent/beneficiary being PW2 omitted to disclose date of transaction in his statement-in-chief and when he was specifically questioned about it in his cross/examination, he again failed to tell date when sale was struck--This was again surprising that respondent for first time disclosed in his statement that transaction was spontaneously struck through Ghulam Ali at Court premises of Haroon Abad, but one of marginal witnesses, Muhammad Zaman (PW3) antipodal to plaintiff (PW2) stated that sale was settled at Basti Khatal--Disparity with regard to venue among them could neither be treated as minor contradiction nor it can be lightly ignored--Moreover, not only plaintiff (PW2) rather other attesting witness, Baqir Ali (PW4) in their cross-examination exposed that day when stamp paper was purchased, not only advance amount was paid, rather contract was also written then and there, but this fact was totally negated by agreement (Exh.P1), recital of which proved stance of petitioner that its stamp paper was issued by Stamp Vendor on 07.01.2003, whereas it was scribed on 10.01.2003--This glaring contradiction was sufficient to disbelieve case of respondent--Baqir Ali (PW4) was also fair enough to depose that bargain was settled by plaintiff before their arrival--Both of marginal witnesses (PW3 and 4) were not residents of locality either where vendor resided or suit plot was located and even where contract was executed.                                                [Pp. 370 & 371] B & E

Marginal Witnesses--

----Position of marginal witnesses of agreement was also not different--Among them, Muhammad Khan (DW3) mentioned that about seven years earlier, it was settled, whereas other Baqir Ali (PW4) uttered that six or seven years prior to his deposition, sale was struck--When every concerned signatory is found to’ be unaware of date, month and year of transaction besides writing of document relating to it, then how discretionary relief against an ignorant and illiterate lady, who from day first after commencement of trial was calling it a fictitious and forged document could be awarded.                                                                                         [P. 370] C

Civil Procedure Code, 1908 (V of 1908)--

----O. VI, R. 2 & O.VIII, R. 2--Principle of “Secundum allegata et probata”--It is well settled proposition of law that if any fact is not asserted in pleadings, then no evidence can be led to prove it, however, even if recorded, that has to be ignored as per principle of “secundum allegata et probata” which means that a fact has to be pleaded first in plaint or written statement by a party before it is allowed to be proved.      [P. 370] D

Qanun-e-Shahadat Order, 1984 (10 of 1984)--

----Art. 80--Documentary record--Validity--Bare perusal of agreement was again an affirmation that CNIC numbers of vendor and alleged marginal witnesses were not entered on it either by Scribe or by Stamp Vendor, who issued its stamp paper--Now there left statement of Muhammad Anwar, (PW1), Stamp Vendor, despite fact that he explicitly disclosed that relevant Register was consigned to Record Room after its due completion, it was not summoned through Record Keeper concerned--It could be best independent documentary record to authenticate issuance of stamp paper to petitioner to rebut her allegation that she did not appear before Vendor for its purchase, but it was deliberately withheld, as such adverse inference was to be drawn, had it been examined that would have proved allegations of petitioner--Civil revision was allowed.  [P. 371] F & G

2013 SCMR 868 & PLD 1990 SC 642, ref.

Mr. Muhammad Saleem Faiz, Advocate for Petitioner

Mr. Shah Muhammad Khokhar, Advocate for Respondent

Date of hearing: 16.5.2018

Judgment

Instant Civil Revision has been filed by lady petitioner to throw challenge on concurrent judgments and decrees dated 08.09.2009 and 23.11.2011 rendered by the Courts below, whereby suit for specific performance of agreement instituted against her by the respondent was decreed and appeal of the former failed.

2.  In concision, facts of the case were that petitioner was exclusive titleholder of the suit plot situated in urban area of Bahawalnagar. The respondent with regard to it instituted suit for specific performance of contract on 14.07.2005, contending therein that he purchased the disputed plot against consideration of Rs.60,000/- and after making payment of Rs.50,000/-, not only the contract dated 10.01.2003 (Exh.P1) was scribed, but the possession also changed hands in his favour before the witnesses. For ease, it would be better to reproduce his stance as disclosed in para-1 of the plaint, which is as under:--

