MUHAMMAD MUZAMMAL KHAN, J.---Instant civil revision assailed judgments/decrees dated 29- 11-1994 and 6-4-2000 passed by the learned Civil Judge and learned Additional District Judge, Faisalabad, whereby respondent's suit was decreed and appeal of the petitioner was dismissed, respectively.
2. Succinctly, relevant facts are that Abid Hussain respondent was tenant of Shop No.1, Property No.P-4, Chiniot Bazar, Faisalabad, jointly owned by the petitioner and his brothers. The respondent on 27-2-1990 filed a suit for specific performance of the agreement to sell dated 29-12-1989, allegedly executed by the petitioner agreeing to transfer his share in the property in favour of the respondent for a consideration of Rs.40,000 and received Rs.20,000 as earnest money. Respondent pleaded in his suit that he had been willing/ready to perform his part of contract by paying the balance sale price within the stipulated period but the petitioner resiled from the agreement and failed his part of contract coercing him to file the suit.
3. Petitioner being defendant in the suit, contested the same by filing the written statement wherein he raised number of preliminary objections about absence of any cause of action in favour of the respondent, his estoppel by words/conduct and denied any bargain inter parties, refuting claim of the respondent of execution of agreement dated 29-12-1989, grading the same as forged/fictitious.
It was also asserted that respondent being tenant manoeuvred fake agreement to sell just to avoid his eviction in ejectment proceedings already initiated against him. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Civil Judge, seized of the matter, after doing the needful on the basis of his appraisal of evidence, decreed the suit vide judgment/decree, dated 29-11-1994.
4. Petitioner feeling aggrieved of the decision of the trial Court, filed an appeal before the learned Additional District Judge, but remained unsuccessful as the same was dismissed through appellate judgment/decree, dated 6-4-2000. He thereafter filed this petition, which was admitted to regular hearing and after completion of record, has now been placed for final determination.
Respondent in response to notice by this Court, appeared and was represented through counsel.
5. Learned counsel for the petitioner submitted that the claimed agreement to sell dated 29-12- 1989 was forged, fictitious and fabricated, execution of which could not be proved in accordance with law, as only one of its marginal witnesses, was examined by the respondent. Further submitted that scribe of the document cannot take place of a marginal witness, hence both the Courts below fell in error of law in treating the scribe as marginal witness of the asserted agreement, dated 29- 12-1989 and thus, incorrectly decreed suit of the respondent. He also emphasized that petitioner had moved an application for comparison of his signatures with those appearing on the alleged agreement, dated 29-12-1989 before the learned Additional District Judge but the same was erroneously dismissed through a separate order, dated 6-4-2000 on an unfounded findings that execution of the sale agreement stands already established. It was further emphasized on behalf of the petitioner that after denial of execution of the sale agreement, respondent being its beneficiary was obliged under law to prove not only the alleged agreement but also the bargain/transaction reflected therein, which he could not prove and this lapse escaped notice of the two Courts below, negatively reflecting on their findings. It was further argued that agreement to sell, on the basis of which respondent filed suit, on the face of it, was forged/fictitious, having been inscribed on a plain paper instead of some non-judicial stamp paper and the same did not carry thumb-impression or number of National Identity Card of the petitioner. According to him, forged nature of signatures appearing on the agreement, dated 29-12-1989, were visible even to a naked eye. It was also urged that after dismissal of petitioner's application for comparison of signatures, this exercise should have been undertaken by the Court itself but both the Courts below fell astray in their futile effort to justify an illegal, forged and fictitious document.
6. Learned counsel for the respondent refuted the submissions of the petitioner, supported the concurrent judgments of the two Courts below and urged that due execution of agreement, dated 29-12-1989 was proved by one of the marginal witness and its scribe, whose statement remained un-shattered during cross-examination by the petitioner and that these witness had no interest in the respondent or the property in dispute. It was also assertively argued that petitioner had moved an ejectment petition against the respondent, which was dismissed by the learned Rent Controller vide order, dated 29-11-1994 wherein findings touching title of the respondent was also given, hence the same may be allowed to be produced in additional evidence, under Order XLI, rule 27, C.P.C. On C.M. No.1 of 2005. It was also urged on behalf of the respondent that concurrent findings of facts recorded by the two Courts below after due appraisal of evidence, cannot be interfered in revisional jurisdiction of this Court, hence this petition cannot proceed under law.
