Brief facts in the instant Civil Revision are that one Muhammad Hanif filed a suit for specific performance of agreement to sell dated 17.1.1992. Suit was contested that the agreement was forged and illegal. Following issues were formulated on the pleadings of the parties:--
(i) Whether the defendant agreed to sell his land to the plaintiff for Rs, 22,500/- vide agreement dated 17.1.1992? OPP.
(ii) Whether the defendant received Rs, ,15,000/- as earnest money from the plaintiff? OPP.
(iii) Whether the plaintiff is entitled to a decree for specific performance of suit land against defendant? OPP
(iv) Whether the agreement dated 17.1.1992 is forged and illegal document? OPD (iv-a) Whether Defendant No, 2 is bonafide purchaser of the suit property for value, if so, its effect?
OPD-2
(v) Whether the plaintiff is estopped by his act and conduct to file the present suit? OPD.
(vi) Relief.
Issues Nos, 1 to 4, 4-A and 5 were decided in favour of the plaintiff while Issue No, 3 was decided against the plaintiff and suit was dismissed vide judgment and decree dated 28.7.1997. An appeal was filed by the petitioner but he failed to file cross-objections against the findings on Issues Nos, 1 to 4, 4-A and 5 of the learned trial Court before the learned Appellate Court. Infact during the pendency of suit the learned trial Court gave a conditional interim injunction to the plaintiff subject to deposit to Rs, 7,500/- the remaining consideration of agreement to sell. This order was assailed in appeal, which was dismissed, and then the evidence was produced by both the parties and the case was decided on the very basis that plaintiff/petitioner was never ready to deposit the consideration money hence, the suit was dismissed although the issue regarding the execution of agreement of sell between the parties and bonafide purchase of the suit property and whether the agreement dated 17.1.1992 is forged and illegal were decided in favour of the plaintiff but on Issue No, 3 the suit was' dismissed. On appeal the learned Appellate Court vide judgment and decree dated 27.4.2000 accepted the appeal and set aside the finding on Issue No, 3, decreed the plaintiff's suit with costs, directed the plaintiff to deposit the sale price Rs, 7,500/- within on month hence, the present revision petition.
2. Argument advanced by learned counsel for the petitioner are that the agreement to sell is dated 17.1.1992, which is Ex. P-I on the record is executed in consideration of Rs, 22,500/- in respect of a plot measuring 3 marlas. According to this agreement to sell Rs, 15,000/- has been given as earnest money and 12.4.1992 was the date of completion of agreement to sell. Two suits were filed by Muhammad Hanif and Shaukat Ali plaintiffs on 18.6.1992. Muhammad Bashir PW-1 appeared alongwith Rustam Ali PW-2 and according to Article 17(2) and Section 79 of Qanun-e-Shahadat, two marginal witnesses are necessary to prove the execution of agreement to sell.
Since the agreement to sell is on a plain paper and it is based on fraud and is reduced in writing in collusion with one Bashir. Placed reliance on "Maqsood Ahmad and others Vs. Salm an Ali" (PLD 2003 S.C. 31) and "Muhammad Khan v. Mst. Rasul Bibi" (PLD 2003 SC 676). Moreover the conduct of respondents is clear that when they were asked to deposit the consideration of agreement to sell in the conditional interim injunction granted by learned trial Court they did not deposit the same, therefore, they cannot file a suit for specific performance of agreement to sell dated 12.4.1992. There is nothing to show that on that date the respondents appeared before the Registrar for breach of conduct nor any notice was given to the petitioner, for compliance of the agreement to sell, placed reliance on "Mubarak Ali vs. Tula Khan alias Sadullah Khan (1985 SCM R 236) and "Rab Naivab and 13 others vs. Mustaqeem Khan and 14 others" (1999 SCM R 1362).
3. Learned counsel for the respondents submitted that in a conditional interim order the learned trial Court directed the plaintiff to deposit the consideration of agreement to sell. Issues were formulated on pleadings of the parties and except Issue No, 3 all the remaining issues were recorded in favour of the plaintiff. Moreover, the present respondents have lost all their entire interest in the disputed land which during pendency of the proceedings he sold to one Muhammad Arshad and Muhammad Arshad has not come to the Court to challenge the proceedings. The respondents vendors have no locus standi as the disputed property is sold to Muhammad Arshad lis-pendent, relied on 'Muhammad Ishtiaq Hussain and another vs. Zulfiqar Ali" (1992 M LD 1699) and "Lt. Col. Ch. Jan Muhammad Vs. Lt. Col. M.A. Sattar and 8 others (1980 SCM R 682). Further argued that most important aspect of the case is that the petitioner never filed cross objections in respect of the findings of the remaining issues, which were decided in favour of the plaintiff in respect of execution of agreement of sell. The findings on these issues were also maintained by the learned Appellate Court, therefore, these findings have become final as no cross objection has been filed and Muhammad Arshad a subsequent purchaser has not appeared, relied on "Abdul Wali Khan vs. Muhammad Saleh" (1998 SCM R 760) and "Muhammad Sharif vs. Mst. Sardaran Bibi and others"
(2002 M LD 1002).
