' IFTIKHAR MUHAMMAD CHAUDHARY, J.--- This appeal by leave of the Court is directed against the judgment, dated 10th October, 1993 passed by learned Division Bench of the High Court of Sindh Karachi, whereby H.C.A. No, 19 of 1985 filed by appellant has been dismissed.
2. Precisely stating the facts of the case are that appellant filed a suit before the High Court of Sindh, Karachi, for specific performance of an agreement allegedly executed by him with the respondent in response to an offer by respondent for sale of House bearing No,20, Delhi Cooperative Housing Society Ltd., Shaheed-e-Millat Road, Karachi, for Rs,90,000 in the year 1971 and she has received Rs,60,000 towards sale consideration. As the respondent failed to complete the transaction by executing the sale-deed, therefore, appellant instituted a civil suit against her for specific performance.
3. Respondent in her written statement vehemently denied the claim of appellant on the averments that she never intended or agreed to sell her house to appellant. Acceptance of Rs,60,000 towards the sale of her house and execution of receipt in respect thereof was denied by contending that receipt dated 7th June, 1971 is a forged, fabricated document. It was further mentioned therein that appellant is tenant in the premises in dispute at monthly rental of Rs, 850.
As he has committed default in the payment of rent and an amount of Rs,13,500 is outstanding against him, therefore, ejectment proceedings were initiated on 27th May, 1971, on the ground of subletting, unauthorized construction as well as default in the payment of monthly rent. The civil suit based on forged, fictitious documents has been filed as a counterblast to ejectment proceedings.
4. It is important to note that respondent also filed a civil suit for declaration being No, 913/1972 seeking cancellation of receipt of Rs, 60,000 dated 7th June, 1971 as well as agreement. Or any other document, pertaining to agreement to sell lying in the possession/control of the appellant (defendant), alleged to have been executed by the respondent/plaintiff to be forged, fraudulent, deceptive, inoperative and not binding upon her or her legal heirs or successors and by means of injunction defendant/appellant was sought to be restrained permanently from not using these documents, pertaining to the transfer of the house to him and to pass a decree to that effect accordingly or pass any other order in favor of the plaintiff/respondent, which the Court deems fit and proper. The suit was contested by the appellant vide written statement dated 27th October, 1972, wherein it was specifically stated that plaintiff/respondent has received from deferidant/appellant a sum of Rs,61,000 and agreed to receive the balance of Rs,29,000 on the date of ' registration of sale-deed but as she committed unreasonable delay in performing her par of contract, therefore, the defendant/appellant having left with no option, sent notice dated 25th March, 1972 to the plaintiff/respondent brought his Advocate requiring her to perform the said agreement but the plaintiff/respondent failed to execute the conveyance deed as he required. In the written statement, appellant had also explained that the respondent/plaintiff executed receipt on 18th April, 1971 for Rs,50, 000, acknowledging the sale of the said house. Later on, she executed another receipt of Rs,60, 000 including the amount received by her subsequently but despite of it, failed to perform her part of obligation. The suit filed by the respondent/plaintiff remained pending on the file of Senior Civil Judge, Karachi (East) who dismissed it on 24th July, 1975 for non- prosecution. The respondent/plaintiff submitted an application under Order IX, rule 9 read with section 151, C.P.C. For restoration of the suit but it was also dismissed in default on 20th December, 1975. Thereafter, no further proceedings were taken up for restoration of the suit, as such order of the dismissal of the suit dated 24th July, 1975 has achieved finality.
5. Learned trial Court framed following issues with the consent of the parties, reflecting from respective pleadings on 13th November, 1972 and subsequent thereto on 21st March, 1989, three additional issues were also framed on the application of the appellant:-
(1) Is the valuation arbitrary and the court-fee paid thereon inadequate? If so its effect.
(2) Is the claim of the plaintiff based on forged fabricated documents also inadmissible in law and has the plaintiff any cause of action?
(3) Is the suit with mala fide motives or is as a counterblast to the ejectment proceedings bearing Case No,1389/1971? If so its effect.
(4) Has the defendant ever agreed to sell the house in dispute and received any Earnest Money from the defendant? Has the plaintiff any title in the suit property?
(5) What is the effect of the plaintiff being a tenant of the defendant at Rs,850 per month under an agreement of lease and of the failure on his part to pay the monthly rent?
(6) Has the defendant constructed this bungalow for her support in the retired life of her husband and has she any benefit in the sale of the bungalow in dispute?
(7) Is the suit mala fide, frivolous and vexatious and is the defendant entitled to special cost performance?
(8) Whether the plaintiff is entitled to specific performance?
(9) Whether the defendant agreed to sell to the plaintiff the property in dispute for a total consideration of Rs,90,000 and has received from the plaintiff a sum of Rs,61,000 towards the sale consideration.
(10) Whether the plaintiff has made any improvement in suit, and if so, what is its effect?
6. The appellant appeared as his own witness and supported to his case as it was set up in the plaint. He also produced following documents:---
(1) Exh.6/1. Receipt of RS.15,000 given by the respondent under her signature on 2nd February, 1971 in presence Abdus Salam.
(2) Exh.6/2. Receipt of Rs,50,000 dated 18th April, 1971 brought by the appellant to respondent including the amount mentioned in Exh. 6/1 (ibid), duly signed by the respondent.
(3) Exh. 6/3. Letter dated 13th May, 1971 send by appellant/ plaintiff to the respondent/defendant, mentioning therein the details of transaction between the parties in respect of the sale of the house.
(4) Exh.6/4. Receipt amounting to Rs,10,000 dated 7th June, 1971, which also acknowledges that resplendent has received Rs,60,000 from the appellant.
