' ABDUL RASOOL MEMON, J.---Through this second appeal the appellant has challenged the judgment and decree dated 4-1-2011 passed by the Vllth Additional District Judge, Karachi South in Civil Appeal No,327 of 2010 (Abdul Rahman Khan v. Nazakat Hussain) dismissing the 1st Appeal filed by the appellant against the judgment dated 31-8-2010 and decree dated 7-9-2010 whereby IIIrd Senior Civil Judge, Karachi South had dismissed the Suit No,1373 of 2009.
2. Brief facts of the case are that the appellant had filed a suit for specific performance of contract and permanent injunction claiming there- in to be purchaser of House No,234 Street No,1 measuring 137.69 Sq. Yds. Situated at upper. Gizri Road, Karachi from respondent No,1 on 24-4-1999 for total sale consideration of Rs,800.000 and entered into an agreement of sale dated 24th April, 1999. The appellant averred to have paid the entire sale consideration in lump sum to the respondent No,1 and the possession was delivered to him along with original title documents and relevant papers. It is pleaded that the sale deed in favour of the appellant could not be registered because in clause 2(a) of the Indenture of Lease there was restriction on the transfer of the lease hold rights for five years from the date of Indenture of Lease. However, the respondent promised for execution of sale deed after expiry of the restriction period. After five years the appellant several times approached the respondent personally as well as on telephone calling upon him to execute and registered sale deed but he was kept on false hopes, therefore the cause of action accrued to the appellant for filing the suit before the trial Court wherein he has prayed for directing the respondent to perform his part of contract and register the sale deed or in alternate the Nazir of the Court was prayed to be directed to executed the sale deed.
3. The trial Court issued summons to the respondent, but despite publication in daily Nawa-e-Waqt dated 3-2-2010 they did not appear. Consequently service upon the respondent was held good and he was declared ex parte. The appellant filed affidavit in ex parte proof and filed copy of Indenture of Lease and copy of the sale agreement dated 24th April.
1999. The trial Court dismissed the suit of the appellant while observing as under:-- "I have heard the learned counsel for the plaintiff, perused the entire record which reveals that the plaintiff relied upon a sale agreement which is being document. Every property even if value of Rs,100 must be registered. As the plaintiff has no authentic document in his favour therefore no case is made out against the defendant. In the light of above discussion the suit of the plaintiff is dismissed with no order as to costs.
4. The appellant challenged the said judgment in Civil Appeal No,327 of 2010 before the appellate Court and the learned Vllth Additional District Judge, Karachi South, dismissed the appeal with the following observation.
"The suit was decided ex parte and it was dismissed by the learned trial Court on the ground that the agreement of sale is not registered document as the value of the agreement is more than Rs,100. Apart from that the appellant/plaintiff has annexed mere agreement of sale without any receipt as well as any supporting witnesses. The appellant plaintiff has to prove his prima facie case beyond any shadow of doubt. The appellant has failed to prove his prima facie case therefore the learned trial Court has rightly dismissed the suit, therefore. I have no reason to disturb the findings of the learned trial Judge thus in view of the foregoing reasons. I hereby dismiss the appeal with no order as to costs."
5. The appellant being aggrieved and dissatisfied with the judgments of both the courts below filed this Second Appeal.
6. The learned counsel for the appellant has argued that the observation of the trial Court and appellate Court that the agreement was contrary to law and the appellant did not examine the attesting witnesses of agreement of sale are not as per law. As per learned counsel for the appellant he was not required to produce his witnesses as the suit of the appellant was ex parte and nothing was in rebuttal therefore the contents of affidavit of the appellant ought to have been treated as correct and the trial Court was bound to decree the suit of the appellant. He contends that the orders of both the Courts below suffer from misreading and non-reading of evidence and are based on mis-appreciation of the law, therefore, the judgment and decree of the trial Court as well as appellate Court may be set aside by exercising extraordinary jurisdiction under section 100, C.P.C. And the suit of the appellant may be decreed in his favour. In support of his contentions he has placed reliance on the following case-law:--
(1) CH. MUHAMMAD SALEEM V. MUHAMMAD AKRAM AND OTHERS (PLD 1971 SC 516).
(2) SAADAT HAYAT KHAN V. ZAHEERUDDIN AND ANOTHER (2011 CLC 1325)
(3) SHAUKAT HAYAT V. MST. IMTIAZUNISSA AND OTHERS (2009 YLR 400)
7. I have gone through the relevant papers on record, considered the arguments of the learned counsel for the appellant and the case-law referred to hereinabove.
8. It is an admitted position on record that the respondent was ordered ex parte before the trial Court and even before 1st Appellate Court and before this Court too he has not appeared though served through publication in newspaper. In such circumstances before passing ex parte decree the Court has to see whether the appellant has prima facie proved his case by cogent and convincing evidence. In the case where the respondent is ordered ex parte it is the duty of the Court to consider the interest of absent defendant/respondent and apply its mind properly to the facts of the case. If any case-law is needed reliance may be placed on the case of F. KANEMATSU AND CO. LTD. v. S. NAZIR HUSSAIN PURI (PLD 1957 (W.P.) Karachi 832).
