JAWWAD S. KHAWAJA, J.---Abdul Rashid Khan (petitioner/defendant) impugns the concurrent decrees of the learned trial Court, dated 1-7-1990 and of the learned Appellate Court, dated 30-3- 2002 whereby a suit filed by the respondent Abdul Hamid (now represented by his L.Rs.) seeking specific performance of agreement dated 31-12-1973 (Exh.P.2) has been decreed.
2. Firstly, learned counsel for the petitioner has pointed out that the respondent/plaintiff had earlier filed a declaratory suit dated 28-2-1975 in respect of the same property arising from the same agreement which is subject-matter of the present petition. In the said suit, the respondent/plaintiff had prayed for declaration and not specific performance. The earlier suit was withdrawn by the respondent/plaintiff on 31-1-1976. Learned counsel contends that in view of the withdrawal of the earlier suit, a second suit on the same agreement could not have been filed. To support his argument, he has referred to the provision of Order II, rule 2, C.P.C.
3. Secondly, it was argued that in the earlier suit it had clearly been stipulated that the period for executing a sale-deed, which originally had been mentioned in the agreement (Exh.P.2) as 24-5- 1974, was stated to have been finally extended up to 31-1-1975. However, in the plaint filed in the present case, this stance has been changed and it has been averred that the date for executing the sale-deed was extended up to 31-12-1975. Learned counsel states that this change of stance is contrary to the record because the earlier suit was filed in February, 1975 and thus, it was not possible to aver that the period for execution of sale-deed had been extended up to December, 1975.
4. Learned counsel, thirdly, has referred to the cutting/interpolation on the alleged endorsement for extending the time for registration of sale-deed. I have noted the same. From the same it does appear that the date 31-12-1975 was not agreed to by the petitioner.
5. Fourthly, it was argued that the final alleged extension of period for executing a sale-deed was not proved through any witness to the said extension. Even Rana Zahoor Ahmad Khan, Advocate, who appeared as P.W.3, testified as to the first extension only which was up to 15-12-1974. He admitted in his cross-examination that he was not aware of any subsequent extension of time.
6. The present suit for specific performance was filed by the respondent on 21-12-1978. Learned counsel states that in view of the above circumstances, the suit was clearly time-barred as having been filed after expiry of three years from the dates which are mentioned in the plaint in the earlier suit (Exh.D.1) referred to above. It was finally stated that the interpolation was made in the agreement (Exh.P.2) solely for the purpose of covering the objection as to limitation.
7. Most importantly it was contended that the agreement (Exh.P.2) had not been proved because neither of the two marginal witnesses was produced to prove execution of the same. Furthermore, even the extracts from the scribe's register (Exh.D.3 and Exh.D.4) are inadmissible in evidence because the original documents have not been exhibited on record. It may be noted that the petitioner had denied execution of Exh.P.2 and had also denied receipt of any sums thereunder.
8. Learned counsel for the respondents was unable to rebut any of the above submissions. As to the objection of the petitioner that a second suit on the basis of same cause of action was not competent, learned counsel for the respondents merely stated that when the earlier suit was filed, the petitioner had not obtained a mutation in his name. This can hardly constitute a reason for not seeking specific performance of the agreement because title to the suit-land came to vest in the petitioner upon the death of his father regardless of any mutation of inheritance. It is, thus, clear that the suit filed by the respondents was not maintainable being hit by the provisions of Order II, rule 2, C.P.C.
9. It is also significant that the respondents/plaintiffs did not prove the agreement (Exh.P.2) through the marginal witnesses. Learned counsel for the respondents conceded that Muhammad Ramzan and Habib Khan had been mentioned as the marginal witnesses to the said agreement but had not been produced to prove the same. Upon being questioned if there was any valid reason for not producing these marginal witnesses, he was unable to give any satisfactory answer. Even the record does not show why these marginal witnesses could not be produced.
10. Learned counsel for the respondents placed a great deal of stress on Exh.D.3 and Exh.D.4 which are extracts from the register of the scribe purporting to show that there was some agreement between the petitioner and Abdul Hamid (predecessor of the respondents). These documents, however, cannot be considered in evidence because the originals thereof were not produced by the respondents. Again, learned counsel for the respondents was unable to give any satisfactory c explanation as to where the originals were and why they were not produced by the respondents.
Furthermore, even the scribe of the said documents, namely, Rafi Ahmad, who appeared as P.W.2, did not identify the petitioner/defendant, who was present in Court at the time, as the person on whose behest the aforesaid entries were recorded in his register. Even otherwise, Exh.D.3 and Exh.D.4 are contradictory, inter se, and are also in conflict with the contents of the agreement (Exh.
P. 2).
11. It is, thus, abundantly clear that the agreement (Exh.P.2) was not proved on the record and nor was the receipt of money proved through the aforesaid Exh.D.3 and Exh.D.4. In the circumstances, the respondents/plaintiffs, on whom, the burden of proving their case was placed, failed to prove their case.
12. The learned Courts below have acted illegally and with material irregularity by not taking into account the material circumstances which have been noted above. The impugned decrees, as such, are not legally sustainable. The same are set aside. As a result, the suit filed by, the respondents/plaintiffs is dismissed with costs.