It was also pleaded in para-2 that not only personally, rather through Punchayat, efforts were made to pay the rest of the sale price, but the promisor was found to be reluctant, forcing the promisee/respondent to approach the Court for having a decree of performance of his contract (Exh.P1). The petitioner defended the suit through her written statement alleging therein that she neither ever settled a bargain nor received advance amount. She also claimed that Exh.P1 was a fake, forged and fictitious document, which was prepared collusively to deprive her of the valuable property. She in the inception of the litigation specifically highlighted the factors in her pleadings to prove that Exh.P1 was a counterfeited document for the counts; firstly, that had the bargain been settled on 10.01.2003, there was no occasion to purchase the stamp paper of Exh.P1 three days prior to its execution and secondly that the respondent was even not aware of the name of her husband, who disclosed the name of her ex-husband in spite of that he had divorced her five years prior to alleged contract, whereas prior to the day of alleged execution of contract, she had already contracted second marriage with Muhammad Arshad, but disclosure of petitioner being wife of a person, who was no more her husband, was a solid proof that the contract was fakely constructed. After settlement of issues both the parties led evidence, however it was achy for me to observe that both the Courts below without sensing the pleadings and evidence of the parties in its true perspective rendered their concurrent findings in favour of respondent in complete derogation of Order XX rule 5 as well as Order XLI rule 31 of the Code, 1908 and it was very simple for this Court to remand the suit on this count, but having entire material before me, I opted to decide it on merit at my end rather than to throw the parties to face agony of another round of litigation.

3.  Arguments heard and record perused.

4.  There is no cavil to conclude that agreement to sell (Exh.P1) neither generates nor quenches right, title or interest in the immovable property and being beneficiary, it was imperative upon respondent to have proved its valid execution as well as transaction cited therein. As observed supra, it was the claim of respondent that bargain was settled on 10.01.2003 and advance amount was paid then and there and in lieu thereof possession changed hands before the witnesses, but the respondent/beneficiary being PW2 omitted to disclose the date of transaction in his statement-in-chief and when he was specifically questioned about it in his cross/examination, he again failed to tell the date when the sale was struck. The position of the marginal witnesses of the agreement was also not different. Among them, Muhammad Khan (DW3) mentioned that about seven years earlier, it was settled, whereas the other Baqir Ali (PW4) uttered that six or seven years prior to his deposition, the sale was struck. When every concerned signatory is found to’ be unaware of the date, month and year of the transaction besides writing of the document relating to it, then how discretionary relief against an ignorant and illiterate lady, who from the day first after the commencement of trial was calling it a fictitious and forged document could be awarded. Moreover, rest of his (PW2) entire statement to the effect that petitioner after settling the oral contract fled away with Muhammad Arhsad to Haroon Abad, where on having been approached by him along with witnesses, she agreed to execute the agreement, which was scribed there, was contrary to the contents of his plaint. It is well settled proposition of law that if any fact is not asserted in the pleadings, then no evidence can be led to prove it, however, even if recorded, that has to be ignored as per principle of “secundum allegata et probata” which means that a fact has to be pleaded first in the plaint or written statement by a party before it is allowed to be proved. This principle is enunciated by Order VI rule 2 and Order VIII rule 2 of the Code 1908, which has also been affirmed by the apex Court in judgments reported as Pakistan Vs. Abdul Ghani (PLD 1964 SC 68) and Hyder Ali Bhimji Vs. VITH Additional District Judge, Karachi (South) & another (2012 SCMR 254).

This was again surprising that respondent for the first time disclosed in his statement that transaction was spontaneously struck through Ghulam Ali at Court premises of Haroon Abad, but one of the marginal witnesses, Muhammad Zaman (PW3) antipodal to the plaintiff (PW2) stated that sale was settled at Basti Khatal. The disparity with regard to venue among them could neither be treated as minor contradiction nor it can be lightly ignored. Moreover, not only plaintiff (PW2) rather the other attesting witness, Baqir Ali (PW4) in their cross-examination exposed that the day when stamp paper was purchased, not only advance amount was paid, rather contract was also written then and there, but this fact was totally negated by the agreement (Exh.P1), the recital of which proved the stance of the petitioner that its stamp paper was issued by the Stamp Vendor on 07.01.2003, whereas it was scribed on 10.01.2003. This glaring contradiction was sufficient to disbelieve the case of respondent. Baqir Ali (PW4) was also fair enough to depose that bargain was settled by the plaintiff before their arrival. Both of the marginal witnesses (PW3 and 4) were not residents of the locality either where the vendor resided or the suit plot was located and even where the contract was executed.

