'ALI AKBAR QURESHI, J.--- This RFA is directed against the judgment and decree dated 17-4-2003, passed by the learned Civil Judge 1st Class, Lahore, whereby the suit of the respondent for specific performance of an agreement dated 7-4-1996, pertaining to a property-Bungalow No,103, situated in Bridge Colony, Abid Majeed Road, Lahore Cantt, was decreed.
2. Shortly the facts for the disposal of this appeal are, that the respondent brought a nit for specific performance of an agreement dated 7-4-1996, pertaining to Bungalow No,103, situated in Bridge Colony, Abid Majeed Road, Lahore Cantt, for a consideration of Rs,56,75,000, on the ground that the aforesaid agreement was executed by the appellant in his favour for consideration of Rs,56,75,000, out of which a sum of Rs,10,00,000 was paid as earnest money on the same day and Rs,600,000 was paid on the demand of the appellant on 9-6-1996. It was agreed while paying Rs,600,000 that the appellant will get the sale permission from the GHQ and MEO to transfer the Bungalow in favour of the respondent -plaintiff till 7-8-1996. On 3-7-1996, the appellant, instead of providing the requisite documents, demanded Rs,600,000 with the promise to provide documents till 7-8-1996, but no documents were provided, therefore on 12-7-1996 a notice was issued by the respondent to the appellant to provide the necessary documents for the transfer of the Bungalow but the request was not acceded. Further averred in the plaint that Rs,100,000 was also paid by the respondent to the appellant on her request on 29-8-1996 and resultantly the time to complete the sale-deed was extended up to 30-9-1996. The appellant/defendant to complete the formalities demanded further an amount of Rs,100,000, which was paid on 8-9-1996, therefore, by this way total Rs,24,00,000 was paid but the appellant on one pretext or the other refused to execute the sale-deed in favour of the respondent. Lastly it was prayed in the suit that as the respondent is always ready to perform his part of the contract, therefore, a decree for specific performance of the contract be passed in his favour.
3. The suit was opposed by the appellant on legal as well as on factual side by filing the written statement. However, the appellant in her written statement, admitted the execution of agreement in favour of the respondent along with Rs,18,00,000 against receipt, out of total consideration.
4. The learned trial Court out of divergent pleadings, framed as many as 9 issues, recorded evidence led by the parties and finally decreed the suit. Hence this appeal.
5. Learned counsel for the appellant contended that although the sale agreement was executed by the appellant in favour of the respondent but it is incorrect that an amount of Rs,24,00,000 was received out of the total consideration; that the respondent has failed to perform his part of agreement within time stipulated therein, therefore, the agreement became inoperative; that the appellant is an illiterate lady and the respondent taking advantage of her illiteracy, got signature on the agreement to sell, which was written in English; that the respondent could not bring any reliable and confidence inspiring evidence to wove the agreement to sell or its terms and condition; that the Bungalow, under the rules and Regulations of the Cantonment Board was otherwise not divisible, therefore, the agreement, if executed is liable to be cancelled and further the respondent also failed to prove the payment of Rs,600,000, thus is not entitled for the performance of the contract.
6. Conversely learned counsel for the respondent supported the findings recorded by the learned trial Court and submitted that the appellant has admitted the execution of the agreement to sell and also an amount of Rs,18,00,000, although the respondent has paid an amount of Rs,24,00,000 out of total consideration; that the respondent is always willing to perform his part of the agreement, whereas the appellant despite demands, refused to perform her part of the contract and further that the respondent has successfully proved his case.
7. Heard.
8. From the perusal of the record, it is established that the agreement to sell dated 7-4-1996 for a consideration of Rs,56,75,000 was executed by the appellant in favour of the respondent pertaining to the suit property, an amount of Rs,24,00,000 was received by the appellant being part payment of the total consideration and the appellant is owner of the property in question. The most important aspect of the case is that the appellant while filing the written statement admitted the execution of the contract in favour of the respondent while taking preliminary objections along with an amount of Rs,18,00,000 but thereafter without any lawful justification taken a somersault and stated in the written statement that the appellant is an illiterate lady and the respondent taking advantage of illiteracy got signatures on the said agreement. Although in the presence of the admission of the appellant, there was no need to prove the execution of the agreement and payment of Rs,24,00,000 made by the respondent but even then the respondent produced two witnesses, who categorically supported the version of the respondent and also proved the execution of the agreement to sell. As regards the payment of Rs,24,00,000, the appellant has admitted to receive an amount of Rs,18,00,000, whereas regarding rest of the amount, the respondent has successfully proved the payment through pay order by placing on record as Exh.P.3, a certificate issued by Soneri Bank Ltd., Defence Branch to prove the transfer of Rs,600,000 in the account of the appellant.