7. I have heard the learned counsel for the parties and have examined the record, appended herewith. Undeniably, agreement to sell dated 29-12-1989 in favour of the respondent is on a simple/ordinary paper, which does not carry thumb-impression of the petitioner or number of his National Identity Card and was written by an unlicensed person, not trained in the trade. It is also admitted. Between the parties that respondent was a tenant under the petitioner and at the time of filing of his suit for specific performance, petitioner along with other co-owners had already filed an ejectment petition under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959 on 7-3- 1990 for his eviction on the grounds that the shop was required for their personal need, respondent had dismissed its value and violated terms/conditions of tenancy. In presence of these facts, respondent being a plaintiff and beneficiary of the claimed agreement, dated 29-12-1989, after specific denial of its execution by petitioner, was under legal obligation not only to prove the agreement itself but also to clearly establish through evidence that he really entered into a bargain of sale with the petitioner and the sale transaction was in fact struck as per terms reflected therein. Law regarding proof of documents by the beneficiaries in the circumstances detailed, is settled by this time to the effect that holder of the agreement is under obligation to prove all these things beyond any shadow of doubt, in accordance with law. Reference in this behalf can be made to Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642, Hakim Khan v. Nazeer Ahmad Lughmani and 10 others 1992 SCM R 1832; Sana Ullah and another v. Muhammad Manzoor and another PLD 1996 SC 256; Muhammad v. Mst. Rehmon through Mst. Sharifan Bibi 1998 SCM R 1354; Mst. Rasheeda Begum and 3 others v. Muhammad Yousaf and others 2002 SCM R 1089.
8. Sale agreement, dated 29-12-1989 being subsequent to the promulgation of Qanun-e-Shahadat Order, 1984 for determination of question as to what kind of proof was needed to be brought on record by the respondent, 'we will have to fall back on the provisions of this law. Article 17 of the Qanun-e-Shahadat Order, 1984 required that in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men or one man and two women. The agreement on the basis of which the respondent filed the suit, was an instrument creating financial and future obligations inter parties, thus, was required by law to be attested as provisions of Article 17 of the Order (ibid). Now Article 79 of the same law mandated that if a document is required by law to be attested, it shall not be used as evidence until at least two attesting witnesses have been called for the purpose of proving its execution, if they are available.
Since the petitioner had specifically denied execution of the agreement under discussion, grading the same as forged/fictitious, it was legal obligation of the respondent to produce its both marginal witnesses but he felt satisfied in producing one of them, namely Abdul Wahid as P.W. In spite of availability of the other and in order to make good the deficiency attempted to rely on the statement of P.W.2 Tahir Maqsood, who had allegedly scribed the agreement (Exh.P.1) by relying on judgments in the cases of Nazir Ahmed v. Muhammad Rafiq 1993 CLC 257 and Abdul Wall Khan through Legal Heirs and others v. Muhammad Saleh 1998 SCM R 760 by claiming that P.W.2 acted as a marginal witness, thus, be treated in this capacity. Stance of the respondent had no legal worth for multiple reasons. On the one hand, requirements of Articles 17 and 79 of Qanun-e-Shahadat Order, 1984 were not fulfilled because both the attesting witnesses were not examined and P.W.2 having not attested Exh.P.1 as an attesting witness could not substitute the other witness of the document. Reference in this behalf can be made to the judgment in the case of Mst. Rasheeda Begum and others v. Muhammad Yousaf and others 2002 SCM R 1089. On the other hand, P.W.2 did not give any note on Exh.P.1 to the effect that transaction was concluded, payment was made, he attested as a witness and the parties put their hands to the documents in his presence. Without such note on Exh.P.1, which was even not signed by P.W. He cannot be given status of the attesting witness. P.W.2 admitted during his cross-examination that bargain was not struck/concluded in his presence and that he did not examine the title documents of the petitioner. This witness went on to depose that as per his memory number of National Identity Card of the petitioner was mentioned over Exh.P.1 and he deposed with certainty that its photocopy was added thereto. P.W.2 with such depositions though did not even fulfil the requirements of judgment in the case of Nazir Ahmed (supra), yet in presence of unambiguous language of above referred provisions of Qanun-e- Shahadat Order, 1984 I failed to understand how both the Courts below treated him as a marginal witness. As regards leave refusing judgment by the Honourable Supreme Court in Abdul Wali Khan's case (supra), it is not clear from the body of the judgment that the document on the basis of which respondent of that case had filed suit for specific performance, was executed earlier to coming into force of the law under discussion or thereafter, but tenor of the judgment shows that that document must have been executed earlier to 1984 because under that law requirement of proving some document was by producing one of the marginal witnesses, as per section 68 of the Evidence Act, 1872.
