NADEEM AKHTAR, J. The appellant instituted Suit No.1145 of 2012 against the respondent for declaration, direction, specific performance and injunction which was dismissed by the learned trial Court vide judgment and decree dated 31.05.2013 ; and Civil Appeal No. 173 of 2013 filed by him against the said dismissal was dismissed by the learned appellate Court vide judgment and decree dated 29.01.2016. Through this Second Appeal under Section 100, C.P.C., he has impugned the concurrent findings of the learned Courts below.
2. It was the case of the appellant before the learned trial Court that the respondent executed an agreement of sale dated 04.07.1987 ('the agreement') whereby he agreed to sell to him his Flat No. B/1-9, Shereton Square, Main University Road, Scheme 33 Karachi, measuring 680 sq. ft. ('the suit property'). The sale consideration was agreed at Rs.150,000.00 which was paid by him to the respondent at the time of execution of the agreement and the possession of the suit property was also handed over to him. In addition to the aforesaid sale consideration, the parties had agreed that an amount of Rs.62,000.00 will be paid by the appellant directly to the House Building Finance Corporation ('HBFC') towards settlement of the house building loan and the suit property will be redeemed by him; and, after the redemption of the suit property by the appellant, the sale deed in respect thereof will be registered in his favour before the Sub-Registrar concerned.
3. It was averred by the appellant that in order to secure his interest, an irrevocable general power of attorney in respect of the suit property was executed by the respondent in favour of the appellant's wife which was duly registered with the Sub-Registrar concerned on 29.08.1991 ; after taking over possession of the suit property, the appellant rented out the same to a tenant and in view of the default committed by the said tenant in payment of the monthly rent, he filed Rent Case No.50 of 2008 against him which was allowed by the Rent Controller vide order dated 11.08.2009 whereafter the said tenant was evicted from the suit property ; the appellant redeemed the suit property in the year 2015 by paying the entire outstanding amount to HBFC; and, the original documents pertaining to the suit property viz. the indenture of sub-lease, agreement and irrevocable general power of attorney were lost by the appellant while shifting his residence, which loss was reported by him to the police vide Roznamcha entry dated 01.06.2012. It was stated by the appellant that his wife / attorney of the respondent passed away on 28.09.2011. It was alleged by him that despite payment of the entire agreed sale consideration and redemption of the suit property by him, the respondent did not execute the sale deed in his favour. It was stated by him that a legal notice was served by him upon the respondent on 28.05.2012 which was not responded to by him. It was specifically pleaded by the appellant that he was constrained to file the Suit as the respondent was not available / traceable to execute the sale deed in his favour.
4. In the above background, the appellant had prayed that he may be declared as the sole owner of the suit property and the respondent be directed to execute the sale deed in respect thereof in his favour or in case of his failure, the Nazir of the Court be directed to do the needful.
Consequential relief of injunction was also sought by him that the respondent be restrained from creating third party interest in the suit property. As the respondent could not be served through ordinary modes, he was served through substituted service by way of publication of summons in the newspaper. Despite proper service, he remained absent and accordingly, vide order dated 11.04.2013 passed by the learned trial Court, he was debarred from filing the written statement and the Suit was ordered to be proceeded ex-parte against him. Thereafter, the appellant filed his affidavit-in-ex parte proof and examined himself. He produced copies of the relevant documents as the originals thereof had been lost by him. After examining the material on record, the Suit was dismissed by the learned trial Court on the sole ground that the appellant did not examine the attesting witnesses of the agreement in terms of Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984. The learned appellate Court concurred with such finding of the learned trial Court and by relying on several reported cases, dismissed the appeal filed by the appellant. The respondent remained absent in the appeal also despite publication of notice in newspaper.
5. The appellant has filed C.M.A. No. 4503 of 2020 seeking permission to file additional documents.
The provision of law is not mentioned in the title of this application; however, it appears from the prayer made therein that it is an application under Order XLI, Rule 27, C.P.C. Most of the documents mentioned in and attached to this application, such as, the agreement, receipt, irrevocable general power of attorney executed by respondent in favour of appel!ant's wife, indenture of sub-lease in respect of the suit property and the judgment dated 11.08.2018 by the Rent Controller ordering eviction of the appellant's tenant, were produced by the appellant in his evidence before the trial Court ; and, the same are already on record as copies thereof have been filed by the appellant along with this appeal. Be that as it may, this judgment will dispose of this application as well.
6. In the instant appeal also, the respondent did not appear despite repeated notices and publication of notice in the newspaper. Accordingly, service upon him was held good vide order dated 23.12.2020.
7. I have heard the learned counsel for the appellant and have also examined the material available on record and the law cited at the bar. The record shows that the entire agreed sale consideration was paid by the appellant to the respondent at the time of execution of the agreement when the possession of the suit property was also handed over to him, and as per the agreement, the suit property was subsequently redeemed by the appellant. The agreement was executed on 04.07.1987 and till the date of filing of the Suit by the appellant in the year 2012, the respondent never claimed or asserted any right, title and or interest in the suit property, nor did he take any step for cancellation of the agreement or the registered irrevocable general power of attorney executed by him in favour of the appellant's wife. Moreover, it is a matter of record that the respondent has remained absent throughout the proceedings despite proper service and never took any step to contest the proceedings at any stage. This clearly indicates that he had divested himself of all his rights, title and or interests in the suit property after executing the agreement, receiving the agreed sale consideration and handing over the possession of the suit property to the appellant. It also shows that the appellant had fully performed his agreed part of the contract otherwise the respondent would have either taken appropriate steps for cancellation of the agreement and recovery of possession of the suit property or would have contested the subject Suit filed by the appellant. The demise of the respondent's attorney / appellant's wife did not change this position as the respondent had executed the agreement in favour of the appellant whose wife was merely an attorney in relation to the suit property. However, if it is assumed that the registered irrevocable general power of attorney executed by the respondent in favour of the appellant's wife was for consideration and the sale was intended to be in her favour, even then the Suit could be filed by the appellant as her legal representative.
