SYED ZAWWAR HUSSAIN JAFFERY, J.---This High Court Appeal under section 3 of the Law Reforms Ordinance, 1972, has been filed against the judgment and decree dated 22-12-2003 passed by learned Single Judge in Suit No,1049 of 1999, whereby the said suit was dismissed by observing that the agreement (Exh.P-5/7) was not genuine, it was not signed by the respondent and, therefore, does not constitute an agreement enforceable in law.
2. Brief facts of the case are that Plots Nos.143 to 145, Survey No,434, Quaidabad, Landhi, Karachi with building thereon was originally owned by the father of respondent namely Gulab. The respondent got this property from his father through registered sale-deed dated 20-11-1982. The appellant was tenant in respect of two shops on the ground floor of the said property as the parties were closely related to each other. The respondent filed a Rent Case against the appellant being No,83(1/91, which was dismissed in default on 26-3-1998. Restoration application filed by respondent was also dismissed vide order dated 14-5-1999. Mst. Sharifan, stepmother of the respondent and widow of Gulab filed a suit for cancellation of registered deed against the respondent in October, 1991, on the ground that the suit property was gifted to her by her husband and the respondent got sale-deed registered forcibly in his favour for Rs,10,000 only, although the said property is valued much more than Rs,10,000. The said suit was tried in the Court of learned Senior Civil Judge, Malir, Karachi. However, the plaint was returned to Mst. Sharifan on 14-4-1999 and thereafter she did not institute any suit. It is further urged that the respondent offered to sell the suit property to the appellant and contacted him through his brother-in-law namely Abdul Jabbar his brother Jamaluddin and other relations. However, the appellant agreed to purchase the suit property during pendency of litigation and thereafter agreement of sale was reduced in writing on 15-4-1996 by accepting Rs,7 lac as part payment and the balance amount of Rs,14 lac was to be paid at the time of registration of sale-deed. On the basis of sale agreement, the respondent avoided to execute sale deed. Therefore, the appellant filed suit for specific performance on the basis of the agreement being Suit No,1049 of 1999.
3. In response to notice, the respondent filed written statement and denied execution of sale Agreement (Exh.P/7) and contested the matter.
4. In view of pleadings 'of the parties following issues were framed:--
(1) Whether the sale agreement dated 15-4-1996 is genuine and has binding effect?
(2) Whether the suit is barred by limitation?
(3) Whether the defendant has failed to perform his contractual obligation?
(4) Whether the plaintiff is entitled for specific performance of the contract?
(5) What should the decree be?
5. Appellant filed his affidavit-inevidence as Exh.P-5/.l and produced copy of the plaint of suit filed by Mst, Sharifan against the respondent Alamgir as Exh.P/2 copy of rtfder dated 14-4-1999 in Suit No, 143/98 (old No,589/94) as Exh.P/3, copy of Rent Case No, 832/91 (new No,54/94) as Exh.P-5/4, order of Senior Civil . Judge dismissing the case On 26-3-1998 as Exh.P-5/5, copy of order of Rent Controller, Malir dated 14-5-1999 dismissing the restoration application of the respondent as Exh.P- 5/6 and agreement of sale as Exh.P-5/7 The appellant examined himself as well as his nephew Muhammad Rafiq. The respondent also examined himself and denied the execution of sale agreement. After hearing the learned counsel for the parties, the suit was dismissed by order dated 22-12-2003. Hence this appeal.
7. (sic) Mr. Muhammad Sharif, learned counsel for the appellant contended that the learned Single Judge has not considered evidence of both the parties, more particularly admission of witness Muhammad Rafiq, nephew of the appellants. In cross-examination of this witness and other witnesses it was clearly demonstrated that they knew nothing about the case and were set up witnesses. The learned counsel further contended that the judgment is against the law and evidence brought on record. Therefore, the judgment and decree dated 22-12-2003 may be set aside. It is further urged that the parties had submitted their written arguments but the learned Single Judge did not-consider the same and the observation of the learned Single Judge is against the evidence brought on record. The appellant had also filed an application for injunction which was allowed by the learned Single Judge and the respondent was directed not to create any third party interest in the suit property. The application for rejection of the plaint was also dismissed and the appellant was directed to deposit amount of Rs,14 lac in the Court which was deposited but the learned Single Judge refused to stay the ejectment on the ground that tenancy was not terminated and simple execution of the agreement did not put tenancy to an end. The learned Single Judge also totally ignored the agreement between the parties I by not giving any finding on the additional issues. Therefore, the judgment and decree may be set aside. The learned counsel in support of his argument has relied upon the following cases:-
(1) Jameel Ahmed v. Saifuddin (PLD 1994 SC 501)
(2) Wazeeruddin v. Khalid Masood (1989 CLC 106-109)
(3) Faiz Ahmed and others v. Mst. Qudsia Khatoon (1991 MED 1051- 1053 (Para.6)
(4) Khawaja Ammar Hussain v. Muhammad Shabbiruddin (PLD 1986 Kar. 74).
