MUHAMMAD IQBAL KALHORO, J.---This revision application is directed against the concurrent findings recorded by the two Courts below in FC Suit No.181 of 2007 instituted by Nusrat Hussain/the respondent against Aamir Ghous Hashmi/the applicant for specific performance of contract, possession And injunction. The suit was filed in the court of 5th Senior Civil Court Hyderabad And was decreed vide judgment dated 30.05.2008 And decree drewn on 31.05.2008. In appeal filed by the applicant, the findings of the trial court were maintained vide judgment dated 28.02.2014 And decree dated 04.03.2014. Both the judgments And decrees have been impugned by the applicant here.
2. In the suit the respondent has claimed that the applicant is owner of agriculture land admeasuring 53-18 acres situated in deh Khuddi Tappo Naubat Mari, Taluka And District Matiari, which he agreed sell to him for consideration of Rs.8125250-00 vide agreement dated 26.11.2001.
However due to some mistake in description of serial numbers (of survey numbers of the land), the said agreement was amended on 01.02.2002 with consent of both the parties And price of the land was determined as Rs.8000000/- (Eighty lac). It is further claimed that on payment of major portion of the price; the respondent was put into possession of 40 acres of the suit land; the possession of remaining 13 acres was deferred as it was in possession of somebody else on lease for 3 years. However, when even after lapse of said period, the possession of remaining 13 acres bearing survey numbers 308(5.15) And 316(5.15) were not handed over to the respondent, he approached the applicant And came to know that the said land was mortgaged with Agricultural Development Bank of Pakistan against loan of Rs.579700/-. Then at the instance of the applicant, he also paid Rs.486601/- of the loan to the bank. And after calculating the entire amount paid to the applicant, the amount of Rs.3123399/- of balance consideration is outstanding against him. He again contacted the applicant for performance of his part of the agreement, but found him evasive. Later on the respondent came to know that the applicant was trying to sell the suit land to somebody else, hence he filed the suit.
3. Record reflects that applicant in response to the notices appeared in the trial Court on 15.11.2007 And sought time. Subsequently on 30.11.2007 Mr. Muhammad Sachal Awan advocate filed power on his behalf And moved adjournment application, which was granted. Thereafter no one turned up for the applicant And vide order dated 17.03.2008 he was declared ex parte And the matter proceeded in his absence. The respondent examined himself and produced relevant documents in support of his case. In order to decide the case, the trial court framed as many as 11 points for determination and in the light of findings on those points decreed the suit. The applicant filed the appeal but failed.
4. Mr. Muhammad Arshad Pathan learned counsel for the applicant intensely argued that the applicant had been cheated And defrauded. He was not served by the bailiff but through manipulation his appearance was got marked before the trial Court. In order to explain the point, he stated that the respondent made some of his henchman impersonate the applicant who appeared in the Court as if him And sought time. Learned counsel in his arguments also questioned the authority of Mr. Muhammad Sachal Awan advocate to file power on applicant's behalf, and shown skepticism over the veracity of his power or his even putting up appearance in the Court in this regard. He strongly contended that the said counsel was not engaged by the applicant And he never appeared in the court on his behalf; all the proceedings showing either appearance of the applicant or his counsel were managed through fraud And cheating by the respondent. He next argued that without ascertaining genuineness of the service And determining the identity of the person appearing in the Court as to whether he was actually applicant or not, the suit against him was decreed, which had resulted into miscarriage of justice. The applicant was not afforded a proper opportunity to defend himself; that the impugned judgments And decrees were based on surmises And conjectures And mainly appeared to be influenced by the proposition that since there was nothing in rebuttal against the claim of the respondent, it stood proved; that both the Courts below had not considered the fact that burden to establish alleged sale of the suit land was on the respondent, which while he utterly failed to discharge, yet the case was decided in his favour. The two Courts below had entirely ignored the fact that the respondent was not able to produce in evidence Any receipt of payments of alleged sale consideration to the applicant or to examine Any marginal witnesses of sale agreements in support of his claim, thus in law he had failed to prove his case, nonetheless in utter disregard to the provisions of Qanun-e-Shahadat Order, 1984, his case was decreed. His next contention was that the Courts always leaned in favour of the view that decisions of the cases be made on merits rather than on technicalities but contrary to it in the present matter the decision was given materially on technicalities. That, on the face of it the documents produced by the respondent were fake And forged And their execution was not proved either but surprisingly both the courts below relied upon them.
