' AMIN-UD-DIN KHAN, J.---Through this appeal the appellant, who is plaintiff in a suit for specific performance, has challenged the judgment and decree dated 26-5-2008 passed by learned Civil Judge, Faisalabad whereby suit of the plaintiff-appellant was dismissed.
2. This appeal was heard on 12-7-2011 by the Division Bench of this Court and the matter was remanded back to the learned trial court for decision afresh. The remand order of this Court was assailed before the august Supreme Court of Pakistan through Constitution Petition No,1180 of 2011 which was converted into an appeal and was numbered as Civil Appeal No, 738 of 2011 and was allowed on 16-8-2011 with the consent of learned counsel for both the parties and the impugned remand order was set aside and this Court was directed to decide- the case on merits after taking into consideration the evidence available on record.
3. Brief facts of the case are that appellant-plaintiff filed a suit on 24-4-1993 on the basis of an agreement to sell dated 18-3-1990 allegedly by Muhammad Ahmad deceased predecessor of the defendants. The learned trial court framed the issues, invited the parties to produce their respective evidence. The evidence of the parties was recorded and in this round of litigation vide judgment and decree dated 26-5-2008 the learned trial court dismissed the suit with costs. Hence, this appeal, as noted above, case was earlier remanded by this Court and then remand order was set aside by the august Supreme Court of Pakistan and now it is before us for hearing.
4. Learned counsel for the appellant has submitted that he has filed C.M. No,2 of 2008 along with the appeal, which is for permission to produce additional evidence in the shape of expert for comparison of admitted signatures of Muhammad Ahmad deceased with the signatures on Exh.P.1 agreement to sell and Exh.P.2 the receipt of money under the agreement as well as from the Passport of Muhammad Ahmad deceased and further that he be permitted to further cross- examine DW-1 Muhammad Hussairi, the Stamp Vendor on the grounds mentioned in Para 4 of the application.
5. We opted to hear learned counsel for the parties on main appeal as well as on the application so that if after hearing the arguments of the learned counsel for the parties on appeal as well as C.M if this Court comes to the conclusion that permission to produce additional evidence is necessary then same be granted or if not then the appeal be decided.
6. Learned counsel for the appellant argues that under the agreement Rs,35,00,000 have been paid whereas remaining amount was Rs, 25,00,000, the remaining amount was to be paid till 6-5-1991, the vendor Muhammad Ahmad expired on 3-7-1990 and the plaintiff was out of Country, when he came back in the year 1993, he filed the suit, therefore, states that suit was promptly filed when the plaintiff came to Pakistan. States that the learned trial court has mostly dilated upon the previous identity card number of Muhammad Ahmad mentioned in the agreement to sell, therefore, there is a wrong inference against the plaintiff-appellant and further that the mode of comparison of the signatures of Muhammad Ahmad on the agreement (Exh.P.1) and receipt (Exh.P.2) with the admitted signature, is not a safe way when it was conducted by the learned trial court in the absence of learned counsel for the parties. He has relied upon "Kessarbai v. Jethabhai Jivan" (AIR 1928 Privy Council 277), "Rehmat All Ismailia v. Khalid Mehmood" (2004 SCM R 361), "Ambika Charan Barua v. Nareswa ri Dasi and another" (AIR 1925 Calcutta 145), "Muhammad Kabiruddin v.
Muhammad Muniruddin through his L.Rs, and another" (1993 CLC 747) and "Hamid Qayyum and 2 others v. Muhammad Azeem through L.Rs, and another" (PLD 1995 SC 381). Further while relying upon "Zar Wali Shah v. Yousaf Ali Shah and others" (1992 SCM R 1778) argues that even at this stage document can be sent to the Handwriting Expert for comparison of the signatures. While relying upon "Syed Sharif ul Hassan through L.Rs, v. Hafiz Muhammad Amin and others" (2012 SCM R 1258) argues that expert opinion should have been procured. Further while relying upon "Fazle Ghafoor v.