9. The case of the appellant is based on the agreement dated 24th April, 1999 which is placed on record as annexure 'E'. I have scanned the affidavit in evidence of the appellant and the sale agreement dated 24th April, 1999. This documents is written on the stamp paper of Rs,100 and bears the signature of vendor and vendee, the two attesting witnesses Inamullah Khan and M.
Younis. It further reveals that the stamp paper was purchased in the name of Nazakat Hussain on 13th April, 1999 and was executed on 24th April, 1999 and attested by ADM./Magistrate of 1st Class on 3rd December, 1999. The appellant has filed his affidavit in evidence wherein he has not disclosed the names of the attesting witnesses of the agreement. The affidavits in evidence of the marginal witnesses of agreement have also not been filed before the trial Court and no explanation has been given for non-filing of the affidavits of the two witnesses. The agreement of sale is not required to be registered but its execution must be proved as provided under Qanun-e- Shahadat, 1984. The mode of execution of the documents such as agreement in question is laid down in Articles 17 and 79 of Qanun-e-Shahadat, 1984 which are reproduced as under:-- ' ARTICLE 17 ' Competence and number of witness.---(1) The competence of a person to testify, and the number of witnesses required in any case shall be determined in accordance with the injunctions of Islam as laid down in the Holy Quran and Sunnah.
(2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law.
(a) In matters pertaining to financial or future obligations, if reduced to writing the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary and evidence shall be led accordingly; and
(b) In all other matters the Court may accept, or act on, the testimony of one man or one woman or such other evidence as the circumstances of the case may warrant.
' ARTICLE 79 ' Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence.
"Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provision of the Registration Act, 1908 (XVI of 1908) unless its execution by the person by whom it purports to have been executed is specifically denied.
10. Reading of the above provisions reflects that besides presenting the number of attesting witnesses in a written document such as agreement in question pertaining to the financial and future obligations it becomes crystal clear that such document shall not he used as evidence until two attesting. Witnesses have been called for the purpose of proving its execution. In the instant case this legal requirement has not been fulfilled, therefore, the agreement dated 24th April, 1999 loses its evidentiary value. Besides, the attesting witness of the agreement viz. The ADM/Magistrate 1st Class, Karachi Central who put his hand by attesting this document, has also not been summoned by the appellant. In a case of SULEMAN ALI v. MAQBOOL HUSSAIN through Legal Heirs and 2 others (2000 YLR 1983) it has been held that under Articles 17 and 79 of Qanun-e-Shahadat Ordinance documents required to be attested would not be used in evidence until two attesting witnesses have been called for to prove the authorities of same and that would be subject to three conditions (a) that attesting witnesses are alive (b) that they are subject to process of Court and
(c) that they are capable of giving evidence. Admittedly the appellant has neither filed affidavit in evidence of witnesses Inamullah Khan and Mohammad Younus (attesting witness of agreement in question) nor called them through process of Court for their evidence. There is no explanation on the part of the appellant for non-examination of the aforesaid two marginal witnesses and so also ADM/Magistrate 1st Class who said to have attested the agreement in question. Non-examination of the above witnesses gives presumption that if they were examined they would have not supported the version of the appellant.
11. There is also another important aspect of the case which may not be lost 'sight of The appellant has pleaded that he has paid the entire sale consideration of Rs,800,000 to the respondent and sale deed could not be registered because at clause 2(A) of the Indenture of Lease there was restriction on the transfer of the lease hold rights for five years. Ongoing through the Indenture of Lease placed on record executed between the respondent and Directorate of Katchi Abadi Metropolitan Corporation shows that the lease shall not be transferable in any manner for the period of five years. The said Indenture of Lease Deed is of 12th June, 1997. If the restriction period of five years is counted from said date it ends on 12th June, 2002 if the restriction period of five years is counted from the date of execution of sale agreement which is of 24th April, 1999 then too the restriction period expires on 24th April, 2004 and the suit would have been filed within three years as prescribed under Article 113 of Limitation Act as the date of execution of sale-deed as annexed in the plaint was mentioned after lapse of five years of Indenture of Lease Deed dated 12th June, 1997.
The suit before the trial Court was filed on 24th December, 2009, therefore, if the restriction period is counted from the date of Indenture of Lease then the suit is barred by seven years and even if the restriction period is presumed from the date of sale agreement, then too the suit is barred by five years, therefore, on the very face of it the suit is hopelessly time-barred.
12. The contention of the learned- counsel for the appellant that the matter is ex parte therefore the affidavit in evidence of the appellant has to be treated as gospel truth is devoid of force because the appellant was mandatorily bound to prove his case in accordance with relevant provisions of law in which he miserably failed, thus no case is made out in his favour in terms of section 100, C.P.C. For interference with the findings of Courts below. Consequently, the appeal fails which is dismissed accordingly.