' AMIN-UD-DIN KHAN, J.---This appeal has been filed by the appellant against the judgment and decree dated 01.02.2006 passed by the learned Addl: District Judge, Lahore, whereby the appeal filed by the respondents-plaintiffs was accepted, by way of which, judgment and decree dated 23.01.2003 passed by learned Civil Judge 1st Class, Lahore, dismissing the suit for specific performance filed by the respondents-plaintiffs, were set aside and suit was decreed.
2. The facts are that the respondents-plaintiffs on 22.07.1980 filed a suit for specific performance with regard to the suit property mentioned in the plaint against Mr. J. H. Dinshaw and Nadir Jee sons of Seth Edual Jee. The suit was filed on the basis of some agreement to sell arrived at between the parties in the month of April, 1980. The consideration has been mentioned as Rs.1,00,000/-. It is stated that an amount of Rs.2000/- was paid as earnest money and it was agreed by the defendants that they will get the sale deed registeredwithin a couple of weeks. The written statement was filed. Any agreement to sell in favour of plaintiffs by the defendants was denied. It was also pleaded that the parentage of both the defendants has wrongly been mentioned.
Learned trial court framed issues and invited the parties to produce their respective evidence. Both the parties adduced oral as well as documentary evidence in support of their versions. After the completion of trial vide judgment and decree dated 15.02.1988 suit was dismissed. An appeal was preferred before the lower appellate court, which too was dismissed on 20.03.1994. Then RSA No.26 of 1994 was filed before this Court, which was accepted on 18.02.1999 and matter was remanded to the learned Addl: District Judge with a direction to decide the application under Order XLI Rule 27 of the C.P.C. Pending before it and decide the matter afresh. Learned Addl: District Judge vide judgment/remand order dated 02.03.2000 accepted the appeal as well as application under Order XLI Rule 27 of the C.P.C. And remanded the matter to the learned trial court. After remand of the case, plaintiffs got recorded statements of five witnesses and produced documentary evidence from Ex.PA to Ex.PH. Vide judgment and decree dated 23.01.2003 suit was again dismissed by the learned trial court. An appeal was preferred by the plaintiffs, which was accepted by the learned Addl: District Judge vide judgment and decree dated 01.02.2006, which is under challenge in this appeal. Further facts are that this appeal was accepted vide judgment/remand order dated 28.05.2009 and case was once again remanded to the learned lower appellate court for rewriting the judgment. C.P.No.1161-L of 2009 was filed before the august Supreme Court of Pakistan, which was accepted on 26.01.2010 whereby the remand order was set aside and this Court was directed to decide the appeal afresh on merits.
' Another limb of matter is that respondent No.1 (Mubarak Ali) moved an application (CM-1776- 2010) wherein he has raised the objection that this appeal has not been filed by the appellant herself as she is permanent resident of London and if she came to Pakistan at the time of filing of appeal, then the learned counsel must produce the record of her coming to Pakistan and filing of appeal. The respondent No.1 also filed CM No.1-C2011 on 21.02.2011, CM No.1-C-2012 on 05.03.2012 for personal appearance of appellant (Mrs. Perin J. Densha) and CM No.2-C-2012 for dispensation.
Vide order dated 07.03.2012 passed by this Court CM No.1-C-2012 was dismissed as not pressed, whereas CM No.2-C-2012 was dismissed as having become infrastructure. Respondent No.1 challenged the order of this Court dated 07.03.2012 in Civil Petition No.443-L of 2012 before the august Supreme Court. The august Supreme Court while setting aside the order dated 07.03.2012 directed that the applications be decided at the time of hearing of main appeal. CM No.3-C-2012 was filed by the appellant for summoning of record, which has been received. As such this C.M has become infructuous.
3. Learned counsel for the appellant argues that according to the statement of plaintiffs' own witnesses the value of property was more than three million rupees at the time of alleged agreement to sell, whereas claim of the plaintiffs that defendants agreed to sell this property for Rs.1,00,000/-; that no agreement to sell has been produced during the evidence, an alleged receipt Ex.P-5 has been produced which was denied by the defendants and it only bears the signatures of one of the defendants; that the alleged draft sale deed on the basis of alleged agreement has been produced as Ex.P-1, even in this document there is no mention or reference of Ex.P-5; that when it was clearly stated that name of father of defendants has wrongly been mentioned, no correction was made; that even there is no reference of Ex.P-5 in the plaint nor the same was produced in the court at the time of filing of suit. Further argues that even at the time of arguments it was the case of plaintiffs that Ex.P-5 is the agreement to sell when there is no other agreement between the parties; that even in Ex.P-5 there are no signatures of Nadir Jee (defendant No.2); that there is no power of attorney in favour of J. H. Dinshaw to enter into a contract with the plaintiffs on behalf of Nadir Jee; that in the receipt even the parentage of defendants is not mentioned and even no detail of suit land has been mentioned in Ex.P-5. Further argues that the land is owned by two defendants, whereas in the receipt it is not mentioned that J. H. Dinshaw is attorney of other defendant or how he is receiving the money on behalf of other defendant; that there is no date for maturity of agreement; that the plaintiffs-respondents absolutely failed to prove the agreement and the payment of money under the agreement; that the findings recorded by the learned trial court are absolutely in accordance with law, whereas the learned first appellate court erred in law while reversing the findings of learned trial court.