(5) Exh.6/5. Photostat copy of the crossed cheque amounting to Rs 1,000 dated 7th July, 1971, drawn in favor of the respondent and handed it over to Mr. Haider, husband of respondent having endorsement on its backside i,e, on account of their Bungalow No,20, Delhi Cooperative Housing Society, Karachi.
(6) Exh.6/6. Certified copy of the order, dated 29th November, 1978 in 2nd Appeal No, 185 of 1976 in pursuance whereof Rs,29,000 deposited by the appellant in the High Court being balance amount of sale consideration.
(7) Exh.6/7. Certified copy of the application under Order XXIII, rule 3, C.P.C. Filed in 2nd Appeal No, 185/1976, on the basis of which order dated 29th November, 1978 was passed.
(8) Exh.6/8. Certified copy of letter dated 8th July, 1971 under registered cover, sent by the appellant to the respondent.
(9) Exh.6/9. Acknowledgement card relating to Exh.6/8.
(10) Exh.6/10. The statement of the respondent given by her in Rent Case No, 1389/1971, admitting receipt of letters Exh.6/3 and Exh. 6/8 referred to hereinabove.
(11) Exh.6/11. Certified copy of the plaint in Suit No,913 of 1972 filed by respondent for cancellation of documents (reference of which had already been made in para supra).
(12) Exh.6/12. Notice dated 25th March, 1972 send by appellant to defendant prior to filing of suit for specific performance.
(13) Exh.6/13. Certified copy of the tenancy agreement, dated 1-5-1967 executed between the parties.
(14) Exh.6/14. Statement of appellant before the Rent Controller in ejectment proceedings instituted by the respondent.
(15) Exhs.6/15 and 6/16. Copy of notice dated 5-5-1971 sent by the defendant to appellant and its acknowledgement card respectively.
(16) Exh. 6/17. Photostat copy of reply of notice dated 1-6-1971 by Mr. Raza Hussain Haidri, Advocate on behalf of the appellant, addressed to Mr. Mohi-ud-Din Ahmed, Advocate, in response to the notice dated 5th May, 1971.
' It is pertinent to mention here that documents Exhs.6/1, 6/2, 6/4, 6/8 and 6/9 were produced from the record of Rent Case No,1389 of 1971, which had been summoned by the Court and the photostat copies whereof were kept in the said file and originals were retained in the civil suit file lying in the safe custody of the Court.
8. Besides above evidence, appellant produced:---
(i) P.W. Khurshid Ahmed, Handwriting Expert. He has examined documents Exhs.6/1, 6/2 and 6/4, after preparing their photostat copies from original documents, vide report Exh.7/1, according to which the admitted document i,e, 'Vakalatnama' signed by the respondent and the questioned documents bears the signatures of the same person.
(ii) P.W. Abdus Salam stated that in his presence, the respondent present in Court and the appellant were having some talks in relation to the purchase of house in which the appellant was residing and in his presence, a bargain struck between the parties for the sale of the house in question for Rs,80,000 or Rs,85,000 and in his presence a sum of Rs,15,000 in cash was paid by the appellant to the respondent.
(iii) P.W. Syed Mazhar Hussain, being representative of the Bank, produced Exh. 10/1, letter of the Bank regarding Cheque No,UC-599526 dated 9th July, 1971 (Exh.6/5) original of which could not be produced as it pertains to United Bank Ltd. Relating to 10 years back transaction. It is noteworthy that learned counsel for respondent admitted contents of Exh.6/5 with the endorsement on its backside, therefore, learned counsel for appellant did not insist for the production of original cheque.
9. Mst. Nafees Bano respondent entered into witness-box as her own witness and stated that appellant was paying some times Rs,200 and sometime Rs,300 and on receipt of the rent of the entire month, she used to issue receipt to him. She alleged that since January, 1970, he did not pay the rent and an amount of Rs,13, 400 was due against him, therefore, she filed a Rent Case No,1389/1971 before the Rent Controller on 27th May, 1971. In the written statement appellant had taken the plea that he had purchased the house from her but she denied the transaction of selling the house to appellant as according to her no negotiations took place between her and appellant/plaintiff at any time, regarding the sale of her property. On having seen receipt Exhs.6/1, 6/2 and 6/4, she denied her signatures on them. She further stated that in pursuance of these documents, no amount was received by her, however, the receipt of amount of Rs,1,000 by means of a cheque was admitted by her but with the explanation that appellant came to her house and gave a cheque to her when her husband was also present and payment of Rs,1,000 was made to her by the appellant/plaintiff on account of rent and he told her at that time that he will gradually liquidate the arrears of rent through installments. In cross-examination, she denied her signature on 'Vakalatnama' by stating that she cannot say whether these are her signatures. Copy of the 'Vakalatnama' was marked as Exh.9/5, whereas she admitted her signature on the written statement Exh.2. Later on when the 'Vakalatnama' executed by her in favor of Mr. Fazal Bhoy, Advocate was shown to her, she admitted her signature on it. She also admitted her signature on Exhs.9/6, and 9/7 i,e, C.M.A. No,4569 of 1976 and appended affidavit therewith to support its contents. She produced following documents:-
(a) Exh.6/15 Notice sent to the appellant.
(b) Exh.6/17 Photostat copy of reply given by the Advocate of appellant in pursuance of Exh.6/15.
