JAWWAD S. KHAWAJA, J.--- The petitioner/defendant, namely, Muhammad Shaban impugns the concurrent decrees of the learned trial Court dated 24-2-2004 and of the learned appellate Court dated 3-10-2005, whereby a suit filed by the respondent/plaintiff seeking specific performance of agreement (Exh.P.1) dated 4-5-1999 has been decreed.
2. Learned counsel for the petitioner contends that the learned Courts below have not taken note of material discrepancies in the testimony of the respondent's own witnesses and have also acted with material irregularity in the exercise of their jurisdiction.
3. It has, firstly, been pointed out that there were two marginal witnesses to the alleged agreement (Exh.P.1), namely, Nosher and Akbar Ali. Only Akbar Ali, who is a cousin and father-in-law of the respondent/plaintiff, was produced as P.W.2. The other marginal witness, namely, Nosher was produced by the petitioner/respondent as D.W.4 and he expressly denied that there was any agreement executed between the parties. Nosher (D.W.4) also denied his signatures on the agreement (Exh.P.1). In these circumstances, it is submitted, the agreement (Exh,P.1) was not proved as per law.
4. Secondly, learned counsel for the petitioner argued that Akbar Ali (P.W.2) specifically deposed that out of the total consideration of Rs.80,000, a sum of Rs.75,000 was paid by the respondent/plaintiff to the petitioner/defendant at the time of execution of the agreement in his presence and in the presence of Waris Ali Lumberdar (P.W.3). On this material aspect of the case, Waris Ali (P.W.3) contradicted Akbar Ali (P.W.2) by stating that no money passed hands in his presence. This aspect of the case, it is contended, has not been taken note of or discussed by the learned Courts below.
5. Thirdly, learned counsel for the petitioner submitted that there is no explanation, at all, by the respondent/plaintiff or his witnesses as to why the transaction was not consummated by means of a registered sale-deed when almost the entire consideration allegedly had been paid by the respondent to the petitioner/defendant. This circumstance has also not been adverted to by the learned Courts below.
6. Fourthly, it was argued that P.W.5 Sarfraz, who claims to be the scribe of the agreement (Exh.P.1), admitted that he had never drawn up any agreement in his life and he was not a deed-writer. He, in fact, admitted that he was a driver working for Syed Zakir Hussain, Advocate.
7. It was argued that the above circumstances were sufficient to show' that the respondent/plaintiff had failed to prove his case and also that these very circumstances supported the plea raised by he petitioner in defence that the respondent had utilized blank papers which were signed by the petitioner in the belief that the same were to be used for filing a writ petition in connection with a Hudood case, which had been registered against the petitioner.
8. Learned counsel for Wazir Ali respondent/plaintiff was unable to controvert the arguments, noted above, advanced on behalf of the petitioner/defendant. He merely stated that the learned courts below had disbelieved the testimony of Nosher whereby he had denied being a marginal witness to the agreement (Exh.P.1). I have gone through the testimony of Nosher who appeared as D.W.4 and find the same to be credible. The respondent/plaintiff did not make any attempt to prove Nosher's signature on the agreement.
9. Learned counsel for the respondent was also unable to give any satisfactory explanation as to why a sale-deed had not been obtained by the respondent when he had paid almost the total consideration of the sale. Likewise learned counsel for the respondent was unable to explain the material contradictions in the testimony of the P.Ws. Which have C been noted in paragraph 4 above.
10. In the foregoing circumstances, I find the impugned decrees to be a result of non-reading and material misreading of the available evidence. The said decrees are, therefore, set aside. As a result, the suit filed by the respondent/plaintiff disdismissed. The petitioner shall also be entitled to his costs throughout.