5.  The other setback of the case was that admittedly contract was neither scribed by a regular Deed Writer nor signed by the person, who wrote it. Moreover, the Scribe was also not examined, however, on query it was disclosed by learned counsel for the respondent that he had already passed away, but he was forced by the record to admit that none familiar with his writing was summoned as per requirement of Article 80 of the Order, 1984. The bare perusal of agreement was again an affirmation that CNIC numbers of the vendor and the alleged marginal witnesses were not entered on it either by the Scribe or by the Stamp Vendor, who issued its stamp paper. It was kept in dark by the respondent who identified the lady before the Vendor and the Scribe. Now there left statement of Muhammad Anwar, (PW1), the Stamp Vendor, despite the fact that he explicitly disclosed that relevant Register was consigned to Record Room after its due completion, it was not summoned through the Record Keeper concerned. It could be the best independent documentary record to authenticate the issuance of stamp paper to the petitioner to rebut her allegation that she did not appear before the Vendor for its purchase, but it was deliberately withheld, as such adverse inference was to be drawn, had it been examined that would have proved the allegations of the petitioner.

6.  The other salient feature of the case was that admittedly petitioner was ignorant and illiterate lady, who specifically denied settlement of bargain as well as receipt of consideration and in such scenario, it was sine qua non for the beneficiary/respondent to have established that petitioner had independent advice, who settled the transaction voluntarily with full knowledge and import of what the transaction was meant for. The argument of learned counsel for the respondent that petitioner was not parda observing lady and as such she was not entitled for the treatment extended to such class was not well founded. The petitioner being ignorant as well as illiterate lady was to be equated with pardanasheen lady and equally entitled for the same treatment, which is available to such group of women. Despite the fact that PW2 and PW4 stated in their cross-examination that the petitioner was in the company of a male, but he was not associated elsewhere, when Exh.P1 was constructed. As such contract and the transaction being militant to the judgments of the superior Courts rendered in the cases reported as Mt. Farid-un-Nisa Vs. Munshi Mukhtar Ahmad and another (AIR 1925 P.C 204), Chainta Dasya Vs Bhalku Das (AIR 1930 Cal. 591), Jannat Bibi Vs. SikandarAli and others (PLD 1990 S.C 642), Mian Allah Dita through LRs Vs. Mst Sakina Bibi and others (2013 SCMR 868), Ghulam Farid and another Vs. Sher Rehman through L.Rs (2016 SCMR 862) and Phul Peer Shah Vs. Hafeez Fatima (2016 SCMR 1225) could not be given any weight.

7.  At the fag end of his arguments, stress of learned counsel for respondent/plaintiff that concurrent findings recorded by both the Courts below cannot be interfered with by this Court while invoking jurisdiction under Section 115 of the Code, 1908, is also without any force. Although, the scope thereof is limited, but such findings can be distressed by this Court, if Courts below appeared to have either misread evidence on record or while assessing evidence had omitted from consideration some important piece of evidence, which had direct bearing on the issue involved. In arriving at such conclusion this Court is fortified by the dictum laid down in the judgments reported as Muhammad Nawaz alias Nawaza and others Vs. Member Judicial Board of Revenue and others (2014 SCMR 914) and Nazim-ud-Din and others Vs. Sheikh Zia-ul-Qamar and others (2016 SCMR 24). It is obvious and clear that no Court in the country has the jurisdiction to decide about the rights of the parties wrongly and in violation of law and the Revisional Court has no exception to this rule. Even otherwise it has also been held by the Superior Courts that a Court could not pass an order of its liking, solely on the basis of its vision and wisdom, rather it was bound and obligated to render decisions in accordance with law and the law alone. So, this Court can decide, in which cases, the interference is warranted.

8.  In such facts and circumstances, it can safely be concluded that both the Courts below while misconstruing the evidence of the parties to the lis decreed the suit of respondent, who designed Exh.P1 to deprive the landlady of her valuable property and verdicts of the Courts below being classic example of misreading and non-reading of the evidence on record are illegal, unlawful and corum non judice,

which cannot be sustained in the eye of law. Resultantly, instant Civil Revision is allowed, impugned judgments and decrees of the Courts below are set aside and the suit of respondent is dismissed with coste throughout.

