' The facts as they appear from the pleadings of the parties are that the plaintiff claims to be a very good friend of the defendant No.1, who was the transferee/allottee of Plot No.40, Khayaban-e- Alamgir, Phase-VIII, measuring 2000 Square Yards in Defence Housing Authority. The plaintiff claims that by virtue of sale agreement executed in 1986,-Exhibit 5/1, he has purchased the said plot from the Defendant No.1 on payment of entire sale consideration of Rs.2,00,000. The sale agreement Exhibit 5/1, was signed by the plaintiff and the defendant No.1 besides two attesting witnesses. In addition to the sale agreement, the plaintiff has also obtained acknowledgement receipt of Rs.2,00,000 of the sale consideration from the defendant No.1, which he claims to have also been signed by the Defendant No. 1.
2. The plaintiff has further pleaded in the plaint that he was handed over the original file of the plot in dispute along with different documents duly signed by the defendant No.1 to enable the plaintiff to get the plot in question transferred in his name or in the name of his nominee. The plaintiff claims that he was employed in PIA and most of the time used to remain out of country and therefore, he did not get the plot transferred in his name. It has further been pleaded by the plaintiff that after the execution of sale agreement the defendant No.2 through notices demanded dues from the defendant No.1 as the original plot was subsisting in his name and even these notices were handed over to the plaintiff by the defendant No. 1.
3. The plaintiff got himself registered with the defendant No.2 on 13-1-1991 Exhibit 5/17, which was the basic requirement for the purpose of transfer of a plot in Defence Housing Authority.
4. The plaintiff claims that he approached the office of defendant No.2 in August, 1998 with intent to inquire about the procedure of the plot in question and he was informed that the plot in question can be transferred if the vendor put in personal appearance before the concerned official of the defendant No.2 in their office. As a result of this, the plaintiff requested the defendant No.1 to accompany him to the office of defendant No.2 but on one or the other pretext, the defendant No.1, avoided accompanying the plaintiff to the office of the defendant No.2. The plaintiff pleads that since the defendant No.1 refused to accompany him to the office of the defendant No.2 to finalize the transfer of the plot in his favour, he served legal notice through his Advocate calling upon the defendant No.1 to finalize the sale transaction of the plot, which notice was not replied and instead the defendant No.1 got. Published in Daily News a public notice intimating the public at large that he has lost the original transfer order of the plot in dispute.
5. On reading the public notice of the defendant No.1. The plaintiff addressed a second legal notice to the defendant No.1 denying the factum of the loss of the transfer order reiterating the contents of his earlier legal notice. Under these circumstances, the plaintiff claims to have tiled the present suit against the defendants with the following prayers:-- "(i) Order the defendant No.1 to specifically perform his part under the Agreement and get the Plot No.40 Khayaban-c-Alamgir, Phase VII, measuring 2000 Sq.Yds in PDOHA, Karachi mutated/transferred in the name of the plaintiff with directions to the defendant No.2 to mutate the plot in the name of the plaintiff in its record as owner of the said plot.
(ii) Declare that acts of the defendant No.1 contrary to the terms of the agreement including issuance of public notice dated 14-9-1998 are based on mala tide and he has no right over the plot while the plaintiff being purchaser is the owner with all consequential reliefs.
(iii) The defendants through the injunction be restrained permanently from disturbing the ownership and enjoyment of the plot or taking any step towards negating the ownership of the plaintiff of the plot.
(iv) Cost of the suit may also be awarded to the plaintiff.
(v) Any other further and better relief which this Hon'ble Court deems fit and proper for the end of justice and in the circumstances of the case may also be granted to the plaintiff."
6. The defendant No.1 has filed his written statement denying the disputing the claim of the plaintiff, inter alia, on the ground that the suit was barred by time and was not maintainable in law and the sale agreement on the basis of which the plaintiff was seeking specific performance was invalid document as it was neither properly stamped nor registered and hence was inadmissible in law.
The defendant No.1 prayed for dismissal of the suit.
7. The defendant No.2 was a pro forma defendant and since no effective relief was claimed against the defendant No.2, the defendant No.2 though served, did not contest the proceedings.
8. This Court on 9-4-1999 has framed the following issues:- "(1) Whether the suit as framed and filed is barred by Law of Limitation?
