' AMIR HANI MUSLIM, J.--- The plaintiff has filed the present suit with the following prayers:-- "(1) To direct, defendant to perform his contract, provide all legal formalities for the transfer of the Shop No,7 situated at mezzanine of Gulf Way Shopping Mall, Block-8, K.D.A. Scheme-5, Clifton Road, Karachi, as per sale agreement, dated 19-10-2004, against which the defendant has already received Rs,8,00,000 (Rupees eight lacs only), and for the rest of the amount of Rs,15,00,000 the plaintiff is ready to pay as the defendant is bound to perform the contract.
(2) Declare the plaintiff owner of the Shop No,7, situated at mezzanine of Gulf Way Shopping Mall, Block-8, K.D.A. Scheme-5, Clifton Road, Karachi.
(3) Direct the defendant to pay the damages of Rs,45,00,000 (Rupees forty-five lacs) incurred by the plaintiff.
(4) Permanently restrain the defendant, his men, representatives/ attorneys and all other persons causing, working under or for the defendant, from causing any sort of hindrance/interference in the business of the plaintiff, in the physical possession, through creating third party interest, in respect of the Shop No,7, situated at mezzanine of Gulf Way Shopping Mall, Block-8, K.D.A. Scheme-5, Clifton Road, Karachi, and all other illegal actions, in any manner whatsoever.
(5) Ad interim order of stay is solicited.
(6) Cost of the suit.
(7) Any other consequential relief/s under the circumstances of the case as this Honourable Court may deem fit and proper."
2. The brief facts as they appear from the pleadings of the parties are that the plaintiff is the tenant of Shop bearing No,7, mezzanine floor of Gulf Shopping Mall, Block-8, K.D.A. Scheme-5, Clifton Road, Karachi, (hereinafter referred to as the "said shop"), rented out to her by the defendant on 21-6- 2000 at the monthly rent of Rs,3,000 pursuant to the tenancy agreement, witnessed by Muhammad Channa the owner of Gulf Way Trade Agency and one Muhammad Aslam Khan.
3. It has been pleaded in the plaint that the plaintiff on 19-10-2002 entered into a sale agreement in respect of the said shop with the defendant at an, agreed sale consideration of Rs,9,50,000. The plaintiff claims that an amount of Rs,5,00,000 was paid to the defendant at the time of execution of the sale agreement and Rs,3,00,000 were to be paid by the end of October, 2002. The balance of Rs,1,50,000 were to be paid on execution of sale-deed.
4. The plaintiff claims that the defendant on receipt of Rs,5,00,000 left for Dubai-UAE and asked the plaintiff to send Rs,3,00,000 to DubaiUAE. The plaintiff has pleaded that on account of the incident of 11-9-2002 the Banks in Pakistan refused to transfer the amount of Rs,3,00,000 to Dubai-UAE, which fact was communicated to the defendant, who threatened the plaintiff for cancellation of the sale agreement, in case the amount of Rs,3,00,000 was not paid to him in terms of the sale agreement. The defendant suggested the plaintiff to travel to Dubai-UAE for making payment. The plaintiff claims that she had been to Dubai-UAE and made payment of Rs,3,00,000 to the defendant.
5. The plaintiff claims that the defendant inspite of her repeated request has failed to complete the sale and transfer of the said shop in her favour. It is further alleged that the defendant has also forged the rent agreement by tampering the amount of rent from Rs,3,000 to Rs,5,000 per month. It is further claimed that after the receipt of sale consideration of Rs,8,00,000, the defendant has filed a Rent Case bearing No,632 of 2004 before the learned Rent Controller, Karachi (South), against the plaintiff for her ejectment from the said shop. The plaintiff for the aforesaid reasons had filed the present suit fox declaration. Specific performance, injunction and damages to the tune of Rs,45,00,000.
6. The defendant has filed his written statement, in which he has specifically pleaded that he has not signed any sale agreement for the sale of the said shop nor has he received any amount from the plaintiff towards the sale consideration. He has further pleaded that the sale agreement is a forged document. It has been further pleaded by the defendant that on the date of execution of the alleged sale agreement, he was not in Pakistan. The defendant has pleaded that since the plaintiff has failed to pay the monthly rent of the shop he has filed ejectment proceedings against her.