8. Be that as it may, the burden to prove the sale in his favour was indeed upon the appellant whose case was dismissed by the learned trial Court on the sole ground that he did not examine the marginal witnesses of the agreement. It may be noted that his Suit was not dismissed on the ground that he did not produce the originals of the relevant documents, particularly the agreement and receipt. Thus, the copies of the above documents produced by him in support of his claim were not rejected or discarded by the learned trial Court. Regarding the ground on which the Suit was dismissed that the appellant did not examine the marginal witnesses of the agreement, it is well-settled law that a sale agreement can be oral. In this context, the Hon'ble Supreme Court, in an unreported judgment dated 20.10.2020 pronounced in Civil Petition No.84 of 2016 (Sajjad Ahmed Khan v. Muhammad Saleem Alvi and others) was pleased to hold, inter alia, that the production of two witnesses in order to prove execution of a document is not an absolute rule to be applied in every case ; it is settled law that a sale / agreement to sell can be oral or offer and acceptance of sale can also be inferred from the acts of the parties to the agreement the provisions of Article 79 of the Qanun-e-Shahadat Order, 1984, are applicable only in those cases where the execution of the document is disputed between the maker of the document and the person in whose favour the same is purportedly executed ; mere denial of the execution of the agreement would not be sufficient in presence of plethora of overwhelming evidence on record such evidence could not be discarded merely for non-production / non-appearance of the marginal witnesses ; and, the prime and foremost requirement of Article 79 ibid is to prove the execution of the document, in case of denial of its execution, by producing two marginal witnesses.
9. In the instant case, there was overwhelming evidence produced by the appellant showing the execution of the agreement and receipt in his favour by the respondent, handing over of possession of the suit property to him, redemption of the suit property by him and his uninterrupted possession, without any adverse claim from or on behalf of the respondent, from the year 1987 till the year 2012 when the Suit was instituted by him. Such evidence was sufficient to show that he had not only discharged his burden in proving the sale of the suit property in his favour by the respondent, but also that he had successfully performed his agreed part of the contract, especially when such evidence was not rejected or discarded by the learned trial Court and there was no denial or rebuttal to the same.
10. The learned counsel for the appellant points out that the learned Courts below were of the view that the absence of the respondent could not be deemed to be an admission on his part. It was contended by her that such view is untenable in law as in ex-parte proceedings unless any document or evidence is rebutted in cross-examination or by the evidence of the opposite side, the said document or evidence is deemed to be admitted / proven. In support of this contention, she has placed reliance on an unreported judgment pronounced by a learned Division Bench of this Court on 14.09.2012 in High Court Appeal No.149 of 2008, wherein it was held that the affidavit- in-exparte proof filed by the plaintiff had fully corroborated the contents of the plaint and the same had remained un-rebutted; and as such, there was no reason or plausible cause to discard the ex- parte evidence adduced before the trial Court. It is further contended by the learned counsel that in view of the execution of the agreement by the respondent in favour of the appellant, the payment of sale consideration by the latter and the delivery of possession of the suit property to him in part performance by the respondent, a vested interest in the suit property had been created in favour of the appellant and his possession is protected under Section 53-A of The Transfer of Property Act, 1882. It is also contended by the learned counsel that it is a settled principle of law that if the Suit is allowed to proceed ex-parte against the defendant, even then the defendant is allowed to cross-examine the plaintiff.
11. It is a matter of record that all the requirements and formalities in relation to the service of summons were duly fulfilled before the learned trial Court, but the respondent still chose to remain absent and due to his absence, the averments made by the appellant in his plaint and the evidence produced by him in support thereof, remained un-rebutted. I am of the view that the absence of the respondent at the time of the trial was not due to any fault of the appellant as he himself chose to remain absent despite proper service in accordance with law. Therefore, the consequences, if any, because of his absence at the trial could not be attributed to the appellant, especially when the appellant came in the witness box and produced convincing and un-rebutted evidence in support of his claim.
12. The reported cases relied upon by the learned appellate Court while dismissing the appeal filed by the appellant were not applicable or relevant. The learned appellate Court erred in law by holding that the agreement relied upon by the appellant was merely a sale agreement and was not a registered document and only a registered document has sanctity attached to it. The learned appellate Court failed to appreciate that the cause of action for filing a Suit for specific performance arises only when a party to the agreement avoids or refuses to perform his agreed part of the contract; and, had the title of the suit property been transferred and registered in favour of the appellant through a registered deed, the appellant would not have instituted the Suit for specific performance. In the impugned judgment, the learned appellate Court had discussed the legal position that the burden to prove the contents of a' document and the passing of consideration shifts upon the beneficiary in case of denial of execution of such document by the executor. However, it failed to appreciate that such principle was not applicable in the instant case as admittedly there was no denial or rebuttal by the respondent himself and or by implication.
13. In Khalil Ahmed v. Abdul Jabbar Khan and others (2005 SCMR 911), the Hon'ble Supreme Court was pleased to hold, inter alia, that the concurrent findings of fact would not be respected if the same were based on misreading and non-reading of evidence available on record.
14. In view of the above discussion, the impugned judgments, being not sustainable in law or on facts, cannot be allowed to remain in the field. Consequently, the same are hereby set aside; the appeal is allowed; the Suit filed by the appellant is decreed as prayed, however, with no order as to costs; and, the pending application stands disposed of accordingly.