' SADIQ HUSSAIN BHATTI, J.---I propose to dispose of the above two suits by this common judgment as the same are cross suits between the same parties and in respect of the same property.
2. Suit No,228 of 2002 has been filed by the plaintiff Major (Retd.) Liaquat Ali against the defendant No,1. Col. (Retd) Akhtar Sultan seeking declaration, permanent injunction and recovery of Rs,8,000,000 as damages. Facts of this case, as disclosed by the plaintiff in the plaint, are that defendant No, 1 is owner of Plot No, 35-C, Ittehad Lane 7, (Phase VI), measuring 200 square yards situated at Defence Housing Authority, Karachi ("the suit property") by virtue of Allotment Order No, DS/SS 1W/L-1614 dated 18-12-1972 issued by defendant No, 2 and confirmed by another Letter No, DS/SS1/WL-1614/5260 dated 18-12-1972 issued by defendant 2 as Allotment of Commercial Plot in continuation of their letter dated 31-8-1972. The plaintiff claims that defendant No, 1 entered into an Agreement to sell dated 15-5-1985 in respect of the suit property with the plaintiff and agreed to sell the suit property to plaintiff free from all lines, claims, charges and encumbrances for a lump sum price of Rs,35,000 (Rupees Thirty five Thousand only). Vide clause I of said Agreement of Sale the defendant No, 1 also received from plaintiff the said lump sum sale consideration in respect of the suit property and issued a separate receipt for the same. The defendant No, 1 had handed over the vacant and peaceful possession of the suit property to the plaintiff together with all relevant documents pertaining to the suit property. The defendant No,1 neglected and avoided to pay the outstanding dues, debts and taxes etc. Of the suit property. The defendant No, 1 also indemnified the plaintiff against all losses and damages that may be occasioned due to any legal/technical defect in the title to the suit property due to which the suit property could not be transferred in the name of the plaintiff and to refund the lump sum sale consideration received at prevailing market value and rates. In confirmation of the said sale transaction the defendant No,1 on solemn affirmation executed an Affidavit dated 15-5-1985 in favour of plaintiff. The defendant No, 1 executed and signed an application in the name of defendant No,2 for mutation/transfer of suit property in the name of the plaintiff along with Transfer Affidavit stating therein on solemn affirmation that the defendant No,1 has no right, title, or interest in the suit property and the plaintiff is the exclusive owner of the same. After some time the defendant No, 1 took a negative, non- cooperative and hostile attitude with plaintiff and started doing neglectful behaviour of deviating from the terms and conditions of the agreement of sale, Transfer Affidavit, Affidavit, Application of Transfer of the suit property and despite extensive efforts by the plaintiff the defendant No,1 showed a refusing attitude of fulfilling his obligations and appearing before authorities concerned of the defendant No, 2 for completion of the transaction. The non-co-operative illegal attitude motivated at ulterior motives of the defendant No, 1 also reflected his aim of harassment and torture to the plaintiff to surrender the lawful claim of the plaintiff for transfer of ownership to plaintiff by defendant No,
1. Vide letter application dated 10-1-2001 the plaintiff submitted to the defendant No,2 that the defendant No, 1 under some ulterior motives has changed his mind as the price of the Plot in question has increased considerably and showed apprehensions that the defendant No, 1, who is close relative of the plaintiff, intends to dispose of the suit property to somebody else which clearly amounts to cheating and depriving the plaintiff of his legitimate right towards the suit property.