(2) Whether the defendant No.1 sold to the plaintiff his Plot No.40, Khayaban-e-Alamgir, Phase-VIII, measuring 2000 Sq.Yds or thereabouts situated in Pakistan Defence Officers' Housing Authority, Karachi and entered into an agreement of sale dated 8-10-1986 and if not what are the consequence of it
(3) Whether the defendant No.1 has received the sale consideration of Rs.2,00,000 from the plaintiff and if not what are the consequences of it?
(4) Whether the suit even otherwise is maintainable in law?
(5) Whether the defendant No.1 completed the sale by signing all the documents required by defendant No.2 for mutation purposes at the relevant time?
(6) Whether the documents of the defendant No.1 in respect of the suit plot were stolen?"
9. After framing of the issues the plaintiff examined himself as P.W.1 who produced his affidavit-in- evidence as Exhibit 5, agreement to sell Exhibit 5/1, Receipt Exhibit 5/2, letter of defendant No.1 addressed to defendant No.2 as Exhibit 5/3, transfer affidavit Exhibit 5/4, undertaking of defendant No.1 as Exhibit 5/5, letter of defendant No.1 to defendant No.2 furnishing latest specimen signature as Exhibit 5/6, Authority Letter signed by defendant No.1 as Exhibit 5/7, Loan Affidavit as Exhibit 5/8, photocopy of NIC of defendant No.1 as Exhibit 5/9, Transfer Order dated 27-11-1980 as Exhibit 5/10, Receipt dated 6-11-1980 issued by defendant No.2 as Exhibit 5/11, photocopy of undertaking as Exhibit 5/12, Photocopy of letter dated 30-10-1980 addressed by M. Jawaid Akhtar to defendant No.2 as Exhibit 5/13, Transfer letter of defendant No.2 dated 6-11-1980 in favour of defendant No.1 as Exhibit 5/14, letter dated 25-11-1989 addressed by defendant No.2 to defendant No.1 as Exhibit 5/15, statement of Account dated 5-10-1989 regarding plot in dispute issued by defendant No.2 as Exhibit 5/16, photocopy of form of application for registration in Category B dated 13-1-1991 as Exhibit 5/17, letter dated 14-2-1991 written by defendant No.2 as Exhibit 5/18, copy of legal notice dated 12-9-1998 sent to defendant No.1 as Exhibit 5/19, postal receipt dated 14-9-1998 Exhibit 5/20, photocopy of Notice published by defendant No.1 in Daily News dated 14-9-1998 as Exhibit 5/21, postal, receipt dated 15-9-1998 as Exhibit 5/22, copy of legal notice dated 14-9-1998 sent to the defendant No.1 as Exhibit 5/23 and notice published by plaintiff in Daily News of 16-9-1998 as Exhibit 5/24.
10. Besides, himself, the plaintiff also examined Suhail Naseer, P.W.2, attesting witness to the sale agreement Exhibit 5/1, who produced his affidavit-in-evidence as Exhibit 2/2 and photocopy of the NIC as Exhibit 2/3. Both the plaintiff and his witness were also cross-examined by the learned counsel for the defendant No.1, whereafter the plaintiff closed his side.
11. The defendant No.1 in rebuttal has examined himself as D.W.1 and produced his affidavit-in- evidence as Exhibit D.W.1, photocopy of F.I.R. No.102 of 1994 lodged with Clifton Police Station as Exhibit D.W.1/1, photocopy of charge-sheet in F.I.R. No.102 of 1994 as Exhibit D.W.1/2, photocopy J.M.