10. The respondent besides her own statement, did not produce any other evidence.
11. It is most important to note that after completion of recording of evidence and hearing of arguments the judgment was reserved by the learned Single Judge of the High Court but surprisingly thereafter appellant was re-called and was examined by the Court in absence of his counsel. His deposition so recorded reads as under thus:- "The receipt Exhibit 6/2 was given to me by Mst. Nafis Bano. It was already typed when it was brought to me. I see Exhibit 6/4 and I say this was prepared in the City Court. I can see the traces of ink on the receipt Exhibit 6/2 but at the time I produced in the Court I did not see them. At the time exhibit 6/2 was given to me it did not have the traces of ink and it was in perfect order. I produced this receipt exhibit 6/2 before the Rent Controller in rent proceedings in 1972. This receipt ever since it was given to me by Mst. Nafis Bano remained in my possession [rest of the portion is torn] and I produce it in Court."
12. The learned Single Judge in Chambers of the High Court vide judgment, dated 5th August, 1984, after having reproduced the statement of appellant alone and without considering the other evidence available on record particularly Handwriting Expert evidence and statement of Abdus Salam concluded that appellant failed to make out a case for grant of decree. Synopsis of the judgment are as follows:----
(a) The above evidence produced by the plaintiff to prove agreement of sale between him and defendant does not inspire any confidence at all.
(b) The plaintiff made no mention of the documents Exhs.6/1 and 6/2 in his plaint which was filed in this Court after about a year of the filing of the rent case against him although these documents were admittedly of great importance and relevance to the plaintiff's case.
(c) The notice served upon defendant by plaintiff Exh.6/2 stating therein that in February, 1971 the defendant agreed to sale her house for Rs,90,000, makes no mention of the receipts dated 2nd February, 1971 and 18th April, 1971.
(d) The defendant served the plaintiff with a legal notice dated 5th May, 1971 Exh.6/15 after the alleged execution of receipts dated 22nd February, 1971 and 18th April, 1971 in which she categorically stated that the plaintiff was defaulter in payment of_ rent amounting to Rs,13, 500 and threatened to take ejectment proceedings against him. This letter was duly received by plaintiff on 15th May, 1971 according to postal acknowledgement card Exh.6/16. The plaintiff when confronted with these documents falsely stated that he did not remember if he received this notice. When he was shown reply of his counsel Raza Haideri Advocate, dated 1st July, 1971 to the notice dated 5th May, 1971, he stated that he did not remember if it was sent on his behalf and on his instructions. In the reply of notice there is no mention of either any agreement of sale between the parties or the receipts dated 2nd February, 1971 or 18th April, 1971. Had there been any truth in the case set up by the, plaintiff now, these facts must have been mentioned in the letter dated 1st June, 1971..
' While going through record of the case I noticed that Exh.6/2 was previously written in hand with ink but the writing was removed by chemical action and thereafter the subject-matter was typed on it .....
' The plaintiff was questioned by me about Exh.6/2 when I recalled him for examination, he admitted traces of handwriting on document but was unable to explain the same.
' The circumstances of the case fully support the contention of defendant that these receipts were forged by the plaintiff.
(e) The plaintiff has also not been able to show that he possessed the means, to pay the amount allegedly shown to have been paid on 2nd February, 1971 and 18th April, 1971. In cross-examination he was unable to give the dates of payment of these amounts. In these circumstances, I am not prepared to place any reliance on documents Exhs.6/1 and Exh.6/2.
(f) So far as the document Exh.6/4 is concerned, the same also cannot be accepted in the circumstances of the case.
(g) The circumstances of the case clearly indicates that the three documents Exh.6/1, 6/2 and 6/4 have been forged and fabricated by plaintiff for the purposes of the present suit. The receipt Exh.6/4, is allegedly attested by a Notary Public Mr. Aziz-ulHassan and the plaintiff also stated in his evidence that this was prepared in the City Courts. This attesting witness of Exh.6/4 was not examined by the plaintiff although defendant denied its execution in her written statement. I, therefore, hold that the plaintiff has failed to prove the agreement of sale between him and defendant in respect of suit property. I also hold that documents Exhs.6/1, 6/2 and 6/4 were not executed by defendant and are forged documents and the present suit has been filed by the plaintiff as a counterblast to the ejectment proceedings instituted against him by the defendant. I also hold that the defendant never agreed to sell the property in suit, to the plaintiff and received no money towards the sale price.
13. Against the judgment/decree passed by the learned Single Judge of the High Court, appellant preferred appeal before the Division Bench of the High Court, which has been dismissed vide judgment dated 10th October, 1993.
14. Learned counsel appearing for appellant contended that:---
(1) The learned trial Court has no justification in holding that documents Exhs.6/1 and 6/2 as well as Exh.6/4 were forged in view of the report (Exh.7/1) of Handwriting Expert P.W. Khurshid Ahmed Qureshi.
(2) Recalling and examining the appellant by the Court, after completion of recording of evidence to ascertain the authenticity of Exh.6/2 was unwarranted.
(3) The trial Court was bound to decide the fate of the case on taking into consideration total evidence, both oral and documentary, produced by the appellant, particularly Exhs.6/1, 6/2 as well as Exhs.6/3, 6/4 and 6/8 and non-suiting the appellant merely for the reason that Exh.6/2 bears traces is against the canon of justice.
15. On the other hand learned counsel appearing for respondent contended that:---
(i) The plaint does not find mention about receipts Exhs.6/1 and 6/2, inasmuch as when the appellant served notice upon respondent Exh.6/12 dated 25th March, 1972, no reference of these receipts was made.
(ii) Before instituting ejectment proceedings respondent gave notice to appellant Exh.6/15 dated 5th May, 1971, which was duly received by him as per acknowledgment card Exh.6/16 and reply to it was given by the respondent through his counsel on 1st June, 1971, wherein nothing was mentioned in respect of these receipts nor about the sale agreement between the parties, therefore, legally in escapable conclusion would be that as these documents were forged later on, therefore, their reference was not made in the plaint, otherwise, there was no point in not making reference of Exhs.6/1 and 6/2 in letter dated 1st June, 1971 as well as in plaint.