4. I have heard the learned counsel for the parties and perused the record. Suit for specific performance of agreement to sell was , filed by Muhammad Hanif against Muhammad Siddique petitioner and Muhammad Arshad. It was defended by Muhammad Siddique Defendant No, 1 present petitioner, and DW-3 appeared in evidence on behalf of Muhammad Arshad. ' Amended petition of agreement to sell disclose the prayer for specific performance of agreement to sell through a registered transaction of sale after payment of remaining amount of Rs, 7,500/- and cancellation of subsequent sale in favour of Defendant No, 2 vide registered Sale-Deed No, 997 dated 25.5.1993. Suit was contested through filing of written statement and denial of execution of agreement to sell, being forged and fictitious and without consideration. Issues were framed on the basis of pleadings of parties. Bashir Ahmad appeared as PW-1 as scriber of agreement to sell, which is Ex. P-1 and PW-2 Rustam son of Yousaf appeared as a marginal witness of execution of Ex.
P-1 and identified his signatures and thumb impression over Ex. P-1/2 and endorced that Muhammad Hanif, Siddique and Ghulam also thumb marked the same and afterwards Ex. P-1 was signed and at the time of execution of Ex. P-1 Rs, 15,000/- were paid in his presence. PW-3 Muhammad Hanif appeared as his own witness and stated in respect of execution of agreement to sell Ex. P-1 endorsed his signatures on Ex. P-I/3 and also stated about the signatures and thumb impression of Rustam and that the document was scribed by the scriber Bashir and Siddique also signed and at the spot Rs, 15,000/- were given and Rs, 7500/-was to be paid within three months but the defendants did not get registered the agreement to sell although possession was handed over, therefore, the suit was filed and during pendency of suit the property was transferred to Muhammad Arshad through a registered sale-deed. Muhammad Siddique defendant appeared as DW-1 and he was supported by DW-2 and DW-3. Haji Muhammad Hanif the general attorney on behalf of Muhammad Arshad. All these witnesses supported DW-1 that no agreement to sell was executed nor any witness signed the same.
5. After perusal of the entire evidence the learned trial Court while deciding Issues Nos, 1, 2 and 4 observed that defendant as DW-2 admitted that Defendant No, 1 put his signatures on an application. His signatures on the sale agreement were obtained fraudulently, he is illiterate person but, while entering into witnesses-box he admitted his signatures over Ex. P-I, thus sale agreement between the plaintiff and defendant has been proved. On Issue No, 4(a) the learned trial Court observed that Defendant No, 2 is hit by the principle of lis-pendent. On Issue No, 3 the learned trial Court observed that plaintiff averred in Paragraph 4 of the plaint that he is ready and willing to pay the balance sale transaction of Rs, 7,500/- to the defendant but he proved otherwise during the proceedings of the suit as previously directed by the learned predecessor in interest to deposit the balance amount Rs, 7,500/- in the Court within 15 days vide order dated 21.9.1992, in an Interim Injunction instead of complying with this order he went in appeal and his appeal was dismissed vide order dated 5.4.1993. While appearing as PW-3 the plaintiff deposed that he brought the suit when Defendant No, 1 did not get the sale registered according to agreement PWs1 and 3 are quite silent on the point that the defendant was asked to get the sale-deed registered, therefore, the plaintiff is not entitled to decree for specific performance of agreement to sell. Issue was decided in the negative. The remaining Issues Nos, 5 and 6 were also decided in favour of the plaintiff. On appeal the learned Appellate' Court observed that the learned trial Court has inferred that plaintiff as unwilling to perform the agreement to sell as in a conditional interim order passed by the learned trial Court he failed to deposit the remaining amount of agreement to sell. This finding of the learned trial Court is in conflict on Issues Nos, 1, 2 and 4, 'dismissal of suit was based on an order dated 21.9.1992 and that conditional order of deposit was to the extent of temporary injunction. Neither the condition was for deposit of remaining sale price on occasion for denial of the performance of agreement which otherwise is proved nor it can be made the basis of deciding the suit beyond the evidence on record as the act of non deposit of amount emerged from the proceedings in temporary injunction. When the execution of agreement, payment of advance money was proved then the suit should have been decreed by the learned trial Court, therefore, the learned Appellate Court accepted the appeal and set aside the finding on Issue No, and directed the appellant to deposit the remaining sale price Rs, 75,00/ within one month from the date of announcement of judgment i,e, 27.4.2000
