' JAWWAD S. KHAWAJA, J.---The petitioners/defendants impugn the appellate decree dated 28-5- 1998 whereby the decree of the learned trial Court dated 14-2-1996 was set aside and a suit filed by Ch. Muhammad Afzal (respondent/plaintiff) seeking specific performance of an agreement to sell (Exh.P-1) dated 20-1-1986, was decreed.
2. The parties to this petition are closely related inter se. The property in dispute was originally owned by Muhammad Akram. The respondent/ plaintiff Ch. Muhammad Afzal is the brother of Muhammad .Akram. The defendants in the suit, apart from Mst. Khalida widow of Muhammad Akram, were the remaining brothers of Muhammad Akram (deceased) and the plaintiff Ch. Muhammad Afzal.
3. According to Ch. Muhammad Afzal (respondent/plaintiff), the agreement (Exh.P-1) had been executed by Muhammad Akram who had received the total consideration of Rs,50,000 mentioned therein. This assertion was denied by the petitioners/defendants. Based on the pleadings, the learned trial Court framed 10 issues including that of relief Issues Nos.4-C and 4-E are of relevance.
These issues were framed in the following terms: "4-C Whether agreement dated 20-1-1986 is result of fraud, forgery, so ineffective against the right of the defendants? OPD 4-E Whether the plaintiff is entitled to the decree for specific performance of the contract, if so, on what consideration? OPP"
4. The parties led evidence. In order to get the relief prayed for, it was incumbent upon the respondent/plaintiff to prove that the agreement (Exh.P-1) had, indeed, been executed by Muhammad Akram. For reasons appearing below, I am clear that the respondent/plaintiff failed to prove the agreement. Here it may be noted that two marginal witnesses were mentioned in the agreement, namely, Malik Liaquat Ali and Ch. Muhammad Rauf, Advocate Malik Liaquat Ali was not examined by the plaintiff and no reason appears on the record as to why he was not produced.
This is a serious lapse on the part of the respondent/plaintiff. The learned appellate Court has, however, held that Ghulam Rasul, Advocate, who had made a note on Exh.P-1, could be treated as a marginal witness. The said Ghulam Rasul, Advocate, appeared as P.W.1. Although he acknowledged the noting and his signatures on Exh.P-1, he clarified that Muhammad Akram was his friend and he had made the note on his asking. He also explained that when he made the noting on Exh.P-1 the document did not bear the signatures of the parties and further that the signatures and rubber stamp of the Notary had not been affixed thereon. Most importantly, however, he deposed that the name of the plaintiff Muhammad Afzal, which appears at three places in the agreement (Exh.P-1) had not been filled in and the places were left blank. He explained that Muhammad Akram had told him that the spaces were left blank because he would fill in the name of any one of his brothers who paid him the money required by him. In his testimony. P.W.6 also stated that Muhammad Akram was his friend and he had made the noting on trust. In the light of this testimony, I do not see how the learned appellate Court could have treated Ghulam Rasul (P.W.6) as an attesting witness. This is all the more surprising because the second marginal witness, namely, Malik Liaquat Ali had, without any justification, not been produced in Court.
5. The other significant aspect of the case is that the plaintiff Muhammad Afzal himself did not appear in the witness-box in support of his case. His son Khawar Mehmood appeared as P.W.5 and stated that Muhammad Afzal was unwell. In the cross-examination, he did acknowledge that his father had been appearing in Court to pursue his case. The nature of Muhammad Afzal's ailment, if any and the fact that such illness had disabled him from appearing in Court, has not been brought out even in the testimony of P.W.S. Admittedly, no application was filed before the learned trial Court for recording the evidence of Muhammad Afzal through local commission on account of his physical disability Considering that Muhammad Afzal alone could have testified as to the payment of consideration and he chose not to record his testimony and to submit to cross-examination under oath, an adverse inference had to be drawn against him.
6. The above circumstances have been duly noted by the learned trial Court but unfortunately have not been considered by the learned appellate Court. In the circumstances, the appellate decree dated 28-5-1998 is not legally sustainable. The same is, therefore, set aside. The decree of the learned trial Court dated 14-2-1996 is affirmed.
7. The petitioners shall also be entitled to their costs throughout.