7. The matter came up before me on 2-5-2005 for hearing of injunction application. On perusal of the pleadings of the parties supported by the material on record. I noticed that the matter can be decided by examining the parties under Order X, C.P.C. And, therefore, I directed the parties to make available their witnesses with the original documents on which they rely. I have also directed the Deputy Attorney-General to procure the attendance of the officials of Immigration (F.I.A.) and NADRA along with record.
8. On 25-5-2005 I have partly examined the plaintiff under Order X, C.P.C. The plaintiff on 25-5-2005 had requested to allow her to examine other witnesses namely Aasim Siddiqui and Chan Zaib, who were the attesting witnesses of the alleged sale agreement according to the plaintiff. The defendant also requested for issuance of notices to Raza Muhammad Channah of Gulf Estate Agency, who was attesting witness of the tenancy agreement. I have also directed the Deputy Attorney-General to procure the attendance of a responsible officer from NADRA, with previous record of NIC of the defendant. The record and proceedings of Rent Case No,632 of 2004, filed by the defendant against the plaintiff pending before learned IXtli Rent Controller, Karachi (South) was also summoned.
9. On 26-5-2005 the plaintiff was further examined, who has placed tenancy agreement as Exh.P.1, signatures of the attesting witness namely Raza Muhammad Channa and Muhammad Aslam as Exh.P.2, signature of the defendant as Exh.P.3, copy of tenancy agreement as Exh_P.4, signature of Raza Muhammad Channa as Exh.P.5, sale agreement as Exh.P.6 and receipt as Exh.P.6/1, copy of passport as Exh.P.7 and entries as Exhs.P.7/1 and P.8 and Ejectment Case No,632 of 2004 as Exh.P.8/1 and copy of visa as Exh.P.9. On 26-5-2005, at the request of the plaintiff the matter was adjourned to 30-5-2005. On 30-5-2005, I have examined Raza Muhammad Channa, estate agent and owner of Gulf Estate Agency, who was the attesting witness of the rent agreement and Fakhar Ahmed Awan, friend of the defendant, Amanatullah Qureshi, Assistant Director, NADRA. The Assistant Director, NADRA, has produced copy of the Image of NADRA Form as Exh.P.10, Rio data of defendant as Exh.P.11 and copy of the application as Exh.P.12. On 31-5-2005 I have examined Aasim Siddiqui, brother-in-law of the plaintiff and Chan Zaib. The said Aasim Siddiqui has produced his signature on the sale agreement as Exh.P.13, signatures of the defendant as Exhs.P.14, and P.15. He has also produced page No,2 of. Exh.P.7 as Exh.P.16, page 4 of Exh.P.7 as Exh.P.17, copy of passport showing stamp of the Immigration Office, F.I.A., as Exh.P.18 and copy of computerized N.I.C. As Exh.P.19. The witness Chan Zaib produced copy of page No,2 of Exh.P.6 as Exh.P.20. On 31-5-2005, I have also examined the defendant and Muhammad Tariq, Sub-Inspector, ' F.I.A (Immigration). The defendant has produced agreement of sale dated 27-9-1999, receipts as Exhs.P.21 to P.23, respectively, copy of Exh.P.4 denying his signatures on each page of the said exhibit as Exhs.P.24, P.25 and P.26, copy of receipt as Exh.P.27, copy of computerized form as Exh.P.28 and P.29, copy of power of attorney as Exh.P.30, copies of the notices as Exhs.P.31 to P.34, respectively and copy of electricity bill as Exh.P.35. The Sub-Inspector (Immigration), F.I.A., has produced the leaf of the register containing the: entry as Exh.P .36.