(M.M.R.)         Civil revision allowed

Importance of Article 79 of Qanoon e Shahadat Ordinance 1984

 PLJ 2019 Lahore (Note) 139

Present : Rasaal Hasan Syed, J.

FAROOQ HANIF--Applicant

versus

MUHAMMAD IBRAHIM--Respondent

R.S.A. No. 55 of 2013, decided on 4.1.2019.

Specific Relief Act, 1877 (I of 1877)--

----S. 12--Suit for specific performance of sale agreement--Decreed--Appeal--Accepted--Challenge to--Non execution of sale agreement None receiving of any earnest money--Validity--Another aspect that has a material bearing on this case is that in plaint appellant claims that alleged earnest money of Rs. 150,000/-was paid through cheques but perusal of document Ex. PI completely belies plea and contradicts this stance, where it is so recorded that Rs. 150,000/- was allegedly paid in cash--This contradiction demolished appellant's case that alleged earnest money was paid through cheques--It is also observed that agreement was purportedly written on 27.10.2006 but cheques were claimed to be dated 27.9.2006, 28.9.2006, 29.9.2006, 30.9.2006 and 01.10.2006 i.e. of date which were prior to date of document whereas it was not case of appellant that any sale transaction was ever settled prior to this date; rather on being asked in cross-examination appellant as PW 2 deposed that agreement was made in October 2006 and that before alleged intended transaction, he had never talked to Ibrahim respondent on telephone--He further admitted that he was in Belgium when alleged agreement was made and that his father purportedly arranged the alleged deal--Obviously plaintiff's own statement would not be insignificant i.e. that he did not claim to be present at the time of the alleged agreement--In above scenario, appellant miserably failed to prove any nexus between cheques and agreement nor same could be assumed as payment of any correct amount; rather it supports plea of respondent that there was a loan arrangement between him and father of appellant and cheques were towards reimbursement of amount, which father of appellant had received from him--Learned Addl. District Judge correctly appreciated evidence, and declared that appellant had failed to prove existence of sale transaction or execution of sale agreement and in doing so no misreading or non-reading of record was observed.        [Para 19 & 21] F & G

Qanun-e-Shahadat Order, 1984 (10 of 1984)--

----Art. 79--Legal obligation to prove agreement to sell and existence of sale transaction--Attesting witnesses--Appellant as plaintiff was under a legal obligation to prove that agreement to sell was executed and that respondent had agreed to sell suit property and that he received advance amount on alleged execution of document or subsequent thereto--In law, appellant was expected not only to prove execution of sale agreement but also to prove existence of intended transaction of sale--In this case, Muhammad Abu Bakar, real brother of appellant, appeared as PW3 while Muhammad Ismail son of Muhammad Suleman, other attesting witness, was not produced or ever summoned--It was for this reason that learned Addl. District Judge observed that execution of document was not proved in accordance with mandate of Article 79 of Qanun-e-Shahadat Order 1984, and was thus inadmissible--As regards deed writer Ghufran son of Sultan who appeared as PW1 and deposed that he had drafted agreement and that parties had allegedly executed same; but he was not one of attesting witness as per Ex.P1, and therefore he could not possibly make up deficiency in evidence due to non-appearance of other attesting witness of Ex.P1--As to other argument that second marginal witness was real brother of respondent who had declined to appear, suffice it to say that this argument is an afterthought and otherwise lacks any merit--Appellant never attempted to summon witness through Court nor availed opportunity to produce him and to depose him before Court--There is no correspondence between appellant or other witnesses to verify that witness even refused to record his statement--In these circumstances plea was totally self-assumed--Non-adherence to procedure, raises serious adverse inference against appellant.                                                               [Para 9, 10 & 15] A, B & C

PLD 2011 SC 241 & 2015 SCMR 1044, ref.

Qanun-e-Shahadat Order, 1984 (10 of 1984)--

----Art. 82--Denial of Attesting witnesses--Onus to prove--Provides that if an attesting witness denies or does not recollect execution of document, its execution may be proved by other evidence--This placed strong onus on appellant to have summoned witness and if on appearance he denied document, course permissible in Article 82 could have been resorted to appellant could have made a request for expert view on comparison of signatures of witness on document with his specimen signatures, to satisfy Court that he had unreasonably denied execution of document--It was a case in which very existence of document was in issue, appellant should have summoned stamp vendor as respondent had denied to have ever purchased stamp paper, but no attempt was ever made to produce stamp vendor thus best evidence was with-held raising serious adverse presumption against appellant-Appeal was dismissed.

