AMIN-UD-DIN KHAN, J.---Through this appeal, appellant-plaintiff has impugned the judgment and decree dated 1-11-2002 passed by the learned Civil Judge 1st Class, Gojra, whereby the suit for specific performance filed by the appellant-plaintiff was dismissed.
2. The brief facts necessary for determination of instant appeal are that there is an agreement to sell Exh.P-2 between the parties dated 20-10-1996 the date for performance mentioned in the said agreement is 31-3-1998. The suit for specific performance on the basis of said agreement to sell was filed on 22-7-1998, copy of which has been produced as Exh.D-1, and the said suit was withdrawn on 4-9-1998. Copy of the statement of learned counsel for withdrawal of suit and order of the court dated 4-9-1998 has been produced as Ex.D-3. The application for permission to withdraw the suit has been produced as Ex.D-11. Learned counsel for the appellant frankly admitted that his case is on the basis of novation of contract which has been produced as Exh.P-26 and if he succeeds to prove the novation of contract, he would have a case, otherwise on the basis of previous agreement to sell he cannot claim the decree for specific performance and the suit is not competent as earlier suit was filed and subsequently was withdrawn. The only question involved in this case is whether there was a novation of contract and whether the plaintiff-appellant has proved the novated contract.
3. We have heard the learned counsel for the parties at full length and also gone through the voluminous record and spent most of the day while hearing this appeal, as it is one of the oldest matters pending before this Court.
4. The point as we have noted above is whether Exh.P-26 is a novated contract dated 11-8-1998 of Exh.P-2 agreement to sell dated 20-10-1996 and what is the effect of filing of suit by the appellant on the basis of original contract Exh.P-2 on 22-7-1998 and its simple withdrawn on 4-9-1998. The previous agreement i.e. Exh.P-2 is admitted between the parties, whereas any novation of contract as well as Exh.P-26 has been denied by the defendant. Learned counsel for the appellant argues that the defendant-respondent has not denied his signatures upon Exh.P-26, the novated contract, therefore, the production of two witnesses of said contract was not necessary for proving the same.
We have gone through the statement of defendant when he appeared as DW-2. In the cross- examination he has not denied his signatures upon Exh.P-26 but has categorically stated that the said document has not been written on his instructions and further stated that it has been prepared with the connivance of plaintiff by a person namely Muhammad Afzal, who was an employee of the plaintiff and used to come in his office and that this alleged forged document has been prepared on a plain paper. We have also scanned this document minutely. It is a `YADASHT' which absolutely does not contain the reference of any previous agreement between the parties nor there is any reference of suit land. Further that it has been made on a paper torn from any register or school book containing the printed lines and upper portion is also torn. When the original agreement was upon a stamp paper and signed by the parties and witnesses of parties, how a novation of contract can be upon a simple paper. If it is a contract, then payment of stamp duty was necessary. As it has been termed as `YADASHT' only, therefore, it is not a contract and the contract between the parties; was only Exh.P-2 and this `YADASHT' is not novation of that contract.
When it is only a "/ADASHT' which does not contain the reference of previous contract nor it contains the reference of subject i.e. Land in dispute, therefore, by no stretch of imagination it can be said to be a novation of contract. If it is a `YADASHT' which specify the event of remaining transferable property under the agreement and receipt of money, in that eventuality, it cannot be said to be a novation of contract and if it is not novation of contract, then no suit can be filed on the basis of this `YADASHT' as the appellant-plaintiff on 22-7-1998 filed a suit on the basis of original agreement to sell Exh.P-2 dated 20-10-1996 and the same was simply withdrawn on 4-9-1998 with the statement that a compromise has been effected between the parties and the plaintiff wants to withdraw the same, therefore, the suit was withdrawn unconditionally. In this view of the matter, we are of the considered view that when on the basis of an agreement to sell the suit for specific performance was filed and the same had been withdrawn, no fresh suit can be filed on the basis of same agreement to sell-for specific performance.
5. So far as Exh.P-26 is concerned, it is not a novation of contract. It is a `YADASHT' as alleged by the appellant-plaintiff himself which has not been proved in accordance with Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984. It is not an independent contract, no stamp duty has been paid upon it. As it is on a plain paper and the circumstances that if this `YADASHT' was in existence on 4- 9-1998, why the same was not mentioned in the application for permission to withdraw the previous suit and in the statement of learned counsel when the suit was withdrawn. For proving a document and its existence on a specific time and date, the necessary ingredients available to a litigant in the court are that he proves the issuance of stamp paper, the entry in Register of Stamp Vendor, the writing of that document by producing the Scribe and the entry of Register of Scribe.
When already there was a dispute between the parties and on the basis of their agreement a suit for specific performance was filed and the same was subsequently withdrawn and if there was any fresh settlement between the parties, how it is possible that without referring the same before the court at the time of withdrawal of suit and even without observing the cautions, as we have noticed above, a document on the plain paper was B created which is not proved even otherwise. In this,, view of the matter, we are of the considered view that the view taken by the learned trial court is correct. Therefore, the findings recorded by the learned trial court are in accordance with the law and facts on record, which do not call for any interference by this Court while exercising jurisdiction under section 96 of the C.P.C. Consequently, the instant regular first appeal being devoid of any substance stands dismissed with costs.