' Brief facts of the case are that the petitioner filed a suit for declaration and specific performance of agreement to sell dated 26.11.1992 (Exh.P1) with the assertions that Respondents No, 1 to 3 entered into agreement to sell the property detailed in the plaint with the plaintiff through Respondent No, 1 for consideration of Rs, 428,000/-; that earnest money of Rs, 400,000/- was paid to the respondents; that under the agreement, Respondent No, 1 was required to execute sale-deed in favour of the petitioner after receipt of remaining consideration amount of Rs, 28,000/- but despite many requests, he did not do so rather the suit property was transferred in favour of Respondent No, 4 through impugned mutation of exchange No, 849 dated 18.11.1996 with mala fide intention and to usurp the valuable amount of Rs, 400,000/- paid by the petitioner; that the plaintiff earlier filed suit for permanent injunction which was withdrawn on assurance by the respondents to execute sale-deed in his favour. Hence, this suit was filed.
2. The respondents contested the suit by filing written statement. Out of divergent pleadings of the parties, issues were framed. Both sides adduced their evidence. Learned trial Court after recording evidence and hearing arguments of learned counsel for the parties dismissed the suit vide judgment and decree dated 30.06.2006. Feeling dissatisfied, the petitioner preferred appeal which also could not muster any result in favour of the petitioner and was dismissed vide judgment and decree dated 18.06.2009 passed by learned lower appellate Court. Hence the petitioner- plaintiff has instituted this civil revision challenging both the judgments and decrees of learned Courts below.
3. Learned counsel for the petitioner inter alia submits that the petitioner has proved his case through cogent evidence but learned Courts below have not appreciated the evidence of the parties in its true perspective; that one marginal witness of agreement to sell was produced whereas an application was filed for production of scribe which was allowed by learned lower appellate Court but in the meantime, the scribe had died, as such, he could not be produced; that affidavit of the scribe was also produced before the Court which is the evidence/statement of the scribe; that afterwards, application moved by the petitioner for production of son of the scribe, as a witness, was not acceded to by learned lower appellate Court; that in view of Article 82 of Qanun- e-Shahadat Order, 1984 (hereinafter called "the Order, 1984 production of two attesting witnesses before the Court was not mandatory and the case could be proved through production of one attesting witness and other evidence but this aspect of the case was altogether ignored by learned Courts below. He argues that the agreement to sell was admitted by the respondents in the earlier suit. In this regard, he has referred Exh.D1, written statement, filed in a suit titled "Muhammad Abbas vs. Muhammad Ismail etc.". He has emphasized that since agreement was admitted, the provisions of Articles 17 and 79 of the Order, 1984 were not attracted. He has further argued that the time was not essence of the contract, therefore, findings of learned Courts below qua the time limitation are incorrect. Learned counsel for the petitioner asserts that the impugned judgments and decrees are against law and fact, therefore, the same be set aside, the instant civil revision be allowed and the suit of the petitioner be decreed as prayed for.
4. On the other hand, learned counsel for the respondents has vehemently opposed this civil revision and fully supported the impugned judgments and decrees.
5. Arguments advanced by learned counsel for the parties have been heard and record with their able assistance also perused.
6. The execution of the alleged agreement to sell (Exh.P1) has been denied by the respondents who have termed it as a fake and forged document. Respondent No, 1 has also denied his signature on Exh.P1. In the circumstances, the heavy onus to prove the agreement was upon the petitioner- plaintiff being its beneficiary. Since Respondent No, 1/alleged vendor denied the execution of Exh.P1, it was incumbent upon the plaintiff to produce cogent evidence including two marginal witnesses of the agreement before the Court as enshrined in Articles 17 and 79 of the Order, 1984 in order to prove their assertion.
7. Under Article 17 of the Order, 1984, any matter pertaining to financial or future obligations should be witnessed and attested, in case it is reduced to writing, by two men or one man and two women. Perusal of Exh.P1 unequivocally shows that it only contains signature of the petitioner, Respondent No, 1 (who has denied his signature) and one attesting witness namely Zulfiqar Ali.
There is no other attesting witness of this document. Article 79 of the Order, 1984 provides that 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. In the present case, there is only one marginal witness of Exh.P1, therefore, it can safely be concluded that the very document is hit by the provisions of Article 17 of the Order, 1984. In the circumstances, the document Exh.P1 was neither executed as required under Article 17 nor it could be proved as per requirement of Article 79 of the Order, 1984. Reliance is placed on the ratio laid down by the Hon'ble Supreme Court of Pakistan in case reported as Hafiz Tassaduq Hussain vs. Muhammad Din through LRs and others (PLD 2011 SC 241).
8. The main emphasis of learned counsel for the petitioner is on the point that the document could be presented by producing one marginal witness and other evidence, and it was not necessary to produce two marginal witnesses of agreement to sell (Exh.P1), in view of Article 82 of the Order, 1984.
Said provision of law is reproduced below for ready reference: "82. Proof when attesting witness denies the execution: If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence."
