' JAWWAD S. KHAWAJA, J.---The dispute between the parties relates to one house on one Marla of land. This house belongs to the petitioner.
2. The respondent Muhammad Akbar filed a suit on 16-2-1997 seeking specific performance of agreement (Exh. P.2) dated 9-12-1993, as extended by agreement (Exh.P.1) dated 16-2-1995. It was his case that the petitioner had, through the said contracts agreed to sell the aforesaid house to him for a total consideration of Rs,32,000.
3. The petitioner filed a written statement raising the defence that she had not entered into any agreement to sell the property. She averred that she had rented the house to the respondent at a monthly rent of Rs,200 per month. However, when her husband died she requested for an advance payment of rent so that she could move to her relatives. She admitted having received a sum of Rs,5,000 as advance rent, which, according to her, was to be adjusted at the rate of Rs,200 per month against the rent due from the respondent. She acknowledged affixing her thumb- impressions on papers but averred this was only to acknowledge receipt Of rent. The petitioner also filed a suit on 3-3-1998 seeking cancellation of the agreements (Exh.P.1) and (Exh.P.2). Both suits were consolidated. The learned trial Court framed consolidated issues on which the parties led evidence.
4. The respondent appeared as P.W.1 and produced five other witnesses in support of his case. At this point it is relevant to note that the first agreement (Exh.P.2) was not attested by any marginal witness. It is only the second agreement for extension (Exh.P.1) which has been attested by P.W.2 Muhammad Anwar and P.W.3 Arshad Ali. Neither of these marginal witnesses is related to the petitioner Naziran Bibi. Nor are they from the same locality. They have admitted that they did not know the petitioner before the execution of the second agreement (Exh.P.1). The petitioner appeared as D.W.1 and denied having agreed to sell the property. The learned trial Court, after considering the available evidence, disbelieved the respondent/plaintiff and held that the agreements had not been proved. As a consequence the petitioner's suit for cancellation was decreed while the respondent's suit seeking specific performance was dismissed.
5. The learned appellate Court has reversed the findings of the learned trial Court. The reason, which has prevailed with the learned appellate Court, is that the petitioner had not made any application for comparison of her admitted thumb-impressions with the thumb-impressions appearing on the agreements. Learned counsel for the petitioner contends that this was wholly unnecessary because the petitioner had acknowledged that her thumb-impressions had been affixed on papers but had stated that this was meant for rent.
6. The above submissions on behalf of the petitioner could not be controverted by learned counsel for the respondent. He merely reiterated the reasoning adopted by the learned appellate Court.
Unfortunately, the learned appellate Court has not noted the fact that the original agreement (Exh.P.2) did not mention any marginal witnesses. This itself was a serious and unexplained omission on the part of the respondent. Furthermore, even the marginal witnesses of Exh.P.1, namely, Muhammad Anwar (P.W.2) and Arshad Ali (P.W.3) did not qualify as attesting witnesses because they did not know Mst. Naziran Bibi. Learned counsel for the respondent then argued that there were a number of thumb-impressions of the petitioner appearing on both agreements (Exh.P.1 and Exh.P.2) showing that she had, from time to time, received money from the respondent as consideration for the sale of the suit property. I have considered this aspect of the case and find that it, in fact, supports the stance adopted by the petitioner. As noted above, the petitioner's case was that from time to time she was paid rent and her thumb-impressions were obtained as token of the receipt of rent. There is no reason appearing from the record as to why the sale of the property should have been postponed by the petitioner for a long time. It is also strange that in the agreement (Exh.P.1) there is no date by which the balance amount of Rs,14,000 is to be paid by the respondent. These unusual circumstances undermine the veracity of the case set-up by the respondent. Furthermore, these facts, taken together with the circumstances noted above, are sufficient to show the inequity of the agreement to sell forming the basis of the suit for specific performance filed by the respondent. In this view of the matter, even under section 22 of the Specific Relief Act, this is a fit case in which the discretionary relief, by way of specific performance, should be disallowed to the respondent.
7. In the foregoing circumstances, the impugned appellate decree is set aside. As a consequence, the decree of the learned trial Court dated 4-11-2003 stands restored with costs.