Chairman, Tribunal Land Disputes, DIR, Sawat at Chitral at Mardan and 6 others" (1993 SCM R 1073) argues that the judgment of the learned trial court must be based upon probabilities. It is further argued that as the application for permission to produce additional evidence has not been considered by this Court at the time of remand of the case, neither the same has been considered by the august Supreme Court of Pakistan, therefore, states that it must be decided now. Further argues that the learned trial court has not properly appreciated the evidence produced by the plaintiff-appellant; that P.W.1 who is scribe, as he has stated that Muhammad Ahmad was personally known to him and all the transaction struck in his presence, therefore, he can be termed as an attesting witness; that the interpretation of the learned trial court with regard to the statement of P.W.2 and P.W.3 that bargain struck two days prior to writing of the agreement Exh.P.1 and same is not pleaded, therefore, this statement cannot be believed, is not sustainable under the law; that discarding the statement of a witness on the basis of relationship with the plaintiff by the learned trial court is not sustainable under the law in the light of "Khan Mir Daud Khan and others v.
Mahrullah and others" (PLD 2001 SC 67). Further while relying upon "Bashir Ahmed v. Mst. Taja Begum and others" (PLD 2010 SC 906) states that as it is a first appeal, this Court has to reappraise the evidence; that if the deceased Muhammad Ahmad was having two Identity Cards, it shows that if there is any fraud that was by Muhammad Ahmad when he procured two Identity Cards and plaintiff-appellant cannot be blamed. While attacking the findings of the learned trial court wherein the learned trial court has noticed that allegedly more than a half amount has been paid from the total consideration amount of the agreement and even possession has not been claimed.
Learned counsel states that as the plaintiff is residing outside the country, therefore, there was no need to take possession at the time of agreement. While relying upon "Saheb Khan through L.Rs, v.
Muhammad Pannah" (PLD 1994 SC 162) argues that minor discrepancies in the statement of the witnesses are ignorable. States that the learned trial court has used these discrepancies against the appellant, which is not permissible under the law.
' When confronted to the learned counsel that as the alleged agreement to sell Exh.P.1 is not signed by the plaintiff himself how it can be termed as an agreement and further how it is enforceable under the law, learned counsel has relied upon "Messrs Jamal Jute Baling and Co. Dacca v. Messrs M. Sarkies and Sons, Dacca" (PLD 1971 SC 784) as well as NLR 2013 Civil 222 to state that when part of the contract has been performed it is enforceable through the court of law even if not signed by the plaintiff party.
7. On the other hand, learned counsel for the respondents argues that as the matter has been remanded by the august Supreme Court of Pakistan on the basis of consent of learned counsel for the parties, therefore, this Court is bound by the order of the august Supreme Court of Pakistan whereby this Court has been directed to decide the appeal on the basis of evidence available on the record; that even at the time when the appeal was decided and matter was remanded, the appellant has never pressed C.M.No,2 of 2008 and further that it was the respondents-defendants who approached the august Supreme Court of Pakistan and not the plaintiff-appellant; that when with the consent of learned counsel for the parties matter has been sent to this Court for decision of the same on the basis of evidence available on the record, therefore, there is no question of pressing the application for permission to produce additional evidence at this stage; that the agreement to sell Exh.P.1 does not contain the signatures of the plaintiff-appellant, therefore, it is not an agreement enforceable by law. Further states that the agreement is denied by the defendants as it is forged and fictitious agreement, which is visible by the scrutiny of evidence.
States that even in the agreement there is penal clause available for non-performance of the part of the vendee-plaintiff on the expiry date i,e, 6-5-1991, therefore, argues that it was an agreement where the time was an essence of the contract. Relies on "Mst. Gulshan Hamid v. Kh. Abdul Rehman and others" (2010 SCM R 334). States that this agreement was never acted upon, the alleged payment of money under the agreement is denied which has not been proved, no other action under the agreement has taken place, therefore, while relying upon "Qari Muhammad Hanif v.