The plaintiff intimated the defendant No, 2 vide letter dated 10-1-2001 not to transfer or mutate the aforesaid plot to anybody else. The plaintiff got published a Public Notice in Daily Dawn Karachi dated 11-1-2001 for information of all concerned that all the original documents of the suit property duly executed in favour of plaintiff by defendant No, 1 are in the possession of plaintiff and anybody dealing or making any transaction will be doing so at his own risk and should be ready for the consequences. The plaintiff is the actual/real purchaser/buyer and owner of the suit property in question in all respects whatsoever and has all the rightful, lawful rights to enjoy the ownership rights and get the transfer and mutation of the suit property completed in all respects in the name and favour of plaintiff without any interference, hurdles or obstacles from defendant No, 1 or any other person. Due to the acts of defendant 2, against the procedure and practice, the transfer and mutation of the suit property in the name and favour of the plaintiff could not be completed and finalised. The defendant 2 vide their letter dated 14-4-2001 advised the plaintiff to approach the Courts for remedy of grievances which was reconfirmed vide letter dated 7-2-2001 for the said purpose, and thus the grievances of the plaintiff could not be redressed at the forum of defendant No,2 due to influence and undue pressure of the defendant No,
1. The acts and activities of violating the agreement-of-sale in question and other transfer documents by the defendant No, 1 have caused grave injury and damage to the good name, respect, honour, dignity and prestige of the plaintiff as the defendant No, 1 has attempted to lower the same in the eyes of general public, well- wishers, relatives and colleagues of the plaintiff's high respect, apart from the damages due to violation, infringements and refusal of the defendant No, 1 to fulfil his lawful obligations of transfer of the suit property in the name and favour of the plaintiff for which the plaintiff has a lawful right to get and claim a sum of Rs,80,00,000 (Rupees Eighty Lakhs only) from the defendant No,1 as damages for defamation and violation of the terms and conditions of the agreement of sale in question. The conduct, attitude and behavior of defendant No, 1 of non-compliance of the terms and conditions of agreement-of-sale is highly illegal, tortuous in nature and not warranted under law. Since full and final sale consideration has been received by the defendant No,1 from plaintiff and there is no violation of any terms and conditions on the part of plaintiff the plaintiff is entitled for mutation and transfer of the suit property in all respects as lawful owner by the defendant No, 2 in all relevant records and entries of the defendant No, 2 even with or without consent of defendant No, 1 on the basis of the transfer of ownership documents in question duly signed and executed in favour of the plaintiff by the defendant No,1. The plaintiff also sent a legal notice dated 14-5-2001 to the defendant No,2 which remained unreplied. The plaintiff apprehends that the defendant No,1 with collaboration, sympathies and influence of the defendant No,2 may make manipulation of the documents and transfer the suit property to anybody else illegally, fraudulently and arbitrary to the provisions of law against the rights and interests governed by the rules, regulation and law applicable for said purpose and unless the defendants 1 and 2 are not restrained permanently from transferring the suit property to any person other than plaintiff, the rights and interests of the plaintiff shall be seriously prejudiced causing tremendous damages to the plaintiff. On the failure of the defendant No,1 to abide by the terms of the agreement to Sell, the plaintiff has filed the present suit with the following prayer:-- "It is prayed that this Hon'ble Court may be pleased to pass and grant judgment and decree in favour of plaintiff as follows:--
(a) To declare that the Agreement dated 15-5-1985 executed between the plaintiff and defendant No, 1 is valid, lawful, effective, operative and binding on the defendant No,1 for all the purposes.
(b) To further declare and hold that the plaintiff is entitled for the ownership and transfer of the Plot No,. 35-C, Ittehad Lane, Phase 6, .Defence Housing Authority, Karachi in the name and favour of plaintiff in all respects by virtue of said documents i,e, Agreement-of-sale, Sale receipts, Transfer etc., executed by defendant No 1 in favour of plaintiff.
(c) To permanently restrain the defendants Nos. I and 2 from any act or work against the interests of plaintiff from transferring or giving the ownership of said plot to any person else other then plaintiff with direction, to defendant No, 2 to accept all the said documents in question in favour of plaintiff and allow the transfer of said plot of land in the name and favour- of the plaintiff as lawful owner and change and transfer the ownership of suit property in the name and favour of plaintiff in all relevant records.
(d) To direct the defendant No, 1 to pay a sum of Rs,80,00,000 (Rupees Eighty Lakhs only) to the plaintiff as damages on account of defamation, tortuous acts of defendant No,1 and violations of terms and conditions of Agreement of Sale in question by defendant No, L
(e) Any other appropriate relief which this Hon'ble Court may deems fit and proper under the circumstances may please be allowed in favour of plaintiff.