9. Although the appellant admitted the execution of the agreement to sell but disputed certain part of the agreement and division of the property etc. In fact the onus/burden in such like situation heavily shifted to the appellant to prove the allegations levelled by her obviously through evidence.
'On this issue I am fortified by the judgment reported as Dil Murad and others v. Akbar Shah 1986 SCM R 306, wherein it is observed as under:--- ---Art.185(3)---Evidence Act (1 of 1872), S.68---Execution of document---Onus to prove--- Factum of execution of document supported by respondent (plaintiff) and attesting witness---Respondent having produced sufficient legal evidence to prove execution of document, it was then for petitioners to prove by positive evidence that disputed agreement was forged and fabricated--- Bare denial, held, was not sufficient to set at naught evidence thus produced---Not necessary for respondent to produce evidence of an expert to prove thumb mark was actually of executor.
'There is also a judgment of Indian Jurisdiction reported as Shadeo Mauar v. Puleasar Nonia AIR 1930 Patna 598, wherein in the similar circumstances, the matter was dealt and concluded in the following words:--- "Evidence Act (1 of 1872), 5.101--Suit in hand note---Defendant denying that he had made thumb mark upon any hand note but admitting that he had put his thumb mark on blank paper which might have been utilized for hand note---Burden is on defence to explain how document bearing defendant's thumb impression came into existence."
10. The appellant also tried to question the validity of agreement to sell executed by her in favour of the respondent on the ground that as the suit property could not be divided because of the Rules of the Cantonment Board applicable on the suit property. As mentioned above, the appellant received more money from the respondent before completion of the sale deed on the ground to get permission from GHQ or the Office of the MEO to sell the property, therefore, it can safely be observed that the appellant was well aware about rules of the concerned department applicable on the property and even otherwise, the agreement between the parties with regard to the property was not illegal or against the public policy. For this purpose reliance may be placed on the judgment of the honourable Supreme Court of Pakistan reported as Sami-ul-Haq v. Dr. Mqbool Hussain Butt and others 2001 SCM R 1053. The relevant part of the judgment is reproduced as under:--- ---S.23---Contract against public policy---Provisions of S.23 of Contract Act, 1872--- Applic ability--- Transferring of rights prior to completion of allotment proceedings--- Lawful contract was entered into for lawful consideration and purpose between the parties except that the bar existed with regard to the transfer of rights in the property--Authorities were to exercise or enforce barring clause and on completion of the formalities by the allottee, and they could waive/ vacate the bar---Allottee had transferred the rights what he possessed under the terms of the agreement and the Authorities could have taken auction against the allottee in case any of the terms of the agreement in respect of allotment was infringed---Where terms of the contract could be enforced after removal of bar by the Authorities by ex post facto permission, such agreement between the parties with regard to sale of the property was not illegal or against the public policy."
11. There is another aspect of the case, which requires consideration that the appellant although in a very vague manner controverted the execution of the agreement on the sole ground that the appellant is an illiterate lady and the respondent got the signatures on the agreement to sell, which was in English, but the appellant has not given the particulars of fraud as required by Order VI Rule 4 of C.P.C. And further she was a "Pardanasheen" lady and the contents of the documents (agreement) were not read in her presence, therefore, the plea of the appellant to this effect is unfounded and baseless. Reliance is placed on Noor Muhammad Khan and others v. Habibullah Khan and other PLD 1986 Pesh.
97. The agreement to sell admittedly was executed on 7-4-1996, whereas the suit was filed by the respondent on 31-10-1996 and between this period, no efforts in any manner whatsoever was made by the appellant to get cancelled the agreement on any ground.
12. In support of her claim, the appellant could not produce even a single witness except herself and remained unsuccessful to prove the facts disputed by her or the allegations levelled in the written statement or in evidence. The contentions raised by the learned counsel for the appellant, to record the evidence/statement of the appellant through the local commission not in accordance with law, has devoid of any force because of the reason that the said order was passed with the consent of the appellant and further that at the time of recording the evidence, the legal advisor of the appellant was present. The evidence of the appellant was closed, as revealed from the record because of failure to bring any other witness in the witness box in support of her stance.
13. Learned counsel for the appellant although vehemently argued the case but could not extend any plausible explanation when confronted with the contents of the written statement, wherein the appellant has admitted the execution of the agreement to sell along with a considerable amount out of total consideration.
14. Even otherwise the learned counsel for the appellant has failed to point out any jurisdictional defect, material irregularity, misreading and non-reading of evidence with the judgment impugned herein, therefore, there is no reasons to interfere therewith. Resultantly this appeal has no force and the same is dismissed with no order as to costs.