Application No.10 of 1990 filed in this Court as Exhibit D.W.1/3, photocopy of defendant No.1 application along with its affidavit filed before the Civil Judge 1st Class, Rawalpindi as Exhibit D.W.1/4, photocopy of defendant No.1 application dated 14-7-1996 filed before Civil Judge/Magistrate Section 30, Rawalpini, as Exhibit D.W.1/5, photocopy of affidavit of Begum Gam Karim Hayat Khan as Exhibit D.W.1/6, photocopy of statement of defendant No.1 as Exhibit D.W.1/7, photocopy of letter dated 6-5-2003 of Amirali B Lakdawalla, Architects, as Exhibit D.W.1/8, photocopy of handwritten statement in Urdu as Exhibit D.W.1/9, photocopy of affidavit of Begum Kalsoom Brohi, mother-in-law of defendant No.1, as Exhibit D.W.1/10, photocopy of letter dated 24-3- 1991 of defendant No.2 as Exhibit D.W.1/11, photocopy of up to date statement of account regarding the disputed plot dated 23-11-1992 issued by defendant No.2 as Exhibit D.W.1/12, photocopy of letter of defendant No.2 to defendant No.1 dated 23-11-1992 as Exhibit D.W.1/13, photocopy of letter of defendant No.2 to defendant No.1 dated 24-9-1995 as Exhibit D.W.1/14, photocopy of letter of defendant No.2 to defendant No.1 regarding clearance of dues as Exhibit D.W.1/15, photocopy of legal notice dated 22-9-1998 sent to the plaintiff's counsel as Exhibit D.W.1/16, photocopy of notice published in Urdu newspaper by the defendant No.1 as Exhibit D.W.1/17, photocopy of notice published in English newspaper by the defendant No.1 as Exhibit D.W.1/18, photocopy of another notice published in Urdu newspaper by the defendant No.1 as Exhibit D.W.1/19 and photocopy of notice published in English newspaper by the defendant No.1 as Exhibit D.W.1 /20. The defendant No.1 was cross-examined by the plaintiff's counsel whereafter he closed his, side. The defendant No.2 did not lead any evidence and the matter was posted for arguments.
12. It has been contended by Mr. Munib Ahmed Khan, learned counsel for the plaintiff that suit as framed was maintainable and was not hit by limitation. According to the learned counsel from the date of signing of the sale agreement Exhibit 5/1 till the reply of the legal notice Exhibit D.W.1/16 dated 22-9-1998 the defendant No.1 never refused performance of the Exhibit 5/1 and it is only in 1998 when he for the first time has refused to perform his part of contract gave cause to the plaintiff to file the present proceedings. He further contended that on execution of sale agreement, Exhibit 5/1, the entire original file of the plot in dispute was handed over by the defendant No.1 to the plaintiff. He further submits that in the written statement, the defendant No.1 has taken the plea that the original file of the plot was stolen by the plaintiff. He submits that in the evidence, the defendant No.1 has taken a different plea by disputing his signatures on the Exhibit 5/1, which plea of defendant No.1 has never taken in his written statement. According to Mr. Munib Ahmed Khan, the defendant No.1 has not specifically pleaded in terms of Order VIII, rules 3 and 4, C.P.C. That the Exhibit 5/1 or any other Exhibit, which the plaintiff has produced with the plaint in the suit, were not signed by him. He submits that the plea taken in the written statement was evasive and was confined to the limitation and admissibility of the Exhibit 5/1. He submits that learned counsel for the defendant No.1 has not even suggested any question in the cross-examination of the plaintiff that the Exhibit 5/1 or any other document which were produced by the plaintiff in his evidence were not signed by the defendant No.1 or his signature were forged by the plaintiff or any other person.
13. The next contention of the learned counsel for the plaintiff was that defendant No.1 himself has pleaded in his written statement that he was in knowledge that the original file of the plot in dispute was missing since 1990 but he did not take any steps to protect his interest in the plot in dispute nor did he approach the defendant No.2 or any other authority to intimate them about the original file.
He further contended that, in this regard, no plausible explanation was given by the defendant No.1 either in his written statement or in his evidence. The learned counsel for the plaintiff further contended that the suit is not hit by Article 113 of the Limitation Act and was filed within time as the law requires that a suit for specific performance has to be filed within three years from the date fixed under the agreement or if no time is fixed, within three years from the date of refusal of the agreement. He, therefore, submits that the defendant No.1 for the first time refused to perform his part of the contract in the year 1998 and the present suit was filed on 18-9-1998, and, therefore, was well within the time as provided under Article 113 of the Limitation Act.
14. The plaintiff's counsel further contended that the plaintiff has placed on record sufficient material to establish that the defendant No.1 had sold the plot in question by executing all the requisite documents for the transfer of the said plot in favour of the plaintiff and the plea of the defendant No.1 that only Exhibit 5/10 was missing belies the stand of the defendant No.1 as in addition to Exhibit 5/10 which the defendant No.1 himself has handed over to the plaintiff, there were number of other documents, which the defendant No.1 has signed in order to complete the requisite transfer of the plot in favour of the plaintiff, for which he has not given any plausible explanation.