                                                                            [Para 16 & 18] D & E

2017 CLC 70, ref.

Ch. Khalil-ur-Rehman, Advocate for Appellant.

M/s. Mian Hamad Yaseen and Ch. Muhammad Tariq Rehman, Advocates for Respondent.

Date of hearing: 12.12.2018.

Judgment

This appeal impugns judgment dated 08.2.2013 of the learned Addl. District Judge Samundari, District Faisalabad whereby the judgment and decree dated 22.12.2011 of the learned Civil Judge Samundari in a suit for specific performance, was set aside, and the suit of the appellant was dismissed.

2.  Facts material to decision of this appeal are that on 16.10.2008 the appellant, acting through his attorney, instituted a suit for specific performance seeking enforcement of the alleged agreement of sale dated 27.10.2006 in respect of suit property that comprised 04 kanals of land. It was asserted that the respondent executed the agreement to sell the suit property in appellant's favor for a total price of Rs.770,000/-. A sum of Rs. 150,000/- was allegedly paid through cheques dated 27.9.2006, 28.9.2006, 29.9.2006, 30.9.2006 and 1.10.2006. The date for the completion of the agreement as also the execution of the sale-deed was allegedly fixed as 27.10.2007. The appellant alleged that further payment of Rs.300,000/- was made through cheques dated 11.1.2008 and 07.1.2008. In this backdrop it was alleged that a total sum of Rs.450,000/- had been received by the respondent, leaving the balance consideration as Rs.325,000/-. As per appellant the respondent did not execute the sale-deed as contractually obligated, in result, the suit for specific performance was instituted.

3.  In his written statement the respondent in addition to the legal objections, pleaded on factual side that there was no agreement of sale between the parties; he had never executed any such agreement of sale; he did not receive the alleged earnest money or the subsequent payments under any agreement; and that the respondent had been lending certain amounts from time to time to appellant's father who had been reimbursing the same through cheques; and at the time of reimbursement of loan amounts he used to secure signatures on blank paper and that alleged agreement of sale was fictitious, forged and fabricated.

4.  The learned Civil Judge after receiving evidence and hearing the parties decreed appellant's suit vide judgment dated 22.12.2011. In appeal filed by the respondent, the learned Addl. District Judge after consideration of entire evidence accepted the appeal, set aside the judgment and decree of the learned trial Court, and dismissed the suit vide judgment dated 8.2.2013, which is being assailed in this appeal.

5.  Learned counsel for the appellant argued that the learned Addl. District Judge failed to appreciate that the entire sale price was paid through cheques and that the receipt of the payment was admitted. Referring to Para 3 of the written statement, learned counsel submitted that the signatures/thumb impression were not in issue and that the appellant in the given circumstances was entitled to a decree. It was also argued that one marginal witness could not be produced as the other witness was the brother of respondent who was not willing to appear as witness in Court; the appellant produced the scribe of the document to prove the agreement. Lastly it was urged that the respondent could not rebut or shake the credibility of the evidence of the appellant and that the appellate Court illegally interfered with the findings of trial Court.

6.  Responding to the points raised, learned counsel for respondents submitted that the existence of the sale transaction as also the alleged agreement was specifically controverted; the appellant was under a statutory obligation to discharge the onus by proving the document and also the existence of the transaction; the appellant failed to produce two marginal witnesses which was a mandatory requirement of law, in result, the alleged agreement could not deemed to have been proved, the alleged cheques could not be shown to have any nexus with the alleged agreement, and that the learned appellate Court reversed the findings of the learned trial Court for sound (sic) and after scrutinizing the entire evidence on record, while the appellant could not identify any legally significant misreading or non-reading of evidence by the appellate Court hence the findings of fact rendered by the appellate Court did not call for any interference.

