' MIAN SAQIB NISAR, J.---The suit for the Specific Performance brought by the appellant against the respondent, has been decreed by the learned trial Court, vide judgment and decree dated 19-5- 2006. However, on appeal filed by the respondent, the judgment and decree has been reversed on 31-5-2007 and the suit stands dismissed.
2. Briefly stated the facts of the case are that a house bearing Property No,B-III9S-1/6/RH, measuring 7 Marlas situated at Mohallah Mubarakpura, Sialkot was purchased by the respondent through a registered sale-deed for a consideration of Rs,9,00,000 mentioned therein. The appellant claiming a right to pre-empt the sale, instituted a suit against the respondent, in which, a compromise seems to have been effected between the parties on account of which, the appellant withdrew the suit and entered into an agreement dated 4-8-2004, for the sale of the house to him by the respondent for a consideration of Rs,20,50,000 (as this price is so mentioned in the agreement Exh.P-1). It is the case of the appellant that at the time of the execution of said agreement dated 4-8-2004, an amount of Rs, 10,000 as earnest money was paid to the respondent, whereas for the balance payment of the consideration and also for the finalization of the transaction, ten days time was fixed between the parties. As the respondent did not fulfil her obligation under the agreement, therefore, after issuance of notice dated 18-8-2002 Exh.P-2 to her, through a counsel, which was responded to by the respondent on 21-82004, Exh.P-3, the appellant brought a suit for the specific performance on 4-9-2004; the respondent in her written statement has admitted the execution of the agreement to sell, but her total defence to the appellant's claim is contained in Para. No,2 thereof, which reads as follows:-- {{URDU TEXT}} ' Thus on account of the pleading of the parties, the following issues were framed:--
(1) Whether the plaintiff has agreed to pay Rs,21,50,000 as sale consideration of disputed house ?
OPD.
(2) Whether the plaintiff is entitled to the decree for possession through specific performance with permanent injunction, if so on what terms and conditions? OPP (2A) Whether the defendant returned the earnest money Rs,10,000 to the plaintiff and the agreement to sell was cancelled? OPD
(3) Relief.
' The appellant examined P.W.1 Malik Zulqarnain Advocate, who is the scribe and signatory of the agreement to sell, P.W.2 Malik Mohsin Sardar Advocate, is the marginal witness, P.W.3 Sufi Sagheer is the plaintiff himself, while P.W.4 is Tahir Mehmood, the stamp vendor. Besides, the appellant has produced the agreement to sell Exh.P-1, Notice dated 18-8-2004 Exh.P-2 and the reply of the respondent dated 21-8-2004 Exh.P-3 as her documentary evidence. As against the above, the respondent herself appeared as D.W.-1. She neither examined any other witness nor produced any document. Upon the conclusion of the trial, the learned Civil Judge by returning his findings on issues Nos.1 and 2-A against the respondent and issue No,2 in appellant's favour, has decreed the suit in favour of appellant.
3. Learned counsel for the appellant contends that following are the admitted facts of the case:-- 'The stamp paper was purchased by the respondent; respondent executed the agreement to sell by signing and affixing her thumb-impression to the instrument; in the agreement to sell an amount of Rs,20,50,000 is written as the total consideration of the deal; respondent's husband was present at the time when the agreement to sell was executed by her; respondent is an educated lady and that the agreement to sell was read over to her before its execution.
' However, the respondent's defence that at the time, when she got to know that the price of the property, which was actually settled between the parties, was written less by one lac of rupees in the agreement, she protested, upon which the appellant promised to bring the shortfall from his car, has not been put to the appellant as no such suggestion was given to him when he appeared in the witness-box as P.W.1. Besides, the respondent has not led any independent evidence to prove both the issues. Admittedly, her husband and Muhammad Siddique Advocate are the two marginal witnesses of the agreement from the respondent's side, but they have not been examined; thus an inference for withholding of the best evidence in terms of Article 129 (g) of the Qanun-e-Shahadat Order, 1984 (the Order), be drawn against the respondent. It is further argued that the respondent has never issued any notice of the rescission of the aggreement, on account of the alleged non- payment of the deficient price; it is settled law that where the execution of a document is admitted, but the performance thereof is declined for any reason, it is the party, who refuses the performance, to justify the refusal on factual or legal premises, but this objection has not been discharged in the instant case by the respondent; the oral evidence against the contents of an admittedly executed document, cannot be permitted to be led and should not be considered.