5. Mr. Naimatullah Soomro learned counsel for the respondent strongly refuted the above contentions And referred to the memo. of appeal filed by the applicant to show that he himself had admitted the factum of service on him and his engaging counsel to appear on his behalf. He insisted that in view of such clear statement the applicant could not take the ground of non- service And such ground was nothing but a misleading statement. The respondent despite knowledge of the suit did not file written statement which was tantamount to his admitting the claim of the respondent. He was of the view that the respondent was only trying to delay execution proceedings filed against him before the trial court. Learned counsel further elaborated the point by stating that on the grounds, taken by the applicant that fraud And cheating was committed with him And through misrepresentation the impugned judgments and decrees were obtained, the remedy under section 12(2), C.P.C. was proper and adequate. He then pointed out that applicant had in fact filed 2 such applications, one before the appellate court and the other before the trial court And both the applications were dismissed on merits but the applicant did not file Any revision against such orders. He next contended that major part of the agreement already stood implemented as the respondent was in possession of 40 out of 53.18 acres of the suit land. In support of his arguments he relied upon decisions reported in 1999 CLC 1656, 2001 SCM R 798 And 2001 CLC 164.
6. I have considered the contentions of the parties and have perused the material available on record including the decisions cited at the bar. The ground of non-service taken by the applicant and appearance of somebody else in the Court impersonating him to allege fraud and cheating with him by the respondent does not appear to be tenable. In the memo. of appeal filed by him against the judgment and decree of the trial court, he has stated that in response to the service he appeared in the court and sought time for filing the written statement but due to some reasons he could not do it. And in the grounds of his appeal he has reiterated said fact in the words that he appeared in the court, engaged the counsel but due to some reasons he could not contact his counsel and failed to file written statement. It is worth noting that his appeal was filed by the same counsel (Mr. Muhammad Sachal Awan) who had filed power in the trial court on his behalf. But then due to transfer of his appeal on some administrative ground from district Hyderabad to district Matiari, Mr. Imdad Ali Memon Advocate filed his power there for him. Record further reveals that in the appeal, the applicant had filed an application under Order XLI, Rule 5, C.P.C. along with his affidavit containing not only his signature but his CNIC as well; and at some point of time when the appeal was dismissed in non-prosecution he filed an application for restoration thereof duly supported by his affidavit which also contained his signature and his CNIC number. The application for restoration was filed through Mr. Pir Bux Bhurgri advocate; he is the same counsel who has filed the instant application. But, as the record speaks, he too later on was substituted by the present counsel. I have' also read the order passed by the appellate court on the application filed under section 12(2), C.P.C. It appears that the applicant has taken a ground in the application whereby even denying the very fact of filing the appeal against the judgment of the trial court. The appellate court however has very aptly dealt with this issue by observing in the said order that applicant has not denied the fact of engaging Mr. Pir Bux Bhurgri advocate as his counsel to file restoration application in the appeal after its dismissal in non-prosecution or his signatures on the affidavits filed either in support of that application or in the application under Order XLI, Rule 5, C.P.C. These observations referring to explicit facts are indeed adequate Answer to the applicant's claim of non- service. And additionally it may be noted that the applicant in spite of asserting that he was cheated And defrauded by the different counsel who falsely represented him in the Courts has not initiated any action or even moved Any application against them. Further he has ,not been able to explain the fact as to how the same counsel (Mr. Pir Bux Bhurgri advocate) who filed the instant application on his behalf happened to file restoration application for him before the appellate court. In presence of such facts, the applicant's ground of cheating And fraud in service upon him appears to be unsustainable And cannot be considered. It may also be mentioned that applicant's such grounds have been looked into comprehensively by the appellate court in its order dated 10.03.2015 on application filed under section 12(2), C.P.C. And which, I was not informed, has been challenged by the applicant.
7. Notwithstanding the above, the burden lies on the respondent to prove alleged transaction of the suit land, execution of sale agreements, his paying earnest money to the applicant And most importantly the fact that the applicant is owner of the suit land as alleged by him. The respondent's evidence shows that he has produced documents that include sale agreements, receipts showing payment to Zarai Taraqiati Bank by him on behalf of the applicant, application of the applicant allegedly applying for sale certificate And copies of the faisla held between the parties over the dispute relating to the suit land. In para No.2 of the plaint, the respondent has stated that in pursuance of first sale agreement dated 26.11.2001, he paid Rs.500000/- (five lac) on the same date And further Rs.500000/- (five lac) on 10.12.2001. Regarding both the alleged payments no documentary proof has been filed by him nor has Any .witness in this connection been examined.