4. On the other hand, respondent No.1 who is represented through his attorney argued that the findings of learned first appellate court are in accordance with law and based upon the valuable evidence led by the plaintiffs-respondents and thereis no defect in the findings. Further states that the parentage of defendants has correctly been mentioned in the plaint, as the same was mentioned in the Jamabandi and according to the plaintiffs it is the correct parentage of defendants of the suit. He has also reiterated the facts mentioned in the C.Ms filed by respondent No.1 mentioned supra and also pressed the same.
5. Learned counsel representing respondent No.2 has argued that the respondents-plaintiffs have produced the confidence inspiring evidence and the findings of learned first appellate court are in accordance with law; that the additional evidence which was permitted to the plaintiffs after the remand of case, was produced and if any excess evidence has been produced, that can be taken off from the consideration, .Even then the respondents-plaintiffs have proved their case in accordance with law. Prays for dismissal of this appeal.
6. I have heard the leaned counsel representing the parties and attorney of respondent No.1 at full length and also gone through the record minutely with their able assistance.
7. First I would like to discuss and decide CMs Nos.1776-C-2010, 1-C-2011, 1-C-2012 and 2-C-2012. The procedure is provided for appearance of the party before the Court in person through a recognized agent or pleader under Order III of the C.P.C. This appeal has been filed directly by the appellant having signatures on the memorandum of appeal. The appeal also contains the power of attorney (Wakalat Nama) in favour of Mr. Ahmad Waheed Khan, Advocate. The power of attorney has been accepted by the said learned counsel, who is representing the appellant before theCourt. In all the three applications i.e. 1776-C-2010, 1-C-2011, 1-C-2012 the prayer has been made that either record be produced before the Court with regard to coming of appellant to Pakistan from U.K at the time of filing of appeal or if the memo of appeal etc have been signed at U.K, the appellant be directed to appear in person before the Court to confirm the filing of appeal by her. All these prayers are based upon assumptions of the applicant/respondent No.1, whereas learned counsel for the appellant has stated at bar before the Court that the appellant came to Pakistan at the time of filing of appeal and he has filed the appeal on her instructions by accepting the power of attorney.
Learned counsel for the appellant has stated that the appellant is very old and infirm lady. She cannot travel to Pakistan and if this Court feels that the factum of filing of appeal by the appellant requires confirmation, then any commission can be appointed for recording her statement as she is permanent resident of U.K.
8. I have considered the stand taken by both the parties and I have noticed that the learned counsel who filed this appeal and appearing before this Court was also counsel for the original defendants in the suit in the trial court. The appeal filed by the respondents before the lower appellate forum was defended on behalf of defendants and after their demise, the present appellant contested the appeal before the lower appellate court through the same counsel and now this appeal has been filed by the appellant through the same counsel and when learned counsel for the appellant states that the appellant came to Pakistan at the time of filing of appeal and she put her own signatures on the memo of appeal as well as power of attorney in his favour and other ancillary documents, in this view of the matter, whether on the basis of some doubts in the mind of respondent No.1, the appellant can be directed to appear in person before the Court.
The applicant/respondent No.1 has not produced any solid material for consideration of Court to believe the assertion made by the applicant in his applications. Hence, on the basis of some presumptions in the mind of respondent No.1 this Court cannot direct the appellant to appear in person before the Court. Therefore, all the three applications are dismissed in the circumstances discussed supra. CM No.2-C-2012 which is for dispensation stands disposed of, as above mentioned applications have been dismissed.