(f) Costs of the proceedings be allowed in favour in the interest of justice.
3. Summonses were issued to the defendants in response where to defendant No,1 filed his written statement on 10-4-2004. Defendant No,2 was debarred from filing written statement and the matter was ordered to precede ex-parte against it.
4. The defendant No,1 in his written statement stated that the suit of the plaintiff is badly time barred. It was also stated that no cause of action has accrued to the plaintiff against defendant No,1 as the suit is not maintainable in its present form as framed. The defendant No,1 vehemently denied the contents of plaint as well as the Annexures/ documents annexed therewith as these are manufactured and fabricated documents and have no effect in the eye of law. It was alleged that the defendant No, 1 neither entered into an agreement to sell of suit property with the plaintiff nor he executed any agreement to sell or receipt with the plaintiff. It was stated that plaintiff is a closed relative of the defendant No,1 and he used to visit the house of defendant No, 1 and had free access to the rooms of defendant No, 1 and he might have stolen the original documents of the suit property. When he came to know that the file of suit property has been misplaced he wrote a letter dated 28-7-1999 to defendant No,2 for the certified duplicate copies of the same which were issued to him on 5-1-2001 after the compliance of required formalities. The defendant No, 1 also deposited the remaining charges of suit property in 1999 with defendant No,
2. In the end it is prayed that the suit of the plaintiff may be dismissed with costs.
5. Suit No, 679 of 2004 was filed by the defendant No,1 in the above suit with almost the same averments as mentioned in his written statement filed in Suit No, 228 of 2002 with the following prayers: "In view of above mentioned submissions, it is humbly prayed that this Hon'ble Court may be pleased to pass judgment and decree in favour of the plaintiff and against the defendant as follows:--
(a) Declaration to the effect that the documents which are agreement to sell, receipt, affidavit, application for mutation, transfer affidavit certificate and other documents which are in possession of defendant No,1 and documents marked as Annexures "D" to "G" are manufactured and fabricated documents and are void ab initio and have no legal effect in the eye of law and defendant No,1 is not entitled to use or get benefit of these fabricated and manufactured documents;
(b) Declare the above said documents as cancelled and order/direct defendant No,1 to deliver up the said documents to the plaintiff;
(c) Direct defendant No,1 to pay Rupees Ten Million to plaintiff as compensation and damages for mental torture and agony suffered by the plaintiff at the hands of defendant No,1;
(d) Permanent injunction against defendant No,1 from using and enforcing above said documents against the plaintiff and interfering in the peaceful possession of the plaintiff in the suit property;
(e) Permanent against defendant No,2 restraining them from mutating and transferring the suit property in favour of the defendant No,1;
(f) Any other relief which this Hon'ble Court may deem fit and proper in the circumstances of the case and
(g) Costs of the suit.
6. Summonses were issued to the defendants who failed to file their respective written statements and were accordingly debarred from filing the same by the Additional Registrar (OS) on 27-1-2005.
However, the defendant No,1 filed his written statement which was taken on record vide order dated 7-3-2005, subject to payment of cost of Rs,5000. In his written statement, the defendant No,1 denied the averments made in the plaint and averments made in his Suit bearing No, 228 of 2002 were reiterated.
7. Vide order dated 10-4-2006, both the above suits were consolidated and Suit No,228 of 2002 was to be treated as the leading suit.
8. On 24-5-2004 the following issues were settled in Suit No, 228 of 2002:--
(1) Whether the suit as framed is maintainable?
(2) Whether the suit is barred by time?
(3) Whether the documents as Annexures A/3 to A/7 and A/9 are forged and manufacture documents? If so, its effect?
(4) Whether the Agreement dated 15-5-1985 is capable of specific performance? If so, to what effect?
(5) Whether the plaintiff has suffered any loss? If so to what amount?
(6) To what relief, if any, the parties are entitled?