Ihsan Ullah Khan" (2010 CLC 706), "Muhammad Sharif and others v. Nabi Bakhsh and others" (2012 SCM R 900) and "Abdul Ghani v. Muhammad Shafi and 4 others" (2007 SCM R 1186) argues that it was not an agreement enforceable through the court. Further while referring Exh.D1, a plaint of suit for recovery, filed by the present plaintiff-appellant against the predecessor of the defendants namely Muhammad Ahmad and the respondents for recovery of 5,04,303 Dirham (Rs,85,00,000) in Pakistani Currency filed on 7-12-2001 in the court of learned Senior Civil Judge, Lahore. Refers Para 4 of the plaint wherein it is mentioned that plaintiff was to receive the amount claimed in the suit and the other amount, therefore, a suit for recovery was filed in Abu Dhabi which was decided in his favour on 16-1-1991 and some money was recovered and for the remaining money this suit has been filed. Learned counsel states that when the relations of the parties were so strained that a suit. Was filed in Abu Dhabi and the further claim of Rs,85,00,000 was against Muhammad Ahmad deceased predecessor of the defendants how plaintiff can pay Rs,35,00,000 as consideration money for the agreement and how the parties can enter into an agreement. Further while referring a portion of cross-examination upon plaintiff who appeared as P.W.4, argues that the story narrated with regard to the payment of Rs,35,00,000 is unbelievable. Argues that the plaintiff further admitted in cross-examination that this suit has nothing to do with the amount of the loan which is advanced to Muhammad Ahmad deceased and which is still recoverable. With regard to application for permission to produce additional evidence, learned counsel firstly refers the order of the august Supreme Court of Pakistan and further that the permission can only be granted when the plaintiff applied for producing some evidence in the trial court and the learned trial court had wrongly refused the same or if it is required by the appellate court to come at a just conclusion of the case, states that both these eventualities do not exist in this case. Further while relying upon "Haji Abdul Karim and others v. Messrs Florida Builders (Pvt) Limited" (PLD 2012 SC 247) and "Muhammad Saeed Ahsan v. Mst. Raj Begum and others" (2012 SCM R 1217) argues that as it is a suit for specific performance of the agreement and alleged agreement pertains to the year 1990 and after 23 years it cannot be enforced.
8. We have heard learned counsel for the parties at full length and have gone through the record with their able assistance.
9. So far as point taken by the learned counsel for the appellant that the learned trial court was not required to compare the disputed signatures of the predecessor of the defendants with the admitted signatures is concerned, we have gene through the case-law of the Privy Council as well as august Supreme Court of Pakistan, it is not denied that the same practice is undesirable but simultaneously the august Supreme Court of Pakistan has not prohibited the powers of the court under Article 84 of the Qanun-e-Shahadat Order, 1984. In the circumstances of this case when the alleged vendor died even before filing of the suit when other evidence produced by the parties is available on the file the procedure adopted by the learned trial court is not against the law. Even the report of the Handwriting Expert is an opinion which is not binding upon the court. With regard to the prayer made by the learned counsel through application for permission to go through the process of comparison of signatures through an Expert, as the report of the Expert is an opinion which is not binding upon this Court, therefore, in the circumstances of this case it will not serve any purpose. The argument that the findings of the court must be on the basis of probabilities, we have noticed that the findings of the learned trial court are on the basis of probabilities. We have further observed that case of the plaintiff-appellant that there was a dispute of payment of money between the plaintiff and the deceased predecessor of the respondents-defendants namely Muhammad Ahmad 'for which he filed a suit bearing Suit No, 2496 of 1990 for the recovery of six lac dirham in the court of Justice at Dubai, as the plaintiff appeared in the witness box'when he admitted in the cross-examination it is his case that he has given loan to said Muhammad Ahmad in December 1989 whereas four lac dirham were decreed by the Dubai Court and for remaining amount according to the plaintiff he filed a suit for the recovery of Rs,85,00,000 in the court of learned Senior Civil Judge, Lahore, copy of which is Exh.D.1. The facts mentioned in Para No, 4 of the said suit clearly show that the claim made by the plaintiff in the instant suit is baseless. Now the picture is clear that according