9. Now I come to the merits of case. The suit is for specific performance of agreement to sell. In the plaint there is no mention of nature of the agreement that whether it is oral or written agreement. In Para 2 with regard to the payment of earnest money, an amount of Rs.2000/- has been mentioned without mentioning the date of payment. The execution of agreement between the parties has been mentioned at Karachi in the month of April, 1980. The receipt has been produced as Ex.P-5 which is of dated 30.04.1980. This receipt is allegedly by one of the defendants i.e. J. H. Dinshaw where there is reference that J. H. Dinshaw is receiving the money for himself and on behalf of other defendant i.e. Nadir Jee, there is no mention of powers with the receiver of money on behalf of other person. The parentage of both the defendants has not been mentioned therein and there is absolutely nothing mentioned about the detail of property under the agreement. There is only mentioned that he is receiving the money "regarding the agreement to sell". There is no date for performance of agreement. It is on the plain paper. The plaintiffs have produced the alleged draft of sale deed as Ex.P-1, which is very astonishing, as admittedly the vendors have not signed the said document. Even there is written the words () but no identity card numbers have been mentioned. Astonishingly the alleged three attesting witnesses of this document have signed the same. This action of the plaintiffs proves that a document was tried to have been created in order to produce it in evidence in their favour and to prove that there was an agreement to sell in their favour. Therefore, a draft of sale deed was prepared on the requisite stamp paper but instead of considering it as supporting evidence in their favour, this document shows the character and behavior of plaintiffs, which creates serious doubt in the mind of Court that why the attesting witnesses have signed and thumb marked the same before the signatures of vendors, as the attesting witnesses of a sale deed have to testify the document on behalf of the sellers and they have to testify the signatures of sellers before them. It is a strange document where the alleged sellers have not signed the same before the testifying witnesses who have put their signatures and thumb marked this document and without having any shame some of them appeared before the court. It is just like putting the cart before the horse. Further there is no clear cut evidence or stance of the plaintiffs-respondents that the receipt Ex.P-5 is the original agreement or there was some oral agreement between the parties previous to the receipt Ex.P-5. Even in Ex.P-1 the alleged draft of sale deed there is no mention of Ex.P-5. Besides, same is the position of receipt Ex.P-7 which shows that district council fee amounting to Rs.2000/- was paid on 23.06.1980 with regard to attestation of sale deed and when admittedly the sale deed was not yet signed by the vendors and they never came to Tehsil Raiwind for attestation of mutation from Karachi, why the fee was paid. This action of plaintiffs also shows that it was also an attempt to create the evidence in their favour, which fact also goes against them.
10. So far as the pleading of wrong parentage of original defendants is concerned, despite the fact that in Para 5 of the preliminary objections of written statement which was filed on 04.05.1982 the plaintiffs have not moved for correction of their parentage. Even I put the question to the learned counsel for respondent No2 and the attorney of respondent No.1 that what is their stance about the parentage of original defendants. They replied that as the parentage which was mentioned in the revenue record, therefore, they have mentioned the same in their plaint and they pressed that same was the parentage of original defendants mentioned as Seth Edual Jee. It is strange that the documents of original defendants clearly show that both the defendants are sons of late Hoshin Dinshaw and against their parentage in the suit name of their grandfather i.e. Seth Edual Jee has been mentioned and same is the position in the alleged draft of sale deed Ex.P-1, whereas no parentage has been mentioned in Ex.P-5, the alleged receipt. In this view, it is a further piece of evidence against the plaintiffs.
11. I have minutely gone through the report submitted by the Handwriting Expert. Even a report of Expert is an opinion under the law and it is not binding upon the court. Undoubtedly, the opinion of Handwriting Expert is relevant but it doesn't amount to conclusive proof, as the opinion of Handwriting Expert is a very statement of witness remains unchallenged in cross-examination, that will have to be accepted as such. The statement of DW-2 who is an Advocate also carries weight. It is admitted by the learned counsel forrespondent No.2 that the evidence recorded by the learned trial court after the remand of case which is beyond the scope of remand order, cannot be read in evidence in favour of plaintiffs. In this view of the matter, the evidence in excess of the remand order recorded by the trial court after the remand, cannot be read in evidence in favour of the plaintiffs.
13. So far as the evidence of witnesses of plaintiffs with regard to their presence at F Karachi on the relevant time of execution of Ex.P-5 is concerned, it is not only self contradictory, every witness showing his own presence and negates the presence of other witness. The findings of learned first appellate court whereby the statement of attorney of defendants was kept out of consideration are not sustainable under the law. The findings of learned first appellate court show that the court was of the view that the defendants were to prove their denial pleaded by them in their written statement with regard to the agreement to sell and the receipt, which findings are absolutely against the settled principles of law.
14. In the light of what has been discussed above, this appeal is accepted with costs and the impugned judgment arid decree dated 01.02.2006 passed by the learned Addl: District Judge, Lahore are set aside and restore to that of the learned trial court dated 23.01.2003.