7.  Points raised by the respective sides have been duly considered in the light of pleadings and evidence on record.

8.  Appellant filed suit for specific performance claiming that the alleged agreement of sale was executed by respondent, a sum of    Rs. 150,000/- was paid through cheques, the total price was settled as Rs.750,000/-, the appellant allegedly made payments through cheques to the tune of Rs.300,000/- after the agreement, thereby making the total alleged receipts of Rs. 450,000/- leaving the balance sale consideration as Rs. 325,000/-, which was allegedly payable at the time of execution of the sale-deed i.e. on or before 27.10.2007. The existence of the sale transaction, or the execution of any sale agreement as also the payment alleged to be made pursuant to it, was vehemently denied. In view of the stance taken in the reply, Issues No. 6, 7, and 9 were framed which were to the effect that whether agreement to sell dated 27.10.2006 was entered into; whether Rs. 450,000/- was paid as advance through cheques; and whether the plaintiff was entitled to a decree of specific performance.

9.  The appellant as plaintiff was under a legal obligation to prove that the agreement to sell was executed and that the respondent had agreed to sell suit property and that he received the advance amount on the alleged execution of the document or subsequent thereto. In law, the appellant was expected not only to prove the execution of the sale agreement but also to prove the existence of the intended transaction of sale. Article 79 of the Qanun-e-Shahadat Order, 1984 reads as under:

"If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses (at) least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence:

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will which has been registered in accordance with, the provisions of the Registration Act 1908 XVI of 1908) unless its execution by the person by whom it purports to have been executed is specifically denied."

10.  The alleged agreement of sale, Ex.P1, shows that it was attested by Abu Bakar son of Muhammad Hanif and Muhammad Ismail son of Muhammad Suleman. In this case, Muhammad Abu Bakar, real brother of the appellant, appeared as PW-3 while Muhammad Ismail son of Muhammad Suleman, the other attesting witness, was not produced or ever summoned. It was for this reason that the learned Addl. District Judge observed that the execution of the document was not proved in accordance with the mandate of Article 79 of Qanun-e-Shahadat Order 1984, and was thus inadmissible. As regards the deed writer Ghufran son of Sultan who appeared as PW-1 and deposed that he had drafted the agreement and that the parties had allegedly executed the same; but he was not one of the attesting witness as per Ex.P1, and therefore he could not possibly make up the deficiency in evidence due to non-appearance of other attesting witness of Ex.P1.

11.  In "Hafiz Tasaddaq Hussain v. Muhammad Din through legal heirs and others" (PLD 2011 SC 241) the August Supreme Court observed that:

'8. The command of the Article 79 is vividly discernible which elucidates that in order to prove an instrument which by law is required to be attested, it has to be proved by two attesting witnesses, if they are alive and otherwise are not incapacitated and are subject to the process of the Court and capable of giving evidence. The powerful expression "shall not be used as evidence" until the requisite number of attesting witnesses have been examined to prove its execution is couched in the negative, which depicts the clear and unquestionable intention of the legislature, barring and placing a complete prohibition for using in evidence any such document, which is either not attested as mandated by the law and/or if the required number of attesting witnesses are not produced to prove it. As the consequences of the failure in this behalf are provided by the Article itself, therefore, it is a mandatory provision of law and should be given due effect by the Courts in letter and spirit. The provisions of this Article are most uncompromising, so long as there is an attesting witness alive capable of giving evidence and subject to the process of the Court, no document which is required by law to be attested can be used in evidence until such witness has been called, the omission to call the requisite number of attesting witnesses is fatal to the admissibility of the document. See Sheikh Karimullah. vs. Gudar Koeri and others (AIR 1925 Allahabad 56). The purpose and object of the attestation of document by a certain number of witnesses and its proof through them is also meant to eliminate the possibility of fraud and purported attempt to create and fabricate false evidence for the proof thereof and for this the legislature in its wisdom has established a class of documents which are specified, inter alia, in Article 17 of the Order, 1984. (Sec. Ram Samujh Singh vs. Mst. Mainath Kuer and others (AIR 1925 Oudh 737). The resume of the above; discussion leads us to an irresistible conclusion that for the validity of the instruments falling within Article 17 the attestation as required therein is absolute and imperative. And for the purpose of proof of such a document, the attesting witnesses have to be compulsorily examined as per the requirement of Article 79, otherwise it shall not be considered and taken as proved and used in evidence. This is in line with the principle that where the law requires an act to be done in a particular manner, it has to be done in that way and not otherwise.'

