SARDAR MUHAMMAD ASLAM, J. --- Through this appeal, the appellant calls in question the concurrent judgments and decrees passed by the learned Courts below whereby suit filed by the appellant was dismissed.
2. Briefly The facts of the case are that the appellant filed a suit for possession through specific performance of contract/agreement executed through its Chairman,' Mian Muhammad Rafi-ud- Din, Advocate, on the grounds that suit property is owned by the defendant and vide an agreement dated 20.03.1986, she agreed to sell the same in favour of the plaintiff-appellant against consideration of Rs. 14,00,000/-, out of which Rs. 2,00,000/- was paid as earnest money through cheque. Suit was contested. Controversy gave rise to framing of issues. Both the parties, produced their respective evidence. In the first round. Of litigation suit was dismissed. Appeal preferred was also dismissed. Second appeal before this Court was allowed and case was remanded to the learned Appellate Court for decision afresh. The learned Appellate Court again dismissed the appeal vide its judgment dated 16.01.2006. This second appeal assails the judgment and decree passed by the learned Courts below.
3.' 1 have heard the learned Counsellor the parties and perused the record.
4. The 'appellant-plaintiff produced Mian Abdul Hayee, Advocate as PW-2. He has authored the agreement on 20.03.1989. He claims to have authored this document in the drawing room of respondent's husband. It was written at the instance of Mian Rafi-ud-Din, the Chairman of the plaintiff. And Sulemari Khan Tareen, husband of the plaintiff. Respondent had signed Exh.P.1 in room of her house in his presence. However,' it was not read over to her. Other witnesses also signed in his presence. .PW.3 Nausher Moshan stated that a sum of Rs. 2,00,000/- was transferred the account No. 3823 maintained by the defendant.
Malik Manzoor Ahmad appeared as PW.4 He stated that respondent's husband Suleman Khan Tareen was known to him. Plaintiff and respondent with her husband, have entered into transaction of sale of Khotee. Agreement dated 20.3.1986 was authored by him. It was signed by Muhammad lqbal Khokhar, Khawaja' Muhammad Riaz and Suleman Khan Tareen and respondent-defendant.
Exh.P.3, agreement dated 19.07.1984 was also authored by him which, too,.Was signed by Suleman Khan Tareen and Malik Muhammad lqbal as marginal witnesses. Respondent has signed the same after reading its contents. Khawaja Muhammad Riaz appeared as PW.5. He is marginal witness of Exh.P.2.
In cross-examination he deposed that stamp paper Exh.P.2 wa's purchaed by Suleman Khan Tareen. Exh.P.2 was authored with the consent of the parties. Mian Rafi-ud-Din, Advocate, Chairman of the plaintiff's board appeared as PW.6. He is witness of Exh.P.2. Delay in execution of sale-deed, within the secified time, requiring extension was made through Exh.P.1' and Ex.P.3. Both Exh.P.1 'and Exh.P.3 were signed by respondent in his presence. He admitted that Younis. Baig, his Clerk, had purchased stamp papers Exh.P.1 and Exh.P.3. Muhammad Khan Chauhan appeared as PW.7. He is Office Secretary of the Board. According to him matter regarding purchase of the property in dispute was placed before Governing Body and after its approval resolution was passed for its purchase. Copy of registration of School was produced as Exh.P.4; copy of judgment and decree in a suit titled Saeeda Begum v. Suleman Khan Tareen was produced as Exh.P.5 and Exh.P.6.
Muhammad Yasin Khan Tareen appeared as .DW.1. He is real brother of respondent's husband. He stated that respondent-defendant. Is illiterate parda observing woman. She does not appear in Public. His brother has married 2nd wife, class-fellow/age fellow of his 'daughter. Respondent- defendant has not sold her house as claimed by the plaintiff. Maqbool Nasreen, respondent herself appeared as DW-2. She deposed that stamp paper Exh.P.1, Exh.P.2 and Exh.P.3 were not purchased by her. She has not directed any one to reduce an agreement into writing on the aforementioned stamp papers. The contents of agreements were not read over to her. Her husband used to obtain her signatures on plain papers for filing reply and affidavit in a suit filed by Mst. Saeeda Begum.
Portion of the disputed property was leased out to the School at a rent of Rs. 8500/- per Month. On account of non-payment of rent, premises were got vacated. Marginal witnesses of Exh.P.1 and Exh.P.3 had not signed in her presence. No person of her confidence .Such as song daughter, or son-in-law was present. It plaintiff Board, in connivance "with her husband, filed this suit in order to deprive her from valuable property. She also stated that on no occasion, she appeared before Mian Saeed Magistrate. Documents Exh.D.1 to Exh.D.6 were produced. .
