1. ' MUNIB AHMED KHAN, J.---The dispute in this appeal is in respect to property bearing Shop No,3 constructed on C.S. No,D-2219 Resham Gali Hyderabad. According to the appellant there was an agreement dated 6-11-2001 whereby the respondent agreed to sale the said shop with an area measuring 27/8-3/4 equivalent to 236 Sq.Ft. For total consideration of Rs,16,00,000 out of which Rs,1,00,000 was paid on 6-11-2001 at the time of agreement and further sum of Rs,2,00,000 was paid on 2-11-2002 and Rs,4,00,000 in January 2003 against duly acknowledged receipts. The plea of the appellant is that the respondent delayed execution of the sale-deed despite payment of Rs,7,00,000 and whenever he approached the respondent, her son Muhammad Naeem disclosed that due to some problems the sale-deed is delayed. The appellant has stated that instead of execution of sale-deed the respondent issued a legal notice dated 10-5-2003 calling thereby to pay balance Rs,15,00,000 and since he was a tenant therefore, should continue to pay the rent till finalization of sale-deed. Reply to said notice was given wherein further payment of Rs,6,00,000 on two different dates was asserted and it was alleged that respondent has become dishonest has instead of acknowledging Rs,7,00,000 she is acknowledging Rs,1,00,000. Besides issuance of legal notice the respondent also filed rent Case bearing No,94 of 2003 for ejectment of the applicant. The respondent vehemently denied the averments of the plaint and stated that she was all along ready to execute sale-deed but it was the applicant who failed to make payment of Rs,2,00,000 and Rs,4,00,000 which have been shown against these receipts which are forged and fake while the payment of Rs,4,00,000 tendered through cheque could not be realized as the cheque was bounced therefore, in the circumstances, the respondent was not bound to perform the contract and the suit be dismissed. The trial Court framed 5 issues and the material issue coming out of these issues which throws light on the conduct and intention of the applicant was as follows:--
1. Whether the plaintiff had paid Rs,2,00,000 on 2-11-2002 and Rs,4,00,000 on 31-1-2003 to the defendant?
2. ' The parties examined their witnesses and the learned Civil Court dismissed the suit by giving his finding on the above issue in negative. Other issues were also decided against the plaintiff.
3. ' On appeal the IInd Additional District Judge took up the above issue as a point for determination along with other points and also gave his finding in negative. He dismissed the appeal and now this revision has been filed.
4. ' After hearing the learned counsel for applicant to some extent I myself examined three receipts first for Rs,1,00,000 issued at the time of execution of agreement. The receipt has been signed by Muhammad Naeem son of attorney of the respondent and the respondent Sharifan herself has put her thumb-impression on it. This receipt has been admitted by the respondent. Two other receipts dated November 2000 for Rs,2,00,000 and another dated January, 2003 for Rs,4,00,000 have been denied by the respondent and when I compared all the three receipts it transpired at the first look that all the three receipts are similar and the latter two are photostat copies of the first receipt in which some words/numbers have been added by forgery. The lines and words and the distance between signature and each and every scribbling shows that the latter two are photostat copies.
5. When this observation was put forward before the learned counsel for the applicant then Mr. Jhamat Jethanand came out with the argument that he himself has realized that the applicant was defrauded by a Estate Agent who was handing over the money to the respondent who obtained money from the applicant but forged the receipts to satisfy the applicant . He has further submitted that apart from above deficiency he was ready to pay entire balance of Rs,15,00,000 as there was an agreement which has not been denied and since the applicant is ready to perform his part of contract then it should be enforced even at this stage as time was not essence of the contract. He has further submitted that the area measuring 236 Sq.Ft. Under the agreement was never available as the respondent failed to arrange by demolition of back wall and the cabin etc. He has further stated that through reply to the legal notice dated 20-5-2003, the applicant was ready to perform his part and that both the lower Courts failed to exercise their discretion in favour of the applicant. He has further submitted that the lady respondent was not examined although she was executant of the agreement but her son Muhammad Naeem was examined who is not a party to the agreement and that respondent herself was not inclined to perform her part as she remained silent for a longer period till issuance of legal notice by her. To support his contention Mr. Jhamat Jethanand has cited PLD 1991 SC 905, PLD 2003 SC 430 and 2003 SCM R 971.
6. ' On the other hand Mr. Shamsuddin Memon, learned counsel for the respondent, has argued that Mr. Jhamat Jethanand has pointed out factual position which are not the requirement of IInd Appeal and he has failed to point out any illegality in appreciation of the evidence. He has pointed out all the three receipts as discussed above vis-a-vis admission on the part of the learned counsel for the applicant at this stage and stated that throughout in both the proceedings in lower Court the respondent has taken stand on the forged and fake receipts which shows his inclination and intention to perform his part of contract and further shows that he has not come to the Court with clean hands and in the light of above statement of Mr. Jhamat Jethanand the applicant has tried to befool the Court. Mr. Memon has also argued that there is no mention of amalgamation of area but simply an area of 236 Sq.Ft. To be provided but since the applicant failed to make payment therefore there was no question of handing over of that area: He has further stated that Muhammad Naeem is the eldest son of respondent and he was also required to sign the agreement of sale as well as receipt in addition to the respondent and since he was aware of factual position, therefore, he was proper witness and has appeared and deposed truth. Mr. Memon has relied upon 2003 M LD 310, 2003 MLD 248 and 2004 M LD 894, which I find relevant in the matter.
7. ' After hearing the arguments, I have observed that the appellant has strongly opposed the proceedings in the lower Court as well as before the Additional District Judge and even have asserted in this appeal that he has made payments of Rs,2,00,000 and Rs,4,00,000 through receipts which receipts proved to be false and forged and that situation has been confirmed by the statement of Mr. Jhamat Jethanand the learned counsel for the applicant. The facts of non- payment and forging fake receipts by making photostat copies of the earlier receipts of Rs,1,00,000 shows that the applicant did not come to the Court with clean hands and since it was proved through evidence as well as was also observed by the learned trial Court through its own eyes, therefore, the applicant would have been proceeded for giving false evidence and would have been tried for perjury. The statement of Mr. Jhamat Jethanand that the Estate Agent defrauded the applicant cannot help the applicant out of crisis as at this stage of revision. This argument, which was not advanced in lower Courts, cannot be considered. The other contention of Mr. Jhamat Jethanand regarding amalgamation of area to make it 236 Sq.Ft. Is not apparent from the agreement as there is no mention of amalgamation. The learned trial Court has provided full opportunity of evidence and the learned Additional District Judge has appreciated all the arguments of the applicants and has given findings and now before this Court the learned counsel for the applicant has failed to point out as to how this 2nd Appeal is maintainable when B there is no ground as provided under section 100 C.P.C. The authorities cited by Mr. Jhamat Jethanand are also not relevant to the facts of the case.
8. ' In the circumstances, this appeal is dismissed with cost throughout the proceedings.