15. As against this Mr. Kabiruddin Khan, learned Advocate for the defendant No.1, has contended that the plaintiff has failed to prove Exhibit 5/1. He next contended that the suit was barred by limitation as the alleged sale agreement Exhibit 5/1 was executed in the year 1986 whereas the present proceedings were filed in 1998. His next contention was that the original file, of the plot was stolen by the plaintiff and the different documents, including sale agreement Exhibit 5/1, were forged as the defendant No.1 has never signed these documents.
16. In regard to his first contention, the learned counsel submitted that the plaintiff has failed to prove Exhibit 5/1 as he has failed to examine both the attesting witnesses, which was the requirement of Article 17(a) of the Qanoon-e-Shahadat Order, 1984. In support of his contention he has relied upon the case of Rasheeda Begum v. Muhammad Yousaf reported in 2002 SCM R 1089, case of Sana Ullah v. Muhammad Manzoor reported in PLD 1996 SC 256 and case of Ali Rehman v.
Fazal Mehmood reported in 2003 SCM R 327. On the question of limitation, the learned counsel for the defendant No.1 has relied upon the case of Ambrin Begum v. Dev Kishan reported in 1991 M LD 318 and the case of Muhammad Yousaf v. Munawar Hussain reported in 2000 SCM R 204.
17. It was further contended by Mr. Kabiruddin, learned counsel for the defendant No.1 that the Exhibit 5/1 cannot be termed as sale agreement as the contents of the said Exhibit reflected that the entire sale consideration was paid by the plaintiff to the defendant No.1, therefore, such document has to be construed as a 'sale-deed', which ought to have been duly stamped and registered in terms of the provisions of the Stamp Act and the Registration Act.
18. I have heard both the learned counsel and have perused the oral and documentary evidence produced by the parties. The sale agreement Exhibit 5/1 in addition to the other Exhibits, which the plaintiff claims to have been signed by the defendant No.1 and have been produced by the plaintiff in his evidence on the basis of which transfer of the plot was sought, were not specifically disputed on the ground that they do not bear the signatures of the defendant No.
1. The denial of the defendant No.1 in the written statement was confined to the inadmissibility of the Exhibit 5/1 and Exhibit 5/2 as is being reflected in the preliminary objections to the written statement of the defendant No.
1. However, at " the stage of evidence, an attempt to improve the case of the defendant No.1 was made by disputing the signatures on the different Exhibits, inclusive of Exhibit 5/1, by objecting to the production of documents. The defendant No.1 has not specifically pleaded in his written statement that the sale agreement or any ether document purported to have been signed by defendant No.1 was never signed by him. Even there is no suggestion given by the defendant No. 1 's counsel in the cross-examination of the plaintiff or to his witness that the Exhibits 5/1 and 5/2 or any other document produced and Exhibited in the evidence by the plaintiff were not signed by the defendant No. 1 . Even the defendant No.1 has not specifically pleaded in the written statement that the plaintiff had stolen the original file of the plot in dispute in collusion with Moin Leghari, on the contrary, the defendant No.1 in para. 3 of his written statement has pleaded that his office was burglarized and cash/papers and documents were stolen. He has further pleaded that somewhere in the year 1989-90 he shifted his office and found that the original file pertaining to the plot in dispute containing the different documents and correspondence was missing and in spite of his best efforts he could not trace it. The Defendant No.1 has improved his stand while deposing that the original file was stolen by the plaintiff in connivance with Moin Leghari. Once the defendant No.1 had knowledge of the original documents pertaining to the plot in question were missing, he did not take any step to protect his interest in plot by approaching either defendant No.2 or any other authority for which the explanation given in the written statement does not appeal to reasons.
19. The two public notices Exhibits D.W.1/17 and D.W.1/18, which the defendant No.1 has got published in 1998 were confined to the lost of transfer order. Even both these Exhibits do not mention the correct address of the plot in dispute besides the fact that the entire original file of the plot in question was not shown to have been lost. The said public notices was confined to the transfer order only. The Exhibits belie the stand of the defendant No.1 that the original documents of the plot in question were stolen by the plaintiff. Besides the contents of the said exhibits do not state that they were stolen by the plaintiff as has been argued by the learned counsel for the defendant No.
1. Non-mention of the fact of stealing of the original file in these Exhibits produced by defendant No.1 was unexplained. Even the document Exhibit D.W.1/16 which is reply dated 22-9-1998 from Advocate of the Defendant No.1 to the Advocate of the Plaintiff in response to the legal notice dated 12-9-1998 Exhibit 5/19 the Defendant has not pleaded that the original file of the plot was stolen away by the plaintiff except that it simply disputed the sale of the Plot and receipt of the sale consideration.