(Emphasis provided)
Bare perusal of above provision of law reveals that if an attesting witness does not support version of a party who has to prove a document and denies his signature(s) or execution of the document required to be proved or fails to recollect the execution of such document, then such party can prove the document through production of one witness and other evidence. Articles 17 and 79 come before Article 82, which clearly provide that a document required to be attested must be attested by two witnesses and it cannot be proved until and unless two attesting witnesses appear before the Court and testify such document and if initial requirements are complete, then the provisions of Article 82 could be applicable. As stated earlier, the alleged agreement to sell was attested by one marginal witness only and there exists no other marginal witness in this document.
As such, there arises no question of denial of one out of two witnesses, which is pre- requisite for attraction of Article 82. In my considered view, Article 82 may be relevant in a case where two attesting witnesses exist but not in the case of a document where there is only one marginal witness. A witness which does not exist at all cannot be presumed by any stretch of imagination that he has denied or failed to recollect execution of the document. Undeniably, there exists only one marginal witness in the alleged agreement to sell who has neither denied nor failed to recollect, therefore, Article 82 of the Order, 1984 is not attracted in this case. In this view of the matter, the contention of learned counsel for the petitioner has no force which is accordingly discarded.
9. The other contention of learned counsel for the petitioner is that an affidavit of the scribe was brought on record by the petitioner, therefore, his son, as the scribe had already passed away, could be produced before the Court in lieu of one marginal witness in order to prove the document Exh.P1. The status of a scribe has been defined by the Hon'ble Supreme Court in the case cited supra. Relevant paragraph is reproduced as under: "Therefore, in my considered view a scribe of a document can only be a competent witness in terms of Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984 if he has fixed his signature as an attesting witness of the document and not otherwise; his signing the document in the capacity of a writer does not fulfill and meet the mandatory requirement of attestation by him separately, .However, he may be examined by the concerned party for the corroboration of the evidence of the marginal witnesses, or in the eventuality those are conceived by Article 79 itself not as a substitute."
(Emphasis provided)
Undisputedly, Exh.P1 was neither signed by the scribe nor the name of the scribe is mentioned thereupon. Therefore, mere placing on record an affidavit of a person purporting him to be the scribe of a certain document is not sufficient even to prove that he was scribe of such document.
The affidavit was subject to cross-examination upon the deponent who admittedly did not appear before the Court. It is well-settled law that mere presentation of an affidavit is not a valid piece of evidence until and unless it is tendered in evidence by the deponent and cross-examined by the other side. In the circumstances, the affidavit could not be proved even if application of the petitioner for production of son of the alleged scribe was allowed as in the first instance, the petitioner was required to prove that the deponent was scribe of the document and then his son can identify signature of his father upon the affidavit as well as upon the disputed agreement.
When the affidavit could not be proved by the plaintiff as required by law, identifying signatures of the deponent by his son was of no consequence nor it could help the petitioner in proving his case in any manner. The contention of learned counsel for the petitioner is accordingly repelled.
10. The argument of learned counsel for the petitioner that since there was an admission on the part of defendants qua the execution of the agreement to sell, therefore, there was no need to prove the agreement strictly in accordance with provisions of Articles 17 and 79 of the Order, 1984.
Reading of Exh.D1 (written statement of the defendants in earlier suit of the petitioner) makes it clear that though the defendants admitted the agreement/iqrarnama at that time but they, in the same breath, asserted that it was not the same as it was signed by them and that certain amendments had been made by the plaintiff. Furthermore, initial burden to prove the execution of the document was upon the petitioner-plaintiff which he failed to do so. Therefore, he cannot be allowed to get benefit from the weaknesses the other side as he has to stand on its own legs. The contention learned counsel for the petitioner is accordingly repelled.
11. Now I come to the contention of learned counsel for the petitioner that the suit was filed within time and findings of learned Courts below are incorrect in this regard. The said contention is without any force as admittedly, the petitioner filed the first suit for permanent injunction on 17.01.1994 wherein it was asserted that the cause of action initially accrued on 26.11.1992 and lastly 15 days before filing of the suit. Meaning thereby, the cause of action lastly accrued 15 days prior to 17.01.1994 The present suit was filed on 21.06.1997 which was admittedly beyond the period of three years. Under Article 113 of the Limitation Act, 1908, suit for specific performance for 11 agreement to sell can be filed within three years from the day when the cause of action accrued, therefore, learned Courts below have rightly held that the suit of the petitioner was hit by time limitation.
12. Furthermore, there are concurrent findings of law and fact against the petitioner which are immune from interference by this Court in its revisional jurisdiction until and unless there is some gross illegality, irregularity, misreading or non-reading of evidence floating on their surface which could not he pointed out by learned counsel for the petitioner. As such, I am not inclined to interfere with the impugned judgments and decrees passed by learned Courts below after having thrashed out evidence of the parties and taken into consideration the law on the subject correctly.
13. For what has been discussed above, this civil revision is bereft of any force. The same is accordingly dismissed.
(R.A.) .