12.  As to the admissibility of statement of deed writer the August Supreme Court in above-mentioned case observed that:

'9. Coming to the proposition canvassed by the counsel for the appellant that a scribe of the document can be a substitute for the attesting witnesses; the point on which leave was also granted. It may be held that if such witness is allowed to be considered as the attesting witness it shall be against the very concept, the purpose, object and the mandatory command of the law highlighted above. The question however has been examined in catena of judgments and the answer is in the negative.

10.  It has been held in Nazir Ahmad and another v. M. Muzaffar Hussain (2008 SCMR 1939):--

          "Attesting witness was the one who had not only seen the document being executed by the executant but also signed same as a witness ---Person who wrote or was 'scribe' of a document was as good a witness as anybody else, if he had signed the document as a witness (Emphasis supplied). No legal inherent incompetency existed in the writer of a document to be an attesting witness to it"

In N. Kamalam and another v. Ayyasamy and another (2001) 7 Supreme Court cases 503), it has been held:--

          "Evidence of scribe could not displace statutory requirement as he did not have necessary intent to attest."

          In Badri Prasad and another v. Abdul Karim and others (1913 (19) IC 451, it is held:--

          "The evidence of the scribe of a mortgage deed, who signed the deed in the usual way without any intention of attesting it as a witness, is not sufficient to prove the deed."

          An attesting witness is a witness who has seen the deed executed and has signed it as a witness. (Emphasis supplied)."

To the same effect are the judgments reported as Qasim Ali vs. Khadim Hussain through legal representatives and others (PLD 2005 Lahore 654) and Shamu Patter vs. Abdul Kadir Rowthan and others (1912 (16) IC 250). Therefore, in my considered view a scribe of a document can only be a competent witness in terms of Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984 if he has affixed his signature as an attesting witness of the document and not otherwise; his signing the document in the capacity of a writer does not fulfill and meet the mandatory requirement of attestation by him separately, however, he may be examined by the concerned party for the corroboration of the evidence of the marginal witness, or in the eventuality those are conceived by Article 79 itself not as a substitute.’

13.  In another case "Farid Bakhsh v. Jind Wadda and others" (2015 SCMR 1044) the August Supreme Court ruled as follows:

'...This Article in clear and unambiguous words provides that a document required to be attested shall not be used as evidence unless two attesting witnesses at least have been called for the purpose of proving its execution. The words "shall not be used as evidence" unmistakably show that such document shall be proved in such and no other manner. The words "two attesting witnesses at lease" further show that calling two attesting witnesses for the purpose of proving its execution is a bare minimum. Nothing short of two attesting witnesses if alive and capable of giving evidence can even be imagined for proving its execution. Construing the requirement of the Article as being procedural rather than substantive and equating the testimony of a Scribe with that of an attesting witness would not only defeat the letter and spirit of the Article but reduce the whole exercise of re-enacting it to a farce. We, thus, have no doubt in our mind that this Article being mandatory has to be construed and complied with as such...

9.  Another reason for no equating the testimony of a Scribe with that of an attesting witness is that both of them signed the document in a different capacity and with a different state of mind. They, as such, do not meet the requirements of Article 79 of Qanun-e-Shahadat Order. Scribe, however, could be examined by the party for corroboration of the evidence of the attesting witnesses but not as a substitute therefor. This aspect was also highlighted in the case Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs (supra) in the paragraph which reads as under:

          "To the same effect are the judgments reported as Qasim Ali v. Khadim Hussain through legal representatives and others (PLD 2005 Lahore 654) and Shamu Patter v. Abdul Nadir Rowthan and others (1912 (16) IC 250). Therefore, in my considered view a scribe of a document can only be a competent witness in terms of Articles 1 7 and 79 of the Qanun-e-Shahadat Order, 1984 if he has fixed his signature as an attesting witness of the document and not otherwise; his signing the document in the capacity of a writer does not fulfill and meet the mandatory requirement of attestation by him separately, however, he may he examined by the concerned party for the corroboration of the evidence of the marginal witnesses or in the eventuality those are conceived by Article 79 itself not as a substitute'

14.  In view of the rule laid by the August Supreme Court in cases referred above, the argument that the statement of the deed writer shall be sufficient to prove the document along with the other marginal witnesses, is fallacious and cannot be entertained. Even otherwise, the statement of the deed writer is highly unconvincing and its credibility stood shaken in the cross-examination when he admitted that he did not earlier know the parties or the witnesses and that no payment was ever made in his presence and also that he did not ascertain the identity of the parties in the document from anyone. In this scenario where the witness did not know the parties and also did not get their identification from any independent person, his statement could hardly be of any value let alone to prove the execution or the existence of transaction.