20. There is no material brought on record by the defendant No.1 to establish that the original file of the plot in issue was stolen by the Plaintiff. In fact the plea of the Defendant No.1 in his written statement in regard to the original file was confined to the fact that it was missing, therefore, the issue of stealing file by the plaintiff has not been proved by the defendant No. 1.
21. Additionally, the signatures on copy of NIC Exhibit 5/9 of the defendant No.1, produced in the evidence by the plaintiff, on comparison with the signatures appearing on the Exhibit 5/1 to Exhibit 5/8 are similar. The defendant No.1, in the cross-examination, while admitting his signatures on Exhibit 5/9 has deposed that after 1979, he has changed his signatures. The defendant No.1 has failed to produce any document in his favour in order to establish that he has changed his signatures after 1979. In fact the plea of the defendant of changing signatures was only taken to dispute the authenticity of the Exhibits 5/1 to 5/8 in order to establish that he did not sign Exhibit 5/1 to Exhibit 5/8.
22. In the given circumstances, it appears that the defendant No.1 in order to fabricate ground to dispute the signatures on Exhibits 5/1 to 5/8 has signed the written statement and the affidavit-in- evidence by putting different signatures, otherwise the signatures of the defendant No.1 appearing on his NIC Exhibit 5/9 were similar to the signatures which appear on the different Exhibits 5/1 to 5/8 produced by the plaintiff in his evidence. Therefore, the plaintiff has established that Exhibits 5/1 to 5/8 were signed by the defendant No. 1.
23. In order to prove the contents of the document the examination of two attesting witnesses in terms of Article 17(a) of the Qanoon-eShahadat are necessary if such document relates to financial obligations. Basically the documents referred to under Article 17(a) are instruments as defined under the Negotiable Instruments Act and would not apply to cover an agreement of sale, which is covered under Article 17(b) of the Qanoon-e-Shahadat. Moreover, the case of the defendant No.1 as pleaded in his written statement was confined to the admissibility of the documents. The argument of the learned Counsel for the defendant No.1 that the contents of Exhibit 5/1 do not disclose it as an agreement but in fact was to be construed as sale-deed, inter alia, on the ground that the said agreement states that the entire sale consideration has been paid and, therefore, it should have been properly stamped and registered under the Registration Act. Even this contention of the learned Counsel is misconceived in view of the language of Section 17 of the Registration Act. Mere mention of the fact of payment of entire sale consideration in an agreement would not make it a sale-deed. The agreement of the nature cannot confer a title on the party as has been held by the Honorable Supreme Court in the case of Muhammad Yousaf v. Munawar Hussain reported in 2000 SCM R 204.
24. In regard to the question of limitation, Exhibit 5/1 admittedly prescribes no time and for the first time in 1998 the defendant No.1 has refused performance of the same by replying the legal notice Exhibit 5/19 and therefore the limitation would start from such date. The present suit filed on 18-9- 1998, would therefore, was within time.
25. The other documents Exhibits 5/2 to 5/8 on which the signatures of defendant No.1 appear and were produced and exhibited by the plaintiff to establish that the plot in question was sold to the plaintiff with all requisite documents for its transfer in his favour from defendant No.2, were not in dispute nor any suggestion has been given to the plaintiff in his cross-examination. The defendant No.1 has neither pleaded nor led evidence to explain as to way the transfer order of the affidavit in support of Exhibit 5/1 were signed by him. Even this aspect has not been touched by the learned counsel for the defendant No.1 in addition to the Exhibit 5/1 the other documents Exhibits 5/3 to 5/8, signed by the defendant No.1, relating to the transfer of plot having not been explained by the defendant No.1 clearly indicate that the plot in question was sold pursuant to the arrangement under Exhibit 5/1 I, therefore, for the aforesaid reasons, decide all the issues in favour of the plaintiff except issue of stolen file, which issue is decided against the defendant No.
1. The cases cited by the learned counsel for the defendant No.1 were distinguishable on facts and had no applicability on the issues involved in these proceedings.
These were the reasons of my short order dated 26-1-2005 decreeing the suit of the plaintiff in terms of the prayers made therein with costs.