9. On 17-4-2006, the following additional issues were adopted as Issues Nos. 7 and 8 and it was ordered that these issues will also be the issues in Suit No, 679 of 2004:
(1) Whether the Annexures A/3 to A/7 and A/9 of Suit No, 228 of 2002 which are agreement to sell, receipt, affidavit, application for mutation, transfer affidavit certificate and other documents, which are in possession of the plaintiff are forged and fabricated documents and are liable to be cancelled and have no legal effect in the eye of law?
(2) Whether the defendant No,1 is entitled to receive damages to the tune of Rs,10 million against the compensation of mental torture and agony as claimed?
(3) The plaintiff in $uit No, 679 of 2004 filed C.M.A. No, 4362 of 2006 praying for appointment of commissioner for recoding evidence in these suits. This application was allowed on 5-5-2008 and Mr. Muhammad Javed Alam, retired District Judge, was appointed as commissioner to record evidence of the parties in these suits. The commissioner submitted his report dated 8-9-2009 which was taken on record vide order dated 16-11-2009 and the case was fixed for arguments.
(4) It may be mentioned that the plaintiff in Suit No, 228 of 2002 did not produce any evidence before the commissioner while plaintiff in Suit No, 679 of 2004 examined himself as Exh.P. He produced his affidavit in evidence as Exh.P/1 and other relevant documents as Exh.P/2 to P/10. He was not cross examined as none appeared on behalf of the defendant No,1 in the said suit.
(5) Notices were repeatedly issued to the plaintiff in Suit No, 228 of 2002 but none is appearing on his behalf. Therefore, arguments of counsel for defendants Nos.1 and 2 were heard on 2-10-2013.
Since issues were framed and evidence was recorded in the case therefore, I intend to dispose of these suits on merits.
(6) I am mindful of the fact that in a suit where one of the parties is not present, it is the duty of the Court to safeguard interest of such party. Therefore, I have minutely gone through the available record. My findings on the above issues are as under.
(7) Issues Nos.1 and 2: I will discuss these two issues together as they are connected. The plaintiff in Suit No,228 of 2002, inter alias seeks damages in the sum of Rs,8,000,000 on account of violation of the agreement to sell allegedly executed between the parties as, according to para. 15 of the plaint, the acts and activities of violating the agreement to sell and other documents by the defendant No,1 has caused grave injury and damages to the good name, respect, honour, dignity and prestige of the plaintiff as the defendant No, 1 has attempted to lower the same in the eyes of general public, well-wishers, relatives and colleagues of the plaintiff. The factual position is that the defendant No,1 has denied execution of the said agreement to sell on the basis of which the plaintiff is claiming the above damages. Thus, the first step for the plaintiff was to prove the genuineness of the agreement to sell on the basis of which he is claiming damages. He, however, did not step into the witness box to adduce evidence in order to establish his case. In case he had appeared in the witness box and had adduced cogent evidence the suit might have been decreed in his favour. In such situation, he would have been able to claim the suit property as well as his name would have been cleared of any stigma rather the reputation of the defendant No,1 would have been tarnished due to the decree against him. In such case, he might have been awarded compensatory costs/damages as. Well. However, he failed to come in the witness box to adduce evidence in support of his claim. It is a trite proposition of law that if a party makes a claim and does not produce evidence to support his claim such claim would fail. In this regard reference may also be made to Article 118 of the Qanun-e-Shahadat Order, 1984, which reads as under:-- "118. On whom burden of proof lies. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side."
8. In view of the above quoted provision of law, the burden was on the plaintiff in the leading suit to come forward with cogent evidence in order to prove his claim. However, he miserably failed to produce any evidence. Thus, the plaintiff has failed to prove the genuineness of the agreement to sell on which his entire claim is based. Therefore, he cannot claim damages in respect of non- performance of a contract which he has not been able to prove.