5. Exh.P.2 was reduced into writing on 20.3.1986: Respondent-defendant was identified by Muhammad Suleman Khan Tareen. Marginal witnesses were Muhammad lqbal Khokhar and Khawaja Muhammad Riaz. In terms of agreement, respondent-defendant has sold 'out the suit property against a consideration of Rs. 14,00,000/-to the plaintiff. A sum of Rs. 2,00,000/- was obtained by her through cross cheque dated 20.3.1986 and sale-deed was to be executed within a period of four months. Khawaia Muhammad Riaz alone appeared as PW.5 to prove the agreement.
6. Agreement Exh.P.3 was reduced into writing on 19.07.1986. It was novation of Exh.P.2 extending the time for execution of sale-deed, until a decision is rendered in the suit titled Saeeda Begum v.
Muhammad Suleman Khan Tareen. It contained signature of Maqbool Nasreen plaintiff on two places one as executant and other, as witness. Muhammad Suleman Khan Tareen, husband of the plaintiff also signed the document. No. Marginal witness appeared to prove Exh.P.3. Exh.P.1 waS the last agreement, specific performance of which has been sought. It was marginally witnessed by Mian Abdul Hayee, Advocate, Muhammad Suleman Khan Tareen, Haji Malik Manzoor and Mian Saeed Magistrate, Sialkot but only Mian Abdul Hayee, Advocate has appeared in Court.
7. The first question raised as to whether the appellant has proved the execution of agreement by the defendant . Defendant admitted her signatures on Exh.P.1, Exh.P.2 and Exh.P.3. According to her signatures were obtained on blank papers by her husband for the use in civil suit filed by Saeeda Begum against the defendant and her husband. She claims that neither the documents were read over nor any independent advice of person of her confidence was available to her. Her husband has taken a 2nd wife class fellow/age fellow of his own daughter. He was under the influence of her 2nd wife. She was quite young and literate one. Defendant was illiterate and could only affix her signature. Her signatures on Exh.P.1, Exh.P.2 and Exh.P.3 are at variance to each other, bearing her testimony.
8. Only one marginal witness of Exh.P.2 appeared in Court. Same is the position of Exh.P.1. Except scribe none appeared to prove Exh.P.3. Article 17 of Qanoon-e-Shahadat Order, 1984 requires proof of document by at least two attesting witnesses. Non-production of another marginal witness even on account of death is fatal to the plaintiff. A person conversant with signatures of the marginal witness could, have been produced to prove the signatures of deceased marginal witness. Heavy onus lay on the plaintiff Board to prove the agreement entered with female, not possessed with independent advice of a person of her confidence. Plaintiff has failed to discharge this burden.
Scribe of Exh.P.1 could not be substituted for the marginal witness. It is conceded by the plaintiff that stamp papers were purchased by his Clerk and Mien Saeed, Magistrate used to visit his chamber, but, he did not enter the witness-box to prove his signature. Requirement of production of two attesting witnesses is sine-qua-non to prove the document. Reference can be had to Qasim A.I v.
Khadim Hussain through legal representatives and others (PLD 2005 Lahore 654); Shah Muhammad through L.Rs and 4 others v. Nawab Din (MLR 2006 Lahore 823); Shamas-ud-Din through L.Rs. v. Abid Hussain through L.Rs. (CLC 2006 Lahore 571); and Mst. Sakina bibi. And another v. Muhammad Anwar alias Mujahid and others (PLD. 2007 Lahore 254). The agreements Exh.P.1, Exh.P.2 and P.3 were not proved in terms of Article 17 of Qanoon-e- Shahadat Order. Specific performance of such agreements is not enforceable.
9. Grant of decree for specific performance of contract is discretionary in nature and Court is not legally bound to grant such a relief even if it is lawful. Whether plaintiff has unfair advantage over the defendant even in absence of fraud or mis-representation; and performance of contract would cause hardship to the defendant, not examined, assessed or fore-seen at the time of execution.
Whether plaintiff has taken some legal steps for the performance of contract or suffered any loss, has to be examined. Even if the agreements are proved a decree can be refused on equitable ground. The transaction in dispute allegedly took place firstly in the year 1986 against the alleged consideration of Rs. 14,00,000/-. On payment of Rs. 2,00,000/- as earnest amount allegedly, balance to be paid was a sum of Rs. 12,00,000/-. Value of the property has increased manifold whereas value of rupee has been devalued to large extent. In case consideration amount, have been invested in profit earning scheme, such as Defence Saving Certificates, in 21 years it should have been more than Rs. 1,50,00,000/-. The plaintiff is not in favour of enhancement in price.
Plaintiff failed, to deposit balance amount in Court of his own. He may had some edge on deposit of balance consideration. He had utilized the money with him and in case of decree secure the property worth Rs. 1,50,00,000/- without any investment. In such a situation, plaintiff will have unfair advantage over the defendant, which is not approved in law. For the above view support is sought from Syed Arif Shah v. Abdul Hakeem Qureshi (PLD 1991 SC-905) and Muhammad Ghafoor v. Mst.
Munawar Shahzadi and another (2007 MLD 264).
10. For what has been discussed above, this appeal fails and is hereby dismissed. .