(iii) The Courts are required to decide the cases on the basis of pleadings of the parties and since both the receipts i,e, Exhs.6/1 and 6/2 were not mentioned in the paint, therefore, neither the respondent had an occasion to file its reply nor the Court was under obligation to give effect to these documents.
(iv) The Civil Courts are always empowered to examine either of the party to ascertain correct facts of the case as in the case in hand, on having seen marks of traces on Exh.6/2, the Court examined the appellant who admitted traces on Exh.6/2 himself, therefore, learned Single Judge rightly formed opinion that Exh.6/2 is the result of manipulation, etc.
16. We have heard learned counsel for the parties in support of their respective contentions. It may be noted that learned Single Judge has non-suited the appellant mainly stamping the documents Exhs.6/1, 6/2 and 6/4 as forged one. As far as Exh.6/4 document dated 7th June, 1971 is concerned, reference of it has been made by the appellant in the .Plaint. In this document instead of making reference of earlier receipt i,e, Exhs.6/1 and 6/2 dated 2nd February, 1971 and 18th April, 1971, respectively, it has been mentioned that the respondent received Rs,60,000 collectively from the appellant from time to time towards the sale consideration of the house and executed receipt Exh.6/4 dated 7th June, 1971. Contents whereof are reproduced hereinbelow for convenience:--- "I, Mst. Nafis Bano wife of S.W. Hyder received so far time to time from Mr. Anwar Ahmad son of Mr. Muhammad Ahmad residing at 20, D.C.H.S., Karachi, a sum of Rs,60,000 (Rupees sixty thousand only) out of Rs,90,000 (Rupees ninety thousand only) towards the total consideration of sale to him of my Bungalow No,20, D.C.H.S., Karachi, which I have agreed to sell to him. The above amount is including the amount which I and my husband has been receiving time to time and the balance of Rs,30,000 (Rupees thirty thousand only), will be paid to me in fully and final settlement of sale of the said house by the purchaser Mr. Anwar Ahmed at the time of execution of the Sale-deed and all the taxes and dues will be cleared by me or the amount of the taxes and dues may be deducted from the balance amount.
' All the papers concerning with the bungalow will be transferred to Mr. Anwar Ahmad.
' Dated the 7th June, 1971.
17. Learned Single Judge in Chambers of the High Court disbelieved this document for one of the major reason that the Notary Public who has attested it was not produced. It is most important to note that such objection was not raised when learned trial Court exhibited it after taking it out from the file of rent case. In this context it is to be noted that the Notary Public Syed Aziz-ul-Hassan, who has attested the document, had died in the meantime as learned counsel for appellant informed during arguments under instruction.
18. A perusal of above document Exh.6/4 indicates clear and unambiguous intention of the respondent to sell the house in dispute to appellant for a sale consideration of Rs,90,000 out of which she had received Rs,60,000 leaving the balance of Rs,30,000. It is worth-mentioning that after the execution of Exh.6/4 respondent had received Rs,1,000 through cheque dated 7th July, 1971, thus leaving the balance of Rs,29,000 payable by appellant to her. It is to be noted with significance that the backside of the cheque bears endorsement to the effect "on account of their Bungalow No,20, Delhi Cooperative Housing Society, Karachi". The execution of this cheque is not disputed but the claim of the respondent is that the amount of Rs,1,000 was given to her towards the rent outstanding against appellant. Perhaps her this statement is not correct because in the ejectment application dated 27th May, 1971, she clearly mentioned that the rent for the last about 16 months from 1st July, 1970 to 30th April, 1970 [correct date should 30th April, 1971] has not been paid. If position is so then there was no occasion to pay the rent by appellant to respondent on 7th July, 1971. These facts are being pointed out to show that the learned Single Judge in Chambers of the High Court did not take into consideration this important document at all which essentially has caused prejudice to the case of appellant.
' It is equally important to note that besides Exhs.6/1, 6/2 and 6/4 appellant also produced two another important documents i,e, Exh.6/3 a letter dated 13th May, 1997, sent by him to the respondent mentioning therein the details of the transaction between the parties in respect of sale of the house as well as Exh.6/8 i,e, certified copy of the letter dated 8th July, 1971, calling upon the respondent to execute sale-deed in his favor, after receiving balance of Rs,20,000. Receipt of both these documents had been admitted categorically by the respondent in cross-examination. These documents were also very important for the decision of the case as they make reference in respect of the transactions which had taken place between the appellant and respondents regarding the sale of the house in dispute. It may be noted that under the law such correspondence between the parties is admissible as it has been held in the case of. Abdul Ahad Khan v. Muhammad Yasin and others PLD 1984 SC 200.
19. It is to be observed that learned Single Judge in Chambers of the High Court disbelieved Exhs.6/1 and 6/2 for number of reasons including the one that the appellant in the suit for specific performance had not mentioned in respect of both these receipts, therefore, presumption would be that they were forged by the appellant, to substantiate his claim. It is true that prior to filing of the plaint when the landlord was about to initiate ejectment proceedings against appellant, she gave a legal notice to him Exh.6/15 on 5th May, 1971, which was received by appellant vide Exh.6/16 and in the reply dated 1st June, 1971, categorically reference of these two receipts was made.
