' SYED JAMSHED ALI, J.---This is plaintiff's revision petition. Her suit for specific performance was decreed by the learned trial Court but on the appeal of the deceased respondent, now represented by his legal heirs, the aforesaid judgment and decree were set aside and the suit of the petitioner was dismissed.
2. The case of the petitioner, in the plaint, was that Ali Ahmad, her father, vide separate registered sale deeds, dated 16-7-1975, sold land measuring 2 Kanals and 6 Marlas each in favour of Shahid Tabassum, Mst. Samina Yasmeen and one Ilyas Mahmood. It was averred that since the petitioner had a preferential right, she intended to pre-empt the aforesaid sales on which Bashir Ahmad, the deceased respondent, real uncle of the petitioner, approached her with a representation that they should make a joint move, bear expenditure jointly and in case the suits were decreed, they will divide the property in equal share. Accordingly, the suits were filed in the name of the deceased respondent and during the pendency of the said suits, an agreement was executed on 3-8-1978 (Exh.P.1) between the parties giving effect to the above said arrangement. It was further averred that out of the three suits, two were decreed on 7-4:1982, while the 3rd suit was dismissed against which the matter was pending before this Court. The share of the petitioner in the suits which were decreed was 2 Kanals and 6 Marlas for a total consideration of Rs.34,666/66 which was duly paid to the respondent. Thereafter the petitioner repeatedly approached the said respondent for execution of sale-deed in favour of the petitioner interms of the agreement aforesaid but he declined.
3. The suit was contested by the respondent. The agreement and the receipt of payment were attacked as forged, fictitious and collusive. In the alternative, it was pleaded that the agreement was not enforceable at law.
4. Necessary issues were framed and the parties led evidence in support of their respective pleas.
The learned trial Court found that execution of the agreement to sell was "proved to its hilt".
Accordingly, her suit was decreed on 14-1-1991. The deceased respondent filed an appeal which was allowed by the learned District Judge, Gujranwala vide judgment and decree, dated 21-5-1991.
The learned first appellate Court found that the agreement to sell, ExIi.P.1., was not duly proved by examining two marginal witnesses and that due to lathes she was not entitled to relief of specific performance.
5. The learned counsel for the petitioner contends that the agreement to sell (Exh.P.1) was executed on 3-6-1978, before the promulgation of the Qanoon-e-Shahadat Order, 1984 and therefore, the learned first appellate Court mis-directed itself in law in applying Article 17 of the Qanoone-e- Shahadat Order, 1984. Reliance was placed on Ramzan and 2 others v. Lara through Legal Heirs and another (2001 M LD 957) and Noor Muhammad v. Nazar Muhammad (2002 SCM R 1301). He further submits that while reversing the impugned judgment and decree of the learned trial Court, the learned first appellate Court did not even advert to the reasoning of the trial Court or the evidence of execution of Exh. P.1. He 'submits that Khalid Waheed, supplied the stamp paper to Bashir Ahmad, who was examined as D.W.1, Ashiq Hussain, the petition writer, was examined as P.W.2., who categorically deposed that the parties had signed the said agreement in his presence. One of the marginal witnesses was Dr. Mubarik Ahmad, husband of the petitioner, who was examined as P.W.3.
The petitioner herself appeared in the witness box as P.W.4 and supported her case. Mr. Zaka A.
Malik, hand-writing expert was examined as P.W.5. According to him, the disputed signatures of the deceased respondent on Exh.P.1 and his routine signatures were in the hand-writing of the same person. He testified to his report Exh.P.14. In rebuttal, the deceased respondent examined himself as D.W.1 and denied execution of the agreement or the receipt of any money from the petitioner.
6. On the other hand the learned counsel for the respondent submits that execution of the agreement (Exh. P.1) was not duly proved because according to him, apart from the husband of the petitioner, the other marginal witness of Exh.P.1 was Muhammad Iqbal, who was not examined and the husband of the petitioner being an interested witness could not be relied upon. He next contended that Exh.P.1, the execution of which was not otherwise duly proved, was Champertous, was opposed to the public policy and was, therefore, hit by the provisions of section 23 of the Contract Act. Reliance was placed on Anayat Ali Shah v. Anwar Hussain 1995 M LD 1714. He next contended that the said contract was hit by section 21 (g) of the Specific Relief Act.
7. The submissions made by the learned counsel for the parties have been considered. The learned District Judge, erroneously applied section 17 of the Qanoon-e-Shahadat Order because the said agreement was executed long before the promulgation of the said Order. The question was considered by this Court in the case of Ramzan and 2 others, (supra) which fully supports the contention of the learned counsel of the petitioner. Similar view was taken by the Hon'ble Supreme Court in the case of Noor Muhammad, (supra). Even otherwise not only a marginal witness of the agreement was examined, the scribe in whose presence the parties put their signatures on Exh.P.1 was A also examined to support execution of the agreement and doubt, if any, was removed by the statement of P.W.5, the hand writing expert. Therefore, I have no doubt in my mind that the Exh,P.1 was duly proved.
8. As far as the contention of the learned counsel based on section 23 of the Contract Act is concerned, it has no merit in the facts and circumstances of the case. Un-disputedly while the petitioner was the daughter of the vendor, the deceased respondent was the brother of the vendor.
The petitioner could have maintained pre-emption suits in her own right but with an arrangement with her uncle, the suits were filed only in the name of the deceased respondent. Therefore, it cannot be said that the agreement in question was opposed to public policy, in view of the peculiar circumstances of the case. The judgment relied upon by the learned counsel for the petitioner has been considered. The observations made by this Court are reproduced hereunder: "(10) Now coming to the legality of the agreement whereby petitioner agreed to finance prosecution of two suits for pre-emption. It is true that in our country such agreements are not directly prohibited. However, such agreements have been examined under section 25 of the Contract Act as to whether particular agreement is opposed to public policy or not? It is equally true that every agreement to finance a litigation per se is not opposed to public policy rather there may be a case in which it would be in the furtherance of law, equity, justice and necessary to resist oppression e.g. That a suitor, who has a just and complete title to a property but no means to retrieve the same, therefore, in this situation the agreement would be legal and justified. The golden rule which has been evolved in the sub-continent is that such agreements are to be carefully scrutinized and when found to be unconscionable, unjust or inequitable or for improper object or as against law or oppressive or leading to vexatious litigation the same would be attracted being against public policy."
' The aforesaid agreement was examined in the light of the aforesaid observations and I do not find that there was anything un-conscionable, un-just or inequitable in it.
9. As far as the plea based on section 21(g) of the Specific Relief Act is concerned, neither any such plea was raised before any of the two Courts nor it has otherwise any merit. Performance of a continuous duty extending over a longer period beyond three years was not involved in this case.
10. As far as the ground of laches is concerned, it was averred in the plaint that she has been repeatedly asking the deceased respondent to execute the sale-deed but he finally declined few days before the institution of the suit. It was a question of fact and in the absence of a specific plea in the written statement, the petitioner could not have been non-suited on this ground.
11. The learned first appellate Court not only mis-applied the law but also ignored from consideration material evidence. Accordingly, this petition is allowed,, the impugned judgment and decree, dated 21-5-1991 of the learned District Judge, Gujranwala, are set aside with the result that the suit filed by the petitioner stands decreed. The respondents shall bear the costs throughout.