CH. SHAHID SAEED, J.--- Through the present Civil revision, the petitioner has assailed the judgment and decree dated 15.12.1997 passed by Mr. Syed Nasir All Shah, learned Additional District Judge, Gujranwala who accepted the appeal of the respondents and set-aside the judgment dated 7.12.1996 passed by Mr. Mazhar Hussain Chauhdry, learned Civil Judge, 1st Class Gujranwala whereby the suit for possession through specific performance of agreements filed by the respondents was dismissed ex parte.
2. Precisely stated the facts leading to the filing of the Civil revision are that the respondents filed a suit for possession through specific performance of agreement dated 20.03.1994 alleging therein that the petitioner being owner of the land measuring 7 kanal 7 marla, fully described in the plaint, entered into an agreement to sell with predecessor-in-interest of respondents namely Muhammad Nazir for a consideration of Rs. 43,000/- and also received Rs. 20,000/- as earnest money. It was also contended by the respondents that Rs. 11,000/- were paid to the petitioner through a subsequent agreement dated 27.3.1994. The payment of Rs. 12,000/- was also made to the petitioner afterwards but the petitioner after receiving whole price of the demised premises refused to execute the registered sale deed in favour of the respondents.
3. The petitioner was summoned through ordinary mode as well as through proclamation but she did not appear before the Trial Court, as such, she was proceeded against ex parte. The respondents then produced their evidence but the learned Trial Court proceeded to dismiss the suit of the respondents vide judgment dated 7.12.1996.Feeling dissatisfied, the respondents filed an appeal which was accepted by the learned first appellate Court vide impugned judgment. The petitioner also filed an application under section 12 (2), C.P.C.
Before the learned first appellate Court, but later on withdrew the same to avail remedy before this Court. The present petition has been filed before this Court assailing the judgment and decree dated 15.12.1997 passed by lerned first appellate Court.
4. Learned counsel for the petitioner mainly contends that the alleged agreement to sell is forged document and could not be proved as required under Article 17(2) read with Article 79 of the Qanun-e-Shahdat Order, 1984. The petitioner did not enter into any agreement to sell as claimed by the respondents. Further argues that the petitioner has been in jail, so she could not appear before learned Courts below. In order to defeat the petitioner, the respondents themselves managed a lawyer on behalf of the petitioner before the learned first appellate Court and obtained the impugned judgment and decree fraudulently. The petitioner being in jail remained totally unaware about the litigation going on with respect to the suit land which is owned by her, as such, she was condemned unheard which is against the principle of natural justice. Learned counsel prays that this Civil revision be accepted, the impugned judgment and decree be set aside and the case be remanded to the learned Trial Court for decision afresh after hearing both the parties.
5. Learned counsel for the respondents has vehemently opposed the contentions raised by learned counsel for the petitioner and fully supported the impugned judgment. He avers that the agreement to sell is genuine and stands fully proved through evidence. Learned counsel further argues that the petitioner herself engaged a counsel namely Ch. Ghulam Sarwar Bhinder, Advocate through a power of attorney upon which the petitioner herself put her thumb impressions. Ch Ghulam Sarwar, Advocate pleaded the case of the petitioner but could not succeed. So, plea of the petitioner that she was condemned unheard is false and could not be believed. Learned counsel for the respondents avers that the Civil revision has no merit, it be dismissed.
6. I have heard the arguments advanced by learned counsel for the parties and also perused the record.
7. The respondents claim that the petitioner being owner of the suit land entered into an agreement to sell with predecessor-in-interest of the respondents which is denied by the petitioner on the ground that the alleged agreements are forged. The petitioner also claims that she had been in jail, so she was not aware of the proceedings of the Court which took place before the learned Trial Court as well as before the learned first appellate Court. The petitioner has also taken stance that the counsel appearing on her behalf before the learned first appellate Court was engaged by the respondents themselves and was not authorized by the petitioner,
8. The record revels that the respondents produced Exh. P1 and Exh. P2 which are agreements dated 20.3.1994 and 27.3.1994. The agreements were scribed by one Abdul Waheed and marginal witnesses of the agreements are Mushtaq Ahmed son of Khushi Muhammad and Nasim Begum were of Muhammad Yaqoob. Abdul Waheed appeared before the Trial Court as PW-1 and deposed that the agreement to sell dated 20.3.1994 was read over to the parties and after admitting to be correct, the parties put their thumb impressions on it. He further deposed that a sum of Rs. 20,000/- was also received by the petitioner in his presence as well as witnesses of the agreements. He also stated that another agreement dated 27.3.1994 was also scribed by him which is also a genuine document. One of marginal witnesses, PW-2 Muhammad Mushtaq also appeared before the Trial Court and verified the contentions of the respondents. However, the learned Trial Court proceeded to dismiss the suit of the respondents on the ground that the agreements to sell could not be proved by the respondents as required by Article 17 (2) read with Article 79 of Qanun-e-Shahdat Order, 1984. This Ccurt is of the view that the finding of the learned Trial Court is contracted by the record .Itself as the respondents produced two witnesses, i.e. PW-1 Abdul Waheed who scribed the agreements and PW-2 Mushtaq Ahmed one of the marginal witnesses, as such, the requirement of Article 17 (2) read with 79 of the Qanun-e-Shahdat Order, 1984 stands fulfilled, so the learned Trial Court had wrongly dismissed the suit of the respondents.
9. The contention of learned counsel for the petitioner that the petitioner being behind bars was unaware of the litigation. However, the record shows that the petitioner alongwith her learned counsel appeared before the learned first appellate Court on a number of dates, so this assertion plea cannot be believed upon. Even otherwise, the judicial record will have precedence over the verbal assertions. Furthermore, the petitioner has failed to produce any record to prove her claim that during the period of litigation, she remained behind bars.
10. The next contention of learned counsel for the petitioner is that the agreements are forged documents. This Court observes that the respondents have been successful in proving the agreements through cogent evidence and the learned first appellate Court has rightly accepted the appeal of the respondents and decreed their suit. Learned counsel for the petitioner has also miserably failed to point out any illegality in the impugned judgment calling for interference by this Court.
11. The result of the whole discussion is that this Civil revision has no merit, hence dismissed.
Civil Revision ..