However, a perusal of the reply Exh.6/17, issued by Mr. Raza Hussain Haideri, Advocate reveals that "notice has been sent to appellant because he has already sent a letter to respondent before this notice and this is the offshoot of his letter". It would not be out of context to note here that the respondent sent a notice dated 5th May, 1971 to the respondent whereas prior to it in between the days of the notice i,e, 5th May, 1971 and its reply 1st June, 1971, on 30th May, 1971, appellant already sent a letter Exh.6/3 reference of which had already been made herein above wherein details, in respect of sale of her house, have been mentioned including the amount till then received by the respondent. Thus, assertion of the learned trial Judge that the appellant had not referred to the earlier correspondence between the parties in respect of the receipt Exhs.6/1 and 6/2 is not correct.
Although in the plaint dated 25th May, 1972, as it has been discussed hereinabove, the appellant had taken the plea that from time to time, the respondent had been receiving different amounts from the appellant and till the execution of Exh.6/4 dated 7th June, 1971, sum of Rs,60,000 had been paid.
20. As far as non-filing of documents along with plaint is concerned it has never been considered fatal in view of provisions of Order XIII, rule 2, C.P.C. Which empowers the Court to receive documentary evidence during the trial. As it has been pointed out hereinabove that indirectly Exhs.6/1 and 6/2 dated 2nd February, 1971 and 18th April, 1971 find mention in the plaint with reference to Exh.6/4. In addition to it when both these receipts were proved during the trial, no objection was raised by the respondent or her counsel in this behalf and all these documents were allowed to be brought on record by the Court, therefore, in view of settled principle of law that on an objection at a subsequent stage, such documentary evidence cannot be discarded. Reference in this context may be made to Mangibai Gulab Chand and another v. Sughanchand Bhikamchand and others PLD 1948 PC 168, Dr. Ilyas Dobash v. Muhammad Iqbal PLD 1960 (W.P.) Lah. 1112, Amir Muhammad Hussain Shah v. Aswa l Hussain Shah PLD 1966 (W.P.) Pesh. 113, Umar Hayat v. Naik Alam PLD 1977 AJ&K 78, Sheikhupura Central Cooperative Bank Ltd. v. Tawakkal Ullah PLD 1977 Lah. 763, Muhammad Hussain v. Ghulam Ali PLD 1977 Kar. 285, Gulzar Hussain v. Abdul Rehman 1985 SCMR 301, National Bank of Pakistan v. Sayed Mir 1987 CLC 1103, Muhammad Aslam v. Mst. Sardar Begum alias Noior -Nishan 1989 SCMR 704, Muhammad Unees v. Ghulam Hassan 1990 MLD 219. Relevant para from the judgment in the case of Muhammad Aslam (ibid) is reproduced hereinbelow:- ' Taking up the second submission, it is correct that this document was not relied upon in the plaint nor was it filed in Court before the trial but was produced at the time of recording the evidence nonetheless the fact remains that it was brought on record without any objection from the appellants. Thus they waived the objection. Therefore, the second submission also has no force.
' Following the dictum laid down in above judgments, it can safely be held that without prejudice to the case of any of the parties about non-filing of Exhs.6/1 and 6/2, it is held that since both these documents were produced at the time of recording of evidence and they were brought on record without any objection, thus learned Single Judge in Chambers of the High Court may have not non-suited the appellant for such reason.
21. It may also be borne in mind that all the five documents i,e, Exhs.6/1, 6/2, 6/3, 6/4 and 6/8 have furnished important evidence in favor of appellant, therefore, the trial Court had legal obligation to consider them same strictly in accordance with law. But unfortunately as far as documents Exhs.6/3, 6/4 and 6/8 are concerned, they were not considered at all in their real perspective by the learned High Court whereas the document Exhs.6/1 and 6/2 have been disbelieved on account of non-mentioning of their existence in the reply of notice dated 1st June, 1971 sent by appellant to respondent in response to notice dated 5th May, 1971 before the institution of the suit as well as in the plaint. Thus it is held that reasons assigned for not accepting these documents are not sustainable in the eye of law.
' As far as Exh.6/2 is concerned it has been rejected for an additional reason that during the course of hearing learned trial Judge noticed certain manipulations on it and according to his opinion, "he has noticed that Exh.6/2 was previously written in hand with ink but the writing was removed by chemical action and thereafter the subject-matter was typed on it". In this context, learned Single Judge failed to take into consideration that this document along with other documents, referred to hereinbefore particularly Exhs.6/1 and 6/4 were in the custody of the Court i,e, originally on the file of Rent Controller in the Rent Case No,1389/1971, where they were filed by the appellant along with written statement submitted by him to contest the ejectment proceedings and thereafter they were transferred on the file of Suit No,18 of 1972 which has given rise to instant proceedings. Exh.6/2 was admitted on record by Mr. Justice Nasir Aslam Zahid (as he then was) while recording the statement of appellant on 19th January, 1982 but he did not notice traces on it. Neither the respondent herself through her counsel raised any objection in this behalf when it was being exhibited nor at a subsequent stage when with the consent of parties counsel, same was examined by the Handwriting Expert P.W. Khurshid Ahmad. As such it is not understandable that as to how all of sudden it occurred to the learned Single Judge, after completion of trial before the pronouncement of the judgment to record the statement of appellant to ascertain as to whether it has traces or not and he disbelieved it by forming his own an opinion that with chemical action manipulation has been done on it. In our opinion the document should have been taken to be a valid one firstly in view of the evidence of Handwriting. Expert P.W. Khurshid Ahmed who in his report Exh.7/1 has opined that the question signature on this document is similar to the admitted signature of the respondent. Though this witness was cross-examined thoroughly but nothing was brought on record with regard to tampering/manipulation of the document; secondly it was in the safe custody of the Court, therefore, appellant cannot be blamed that with some chemical action previous handwriting has been removed and fresh matter has been typed on it. Be that as it may, as the learned Single Judge was seized with the matter concerning civil rights of the parties in respect of the disputed property, therefore, before forming a view concerning technical matters, which essentially has caused prejudice to appellant, he may have summoned both the sides through their counsel and then had ascertained the status of the document Exh.6/2 in their presence after obtaining expert opinion and determining the responsibility of the person responsible for tampering/ manipulating the document, if it was so, its fate should have been decided in accordance with law. Similarly, learned Appellate Court did not attend to this most important aspect of the case and has endorsed the judgment of the learned Single Judge without assigning any cogent reason.