to the plaintiff's claim Muhammad Ahmad borrowed money from the plaintiff in December, 1989 and the claim of the said money was not satisfied till the time of alleged agreement as well as filing of the suit, how the plaintiff can pay Rs,35,00,000 to Muhammad Ahmad when Muhammad Ahmad has already borrowed more than Rs,85,00,000 and further there was litigation between the parties in the court of Dubai also. In these circumstances we are of the considered view that the learned trial court has rightly taken the view on the basis of probabilities of the facts and evidence available on the file. As the learned trial court is a court of fact and law and the basic interpretation of the evidence is by the learned trial court, when learned trial court came to the conclusion that the statements of P.W.2 and P.W.3 are not in accordance with the pleadings of the plaintiff with regard to striking of bargain and further an observation of the court that the witnesses are related to the plaintiff. No doubt, ordinarily in a civil case relationship of a witness with the plaintiff is not very material but it is also important that the same cannot be straigfitaway or fully ignored. The court evaluating the evidence has a right to evaluate the statement of each witness keeping in view the relationship of the witness and party in whose favour the witness has deposed. We are unable to disagree with these findings recorded by the learned trial court.
10. The important factor which has been noted by the court that when more than half of the alleged sale consideration according to the plaintiff was paid why the possession of the suit property was not taken by him, this aspect is also very important. For proving an agreement to sell which is otherwise denied by the other side, the main factors are proving the purchase of the stamp paper on a specific date, the writing of the instrument on the stamp paper on the said date while producing the Deed Writer and delivery of possession under the agreement or the reason for not taking the possession are the important factors in a suit for specific performance. In this case allegedly more than half of the consideration amount was paid, the possession was not taken over by the alleged vendee-plaintiff on the ground that he was living outside the Country. This reason is neither logical nor believable. If he was not interested and residing in Pakistan why he entered into an agreement of purchase of suit property. Admittedly, the alleged agreement is not signed by the plaintiff. Argument of the learned counsel that in the circumstances of this case without signatures of the plaintiff on the agreement, the agreement is enforceable and suit is competent. We are afraid that the argument has absolutely no force as learned counsel argued on the basis of "Sikandar Hayat and 4 others v. Master Fazal Karim" (PLD 1971 Supreme Court 730). We are afraid that this judgment is absolutely not helpful for the plaintiff-appellant as in case in hand the agreement is denied by the defendant side and further the plaintiff failed to show that the agreement was partially acted upon. The argument that the money was paid under the agreement is equal to part performance of the agreement. There are findings that the plaintiff failed to prove the payment of money also. The learned trial court has not accepted his this plea and we are also of the same view that plaintiff-appellant failed to prove the payment of money through receipt Exh.P.2. In this view of the matter, judgment of the august Supreme Court of Pakistan reported as 2010 SCM R 334 (Mst. Gulshan Hamid v. Kh. Abdul Rehman and others) is fully applicable to the facts of this case and when the alleged agreement to sell is not signed by the plaintiff-appellant on the basis of said agreement no decree for specific performance can be passed in favour of the plaintiff-appellant.
11. In the light of above discussion as well as the plaintiff-appellant never filed application for permission to produce additional evidence in the learned trial court and further that this Court is of the view that the alleged additional evidence will not serve any useful purpose and will not be helpful for the decision of this appeal. In this view of the matter, the application is not maintainable and further that when it was not pressed by the appellant at the time, when the case was remanded by this Court vide order dated 12-7-2011 and also even before the august Supreme Court of Pakistan when the other party filed a petition and the august Supreme Court of Pakistan has set aside the remand order passed by this Court and sent the matter for decision to this Court on the basis of available evidence.
12. For what has been discussed above, no ground for interference has been made out, therefore, this appeal stands dismissed with costs throughout.