15.  As to the other argument that the second marginal witness was real brother of the respondent who had declined to appear, suffice it to say that this argument is an afterthought and otherwise lacks any merit. The appellant never attempted to summon the witness through Court nor availed the opportunity to produce him and to depose him before the Court. There is no correspondence between the appellant or the other witnesses to verify that the witness even refused to record his statement. In these circumstances the plea was totally self-assumed. The non-adherence to the procedure, raises serious adverse inference against the appellant.

16.  Even otherwise the procedure as contemplated by Article 82 of the Qanun-e-Shahadat Order, 1984 provides that if an attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence. This placed strong onus on the appellant to have summoned the witness and if on appearance he denied the document, the course permissible in Article 82 could have been resorted to. The appellant could have made a request for the expert view on comparison of signatures of witness on the document with his specimen signatures, to satisfy the Court that he had unreasonably denied the execution of document.

17.  In any case without following the legal course, the petitioner could not be allowed to raise the plea on the assumption that because he was related to the other side he would not have appeared as witness if summoned. Another notable fact is that the petitioner did not make any effort to get the specimen thumb impression and the signatures of respondent in the Court. No request for an expert opinion was ever made nor any expert was ever summoned to prove the signatures so as to establish the execution of document.

18.  It was a case in which the very existence of the document was in issue, the appellant should have summoned the stamp vendor as the respondent had denied to have ever purchased the stamp paper, but no attempt was ever made to produce the stamp vendor thus the best evidence was with-held raising serious adverse presumption against the appellant. In "Manzoor Hussain v. Haji Khushi Muhammad" (2017 CLC 70) a learned Single Judge of this Court observed that the non-production of the stamp vendor would raise an adverse presumption under Article 129(g) of Qanoon-e-Shahadat Order, 1984.

19.  Another aspect that has a material bearing on this case is that in the plaint the appellant claims that the alleged earnest money of Rs. 150,000/-was paid through cheques but perusal of the document Ex. P1 completely belies the plea and contradicts this stance, where it is so recorded that Rs. 150,000/- was allegedly paid in cash. This contradiction demolished the appellant's case that the alleged earnest money was paid through cheques. It is also observed that the agreement was purportedly written on 27.10.2006 but the cheques were claimed to be dated 27.9.2006, 28.9.2006, 29.9.2006, 30.9.2006 and 01.10.2006 i.e. of date which were prior to the date of the document whereas it was not the case of appellant that any sale transaction was ever settled prior to this date; rather on being asked in cross-examination the appellant as PW-2 deposed that the agreement was made in October 2006 and that before the alleged intended transaction, he had never talked to Ibrahim respondent on telephone. He further admitted that he was in Belgium when the alleged agreement was made and that his father purportedly arranged the alleged deal. Obviously plaintiff's own statement would not be insignificant i.e. that he did not claim to be present at the time of the alleged agreement. In the above scenario, the appellant miserably failed to prove any nexus between the cheques and the agreement nor the same could be assumed as payment of any correct amount; rather it supports the plea of the respondent that there was a loan arrangement between him and father of appellant and the cheques were towards the reimbursement of the amount, which father of appellant had received from him.

20.  As to the arguments that the respondent did not deny the execution in the written statement at Para 3, the same is not well-founded, and where it is not so recorded; rather the respondent denied the execution of any agreement and claimed that the alleged signature on the blank paper were for the acknowledgement of the repayment of loan amount. As DW-1, the respondent, when asked in cross-examination about his signature on the document, categorically denied his signature or thumb impression on Ex. P1. This being so the objection raised by appellant's counsel is ill-founded.

21.  The learned Addl. District Judge correctly appreciated the evidence, and declared that the appellant had failed to prove the existence of sale transaction or execution of sale agreement and in doing so no misreading or non-reading of record was observed.

22.  For the reasons supra, this appeal lacks merit, which is accordingly dismissed leaving the parties to bear their own costs.

(MMR)            Appeal Dismissed