MUHAMMAD SAIR ALI, J.--- The appellants through their suit sought specific performance of agreement dated 30-4-1969. Muhammad, predecessor-in-interest of the appellants filed the suit for specific performance of agreement dated 30-4-1969 (Exh.P.1) and agreement dated 29-8-1969 (Exh.P.2 extending period of performance). The agreements sought to be enforced were made by Muhammad Saeed i.e. General attorney of the respondents except that of respondent No.11, Tallat Mahmood (who was then a minor). Upon purported non-performance of the agreements the appellants filed the suit. Separate written statements were filed by various sets of respondents.
Muhammad Saeed, Muhammad Munir and Muhammad Arshad, were defendants Nos.1, 3 and 4 in the suit, out of whom only Muhammad Saeed, (the attorney holder is a respondent here) filed his conceding written statement in favour of the appellants. All other defendants herein respondents pleaded non-execution and non-existence of the purported power of attorney in favour of: Muhammad Saeed and thus, the non-existence and non-execution of the purported agreements (Exh.P.1 and Exh.P.2). On the basis of the divergent pleadings in the plaint and in the contesting written statements, the learned trial Judge framed the following issues: (1)Whether the plaintiffs have got no cause of action to institute this suit? OPD
(2) Whether the suit of the plaintiffs is within time? OPP
(3) Whether this suit is not maintainable in its present form? OPD
(4) Whether plaintiffs are estopped by their words and conduct to institute this suit? OPD
(5) Whether defendants are entitled to the grant of special costs under section 35-A of C.P.C.? OPD
(6) Whether plaintiffs are entitled to the decree for special performance of the contract dated 30- 4-1969 and 29-8-1969 as prayed for? OPP (6-A) Whether the suit is not maintainable for non-joinder of parties? OPD
(7) Relict
2. The evidence was recorded. The learned trial Judge decided the main issue on merits i.e. Issue No.6 against the appellants/plaintiff's, Issue No.2 in favour of the appellants, Issues Nos.1, 3, 4, 5 and 6-A against the contesting defendants.
3. Through the judgment and decree dated 27-2-1996 the learned Civil Judge proceeded to:
(i) passed a decree against the conceding defendants namely, Muhammad Saeed, Muhammad Munir, Muhammad Arshad; and
(ii) dismissed the suit of the appellants/plaintiffs against all the other respondents/defendants.
4. The appeal was taken by the appellants only on Issue No.6 before the learned First Appellate'
Court. Through the judgment and decree dated 25-6-1999 the learned Additional District Judge, Gojra, at Toba Tek Singh upheld the findings of the learned trial Judge on Issue No.6 and thus, dismissed the appeal of the appellants filed against the respondents/defendants. Hence, the present second appeal.
5. The learned counsel for the appellants on Court query admitted that the foundation of the entire case of specific performance of purported agreement to sell was a general power of attorney granted by the respondents/defendants to Muhammad Saeed, a co-defendant, who had filed a conceding written statement admitting power of attorney and also admitting execution of the purported agreements to sell Exh.P.1 and Exh.P.2. This power of attorney was denied by all the other defendants/ respondents including the female respondents. The onus of proof was thus upon the appellants/plaintiffs to show that the power of attorney (from which the power of the executant of Exh.P.1. And Exh.P.2 arose), was made by the respondents/defendants in favour of Muhammad Saeed delegating power to sell their share in the land. The learned First Appellate Court while dealing with the question of existence and execution of the power of attorney opined as under:--- "Correct that lines Nos.10 to 13 upon the documents Exh.P.2 have been erased for the reasons best known to the person who has performed this act and done so. One of the appellants has appeared as P.W.2 but his statement has no much weight and importance coupled with the facts that all the documents in question were not executed in his favour nor he is marginal witness of the sale-deed or the power of attorney. The only witness has been examined who is the marginal witness of the document Exh.P.1. The other marginal witnesses of the documents P.W.1 and P.W.2 have not been examined for the reasons best known to the appellants/plaintiffs. Thus, the appellants/ plaintiffs failed to produce the required evidence and adverse inference could be drawn against the appellants it shall be presumed that in case the other marginal witness would have appeared he would have not made statement favourable to the appellants/plaintiffs under the Evidence Act statement of both the marginal witnesses were required to prove the execution of document. P.W.3 even has deposed hearsay evidence which is not reliable. The appellants/plaintiffs also failed to examine respondent/defendant No.1 as his witness he was the most important and material witness to depose. About the execution of general power of attorney in his favour and alienation of the disputed property in favour of the appellants/plaintiffs through execution of agreement to sell deed Exh.P.1 and Exh.P.2. The appellants/plaintiffs have in fact withheld the material witness for the reasons best known to them. Allegedly some of the ladies appointed respondent/ defendant No.1as their general power of attorney and got executed general power of attorney in his favour now these factum has been denied by the contesting respondents/ defendants. Since these are Pardanasheen ladies the evidence to prove the factum of execution of agreement to sell deed on their behalf and also the execution of general power of attorney heavily lies on the appellants/plaintiffs but they have failed to discharge the same. These ladies have denied execution of any general power of attorney in favour of respondent No.1. The appellants/plaintiffs have failed to prove strong and sufficient evidence to prove the general power of attorney in fact there is no other evidence in this regard. The general power of attorney is the basic document on the basis of which the structure of the agreement to sell deed could be raised. If the basis and foundation is not established then the superstructure would raise thereupon fall on the ground that the appellants/ plaintiffs have not produced independent evidence to prove the execution of the general power of attorney. The appellants/ plaintiffs failed to bring on record evidence to show that these ladies with their own free-will and consent appointed respondent No.1 as their general power of attorney and give him authority to give their property in any manner he likes and desire."