22. In such view of the matter, we are of the opinion that in the interest of justice and to safeguard the interest of both the sides, it would be appropriate to remand the case to the learned Single Judge of the High Court of Sindh, Karachi for re-examining Exh.6/2 in presence of both the sides with the aid of expert evidence to ascertain its validity and then to dispose of the matter expeditiously on having taken into consideration oral and documentary evidence, adduced by both the parties, as far as possible within a period of six months, as dispute is lingering between the parties since long. Similarly if the appeal is filed by any of the aggrieved party before the Division Bench of the High Court, it will also be decided expeditiously as far as possible within a period of three months preferably from the date of filing of appeal.
23. Learned counsel for the parties have also addressed arguments on other points involved in this case but as the case is being remanded, therefore, it is considered appropriate not to dilate upon those questions at this stage.
' Thus for the foregoing reasons, appeal is allowed, impugned judgment dated 10th October 1993 is set aside and case is remanded to the learned Single Judge of High Court of Sindh for decision afresh in view of the observations made hereinabove. Parties are left to bear their own costs.
(Sd.) Iftikhar Muhammad Chaudhry Judge ' I have appended my separate note.
(Sd.) Rana Bhagwandas Judge Separate note appended.
(Sd.) Sardar Muhammad Raza Khan Judge ' RANA BHAGWANDAS,
24. I have had the privilege of perusing the proposed judgment authored by my reverend brother Iftikhar Muhammad Chaudhry, J. I am, however, unable to concur with the conclusions drawn in the proposed judgment for a variety of reasons.
25. In the instant appeal, learned Judge in Chambers of the High Court as well as Division Bench of the High Court, on a careful and well considered appreciation of oral as well as documentary evidence, have non-suited the appellant expressing the view that the suit filed by him against the respondent was brought as a counterblast to the ejectment proceedings initiated against him by the landlady/vendor. It is not denied that the appellant had the notice of ejectment proceedings before the so-called acknowledgement receipt Exh.6/4 dated 7-6-1971, heavily relied upon by him in support of his case, which undoubtedly does not refer to the alleged payments made by him through earlier disputed acknowledgement receipts Exhs.6/1 and 6/2, dated 2-2-1971 and 18-4-1971 respectively. These documents, including Exh.6/4, were found to be forged and fabricated by the trial Court and findings affirmed in appeal by Division Bench of the High Court for valid and sound reasons. In my opinion, it is hard to take any exception to the opinion formed by learned Single Judge, who had the privilege of examining the documents thoroughly and at great length. It is inconceivable that the appellant, being under threat of eviction from the suit premises on the ground of default in payment of rent, would part with huge amount of Rs,60,000 in part performance of an agreement relating to the sale of the suit property, without the threat of impending ejectment being dropped. It is equally difficult to hold that during the pendency of the ejectment proceedings, landlady would enter into an agreement for sale of the property with his tenant, receive sizeable part consideration and at the same time pursue her remedy before. The Rent Controller for ejectment of the appellant, which was allowed. However, in the appeal, preferred by the appellant against the ejectment, order was set aside by the High Court and eviction case was decided in his favor. The matter did not end here and the landlady invoked the jurisdiction of this Court by instituting Civil Petition for Leave to Appeal No,76-K of 1995, which is still pending. Its hearing was deferred by a Bench of this Court in view of pendency of Civil Petition for Leave to Appeal No,78-K of 1994, in which leave to appeal was granted to the appellant and registered as the instant appeal. I do not find any exceptional circumstance to believe that in the face of ejectment proceedings, in which evidence of the parties was duly recorded, landlady would venture to transfer her right, interest and title to the property in favor of the tenant without resolving the controversy in ejectment proceedings. Findings of fact concurrently recorded by two different Benches of the High Court, in my view, are founded on correct, careful and conscious application of mind and do not suffer from any legal infirmity warranting interference by this Court in the exercise of Constitutional jurisdiction. Even otherwise, it has not been shown that such findings suffer from misconception of law or perversity of reasoning or gross misreading/nonconsideration of any material piece of evidence.
