' ABDUL RASOOL MEMON, J.--- Through this second appeal the appellant has challenged the Judgment dated 19-8-2010 and decree dated 24-8-2010 passed by the First Additional District Judge in Civil Appeal No,154 of 2004 (Mst. Ishrat Zaidi v. Shabbir Hussain Siddiqui and another) dismissing the first appeal filed by the appellant against the Judgment dated 13-7-2009 and decree dated 20-7-2009 whereby the Ist Senior Civil Judge Karachi (East) had dismissed Suit No,335 of 2009 filed by the appellant.
2. The appellant had filed a Suit for Specific Performance of Contract and permanent injunction claiming therein to be purchaser of Flat No,D-305, Plot Naclass No,187 Block-17, Hunaid City, admeasuring 800 Sq. Ft. Situated in Gulistan-e-Johar Karachi front the respondent No,1 through Agreement dated 17-1-2004 for consideration of Rs,390,000. The appellant averred to have paid Rs,50,000 to him on 13-1-2004, the balance of Rs,340,000 was agreed to be paid at the time of sanction of House Building Finance Corporation Loan. The crucial terms were that the execution of Sale-Deed in favour of appellant was within 90 days from the day of signing the agreement and the appellant would be responsible to clear all the utility bills. According to the appellant the respondent received Rs,310,000 out of remaining sale consideration in shape of cheques and pay orders and later lingered the matter and keeping the appellant on false hopes and promises that the remaining amount of Rs,30,000 assessing that he would accept the same at the time of execution of Sale-Deed or General Power of Attorney, however he handed over the flat in question to the appellant on 15-2-2006. The appellant claimed his possession since 15-2-2006 of the suit property and stated that he approached the respondent No,1 for executing the Sale-Deed or General Power of. Attorney in her favour but the later instead of doing the needful suddenly on 24- 4-2006 unsuccessfully tried to take over the possession of the suit premises. However, she filed the suit in question wherein she requested that she be declared as owner of the Flat.
3. The respondent No,1 has failed to appear before the learned trial court despite service though the publication in Daily "Jassarat" dated 26-7-2007. Ultimately the service against him was held good and he was debarred from filing written statement vide order dated 3-9-2007. The appellant was directed to tile the affidavit-in ex parte proof.
4. The appellant accordingly filed her affidavit-in-evidence and also produced the documents in support of her contention as Exhibit P/2 and P/3. On 1.9-5-2008 the power was filed on behalf of respondents and then application, under Order IX, Rule 7 was filed, the same however stood dismissed for non-prosecution by the learned trial Court vide order dated 12-8-2009. Thereafter the respondent No,1 filed Another application under Order IX, Rule 8 which was allowed vide order dated 26-3-2009 subject to payment of cost but despite of direction of the trial Court the respondent failed to comply with the order dated 26-3-2009. On 2-4-2009 the application filed by the learned counsel for the respondent for grant of time for filing written statement was dismissed and defence of the respondent was struck off and the matter was adjourned for ex parte evidence of the appellant. The appellant on 8-5-2009 filed statement that her affidavitin-evidence already filed may be treated as her affidavit in ex parte proof she also examined one Muhammad Ali as a witness.
5. The trial court dismissed the suit of the appellant observing as under:-- "The case of the plaintiff as per plaint is that the defendant executed sale agreement dated 17-1- 2004 in respect of suit flat and the defendant received money of Rs,50,000 such receipt has been produced at Exh. P/3 and it was agreed that the balance amount of Rs,3,40,000 shall be paid within 90 days and the same conditions are mentioned in the sale agreement at Exh. P/2 and it was agreed between the parties that the purchaser (first party) will pay the balance amount of Rs,3,40,000 at the time of sanction of HBFC loan/execution of sale-deed in favour of the vendee within 90 days from this day of signing this agreement but the plaintiff has not produced the original cheques, draft, which could show that the plaintiff paid an amount of Rs,3,10,000 out of balance amount of Rs,3,40,000. The learned counsel for the plaintiff drawn attention of the Court' on some photocopies of the cheques attached with plaint and one photo copy of bank statement and its original record is not produced, however, the Court looked into the document in the interest of the justice the said documents show that an amount of Rs,150,000 vide cheque dated 22-6-2005 and another photocopy of cheque Rs,29,900, if the above amount will be calculated the same will be Rs,1,79,900, whereas the balance amount was payable Rs,3,40,000 but no any proof has been produced to show that the plaintiff first performed part of her contract. Apart from this the balance amount was payable within 90 days after the sale agreement dated 17-1-2004 and the above period of 90 days if calculated will be 17-4-2004, the photocopy of cheque of Rs,1,50,000 and Rs,29,900 shows that dates 22-6-2005 and 5-7-2005, which itself proves that the plaintiff herself defaulted in payment of balance amount and defaulted the agreement dated 17-1-2004 and not paid the balance amount according to schedule of payment and not completely paid the sale consideration' within stipulated period, hence the relief claimed in the suit is discretionary relief cannot be granted to plaintiff until and unless the plaintiff proves her case".
