JAWWAD S. KHAWAJA, J.-The case has been called twice at intervals. None has appeared for the respondents. I know that on the previous date of hearing also i.e. 15-4-2005 none had appeared for the respondents. The respondents are, therefore, proceeded against ex parte.
2. Learned counsel for the petitioners states that the two Courts below have committed material irregularity while dismissing the suit filed by the petitioners/plaintiffs seeking specific performance of agreement dated 25-8-1966. According to learned counsel, the aforesaid A agreement could have been proved by producing even one marginal witness because at the relevant time the Qanun-e-Shahadat Order had not been promulgated ad as a consequence the mandatory provision of Article 79 of the said Order requiring the production of two marginal witnesses was not in force.
3. The petitioners/plaintiffs produced Haq Nawaz, one of the marginal witnesses, as P.W.2. The said witness has proved the execution of the aforesaid agreement by Chandar, predecessor-in-interest of the respondent No.1. It is stated by learned counsel that the other witnesses, namely, Jagu Numberdar, Ibrahim and the predecessor-in-interest of the petitioners namely, Abdul Rashid could not be produced because they were dead. Notwithstanding the aforesaid position, the learned trial Court dismissed the suit of the petitioners mainly on the ground that the petitioners/plaintiffs have not produced two marginal witnesses as required by the Qanun-e-Shahadat Order.
4. It is further contended that even though the petitioners/plaintiffs expressly argued the above contentions before the learned lower Appellate Court and the same were noted in the judgment of the said Court, the learned lower appellate Court has not given its findings on the contention that the mandatory requirements of Article 79 of the Qanun-e-Shahadat Order were not applicable in the circumstances of the present case, therefore, the learned appellate Court has proceeded to uphold the decision of the learned trial Court.
5. In addition to the above, learned counsel for the petitioners has pointed out that only one of the defendants appeared as his own witness. He is himself a purported vendee of the suit property during the pendency of the suit. He was not a party to the agreement dated 25-8-1966. According to him, the agreement was a forgery. His testimony in relation to the agreement in the circumstances has no evidentiary value.
6. On the other hand, the marginal witness,. Who appeared for the petitioners, namely, Hap Nawaz (P.W.2) duly proved the agreement. Additionally, the scribe appeared as P.W. And supported the contention of the petitioners.
7. The contentions of learned counsel for the petitioners, noted above, are well-founded and are supported by the case titled Syed Muhammad Sultan v. Kabir-ud-Din and others 1997 CLC 1580.
8. In the above circumstances, it is clear that the learned Courts below have proceeded in a manner not warranted by law. The impugned decrees, therefore, are set aside, with the result that the suit of the petitioners is decreed.