26. Learned Senior Advocate Supreme Court for the appellant strenuously contended that no adverse inference can be drawn against the appellant for not filing two receipts for payment of earnest money and part payment towards the sale consideration along with the plaint, as, such documents can always be produced in evidence with the leave of the Court provided such payment has been pleaded and the documents are otherwise relevant. Such payments and acknowledgements were evidently not pleaded, therefore, these cannot be allowed to be introduced in evidence. The fact remains that on close scrutiny of evidence, learned trial Court was persuaded to discard these documents as forged and fabricated. It may not be out of context to observe that in paragraph 2 of the plaint appellant had pleaded part payment of Rs,60,000 to the respondent towards sale consideration and appended a copy of receipt dated 7-6-1971, which was expressly disputed in the written statement, clearly asserting that the said receipt was a forged and fabricated document. It was, therefore, imperative and incumbent upon the appellant to prove due execution of this document. Appellant, in his evidence, stated that first payment towards the sale consideration was made by him in presence of Mr. Abdus Salam on 2-2-1971 to the respondent to the tune of Rs,15,000 and for the first time, he claimed that a receipt therefor was duly issued by the respondent, which was produced as Exh.6/1. Appellant also claimed that further payment was made by him to the respondent towards the sale consideration and, by 18-4-1971, total amount of Rs,50,000 had been paid by him to the respondent, including the amount mentioned in Exh.6/1. He produced second receipt Exh.6/2. The conclusion drawn by learned Single Judge and affirmed by the Division Bench of the High Court that both the documents as well as Exh.6/4 were patently forged and fabricated documents is further strengthened by the circumstance that, before institution of rent case, respondent-vendor had issued a legal notice to the appellant but strange enough in his reply to the said notice he neither mentioned any contract of sale nor payment of part consideration or execution of acknowledgment receipts by the vendor. From the evidence of the appellant, it appears that initially the sale consideration was agreed to be Rs,85,000 on 2-2-1971 but it was raised to Rs,90,000 after a few months. He could not say whether this was done in June, 1971. Be that as it may, fact remains that payment of Rs,35,000 was not made by him in a lump sum but on different dates between 2-2-1971 to 18-4-1971 whereas balance amount of Rs,10,000 out of Rs,60,000 was paid by him in cash in lump sum to the respondent on 7-6-1971. There was exchange of legal notices and correspondence between the parties before the institution of the suit but admitted position is that ejectment proceedings were instituted before filing of the suit for specific performance by him. The filing of suit for specific performance as a counterblast to the ejectment case in the circumstances seems more probable.
27. Adverting to the genuineness and due execution of receipt Exh.6/4, dated 7-6-1971, I find nothing wrong on the part of the learned Single Judge, who noticed traces of writing with ink on the original document having been removed by chemical action and typing put the substance on the receipt leaving the signature of the respondent intact. After noticing such discrepancy, learned Judge had called upon the appellant to appear before him when he was confronted with the document.
Admittedly, he was unable to explain the traces of writing with ink on the document, except saying that it was given to him by the vendor and he had produced the same in the rent proceedings against G him. Serious exception was taken by the learned Senior Advocate Supreme Court that the appellant was called for confrontation with this document in the absence of his counsel but, strictly speaking, a Court is always competent to examine and re-examine a witness in terms of Article 161 of Qanun-e-Shahadat, 1984 to satisfy its conscience to find out the truth or otherwise of a statement or a document. Even without calling the appellant to explain the discrepancy, I think, the Court was competent to look into the document and to comment upon its true nature or otherwise, as, such power is inherent in every Court, much less the High Court. Furthermore, appellant was at liberty to avail of services of his Advocate while appearing for further evidence and there was no restriction against legal assistance.
28. Reverting to the production and exhibition of said document, it was incumbent upon the appellant to examine attesting witness Syed" Azizul Hassan Notary Public to prove its execution, as according to the appellant himself, this document was written in the City Courts. Non-production of this witness to prove the contents of the document was fatal to the case of the appellant with the legal consequence that the recitals of this document cannot be said to have been proved in terms of Article 78 of Qanun-e-Shahadat 1984. It was stated at the Bar that the attesting witness had died before his evidence could be recorded at the trial but mere statement would not exonerate the appellant of his legal obligation to prove the contents of a disputed document. This fact should have been pleaded before the trial Court and having established non-availability of the witness by reason of his death, steps should have been taken to adduce secondary evidence with the leave of the Court. Simply because no objection was raised to the production of document would not render the document as proved. There is plethora of case-law on the subject but for the sake of reference one may refer to Muhammad Yusuf v. S.M. Ayub PLD 1973 SC 160, Allah Dad v. S.M. Khan 1989 CLC 2289, President of Pakistan v. Ms. Benazir Bhutto 1992 MLD 383, Muhammad Anwar v.
Muhammad Ismail 1992 MLD 860, Ghulam Nabi v. Muhammad Yusuf 1993 CLC 314, Nazir Ahmad v.
Muhammad Rafique 1997 CLC 257, Nazeer Ahmad v. Abdul Hameed Khan 2001 YLR 2145, Abdul Hameed v. Muhammad Iqbal 2002 YLR 2772, Thakurdas v. Topandas AIR 1929 Sindh 217 and Ghansham Singh v. Muhammad Yacoob AIR 1933 Sindh 257.
29. There is another aspect of the case, which needs serious consideration. Grant of specific performance is always discretionary and the Court is not always bound to decree specific performance, even in a case where the contract is proved. Such discretion, however, must be exercised judiciously and not arbitrarily. Refer Arif Shah v. Abdul Hakeem Qureshi PLD 1991 SC 905, Mussarat Shaukat Ali v. Safia Khatoon 1994 SCMR 2189 and Amina Bibi v. Mudassar Aziz PLD 2003 SC
430. In this appeal, learned Judges of the High Court, in the exercise of original as well as appellate jurisdiction, on assessm ent of the evidence, have found the appellant not entitled to the discretionary relief of specific performance, which would hardly warrant any interference by this Court. Even otherwise, present appeal before this Court being in the nature of second appeal, it is not open to this Court to reappraise and re-evaluate the merits of the evidence, which has been properly and very carefully analysed by eminent Judges of the High Court.
30. In the proposed judgment, an impression has been given that the High Court did not appreciate the evidence on record in its proper perspective and discarded the documents illegally. In such an eventuality, no occasion of remand of the case would arise, and, if we were to agree with the leading judgment, appeal ought to be allowed rather than the suit to be remanded to the trial Court. Remand of a case can only be ordered when it becomes absolutely necessary and inevitable IL in view of insufficient or inconclusive evidence on record.