10. In these proceedings the primary issue which requires consideration is whether on 27-9-1999 the defendant was present in Karachi and whether he has signed the sale agreement (Exh.P.6) and receipt (Exh.P.6/1). On examining the documents produced by the parties, which for the sake of convenience were marked as exhibits, I have noticed that the signature of the defendant No,1 as it appears on the alleged sale agreement, on comparison with the admitted signatures of the defendant No,1 appearing on his passport (Exh.P.7), N.I.C. Application form (Exh.P.20), which he has submitted with the Assistant Registrar and signatures on computerized N.I.C. Issued by NADRA are different. Additionally, I have examined Muhammad Tariq S.-I. F.I.A. (Immigration), who has confirmed that as per the record, which the Immigration Department maintains, on 6-10-2002 the defendant No,1 had proceeded abroad from Quaid-e-Azam International Airport, Karachi, and returned Pakistan on 8-11-2002. This fact is substantiated from the passport of the defendant No, 1 (Exh.P.7), which reflects the entry of immigration dated 6-10-2002, when he left Pakistan and exit entry and date 8-11-2002 on which he returned back to Pakistan. Therefore, these documents clearly suggest that on the date when the alleged sale agreement (Exh.P.6) was signed the defendant No,1 was not in Pakistan. The signatures of the defendant No,1 appearing on the sale agreement are completely different than the signatures, which appear on the computerized N.I.C Passport and power of attorney of the defendant No,1. It appears that the plaintiff has forged the signature of the defendant No,1 by lifting the signatures from the agreements of tenancy (Exhs.P.1 and P.4). According to the Estate Agent, Raza Muhammad Channa, who was examined by this Court, the defendant No,1 was not present even on the date of signing of the tenancy agreements (Exhs.P.1 and P.4). He further stated in his cross-examination that he had signed for the defendant No,1 by writing his name. He has further stated that at the request of the plaintiff two tenancy agreements were prepared and signed. The actual rent of the said shop was agreed at Rs,5,000 per month but the plaintiff, wanted to have another tenancy agreement with the difference that the monthly rent be shown as Rs,3,000 to avoid and evade tax, and, therefore, Annexure P.1 (Rent Agreement) was also prepared and signed by us on the same date but the agreed rent between the parties was Rs,5,000 per month as reflected in Exh.P.4. He further submitted that this was the reasons that he did not put his stamp of the agency on Exh.P.1 but he put stamp of his estate agency on Exh.P.4, which contained the agreed terms of tenancy between the parties. Even the Receipt (Exh.P.6/1) signed in the name of the defendant No,1 was also signed by the estate agent as per his statement in the Court. From the above statement of Raza Muhammad Channa, it appears that the plaintiff was unaware of the signatures of the defendant No,1 and his signatures were lifted from the tenancy agreements and traced/forged on the alleged sale agreement, which in the face of the facts noticed hereinabove was a forged document. The statements of two attesting witnesses of the alleged sale agreement could not be believed as one of them is related to the plaintiff and the other happens to be a stranger and there is substantial contradictions in their statements recorded in the Court, therefore, their statements are not confidence-inspiring, more so when their oral statements are in contradiction to the documentary evidence produced by the defendant No,1 reflecting that he was not in Pakistan on the date when the alleged sale agreement was executed. The contentions of the defendant No,1 are further supported by the fact that after the ejectment case was filed by the defendant No,1 the plaintiff filed the present suit. The written statement in the ejectment application and the present suit were filed on the same day. This by itself is sufficient to believe that the present proceedings were counter-blast of the rent case filed by the defendant No,1.
11. Since the issues were dependent on the documents, therefore, I have decided to examine the parties under Order X, C.P.C., as oral evidence in these proceedings was of no consequence. I am satisfied that in the face of the statements of the parties and their witnesses recorded by me in Court, coupled with the documents produced in support thereof, the defendant No,1 was not present in Karachi on 19-10-2002, when the alleged sale agreement was executed between the plaintiff and the defendant No,1. The attesting witnesses to the alleged sale agreement were also planted by the plaintiff. The sale agreement or the receipt, which is the subject-matter of .These proceedings, was never signed by the defendant No,1 as the signatures appearing on both these documents, on a comparison with the admitted signatures of defendant No,1, were completely different. The plaintiff on the basis of the forged sale agreement has filed the present proceedings and is not entitled to any of the reliefs claimed in this case.
12. For the aforesaid reasons, by my short order dated 31-5-2005, I had dismissed the above suit.