9. Coming to the validity or otherwise of the execution of Exh.P.1, the only marginal witness of it i.e. P.W. Admitted that respondent is his neighbourer and his shop is in front of the shop in question and that there is no other big relation than that of a neighbourer. It shows that how P.W.1 became witness of Exh.P.1 and as to why he came over to make statement on behalf of the respondent without being summoned by the Court. Similarly, P.W.2 also admitted that he bad no experience as "petition writer" and in this behalf he did not hold any licence. This witness towards end of his cross- examination admitted that the place where Exh.P.1 was written, was at a distance of only one furlong from he Courts premises. He could not explain as to why this instrument was not got inscribed on a stamp paper and through a licensed "petition writer" available in the Court premises, in spite of the fact that 29-12-1989 was a working day. Minute study of Exh.P.1 revealed that its language is not of an unskilled person. Space between the name of the petitioner beneath the document and his signatures is unusual, especially when compared to signatures of other two marginal witnesses. As opposed to statement of D.W.2, Exh.P.1 does not carry number of National Identity Card of " the petitioner and the respondent did not produce before the trial Court its photocopy, which was said to have been annexed thereto. Agreement Exh.P.1 appears to have been written from an unlicensed person just to avoid its entries in the register of the petition writer who under the Rules was obliged to enter such documents in his register maintained in this behalf and to get signatures of the executant there over. Likewise, this document was apparently written on some subsequent date when the stamp paper of the needed date was not available and that too for avoidance of entries on the register of stamp vendor. Under law, an agreement to sell is required to be written on non-judicial stamp paper and the stamp duty payable having not been paid, Exh.P.1 carried no legal value, unless the same had been impounded by the concerned Collector under section 40 of the Stamp Act, 1899. File is absolutely thirsty of the proof that Exh.P.1 was remitted to Collector, Faisalabad, for impounding the same. Learned counsel for the respondent also could not answer Court's query in this behalf with certainty. Scan of evidence on the file and the law applicable, proved to the hilt that respondent had failed to prove F bargain/transaction reflected in Exh.P.1 and he could not be awarded the decree for specific performance on the basis of agreement, dated 29-12-1989, due execution of which was not proved, in accordance with law.
10. Reverting to the claim of the petitioner regarding comparison of his admitted signatures over his written statement and those inscribed on Exh.P.1. I am not persuaded to undertake this exercise which will not only delay the decision of the case but will also involve unnecessary expense, especially when this Court is equipped with the power of itself c compare the signatures, as per judgment by the Honourable Supreme Court in the case of M/s Wiqas Enterprises and others v.
Allied Bank of Pakistan and 2 others 1999 SCM R 85. My examination of both the signatures revealed that those do resemble but do not tally with each other, as stroke of pen of each of those is different. Now I take up C.M. No.1 of 2005 moved by the respondent under Order XLI, rule 27, C.P.C.
Praying production of order of Rent Controller, dated 29-11-1994 dismissing petitioner's ejectment petition. I have examined the order of the Rent Controller, which was delivered by the same Presiding Officer, who decided the suit in hand, on one and the same day, with alike reasons in support of claim of the respondent, thus, there is no necessity of permitting him to lead any further evidence, as this case can be decided justly/fairly on the basis of evidence already produced by the parties. This petition have been unnecessarily filed, is dismissed.
11. For the reasons noted above, both the Courts below acted with illegality and with material irregularity in concluding that respondent successfully proved due execution of agreement to sell dated 29-12-1989, contrary to the provisions of law and settled principles on the subject, thus, the same are not sustainable. This revision petition is accordingly accepted and judgments/decrees dated 29-11-1994 and 6-4-2000 passed by the learned Civil Judge and learned Additional District Judge, Faisalabad, arc reversed and suit of the respondent is dismissed with costs throughout.