31. For the aforesaid facts and reasons, I am clearly of the view that there is no merit in this appeal, which must fail and is hereby dismissed with costs.
SARDAR MUHAMMAD RAZA KHAN, J.---
32. I have the privilege of going through the learned discourse of my Honourable brothers. The difference of opinion has made me more conscious about my responsibility of arriving at a certain conclusion. I have, therefore, minutely gone through the record and have examined the evidence of the parties in addition to the attending circumstances of the case which, at times, speak even louder than the record.
33. The instant suit by Anwar Ahmad appellant for specific performance of contract was filed in the year 1971 against Nafis Bano, the respondent, who already had initiated ejectment proceedings on 27-5-1971 against Anwar Ahmad, the tenant on the grounds of unauthorized construction, subletting and default in payment of rent amounting to Rs,13,500 which, in the year 1971 was a substantial amount.
34. Apart from that, Nafis Bano had also filed a civil suit for the cancellation of any agreement to sell, the receipts concerning therewith and any other document so relied upon, being forged, fictitious and fabricated. The second suit by the lady filed on 9-3-1972 was dismissed in default on 24-7-1975 the restoration whereof was refused on 20-12-1975. This background is narrated to impress upon the only fact that the lady having not persuaded the matter further, is not at all debarred from perpetuating her cause and no adverse inference can be taken thereby, because, the cause of action remained alive in the suit of specific performance which the lady had every chance and right to defend with the same force.
35. In the instant case the trial is conducted by a learned Single Judge of High Court who gave his fmding after thorough appreciation of documentary as well as oral evidence produced within his view. Such finding dated 5-8-1984 culminating into dismissal of suit was upheld by a learned.
Division Bench of the same High Court. This concurrent finding of fact arrived at by two Courts in succession should not be interfered with by this Court in second appeal unless there are compelling reasons of grave misreading or non-reading of evidence resulting into miscarriage of justice. When I examined the evidence on record, I find myself completely in agreement with the decision arrived at by the trial as well as by the Appellate Court and thus do firmly believe that the conclusion being concurrent as well as correct, should not at all be interfered with.
36. It is rightly held, with strict reference to the evidence on record, that the evidence oral as well as documentary, was not confidence inspiring. That the documents Exh.6/1 and Exh.6/2 being of utmost significance ought to have been mentioned in and filed along with the plaint which was filed almost a year after ejectment petition. That the disputed receipts dated 2-2-1971 and 18-4- 1971 were never mentioned by the appellant in his notice to the defendant preceding the suit. That the agreement as well as receipts in question were not mentioned by the appellant in his reply through counsel to the notice dated 5-5-1971 given by the respondent before filing her ejectment petition. That the receipt was first written by hand with ink which was subsequently removed through chemical process and rewritten through type; which traces of ink underneath were admitted by the appellant when recalled by the learned trial Court for such examination. That the appellant despite being in possession of the receipts failed to show the dates of payment and, lastly, that the Notary Public who had attested the so-called agreement to sell, apparently being an independent witness, was never examined by the appellant.
37. So far as the non-filing of documents at the proper stage of along with the plaint and the consequences thereof are concerned, I am of the view that the reasons given in para 26 of the judgment by my Honourable Brother Rana Bhagwandas, J.. Are akin to the facts and circumstances of the present case. The notion that the objection was not taken at the initial stage when the document was being tendered into evidence, is a circumstance that does not, on merit, militate against a party not raising objection at the first instance. Such objections are material only when certain documents or material is downright inadmissible in evidence and when such document cannot even be placed on record. Non objection at the first stage merely justifies the physical placement of a document on record but does not at all tantamount to admitting the contents, truth or genuineness of such document, which, remains always to be proved independent of such admission. In the instant case, I believe that the appellant has failed to prove the genuineness of the documents which have rightly been held to be forged, fictitious and fraudulent.
38. Next is the question of placing reliance on the statement of the appellant when he was recalled to depose in connection with the traces of ink below the writing in type. It is but a known and consistent principle of law, not so far deviated from, that a Court has unfettered and absolute power to call or recall a witness at any stage in order to get the things explained or get the doubt removed.
39. The objection of the learned counsel that the appellant was examined in the absence of his counsel is totally unfounded and ridiculous. Was the counsel necessary for prompting the appellant in the matter? The presence of the counsel would have been necessary had the opposite party of the appellant been examined in his absence and had any adverse inference been drawn against the plaintiff from the statement of such opponent. With regard to his own examination or re-examination, it cannot be said by him that he was taken by surprise and that there should have been his counsel around to prompt him? In my view, the appellant was rightly recalled by the trial Court and legally correct inference was drawn from what he then stated.
40. Lastly, a relief for specific performance of contract is purely a discretionary relief. It is denied at times even if the agreement is proved, when in the circumstances, the Court is of the view that the grant of such specific relief would not meet the ends of justice. So far as this case is concerned, the evidence and the attending circumstances are so strongly against the appellant that he is not at all entitled to the relief claimed. This by itself is sufficient for this Court to, concurre with the concurrent finding of the two Courts.
41. So far as the evidence of handwriting is concerned, it is always considered to be a weak type of evidence. In the presence of overwhelming evidence, oral, documentary as well as circumstantial, it would 'be futile to examine the expert. Even if examined, it would not outweigh the available evidence.
42. For what has been discussed above, I hold that there is no merit in the appeal which requires to be and is hereby dismissed with costs throughout. ORDER OF THE BENCH ' Appeal is dismissed with the majority of two to one with costs.