8. Conversely, Mr. Muhammad Ismail Memon, learned counsel for the respondent has supported the impugned judgment and decree as there is no illegality or infirmity in it. He has further argued that there was a rent agreement in respect of two shops in the suit property with his deceased father. After expiry of first rent agreement dated 25-8-1983, subsequent rent agreements were prepared on 2-8-1986, 20-9-1987, 8-8-1989 and 8-10-1990. He has further pointed out that Rent Controller, Malir has held in his order dated 26-7-2000 that the appellant is wilful defaulter in payment of rent and directed, him to vacate the shop within a period of sixty days from the date of the order. The appellant was fully aware of. The fact that he had committed wilful default.
Therefore, he prepared fake agreement of sale in back date i.e, 15-4-1996 and put forged signature of the respondent. On the basis of said fictitious agreement of sale he had claimed that he had purchased the entire property from the respondent for consideration of Rs,21 lac.'It is further urged that the version of the appellant is incorrect that at the tiihe of execution of the agreement of sale the appellant paid Rs,7 lac as advance. The plea of the appellant is afterthought in order to save him from the ejectment Of the shop, which was in his possession. The plaintiff-appellant has produced two witnesses in support of his version. Both the witnesses have not supported the plaintiff appellant and the observation of the Court is proper. The suit was filed mala fidely with unclean hands and the appellant's possession camiot be safeguarded on the fictitious claim regarding purchase of the property during pendency of litigation. The appellant intended to grab entire property by fraudulent means so that he may contest the matter on false plea. The parties had contested the matter upto the Honourable Supreme Court and this is second round of litigation. In the earlier proceedings, the appellant, had not claimed about the agreement of sale (Exh.P-5/7). Therefore, there is no material for grant of any relief to the appellant. Mr. Memon has also placed copies of the order of learned Rent Controller judgment of acquittal dated 31-12-2003 in S.C. No,332 of 2005 passed by learned Civil Judge and Judicial Magistrate, Malir, Karachi. Mr. Memon in support of his contention has relied upon the following cases:--
(1) Mst, Khairul Nisa and others v. Malik Muhammad Ishaque and others (PLD 1972 SC 25)
(2) Hassan Aadas v. Mir Muhammad and others (1990 CLC 1362).
9. We have heard the learned counsel for the parties, examined the material placed on record and case-laws cited at the bar. It will be advantageous to reproduce the prayer in Suit No, 1049 of 1999 which is as follows:--- "(1) Declaring the sale agreement dated 15-4-1996 between the parties legal, lawful, valid and subsisting and binding upon the parties.
(2) Permanent injunction against the defendant and all other persons deriving authority from him not to sell, dispose off, transfer, alienate and or encumber in any manner the suit property except its sale to the plaintiff or his nominee. f
(3) Direct and order the defendant, to get the suit property i.e, Plots Nos.143 to- 145 Survey No,434, measuring 163 Sq. Yds. In Deh Landhi, Tapo Landhi, Taluka and District Malir with constructions thereon consisting of shops and residential accommodation, transfer registered deed in favour of the plaintiff against the payment of balance amount of consideration of Rs, 14,00,000 and in the absence of the plaintiff direct the Nazir of this Honourable Court to get the said suit, property registered in favour of the plaintiff.
(4) Cost of the suit and
(5) Any other relief this Honourable Court deems fit, proper,, legal, just and equitable under the circumstances of the case."
10. It is pertinent to mention that the agreement of sale was prepared op 15-4-1996 but the litigation was already sub judice before the learned Rent Controller. In the pleadings it has come on record that the respondent's step-mother Mst. Sharifan had challenged the sale-deed by filing Suit No, 1584 of 1991 in the Court of Civil Judge, Karachi (East) which was transferred to the Court of learned Civil Judge, and new number was assigned as Suit No, 143/98. The respondent filed Rent Case No,832/91 against the appellant for ejectment from the said shops in the year 1991. Ejectment application was allowed and thereafter the appellant filed F.R.A. No,92 of 2001 (New No,9 of 2001) which was dismissed on 24-9-2001.