Even it is not disclosed before whom such payments were made. Then in para No.4 of the plaint, it is maintained that due to some mistake in mentioning survey numbers of the suit land Another agreement dated 01.02.2002 as part of the first agreement was executed between the parties whereby it was also agreed that on receiving 50% of the total consideration amount (Rs.8000000/- eighty lac), the respondent would be put into possession of the suit land. Para No.5 discloses that in view of major portion of consideration paid by the respondent, he was put into possession of 40 acres of the suit land. There is no detail as to when the major portion of consideration was paid by him And before whom. No receipt has either been produced in support of such claim. And there is no explanation either that why possession of only 40 acres of the suit land was handed over to the respondent in contravention of the terms of second agreement which stipulated handing over possession of the entire land to the respondent on his paying half of the consideration amount. No date is mentioned either that as to exactly when the possession of those 40 acres was handed over to the respondent. It is also crucial to note that in the agreements no where the factum of 13.18 acre of the suit land in possession of somebody else under lease is articulated. Respondent's lack of knowledge in this connection despite his claim of purchasing the said land is strange. The respondent then in succeeding paras of his plaint has spelt out failure of the applicant to hand him over remaining portion of the suit land (13.18 acres) And in para No.7 he states that later on he came to know that the land in question was mortgaged with Agricultural Development Bank of Pakistan for Rs.579700/-; And he at the instance of the applicant deposited An amount of Rs.486601/- to retrieve the land. It becomes obvious from a reading of his plaint that dispute over alleged remaining land i.e. 13.18 acres occurred between the parties much after the alleged agreements in the years 2001 And 2002 when allegedly applicant refused to hand over its possession to the respondent. And resultantly some faisla in this regard was made, And the respondent also came to know that the said land was mortgaged against some amount with the bank, which he deposited at the instance of the applicant. However, surprisingly some of the receipts showing payment to the bank allegedly deposited by him are ex-facie in negation of such version. The payments are shown to have been made to the bank right from May 2002 till August 2006. It may be observed that the pleadings of the respondent do not indicate that there was Any dispute between the parties as early as May 2002 (when some of the amount was deposited) or Any request was made at that time by the applicant to the respondent to pay to the bank on his behalf. The alleged payment made by the respondent just sometime after execution of the subsequent sale agreement does not fit in the version of his case because it does not appeal to the common sense that the applicant who allegedly had received An amount of Rs.400000/- (Forty lac), the half price of the suit land, from the respondent would ask him to pay Rs. 1,00,000/-- to the bank on his behalf.
8. Copies of alleged sale agreements have been filed by the applicant in this application, they do not specifically reveal that the applicant is owner of the suit land. In the evidence no document has been produced by the respondent either to substantiate this crucial point And I have noted that the trial court while deciding point No.1 in the judgment, which is in respect of a query about ownership of the suit land, has observed that there is no document to show that the defendant/the applicant is owner of the suit land. A perusal of both the impugned judgments reflects that the Courts below have been mainly influenced by the fact that nothing has come on record against the claim of the respondent, notwithstanding the chance given to the applicant to rebut it. In my view, this could be hardly the criterion or a yardstick to infer that the respondent was able to discharge burden of proving his case in accordance with law. Merely tendering of the sale agreements in evidence has not enhanced their evidentiary value And admittedly this fact will not prove their execution either. The respondent in terms of Article 79 of the Qanun-e-Shahadat Order, 1984 was required to prove execution of the agreements by either examining their scriber or the marginal witnesses thereof. In the present case, as the applicant was already declared ex-parte And the matter was being preceded in his absence, the Courts below needed to be extra cautious in either relying upon the sale agreements or making Any deduction about veracity thereof. In view of peculiar facts of present case, where sale of agricultural land, its possession And making payments in lieu thereof in advance are claimed, the interest of justice entailed that the court below should have minutely attended to the relevant facts And law And the document filed or produced to decide the case instead of merely referring to the absence of applicant And considering it as a deciding factor. In law, the respondent was not only required to prove execution of the sale agreements but the original transaction as well in which, as the record speaks he has utterly failed. While examining the record I have noted that the subsequent agreement Exh.17 purported to have been executed on 01.02.2002 has been attested by the Judicial Magistrate Matiari on 13.02.2001 almost a year prior to its execution. How this was possible, neither has been explained by the respondent in his evidence nor the Courts below have adverted to such fact.
There is indeed nothing on record in support of respondent's claim relating to original transaction, execution of sale agreements, payments to the applicant, And taking possession of portion of the suit land, except his uncorroborated word. And admittedly the copies of sale agreements, some receipts showing payment to the bank And the application of the applicant applying for sale certificate cannot be considered in law as a sufficient proof of the above facts. The provisions of Articles 117 And 118 of Qanun-e-Shahadat Order, 1984 make it abundantly clear that the person who desires Any Court to give judgment as to Any legal right or liability dependent on the existence of facts which' he asserts, he must prove that those facts exist And when a person is bound to prove the existence of Any fact, it is said that the burden of proof lies on that person. Obviously the respondent was required to prove the existence of the facts which he asserted in the suit; but the preceding discussion, in my view, has made it obvious that he has not. Needless to observe that concurrent findings are not sacrosanct in the eyes of law, where it is apparent that the same would result into grave injustice or hardship, this Court under section 115, C.P.C. can interfere to correct the wrong.
9. For foregoing reasons, I set aside both the impugned judgments And decrees passed by the two Courts below And allow the instant I revision application with the result the suit of the respondent is dismissed with costs.