' JAWWAD S. KHAWAJA, J.--- Mst. Nasira Begum (petitioner/plaintiff) impugns the appellate judgment and decree dated 7-5-2002 whereby the decree of the learned trial Court dated 12-6- 2001 was set aside and a suit filed by the petitioner seeking specific performance of agreement (Exh.P.3) dated 4-7-1987 was dismissed.
2. The facts of the case have been elaborately set out in the judgment of the learned trial Court dated 12-6-2001 and need not, therefore, be reproduced in extenso. The learned appellate Court has neither appreciated the evidence correctly nor has it met the reasoning of the learned trial Court while reversing its findings.
3. The testimony of Tariq Habib (respondent/defendant) is most significant. He appeared as D.W.2 and admitted that he had executed the agreement (Exh.P.3) and had also put his signature on a brochure (Exh.P.1).
4. It is not in dispute that when the brochure (Exh.P.1) was prepared and when the agreement (Exh.P.3) was executed, there was no construction at site which was an open plot owned by the two respondents/ defendants. The respondents had undertaken to raise a commercial building known as "Ripple Commercial Complex" on the site. Purchasers such as the petitioner had entered into agreements with the respondents whereby payment of consideration was to be made in instalments while the respondents were to raise a commercial construction and thereafter convey the property agreed to be sold.
5. The dispute in this case has arisen because of a difference in the description of property given in the agreement and the property claimed by the petitioner through this suit. In the agreement (Exh..P.3) read with brochure (Exh.P.1), the property is mentioned as Shop No.2 on the lower ground floor measuring 12'x12'. The property claimed by the petitioner is Shop No.21 on the lower ground floor measuring 12'x16'.
6. It is not in dispute that the petitioner, through her husband Bashir Ahmad Nasir, is in possession of Shop No.21 on the lower ground floor. This fact has been admitted by the respondent Tariq Habib who appeared as D.W.2. He has also acknowledged having received the total consideration of Rs.1,95,000 specified in the agreement (Exh.P.3). Addionally, and most importantly, he has acknowledged receipt of an additional sum of Rs.30,000 as evidenced by receipt (Exh.D.W.-2/1).
According to the petitioner, this additional sum was paid for the area of Shop No.21 which was in excess of the area of Shop No.2 mentioned in the agreement. Learned counsel for the respondents was not in a position to give any satisfactory explanation for the receipt of additional sum of Rs.30,000 mentioned in the Receipt (Exh.D.W.-2/1). In these circumstances, the contention that the said amount was paid for the excess area stands established.
7. The witnesses examined by the petitioner including Shehbaz Khan (P.W.6), who was Clerk of the Excise and Taxation Department, proved that the petitioner was the owner appearing in the record of the Excise and Taxation Department in relation to Shop No.21. Furthermore, as noted above, even Tariq Habib respondent deposed that the husband of the petitioner was in occupation of Shop No.
21. He was also less than forthright in his testimony when he stated that he did not know if the petitioner's husband was a tenant or was owner of the property. Another material aspect of the statement of the respondent (D.W.2) is that he acknowledged receiving instalments from the petitioner.
8. The foregoing circumstances clearly establish that notwithstanding the description of property given in the agreement (Exh.P.3) and the brochure (Exh.P.1), the actual contract, as implemented on ground after the construction of the commercial complex,was in relation to Shop No.21 and not Shop No.2 of the lower ground floor of the building. This circumstance is further proved by the receipt (Exh.D.W.-2/1) discussed above.
9. The learned appellate Court has misdirected itself by adopting reasoning which is untenable and is contrary to the available evidence. Even if it is, for a moment, assumed that the original contract between the parties was in respect of Shop No.2, there is no doubt whatsoever in my mind that through conduct of the parties, payment of the additional sum of Rs.30,000 and delivery of possession of Shop No.21 to the petitioner, the agreement stood novated and was duly implemented between the parties. The petitioner, therefore, was within her rights to assert her claim in respect of Shop No.21 for which she had made payment of the originally agreed amount of Rs.1,95,000 plus the additional sum of Rs.30,000 for the excess area as per receipt (Exh.D.W.-2/1).
Learned counsel for the respondents argued that novation could only have been effected by means of a written , agreement because the original agreement (Exh.P.3) was in writing. This contention, however, is without merit because there is no such requirement under any law.
10. I now take up for consideration the erroneous reasoning adopted by the learned appellate Court while allowing the appeal of the respondents. Much emphasis has been placed by the appellate Court on the fact that the petitioner Mst. Nasira Begum did not enter the witness box. In the circumstances of the present case, her failure to appear as a witness is of no consequence. Her son appeared as her attorney as P.W.1 while her husband Bashir Ahmad Nasir appeared as P.W.5. It is clear from the available evidence that the petitioner did not transact any dealings with the respondents. This appears to have been done by her husband Bashir Ahmad Nasir who affixed his signatures on the brochure (Exh. P. 1) and agreement (Exh.P.3). Furthermore, it is he who is, admittedly, in occupation of Shop No.21. The petitioner has transacted her dealing through her husband. This is but natural considering the norms of our society. If the petitioner's husband also confirms that the transaction was made on behalf of the petitioner, the respondents can have no grievance on the score that the agreement and brochure were signed by the petitioner's husband and not by her.
11. It is strange that although an adverse inference has been drawn against the petitioner for not appearing in the witness box, no such inference has been drawn against Mst. Kalsoom Bibi (respondent No.2) who was also one of the vendors (along with her son Tariq Habib) but chose not to appear in the witness-box. At this point, it is relevant to note that the respondent Tariq Habib acknowledged that both respondents were joint vendors. I find no justification for drawing an adverse inference against the petitioner in the circumstances of the present case, on account of her nonappearance as a witness.
12. The learned appellate Court has next held that there was no agreement between the respondents and the petitioner. This conclusion has been reached simply for the reason that the petitioner's signatures do not appear on the agreement (Exh.P.3) and the brochure (Exh.P.1). As noted above, this is of no consequence because the petitioner's husband, who, admittedly, executed the aforesaid documents, asserted that the purchaser was the petitioner. Furthermore, the respondent as D.W.2 expressly admitted having received payment of instalments for the shop from the petitioner/plaintiff. This evidence is, by itself, sufficient for establishing that the petitioner, in her own right, was the contracting party who purchased the shop in dispute.
13. In view of the above discussion, I find that the learned appellate Court has exercised its jurisdiction with material irregularity. The impugned appellate decree is, therefore, set aside and, as a consequence, the decree of the learned trial Court dated 12-6-2001 stands restored.
14. The petitioner shall also be entitled to her costs throughout.