MUHAMMAD AMEER BHA TTI, J.----Suit for confirmation of possession through specific performance, filed by the present petitioner , was concurrently dismissed by both the learned Courts below through the impugned judgments dated 29.11.2008 and 07.01.2010, respectively , on two counts i.e. barred by limitation and; the petitioner failed to prove his agreement to sell by producing the evidence as required by law; hence this revision petition.
2. The learned counsel for the petitioner has argued the case firstly on the question of limitation contending that the learned courts below have misread and misconstrued the document wherein time was not mentioned for the completion of the agreement but it was regarding the validity of Fard obtained by the respondents' predecessor Muhammad Din Shah. Therefore, the findings of the learned courts below in this regard are unsustainable in the eye of law. With regard to other issues, the learned trial court on Issue No.6 held that the petitioner-plaintif f had failed to lead any evidence qua the loss of document; therefore, the document brought on record as Exh.P-1 had been wrongly excluded from consideration. It has also been argued that the document was permitted to be placed on record by the learned trial court on petitioner-plaintif f's application, which was not challenged by the respondents, hence the order for exhibition of the said document had attained finality and subsequently while deciding the suit, exclusion of that document from consideration in consequence of adverse decision on Issue No.6, was without lawful authority and caused a serious prejudice to the case of the petitioner . It has further been argued that on account of acceptance of petitioner's application for leading secondary evidence, the petitioner took the impression that there was no need to lead evidence qua loss of document; hence subsequent adverse decision on Issue No.6 against the plaintif f-petitioner on account of non-production of specific evidence regarding loss of document was unwarranted and uncalled for .
3. In response to the contentions of the learned counsel for the petitioner , the learned counsel for the respondents has contended that without proving the loss of the document, even if the evidence had been allowed to be led and brought on record, the same could not be considered for decision of the suit. Placi ng reliance on the case of "Mst.
Khurshid Begum and 6 others v. Chiragh Muhammad" (1995 SCMR 1237 ), the learned counsel for the respondents contended that the mandatory requirement of law to prove the loss of original document cannot be ignored, therefore, the learned courts below while excluding the document from consideration have not committed any illegality or irregularity . It has further been contended that the petitioner-plaintif f was allowed to lead evidence on all issues including the issue of loss of original document simultaneously and by giving this chance to him the learned courts below have not committed any irregularity as it was the obligation of the petitioner-plaintif f to prove the loss of document without which the secondary evidence even if allowed to be brought on record had no value and rightly excluded by the learned courts below from consideration. He has further argued that demonstration of Exh.P .1 given by the learned courts below is enough to hold that this document Exh.P .1 could not attain the status of agreement to sell because entering of some transaction of amount also did not substantiate the mode of payment alleged by the petitioner in his plaint and evidence. The learned counsel has further contended that the suit was also held by the learned courts below as barred by time as it was instituted by the petitioner-plaintif f after 12 years of the alleged document, therefore, findings recorded by the learned courts below are in Consonance with facts and law, hence no interference is warranted and this petition being without any justification is liable to be dismissed.
4. I have heard the learned counsels for the parties and perused record of the case.
5. I agree with the reasoning of both the learned Courts below , which dismissed the petitioner's suit after giving issue-wise findings on all the issues. Adverting to the contention raised by learned counsel for the petitioner in respect of issue No.2 qua limitation, it is enough to hold that alleged agreement to sell (receipt of payment) was executed in the year 1984 and Fard which was valid for three months was also obtained and provided to the petitioner meaning thereby as alleged by the petitioner the respondent was agreed and ready to give effect that agreement to sell but thereafter it was duty of the petitioner to play his part to clear remaining part of consideration amount within the time for which the Fard was valid despite this aspect there is nothing on record to establish that his request to execute the sale deed was turned down by the respondent because neither he approached to the respondent nor it was in their knowledge that the petitioner had any document on the basis of which he claimed to have any intention to purchase the respondent's piece of land, therefore, filing of suit in the year 1997 on the basis of alleged receipt (agreement to sell) dated 11.10.1984 was hopelessly time barred. Significance of limitation has already been highlighted by Hon'ble Supr eme Court of Pakistan in a case reported as Dr. M. Javaid Shafi v. Syed Rashid Arshad and others (PLD 2015 Supreme Court 212) and it is also well-settled law that the question of limitation even if had not been raised by the defendants, the primary duty of the Court is to examine this aspect itself even before issuing notice to the defendants, so that it should be eliminated in its inception.
6. So far as the second limb of argument from the side of petitioner , it is noticed that the petitioner claimed that an agreement to sell was executed between the parties in the year 1984 for a consideration of Rs.9000/- out of which Rs.6000/- were paid in cash and remaining Rs.3000/- were to be paid at the time of execution of sale deed. There is no evidence except oral assertion of the plaintif f. However , Photostat of receipt Exh.P .1 produced by the petitioner claimed to be treated as an agreement to sell has also been examined. Although it has been brought on record after obtaining permission of secon dary evidence but the contents of the plaint reflect that except this receipt no other document was allegedly execut ed and the .original had been lost even before filing of the suit. List of reliance of documents also reflects that the petitioner claimed therein to submit the Photostat in evidence, whereas settled law is that before obtaining permission for tendering the secondary evidence the claimant must prove either loss of said document or its possession with the other side. Since the petitioner admitted this fact in his plaint that it had been lost from him, therefore, before getting permission from the Court for leading secondary evidence, he must have proved regarding loss of original one, whereas the record in this regard is silent as he never applied to the Court to prove the loss of document. However , the learned trial Court had framed a specific issue and onus was on the petitioner which according to both the learned Courts below he failed to prove it because there is nothing on record any sort of tangible evidence which could be considered sufficient to corroborate his oral assertion. It is in his testimony that he got the FIR registe red qua loss of purported document and notice of its loss was also got published in the newspaper , production of which was , the legal obligation of the petitioner to prove the factum of loss of purported original receipt; hence Courts below have not committed any illegality or irregularity to exclude it from consideration. Thus their findings are in consonance with law and facts of the case. In this view of the matter , although his application for secondary evidence without getting permission to prove the loss of document was not maintainable, yet the same was accepted. It is well settled law that even if the document has been brought on record as secondary evidence but on account of non-proving of loss of original photocopy could not be read in evidence and same has to be excluded from consideration, therefore, Courts below in the absence of evidence of proof of loss of original document had not committed any illegality or irregularity by excluding secondary evidence from consideration.
7. In view of the above, finding no illegality or irregularity in the concurrent finding s of two Courts below , it is held that the judgments, impugned herein, are in consonance with the law and facts of the case; hence no interference is warranted, thus, this revision petition having no merits is dismissed . No order as to costs.