6. The appellant challenged the said order in Civil Appeal No,154 of 2009 which was dismissed by learned Ist Additional District Judge Karachi (East) observing that the appellant did not prove the agreement by producing evidence of marginal witnesses, the scriber and other witnesses. It was also held by the learned Ist Additional District Judge Karachi (East) that though the affidavit of P.W.
Muhammad Ali who happened to be brother of the appellant was filed but neither he was available at the time of execution of sale agreement nor he had attested; therefore, he could not be termed as attesting witness. The explanation furnished by the appellant for non-examining the attesting witnesses to agreement was not accepted by the appellate court and dismissed the appeal.
7. Learned counsel for the appellant has argued that the appellant had given sufficient explanation for non-examination of marginal witnesses such as one of the attesting witness namely Arif Zia was husband of the appellant, however later she obtained khula from him and the other witness Barkat Ali, had shifted to some unknown place, therefore, they could not be examined. Learned counsel further contended that suit of the appellant was ex parte and nothing was in, rebuttal, therefore, the affidavit of the appellant ought to have been treated correct and the trial court was bound to decree the suit of the appellant. He contends that order of the Appellate Court suffers from misreading and non-reading of evidence and misappreciation of the law therefore, 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 her favour. In support of contention learned counsel has placed reliance on the case of Ghulam Nabi and others v. Seth Muhammad Yaqub and others (PLD 1983 Supreme Court 344), Khushi Muhammad v. Liaquat Ali (PLD 2002 Supreme Court 581) and Muhammad Rafique 7 others v. Noor Ahmed (2007 M LD 1554 Lahore).
8. The respondent No,1 did not appear before this court also and was ordered to be proceeded against ex parte vide order dated 23-9-2011.
9.I have gone through the relevant papers on record and considered the arguments of learned counsel for the appellant. The case of the appellant is based on agreement, evidence of appellant and one witness namely Muhammad Ali. The agreement is placed on record as Exhibit P/2. I have scanned the evidence myself and agreement of sale (Exhibit P/2). This document is written on stamp paper of Rs,100 and bears the signatures of Vendor and Vendee, two attesting witnesses.
Syed Barkat Ali Jafferi and Arif Zia and is attested by one Jamil Ahmed, the Notary Public. As per explanation given by P.W. Muhammad Ali in his affidavit-in-evidence that marginal witness Arif Zia former husband of the appellant was not ready to give evidence due to separation from her. As regards the other witness Syed Barkat Ali Jafferi, it is stated that he used to reside in the same neighbourhood of the appellant but he had later shifted to unknown place and her endeavours to trace him could not succeed. Irony is that the appellant in her affidavit in ex parte proof on careful study does not reveal to have made discloser of these facts and has given no explanation for these two witnesses. Her witness Muhammad Ali who furnishes explanation without corroboration also appears to be an interested person being her brother.
10. The mode of proof of execution of document such as the agreement in question is laid down in Articles 17, 79 of Qanun-eShahadad Order, 1984. Both the Articles are reproduced as under:-- Article 17 Competence and number of witnesses.---(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.
11. Reading of the above provisions reflects that besides presenting the number of attesting witnesses in a written document such as the agreement in question pertaining to financial and future obligations, it becomes crystal clear that such document shall not be used as evidence 'until two attesting witnesses have been called for the purpose of proving its execution. Since in the instant case this legal requirement has not been fulfilled, the agreement (Exh.P/2) loses its evidentiary value.
12. Here it will be relevant to note that besides two attesting witnesses of the agreement, the Notary Public also appears to have put his hand by attesting this document. At least he could have been summoned to testify as to attestation of this document. This fact besides the legal position reflects adversely on the case of appellant. In case of (Salman 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 a document required to be attested would not be used in evidence until two attesting witness at least have been called for to prove the same and that would be subject to three conditions:
(a) that attesting witnesses are alive;
(b) that they are subject to process of court:
(c) that they are capable of giving evidence;
13. Admittedly two attesting witnesses namely Arif, Barkat Ali are alive. The appellant did not call them, through process of court for their evidence. There is no explanation for the Notary Public Jamil Ahmed that why he has not been called through process of court for evidence. Non- examination of the witnesses gives presumption that even if they would have been examined, they would have not supported the version of the appellant.
14. Besides above the question if the appellant made payment of remaining sale consideration viz. Rs,3,40,000 is also a matter of importance and needs to be given due attention. Firstly it is noted that the appellant did not produce any original document of payment rather she placed on record photocopies of some cheques and statement of Bank without even citing if the same were made from the original or actual. No witness from the Bank was examined to testify as to truthfulness of these documents.
15. The contention of the learned counsel for the appellant that the matter is ex parte therefore, the affidavit in-evidence of the appellant ought to have been treated as gospel truth is devoid of force because the appellant was mandatorily bound to prove her case in accordance with relevant provisions of law in which she on the face of it miserably failed, thus no case is made out in her favour in terms of section 100, C.P.C. To interfere with the findings of courts below. Consequently, the appeal fails which is dismissed accordingly.