ORDER IJAZ-UL-AHSAN, J.---This appeal arises out of judgment and decree dated 19-5-2008 passed by the learned Civil Judge at Pasroor, which was upheld in appeal vide judgment and decree dated 5-9-2009 passed by the learned Addl. District Judge at Pasroor.
2. The respondent instituted a suit for possession on the basis of an agreement to sell dated 17-6- 2002. It was contended in the plaint that the appellant, who was owner of land measuring 24 kanals agreed to sell the same vide agreement to sell dated 17-6-2002 at a price of Rs.800,000. At the time of execution of agreement to sell a sum of Rs.305,000 was paid by way of earnest money in the presence of witnesses. The appellant allegedly undertook to execute the sale- deed/mutation in favour of the respondent after receiving the balance sale consideration of Rs.495,000 by 17-9-2002. The appellant and the respondent in the presence of witnesses got recorded a report before the Halqa Patwari whereupon Mutation No.852 was recorded which was thumb marked by the appellant and the Patwari informed the parties that the mutation would be attested on 27-9-2002.
Thereafter the appellant allegedly tore the agreement to sell in the presence of the Halqa Patwari in view of the fact that mutation in this respect had already been recorded.
3. It appears that subsequently, the appellant resiled from his promise and refused to get the mutation attested and the sale completed. The respondent therefore, sent a notice dated 13-9- 2002 calling upon the appellant to complete the sale on receipt of balance sale consideration. The notice was not responded. Subsequently, the respondent along with witnesses appeared before the concerned Tehsildar on 27-9-2002 but the appellant did not appear in consequence of which Mutation No. 852 recorded by the Halqa Patwari was cancelled. The respondent therefore filed a suit for possession through specific performance of contract with permanent injunction.
4. The suit was contested. The appellant filed written statement admittedly that he had agreed to sell the property in question but the sale price mutually agreed between the parties was Rs.1,000,000. The defence taken was that the said amount of Rs.1.000,000 was recorded in Mutation No. 852 however, the respondent subsequently resiled from the agreement whereupon the appellant moved an application before the Tehsildar Pasroor on 10-9-2002. The mutation was cancelled on account of non-deposit of mutation fee by the respondent. He further alleged that the respondent had maneuvered manipulation in the mutation, insofar as the amount of Rs.1,000,000 was tampered with and changed to Rs.800,000. The appellant also denied receipt of earnest money.
5. Out of the divergent pleadings of the parties, the learned trial Court framed as many as seven issues. The parties were called upon to produce evidence. Both parties produced documentary as well as oral evidence. After recording evidence and hearing both sides, the learned trial Court was pleased to decree the suit of the respondent. Aggrieved of the said judgment and decree, the appellant filed an appeal, which was dismissed.
6. The learned counsel for the appellant submits that the appellant had specifically denied receipt of earnest money in para. 3 of the written statement. He points out that neither the trial Court nor the appellate court framed an issue in this regard nor was any evidence recorded in order to reflect that the parties were at variance on the said question. He, however, admits that no application was moved at any stage by the appellant seeking framing of additional issues,
7. The learned counsel further submits that the documents which were admittedly exhibited and relied upon by the learned subordinate courts suffer from defects insofar as they were not signed by the learned presiding officer. He submits that the impugned orders suffer from legal detects being violation of the provisions of Order XIII Rule 4, C.P.C. Read with High Court Rules and Orders Chapter 1 Part II Clause 14.
8. Attention of the learned counsel has been drawn to the fact that the said defect was subsequently cured by the presiding officers. Further, it is settled principle of law that act of the court would not prejudice anybody. While the learned counsel does not have much to say about the aforesaid queries, he insists that this fact would constitute basis for remand of the case to the learned trial Court in order to remove the said defect.
9. It is further submitted that the Mutation No.852, which constituted the basis of arrangement between the parties, suffers from a patent defect insofar as there was overwriting/cutting on the figure of Rs.1,000,000 which was changed to Rs.800,000. He points out that two of the witnesses namely Rafiq and Ibrahim produced by the respondent were interested witnesses and their evidence was not worthy of reliance. Referring to Exh.P-1, which is a copy of agreement to sell, the learned counsel submits that the document was not properly proved insofar as requirement of Article 79 of Qanun-e-Shahadat Order, 1984 were not complied with. He submits that only one of the two marginal witnesses was produced which is insufficient, to prove a document. He adds that the evidence of the deed writer Mian Javed Akhtar, P.W.2 was wrongly relied upon insofar as his evidence could not equated with the evidence of attesting witness. He points out that Rana Sajjad, Notary Public should have been produced, whose evidence would have carried more credibility. He, therefore, prays that this is a fit case for remand to remove the defects in the judgments and decrees recorded by the subordinate courts.