11. The order dated 26-7-2002 passed by learned Rent Controller, Malir Karachi was challenged in appeal and thereafter leave to appeal as C.P.L.A. No,514-K of 2002 was filed in the Honourable Supreme Court of Pakistan, but it was dismissed on 14-5-2002. The appellant after losing the case from all quarters had filed suit on the basis of sale agreement dated 15-4-1996' disclosing therein that he had paid Rs,7 lacs as part payment and balance of Rs,14 lacs shall be paid at the time of registration of documents in his favour. The appellant had remained silent for long time but all of sudden filed suit on 24-7-1999. It has come on record that two witnesses produced by the appellant have not supported him in respect of payment or execution of the agreement, the respondent also denied signing of agreement (Exh.P-5/7). Admittedly there was dispute between the appellant and the respondent regarding the shops and there was no dispute for the remaining portion. The appellant was paying rent to the respondent's father (Gulab) regularly and after death of Gulab the appellant deposited rent in the Court for one and a half year after alleged agreement (Exh.P-5/7) which reflects that if there was any agreement between the parties regarding sale of the property then why rent was being deposited in Court after death of Gulab and thereafter the appellant deposited rent for one and a half year after alleged agreement. Therefore, it is obvious that agreement of sale was prepared by the appellant with a view to usurp the property of the respondent.
12. In this matter the Issue No, 1 i.e, whether the sale agreement dated 15-4-1996 is genuine and is binding effect. In respect of this issue the plaintiff has relied upon the sale agreement dated 15-4- 1996 Exh.P-5/7, evidences of plaintiff and his witness. The plaintiff in his affidavit-in-evidence has reiterated the facts as stated in the plaint and has produced original agreement to sell as Exh.P- 5/7. P.Ws. 2 and 3, who were witnesses of Exh.P-5/7, have admitted respectively their thumb impressions on the agreement. They have stated in their affidavit-in-evidence that plaintiff had agreed to purchase two shops in his possession and the defendant has agreed to sell the same on the sale price of Rs,21,00,000 and that amount is admitted to have been received by defendant in agreement. It is further stated by them that payment of balance amount of Rs, 14,00,000 but the defendant refused to honour the sale agreement. The defendant in his affidavit-in-evidence as stated that the plaintiff was tenant in respect of two shops in the said property and that the agreement of sale Exh.P-5/7 is a fake document which bears the. Forged signatures. The defendant had also denied of receipt of Rs,5,00,000 at the time of execution of agreement to sell and also denied that there was any loan amount of Rs,2,00,000 paid by the plaintiff to him. He has further stated that the suit filed by the plaintiff to save himself from the ejectment of the shops. He has further stated'that two witnesses produced by plaintiff, one is the real son of plaintiff and other is brother-in- law of plaintiff, he has filed suit with ulterior motive to linger on the litigation with mala fide intention. The defendant in his cross-examination had given a suggestion that he was not having any income except from the three shops which he sold to the plaintiff, which suggestion was denied by him. The agreement to sell is dated 15-4-1996 and at that time two cases were pending in the Court being Suit 589 of 1994 (New Suit No, 143 of 1998) in which very title of the defendant in respect of whole property was brought in cloud. The said suit was filed for cancellation of the sale deed, made by Gulab in favour of Ms son. At the same time a Rent Case No, 832 of 1991 (New Rent Case No,55 of 1994) for the ejectment of plaintiff was also pending. There.Is no disclosure regarding the .Sale agreement in the said cases, the property in question Wns not a plot but there existed built up property having five shops and residential house behind them. It has come in the evidence that the plaintiff appellant was in occupation of two Shops Nos.2 and 4. The remaining portion being residential portion was in occupation of defendant's step-mother, while other shops were in possession of the defendant's stepbrothers namely Shafi and Shahid and one in possession of Ajmal. The defendant respondent was receiving rent from the three shops and was contesting the cases before different forums. The matter was also contested before the Honourable Supreme Court of Pakistan, where the appellant/plaintiff had lost the case. There is nothing on record to show that in any these proceedings the appellant has pleaded about the agreement of sale P-5/7. It is obvious that appellant/plaintiff used to pay rent to the defendant regularly after the death of Gulab and thereafter had deposited rent in Court for a long time particularly after alleged agreement to sell Exh.P-5/7, therefore, the learned Single Judge has rightly concluded that the agreement is forged.
13. In view of this fact, we are of the view that the observation of 'the learned Single Judge is based on proper < appreciation of evidence that the agreement (Exh.P-5/7) is not genuine agreement. It is impossible that the appellant had put his signature on such agreement and contested the matter in the Court of law and thereafter the appellant sought ejectment order. The appellant during the pendency of dispute had also filed Civil Petition No,552-K of 2000 in the Honourable Supreme Court which was also dismissed vide order dated 21-2-2001. The appellant did not disclose the sale agreement at the time of filing Civil Petition nor argued this point before the Honourable apex Court. The appellant not being satisfied with the order of the Honourable Supreme Court has started another round of litigation with the respondent for the said shops as well as for the entire area of the respondent. We are of the view that there is no illegality or infirmity in the order of the learned Single Judge, which is based on cogent reasons and is unexceptionable.
14. In view of the above reasons, we find no merits in the appeal, which is dismissed accordingly.