9. Un the other hand, the defendant No,1, who is plaintiff in the connected suit, produced his evidence before the Commissioner and supported his claim by exhibiting documents. He explained his version of the matter and stated that the plaintiff is his close relative and had free access to his home. Although he did not say so candidly but he stated that "he might have stolen these original documents ...". Thereafter, he immediately acted prudently and approached the defendant No,2 for obtaining certified duplicate copies of the same. He has also highlighted the silence of the plaintiff up to 2001 when he, for the first time, approach the defendant No,2 for transfer of the suit property in his name. All these statements of the defendant No 1, which were on oath, have gone unrebutted as he was not cross examined by the plaintiff. Thus, on the one hand there was no evidence in support of the claim of the plaintiff and, on the other the evidence and the averments made in the affidavit in evidence of the defendant No,1 (plaintiff in the connected suit) have gone unrebutted.
10. It was the duty of the plaintiff to have produced evidence in support of his case and if he was aggrieved by the averments and evidence of the defendant No,1, then he should have appeared before the Court and should have rebutted the above averments by filing affidavit-in-evidence and by appearing in the witness box for cross-examination. Without doing this exercise the averments made in the plaint have no evidentiary value, particularly when the same were rebutted by the defendant No,1 through his written statement and the affidavit-in-evidence filed by him before the Commissioner. However, the plaintiff has chosen to stay away from these proceedings after filing the suit. Thus, neither he produced any evidence in rebuttal nor he cross examined the defendant No,
1. Therefore, there is nothing in rebuttal against the above averments of the defendant No, 1/plaintiff The defendant No,2 also supported the case of the defendant No,
1. Thus, the plaintiff was not justified in claiming damages on the basis of a document which he could not prove as genuine as its execution was denied by the defendant No, 1 . The burden to prove genuineness of this document was on the plaintiff which he failed to discharge. Therefore, the prayer for damages is premature and is liable to be rejected
11. It is also observed that while the plaintiff states in the plaint that the defendant No, 1 executed and signed the agreement to sell on 15-5-1985 but he did not do anything for a long period of about 17 years to get the same registered. In para. 9 of the plaint it is stated that "after hostile attitude with plaintiff..." It is surprising to note that no date, some time the defendant No,] took a negative, non-cooperative and exact or approximate, has been given by the plaintiff in this regard to show as to when the defendant No,1 adopted hostile attitude towards him for the first time.
However, it is clear that according to the plaintiff himself, the defendant No,1, after "some time", and not after long time, adopted a hostile attitude towards him. However, one thing is certain that 'some time' cannot be a period of 13-14 years. It must be about some months or one year at the most. Therefore, it is to be seen whether the suit for 'specific performance is within time or not.
12. The relevant Article of the First Schedule to the Limitation Act, 1908, is Article 113, which provides a period of three years for filing a suit for specific performance of a contract and the time, from which this period of three years begins to run, is provided as the date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. Thus, there are two points provided in this Article from which the limitation for filing a suit for specific performance would start to run. The first is the date which is mentioned in the agreement itself for the performance of the contract and in case no such date is mentioned in the agreement then the date when the plaintiff has notice that performance is refused. The present case, therefore, falls in the second category as no date was mentioned in the agreement itself for execution thereof.
According to the plaintiff, after "some" time of the execution of the agreement, the defendant No,1 adopted hostile attitude towards him. It was necessary for the plaintiff to have shown the exact date, however, he preferred to make a vague statement in this regard. This would be of no help to the plaintiff due the fact that the term "some time" cannot be construed to be a period of more than 13-14 years because the suit would be in time only when it is shown that the defendant No,1 adopted the hostile attitude towards the plaintiff after 14 years. It is also worth mentioning that when the plaintiff himself states that the defendant No,1 had adopted hostile attitude towards him and was not appearing before any authority to execute the transfer/mutation, then it was clear that he is denying the existence of the agreement to sell or was terming the same as forged and fake, therefore, there was no justification for the plaintiff in approaching the defendant No,2 for mutation/transfer of the suit property as the plaintiff was first required to prove the genuineness of the agreement to sell through a civil court of competent jurisdiction.