10. The learned counsel for the respondent on the other hand submits that most of the grounds raised by the learned counsel for the appellant fall beyond the scope of Regular Second Appeal. He submits that all factual matters agitated by the learned counsel for the appellant have already been dealt with and adequately discussed and thrashed out by the learned subordinate Courts.
He, therefore, submits that the said matters cannot and should not be looked at afresh in exercise of jurisdiction of this Court sitting as a second appellate court. He submits that the only material issue raised by the learned counsel for the appellant is that despite the fact, that he had denied receipt of earnest money, no specific issue was framed in this regard. The learned counsel, has however, drawn my attention to Issue No.5 framed by the learned trial Court, which was couched in the following language:- "Whether the defendant entered into an agreement to sell of the disputed property for a sum of Rs.8,00,000 and after receiving Rs.3,05, 000 has executed sale agreement dated 17-5-2002? OPP."
11. In this regard the learned counsel submits that the petitioner himself appeared as DW-1 and categorically admitted that he had entered into an agreement to sell with the respondent through his son. He, therefore, points out that the agreement to sell stands admitted and once the document is admitted, its contents need not be proved. He further points out that it is clearly stated in the agreement to sell that the earnest money had indeed been received by the appellant. The learned counsel further submits that two witnesses produced by the respondent, in order to prove the agreement to sell, were sufficient to prove the document in question. The learned counsel submits that even if as in this case; a scribe is produced as a witness and he proves the contents of the document his testimony can be considered for the purpose of proving a document. He, therefore, submits that the argument of the learned counsel that the agreement could not be proved does not hold good.
12. I have heard the learned counsel for the parties and have also examined the record with their assistance. A perusal of the record indicates that the learned subordinate courts have given due consideration to the factual matters agitated by the learned counsel for the appellant and have recording findings which are neither factually of legally incorrect. The learned counsel for the appellant has been unable to demonstrate any factual inaccuracy or misreading or evidence by the learned subordinate courts. As far as the question regarding framing of a specific issue regarding receipt of earnest money is concerned, the language of Issue No.5 adequately covers the said controversy. In case the earnest money was not paid, the appellant should have adduced evidence in rebuttal which was not done. On the other hand, the respondent produced sufficient documentary as well as oral evidence to establish that the aforesaid sum of Rs.3,05,000 was received by/on behalf of the appellant, I, therefore, do not agree with the learned counsel for the appellant that there was need for framing of specific issue in this regard.
13. As far as the question of failure on the part of the learned trial Court to place its signature on the exhibited documents is concerned, suffice it to say that the matter has properly been dealt with by the learned trial Court. A perusal of the documents indicates that these have been signed by the presiding officer and the matter has adequately been dealt with in the order of the learned trial Court. Even otherwise it is not the case of the appellant that any of the documents in question is fake or fabricated. Hence the objection is found to be hyper technical only. No prejudice has been shown to be caused to the case of the appellant. Even otherwise, it is settled law that any act or omission on the part of the court cannot cause prejudice to the right of any of the parties.
14. As far as the question regarding overwriting in the mutation is concerned, the matter was adequately explained by the Halqa Patwari in his evidence. He categorically stated that it was an error committed at the time or recording the mutation. The same was corrected with the consent and in the presence of both parties on the basis of contents of the agreement to sell. As far as production of interested witness is concerned, the learned counsel has not been able to show how Rafique was an interested witness. No suggestion was put to him in this regard in his cross- examination nor was any independent evidence produced to show that he was an interested witness. Where a person alleges that a witness is interested, the onus to prove such interest is on the person making the allegation. Such onus was never discharges by the appellant. Further Ibrahim, who is son or Ranique's brother, does not, in my opinion, fall in the definition of interested witness, if Rafique has not been shown to be an interested witness.
15. Exh.Pl was the agreement to sell, which constituted the basic document in the disputed transaction. It was admittedly torn by the appellant, in the presence of the parties in view of the fact that the amount and transaction had been recorded in Mutation No.852. Subsequently, when the appellant resiled, a copy of the document was exhibited during trial and has been placed on record by way of secondary evidence. Even otherwise, it was proved by production of two witnesses, whose evidence could not be shaken in cross-examination. As far as, proof of the said document is concerned, Liaquat and Mian Javed Akhtar were produced as witnesses, one of whom is a marginal witness and the other is admittedly the scribe, who also testified regarding the contents of the documents. As such I am of the opinion that sufficient and adequate oral evidence was produced to prove the document in question. Further the document was not denied by the appellant and strictly speaking, did not need to be proved.
16. For the aforenoted reasons the learned counsel for the appellant has not succeeded in convincing me that the judgments and decree recorded by the learned subordinate Courts are contrary to law, fails to determine any material issue of D law or that there is any substantial error or defect in the procedure provided by the Civil Procedure Code or any other law which may possibly have produced any error defect in decision of the case open the merits.
17. For the aforesaid reasons, I do not find any merit in this appeal. It is accordingly dismissed.