6. To challenge the above findings the learned counsel for the appellants admitted that the original power of attorney being with Saeed, defendant, it was not produced and instead certified copies of power of attorneys (Exh.P.3. And Exh.P.4) were produced in invocation of the secondary evidence under Article 76 of the Qanun-e-Shahadat Order, 1984. Contends that Article 76 permits a person to produce secondary evidence "when the original is in possession or power of persons against whom document is sought to be proved. States that as the original was in possession of Saeed against whom the suit had been filed, therefore, the appellants were under the law entitled to use the secondary evidence. The learned counsel, however, admitted that no notice for production of the original and no application to use secondary evidence was made before the Court and that resultantly no permission was sought from the Court to produce the secondary evidence on the basis of conditions prescribed under the law. The learned counsel forcefully argued that mere production of certified copies of the said document is adequate to prove the same in secondary evidence. Further contends that the respondents as contesting defendants had not cancelled the power of attorney till date and Saeed had not denied execution of the documents wherefor no attesting witness of the power of attorneys was required to be produced.
7. Contrarily the learned counsel for the respondents supported the impugned judgments and decrees of the Courts below.
8. Heard.
9. As admitted by the learned counsel for the appellants and contended by the learned counsel for the respondents that the basic and fundamental documents were the power of attorneys (Exh.P.3 and Exh.P.4) the existence and execution of which was denied by the contesting defendants/respondents. These respondents in their written statements specifically denied having made and executed the said power of attorneys in favour of Saeed and also denied the validity and execution of the agreements to sell (Exh.P.I and Exh.P.2) on the basis of the said power of attorneys. As such the only litigated question in the present controversy was as to whether the appellants/plaintiffs successfully proved the existence and execution of the power of attorneys (Exh.P.3 and Exh.P.4) by the contesting respondents. For this purpose certified copies of the purportedly made and registered power of attorneys were produced in evidence. No other evidence was admittedly produced. In A the circumstances the learned counsel for the appellants endeavoured to rely upon Articles 76 and 79 of the Qanun-e-Shahadat Order, 1984 to contend that bringing on record certified copies as secondary evidence and in view of non-cancellation of the power of attorneys was adequate to attract a presumption against the respondents qua the non- making and non-execution of the power of attorneys. I am afraid I cannot be subscribed to the view of the learned counsel for the appellants. The learned First Appellate Court in the above reproduced extract of the judgment clearly and categorically on the basis of due and proper analysis of the record and evidence held that despite involvement of the female respondents/purported donors of the power of attorneys, no evidence was produced by the appellants to show that these "Pardahnashin" ladies had made these documents in favour of Muhammad Saeed i.e. Attorney-holder delegating their power to sell their share in the suit-land.
The learned counsel for the appellants also importantly admitted that neither the marginal witnesses of the said power of attorneys were produced nor the original documents were produced in evidence. It is also admitted by the learned counsel for the appellants that Saeed (though a conceding defendant) was not produced in evidence by the appellants to state that the disputed power of attorneys A were made in his favour by the contesting respondents and he thus, enjoyed the power to sell the suit-land. The learned counsel for the appellants stated that Saeed in his written statement admitted the agreement in his individual capacity and made no pleadings as to the said power of attorneys. He thus, inferred that non-denial by Saeed proved the power of attorneys. It is well-settled that the pleadings of the written statement cannot be equated with evidence and without specific proof of B the pleadings through evidence, a party cannot rely upon the pleadings made in the written statement or admissions/concessions given by any party therein. The appellants/plaintiffs of course had option to call Muhammad Saeed who having conceded the case of the appellants to his extent in the written statement did not appear as a witness in the suit, yet the appellants/ plaintiffs could have called him through the Court to depose as to the existence and execution of the power of attorneys by the contesting defendants (respondents) and to produce the. Original thereof. Non-production of this important witness, the bridge between the respondents and the appellants/plaintiffs gets clearly severed. It is not the C case of the appellants/plaintiffs that the contesting respondents themselves executed the disputed agreements to sell (Exh.P.1 and Exh.P.2). The case of appellants is that it was on the basis of the disputed power of attorneys (Exh.P.3 and Exh.P.4) that Saeed on behalf of the respondents made Exh.P.1 and Exh.P.2 in favour of the appellants. The absence of proof of existence and execution of Exh.P.3 and Exh.P.4 by the. Respondents in favour of Saeed, automatically removes the basis and foundation of the purported agreements to sell.
10. The appellants also failed to obtain permission of the Court to produce the secondary evidence to prove existence of the said power of attorneys, the ground as raised by the learned counsel is that since the originals were in possession of Saeed, defendant, and were not in their power, therefore, the production of certified copies was enough. This submission is without merits. Saeed conceded the case of the appellants and consequently the decree was also passed against him on the basis of D accepting the appellants' claim. Saeed was thus, evidently not hostile or outside the influence/power of the appellants. They could have either voluntarily produced Saeed or obtained his production through the Court to seek the originals on record. This evidently was not the case in which the secondary evidence could have been produced by the appellants and that too without the permission of the Court. Furthermore non-cancellation of the power of attorneys by the denying respondents is also irrelevant fact. The onus to prove the power of attorneys and consequent agreements to sell was upon the benefiting appellants. The learned Court below through due and proper appreciation and evaluation of the evidence concluded that the respondents made no power of attorneys in favour of Saeed who had no power to make the agreement to sell in favour of the appellants. No misreading or non-reading has either been alleged or exists. It has not been argued by the learned counsel for the appellants that any material issue was not framed or decided by the learned Courts below and the impugned judgments and decrees are in accordance with the provisions of law and do not suffer from any infirmities. In view thereof this appeal is dismissed with costs.