13. In view of the above discussion, I am the opinion that the suit is also hit by limitation as it was tiled after a lapse of about 17 years without any application under section 5 of the Limitation Act seeking condonation of such delay.
14. In view of the above discussion I answer both the issues in negative.
15. Issue No,3: The initial burden to prove this issue was on the plaintiff. He, however, did not adduce any evidence in support of his claim. Although, in view of the above Quoted Article 118 of the Qanun-e-Shahadat Order, 1984, the claim of the plaintiff was to fail on this ground alone but I have deemed it necessary to minutely examine these documents before giving any finding on this issue.
16. Agreement to sell dated 15 May, 1985 is a doubtful document for more than one reason. First of all, perusal of the said agreement shows that the alleged signatures of the vendor (the defendant No,1) appear on each page. However, surprisingly, there is marked difference between the two signatures i,e, the signature on Page No,1 of the agreement is totally different than the signature on page No,2. Then it appears that the vendee has only singed one page i,e, that last page and not the other page. It is also noted that the agreement was prepared on a stamp paper which was purchased on 29-4-1984 while the alleged transaction took place on 15-5-1985. There is no explanation for the same. Similarly, the alleged signatures of defendant No,1 on the receipt (Annexure A/4) are totally different than the signatures on the agreement. It is also notea that the signatures on the receipt are not appended on the revenue stamps. It seems that the signatures were put first and thereafter the stamps were affixed. The signatures on the Affidavit (Anx. A/5) are also totally different. Perusal of.Anx. A/6 shows that there. Six signatures of the alleged vendor thereon but surprisingly none of these six signatures is similar to other. The difference in the signatures is so marked and clear that the same cannot be attributed to natural variation. In the same manner the Transfer Affidavit (Anx. A/7) has also been signed seven times - three signatures appear on the first page and four signatures appear on the second page. This is inexplicable. As stated above, the plaintiff did not step into the witness box to explain these shortcomings. Anx. A/9 is a certificate which purports to certify the latest signatures of the defendant No,
1. Suffice it to say that this document is not attested by any authority competent to certify the signatures of the defendant No,1 like his bank or his office etc. Therefore, on the face of it the document is a forged and fabricated one.
17. So far as the original documents in possession of the plaintiff are concerned, the defendant No,1 explained that the same might have been stolen by the plaintiff. Although there is no conviction in the claim of the defendant No,1 but since the plaintiff did not come forward to rebut the same, therefore, although I am not inclined to hold that the same were stolen by the plaintiff, but I am of the view that the same were not handed over to him by the defendant No,1 in connected with, the alleged transaction.
18. In view of the above discussion, I reply Issue No,3 in the affirmative.
19. Issues Nos. 4 and 5: In view of my findings on Issues Nos.1 and 2 above, these issue is answered in the negative.
20. Issue No, 6: In view of my findings on Issues Nos.1 and 2 above, wherein I have held that the suit for damages was premature as I the plaintiff has not been able to prove the genuineness of the Agreement to Sell dated 15-7-1985 and that the suit for specific performance is barred by limitation, and further in view of my finding on Issue No,3 in the affirmative, whereby the documents Exh. A/3 to A/7 and A/9 were declared to be forged and fabricated documents, the plaintiff is not entitled to any relief and his suit is liable to be dismissed, which is hereby dismissed with costs.
21. Issue No,7.----Additional Issue No,1 . In view of my findings on Issues Nos.1-3 above, this issue is answered in the affirmative.
22. Issue No, 8.--- (Additional Issue No,2): The defendant No,1 has not produced any evidence to substantiate his claim for Rs,10 million as damages, however, since I have held that the documents relied upon by the plaintiff have been proved to be forged and fabricated, and thus the claim of the plaintiff was false, therefore, the defendant No,1 is entitled to compensatory costs as envisaged under section 35A of the Code of Civil Procedure. Accordingly, I award Rs,25,000 (Twenty five thousand only) as compensatory cost to the defendant No,1/plaintiff in Suit No, 679 of 2004. The suit of the plaintiff in Suit No,679 of 2004 is decreed accordingly in the above terms.