' This revision petition has been filed by Bashir Ahmad, petitioner/defendant to challenge the concurrent decrees of the learned trial Court dated 16-11-1995 and of the learned Appellate Court dated 11-9-2000, whereby a suit filed by Idrees Ahmad respondent/plaintiff seeking specific performance of an agreement dated 11-4-1991 (Exh.P.1) has been decreed.
2. The defence in the suit, set up by the petitioner/defendant was that the respondent obtained , his thumb-impression at the back of the stamp paper under the endorsement of the stamp vendor on the pretext of resolving an outstanding matter between the petitioner, on the one hand, and one Bashir Ahmad son of Munshi, on the other.
3. Issues were framed by the learned trial Court in which /both parties led evidence. A perusal of the agreement (Exh.P.1) shows that the same has not been thumb-marked, on its face, by the petitioner. This circumstance itself shows that the agreement was not executed by the petitioner.
The thumb-mark appearing on the back of Exh.P.1 under the endorsement of the stamp vendor merely shows at best, that the petitioner may have purchased the stamp paper in question.
4. Another important aspect of the case is that the total consideration for the sale, as set out in Exh.P.1, is Rs.18,500. It is recited in the agreement that the respondent/plaintiff has already paid Rs.18,000 and will be entitled to obtain execution and registration of a sale-deed in his favour by 2- 6-1991 upon payment of the balance amount of Rs.500. Prima facie, this term of the agreement does not appear reasonable because if the respondent had paid a sum of Rs.18,000, there is no apparent reason as to why he could not have paid the balance sum of Rs.500 and obtained a conveyance in his favour. In the circumstances, I asked learned counsel for the respondent to explain why a sale-deed was not obtained by the respondent. He was unable to give any explanation whatsoever. Thirdly, it is worth noting that although the last date specified in Exh.P.l for payment of the balance sum of Rs.500 and execution of a sale-deed by the petitioner was fixed as 2-6-1991, the respondent/ plaintiff proceeded to file his suit for specific performance during Court hours on 2-6-1991. This is also an odd circumstance, which remained unexplained by the respondent/plaintiff in his pleadings and evidence and by his learned counsel before me today.
5. In addition to the above and most tellingly, it is significant that the respondent/plaintiff did not examine either Bashir Ahmad son of Munshi or Abdul Majeed son of Sikandar Ali, the two marginal witnesses to Exh.P.l. No explanation for not producing the marginal witnesses is apparent froth the record. Learned counsel for the respondent/plaintiff was also unable to give any reason for not producing the two marginal witnesses to prove execution of the agreement (Exh.P.1). In view of this glaring omission, learned counsel for the petitioner justifiably referred to Articles 17 and 79 of the Ganun-e-Shahadat Order to contend that the execution of the agreement by the petitioner was not proved in accordance with law. This contention has merit and is supported by the precedent cited by learned counsel for the petitioner.
6. Learned counsel for the respondent merely stated that one Muhammad Riaz, Advocate appeared as P. W.1 and Muhammad Munir Minhas, Notary Public appeared as P.W.2 to depose that the agreement had been executed by the petitioner, who had received payment of Rs.18,000 mentioned in the agreement itself. These P.Ws. Were not marginal witnesses and, as such, do not qualify for the purpose of giving evidence in view of the express provisions of Articles 17 and 79, referred to above. Furthermore, in the absence of any justification for not producing the two marginal witnesses, the Court can draw an inference that if the said witnesses had been produced they would not have supported the case of the respondent/plaintiff.
7. In view of the foregoing discussion, I am not in any doubt that the two Courts below have badly misread the evidence on record and have committed material irregularity in the exercise of their jurisdiction. As a consequence, the concurrent decrees of the two Courts below are set aside and the suit filed by the respondent/plaintiff is dismissed.