6. Keeping in view the entire evidence on record it is really surprising that the learned trial Court decided all the issues except Issue No, 3 in connection with the execution of agreement to sell. It means that the learned trial Court fully convinced as to the genuineness and bonafide with regard to the document of agreement to sell. Execution in view of Articles 82 and 79 of Qanun-e-Shahadat means signing by the executant am included attestation as well in order to give a presumption to a document being complete of formally valid deed. Necessity of calling the attesting witnesses is to prove the signatures of the executant and prove the attestation but if said witness turned hostile or refused to prove execution attestation, other witness may be called for the same purpose, "Muhammad Khan vs. Mst. Rasul Bibi" (PLD 2003 S.C. 676). The Court can decline grab to leave under Section 22 of the Specific Relief Act, where it is convinced the circumstances does exist that plaintiff is exercising unfair advantage or the is fraud or misrepresentation on behalf of the plaintiff's part and where the performance of contract involved some hardship on defendant, "Rab Nawa and 13 others vs. Mustaqeem Khan and 14 others" (1999 SCM R 1362). I that very judgment the Hon'ble Supreme Court has observed that time for performance of agreement of sale arrived at between the parties was essence of contract but plaintiff/vendee instead of serving notice upon the defendants/vendors up to specified date and offering payment of agreed ha of sale consideration to defendants/vendors, rushed to Court to file suit for specific performance of contract. Instances of fraud in the transaction though were not existing, yet there was want of equity and fairness in the contra which were essential so that Court could exercise its discretiona jurisdiction in specific performance--Court, in judging the said fairness of contract, would look not merely at terms of contract itself, but at surrounding circumstances. In the present case conditional interim injunction was granted to the plaintiff to deposit the remaining amount Rs, 7,500/- and the refusal to deposit the same would result in the vacated of interim injunction but it will not effect the appraisal of evidence as to t legality of execution of agreement to sell basing on consideration, delivers the possession of the property and many other surrounding circumstance Muhammad Ishtiaq Hussain and another vs. Zulfiqar Ali" (1992 M LD 1699) is the case of similar circumstances were temporary injunctions were conditionally granted and the plaintiff could not deposit the specified amounted specified date. It was held that under such circumstances only penal consequences which could be provided in non-compliance of the order could be the dismissal of application for temporary injunction and not dismissal of suit "Lt. Col. Ch. Jan Muhammad vs. Lt. Col. M.A. Sattar and 8 others" 1980 SCM R 682). The Court recorded finding whether the agreement to sell vas really executed and performance of agreement to sell was done to part performance to the defendant and the defendant received the same and there was a denial of specific performance of agreement to sell by the defendant. II these issues were decided in favour of the plaintiff and the learned trial Court not dismiss the suit for non-deposit of remaining amount of consideration in an application for interim injunction.
7. Next point argued by the learned counsel for the petitioner that we marginal witnesses were necessary to prove the agreement to sell when the marginal witness and one subscriber was produced. Surprisingly the. bindings of learned trial Court in respect of the execution of agreement to sell and the connected issues regarding the execution of agreement to sell were of challenged in cross-objections although he was very much aggrieved by e findings of the learned trial Court on all the aforesaid issues, except Issue o.
3. In Muhammad Sharif vs. Mst. Sardaran Bibi and others"
(2002 MLD 2002) it is held that if from evidence execution of sale-deed is fully proved d the plaintiff adequately proves the transfer of suit property to him upon accept of sale consideration and also proves the transaction of transfer of ending over of possession to the plaintiff the provisions under Article 78 of anun-e-Shahadat stand fulfilled and the suit cannot be dismissed as bolding that production only one attesting witnesses is produced. "Abdul 'ali Khan through legal heirs and others vs. Muhammad Saleh" (1998 CMR 760) it is held that defendant's further plea that two marginal witnesses were not produced in support of agreement of sell was of no consequence for any one of marginal witnesses could prove execution of document provided his evidence inspired confidence. Moreover, if at appellate stage this objection was not taken and no cross-objection were filed the petitioner/appellant when he was very much aggrieved by the finding the trial Court regarding execution of sale transaction, consideration and to possession. Since the learned Appellate Court set aside the finding of learned trial Court on Issue No, 3 and confirmed the findings of trial Court all the remaining issues, therefore, no substance exist to interfere in the judgment passed by the learned Appellate Court on Issue No, 3.