Reliance in this behalf, is placed on Mst. Baswar Sultan. v. Mst Adeeba Alvi (2002 SCM R 326), Hazratullah v. District Council Haripur (PLD 1997 SC 1570) and Muhammad Shafi and others. V. Allah Dad Khan (PLD 1986 SC 519).
4. Syed Najam ul Hassan Kazmi, learned counsel for the appellant, has also argued that the learned Court of appeal has erroneously and illegally drawn certain inferences against the appellant, such as, the transaction was concluded in the office of an Advocate; the appellant had made deposit of the balance amount of the consideration in the Court; filed the instant suit promptly and that token amount is quite a meagre. Therefore, the , impugned judgment and decree cannot sustain.
5. Conversely, the learned counsel for the respondent has argued that after having found that the price was incorrectly incorporated in the agreement to sell, the respondent immediately at the same venue, rescinded the agreement and threw the amount of Rs,10,000 and walked out, therefore, as the agreement has been rescinded there and then, resultantly, the question of its specific enforcement does not arise. He has defended the impugned judgment and decree, which according to him, is based upon proper appreciation of the evidence and accurate inferences in accordance with law have been drawn by the Court.
6. I have heard the learned counsel for the parties. The respondent in her written statement has not denied the execution of the agreement to sell, rather has propounded the version that the consideration of the deal was Rs,21,50,000 but the respondent at the time of writing of the agreement through fraud/misrepresentation {{URDU TEXT}}got incorporated the amount of Rs,20,50,000 instead of actually settled amount of Rs,21,50,000 therefore, she returned the token money of Rs,10,000 which she had received and rescinded the agreement. Obviously, on account of the admission on her part about the execution of the agreement, it was respondent's obligation to prove issues Nos.1 and 2-A. But she has absolutely led no independent evidence to establish, if the price of the property was ever settled between the parties at Rs,21,50,000 instead of Rs,20,50,000 (as mentioned in the agreement). Her husband, who is a marginal witness of the agreement, has not A been examined to support her version and same is the position about Ch. Muhammad Sadique Advocate, the other marginal witness from her side. Therefore, the rule of withholding the best evidence as enshrined by Article 129 (g) of the Order is attracted to the case. Besides, as per the provisions of Articles 102 and 103 of the Order, the oral evidence of the respondent (her solitary statement) was liable to be excluded. In this behalf, the judgments cited by the appellant's counsel are aptly applicable and a particular reference can be made to the dictum reported as Hazratullah v. District Council Haripur (1997 SCM R 1570), wherein it has been held "According to the agreement the petitioner was to pay the remaining lease amount in 10 equal instalments of Rs,12,600 on 5th of each month failure of which empowered the respondent to cancel the lease agreement. Such being the case the two Courts below had acted illegally and with material irregularity in ignoring the written agreement and in basing reliance on oral evidence and in decreeing the petitioner/ plaintiff's suit on such evidence. We, therefore, find no infirmity in the judgment of the learned High Court in setting aside the judgment and decrees of the two Courts below." In the cases reported as Mst. Baswa r Sultan. v. Mst. Adeeba Alvi (2002 SCM R 326), and Muhammad Shafi and others v. Allah Dad Khan (PLD 1986 SC 519), similar view has been expressed. Therefore, the finding of the learned Appellate Court on Issue No,1, being against the record and the law, cannot sustain and are hereby reversed.
7. The respondent has also failed to discharge her burden on issue No,2-A and prove through independent evidence that the amount of Rs,10,000, which she admittedly as envisaged by agreement Exh.P-1 received was returned to the appellant or was thrown in the office of Mr. Zulqarnain Advocate as stated by her while appearing as D.W.1. Therefore, for the same reasons given in this judgment on issue No,1, the findings of the learned Appellate Court to the contrary are set aside.
8. It may also be held that the learned Court of Appeal has drawn erroneous and illegal inference from the record and about the conduct of the appellant, because there was no harm, if the agreement to sell was executed in the office of the Advocate, particularly when it is not the respondent's case that it is on account of the venue that any fraud was practised upon her.
Besides, if the appellant had promptly initiated the suit and had deposited the balance amount of consideration, this in fact proves his bona fide, rather any conclusion could be drawn against him.
The judgment and decree of the learned Court of Appeal is thus based upon total misreading of the record, against settled principle of law and on account of the illegal inference, and cannot sustain, which is hereby set aside and the judgment and decree of the learned trial Court is upheld.