SHAKEEL AHMAD, J. This regular second appeal was filed against the judgment and decree dated 07.06.2018 of the learned District Judge, Abbottabad, whereby, the first regular appeal, which the appellants had filed against the judgment and decree dated 29.09.2011 of the learned trail Court, was dismissed.
2. Facts giving rise to the litigation between the parties briefly stated are that on 01.07.2005 the respondent No.1 and 2 instituted a suit for specific performance on an oral agreement dated 10.09.2004, asking therein relief of possession of the suit property with direction to the appellants/ defendants to transfer the same in their names and permanent injunction restraining them from alienating the suit property, against the defendants in respect of a house constructed on plot No.82-A at Khaira Gali to the extent of 33.80 `Marlas'. It was alleged that the bargain for the purchase of suit property was struck between the parties against a consideration of Rs.2,700,000/- (Twenty Seven Lakhs). It was agreed upon that out of total consideration, Rs.2,590,000/- shall be paid to the Malik Muhammad Mushtaq (co-appellant) on signing the sale agreement and execution of registered power of attorney. It was averred that the oral agreement was made in presence of Brigadier Zulfiqar (PW-1) and his wife (not produced as witness). It was further asserted in the plaint that the oral agreement took place in the house of defendants at Lahore and it was decided that the application for transfer of suit property and payment of all dues was to be made to defendant No.4, through, Rukhsar Ahmad Abbasi, a property Dealer and in this respect, defendants No.1 to 3 handed over partition/division plan of their share in plot No.82-A alongwith application and photocopies of their identity cards to the said property dealer for submission in the office of defendant No.4. The application for waiver of dues was turned down by the defendant No, 4 and the said property dealer, Rukhsar Ahmad Abbasi informed the defendants about the situation. Thereafter, the price of the suit plot was again settled as Rs.2,590,000/- to be paid to defendant No.2 and the remaining price out of the already agreed price of Rs.2,700,000/- was to be paid by the plaintiffs for clearance of dues of the Trust and commission of the property dealer and the plaintiffs were also allowed to publish advertisement regarding caveat emptor in the newspaper. Consequently, the plaintiff No.1 prepared demand draft of Rs.2,590,000/- in favour of defendant No.2, drafted general power of attorney and sale agreement, as per understanding between property dealer and defendants. After approval of the draft of the document on 30.01.2005, plaintiff No. 1 alongwith his brother went to Lahore for completion of sale agreement.
However, on 31.01.2005, defendant No.2 informed about the sickness of defendant No.1 and sought further time of 10 to 20 days for completion of the bargain. After expiry of 20 days, the defendant again requested to defer the matter till arrival of Sami son of defendant No.1 from abroad.
Nevertheless, the plaintiff as per understanding, deposited Rs.56,484/- with the defendant No.4 towards payment of dues and also published advertisement regarding caveat emptor in the newspaper. The defendants, even after arrival of Sami from abroad, gave no response, which necessitated the plaintiff No.1 to send a legal notice to them. Thereafter, defendant No.1 responded and gave instructions for demarcation of the suit property, which came out to be 26 `Marlas' as against 33 `Marlas' and in this respect demarcation plan was shown to defendant No.1 by the property dealer, however, he refused the same. Despite request of the plaintiff No.1 to defendant No.1 for fulfillment of their commitment/obligation for transfer of the suit property, they delayed the matter either on one or other pretext and finally they backed out of the deal, which necessitated to file the suit.
3. After service of summons, the appellants/defendants and respondent No.3 put their appearance. The suit was resisted on legal and factual plane. It was averred that the contesting defendants/appellants neither entered into any agreement to sell with respondents/plaintiffs nor they received any earnest money, nor the sale consideration. It was asserted that the suit was instituted to blackmail and grab money from them. It was further pleaded that documents appended with the plaint were fraudulently obtained from the office of the defendant No.4/DG Hazara Hill Tract Improvement Trust. From divergent pleadings of the parties; following issues were framed and the parties were directed to produce their evidence.
ISSUES
1. Whether plaintiffs have got cause of action?
2. Whether agreement as alleged pertaining to purchase of suit property was entered with defendants No.1 to 3? If so what were the terms and conditions. of the agreement?
3. Whether the plaintiffs have been ever ready and willing to perform their part of the agreement?
4. Whether plaintiffs are estopped by their conduct to sue?
5. Whether suit of the plaintiffs is time barred?
6. Whether suit is bad for mis-joinder, non-joinder of parties?
7. Whether plaintiffs are entitled to the decree as prayed for?
8. Relief?
In support of their claim, the plaintiffs/respondents produced as many as five witnesses. They also produced documentary evidence as well. In rebuttal, Muhammad Mushtaq (co-appellant) himself appeared as DW-1 and closed defendants evidence. On the conclusion of trial, the suit was decreed in favour of the respondents No.1 and 2 (plaintiffs) vide judgment and decree dated 29.09.2011. Not contented with the same, the appellants filed regular first appeal No.265/2011 before this Court, which was dismissed vide judgment dated 30.09.2013. Being aggrieved of the same, the appellants impugned the judgment of this Court through Civil Appeal No.1397/2013 before the Apex Court, which was allowed by the consent of the learned counsel for the parties, and the case was remanded back to this Court with the direction to meet the requirement of Rule 31 of Order XLI CPC, vide judgment dated 13.02.2018. However, in the meanwhile, pursuant to an amendment in section 18 of the Civil Courts Ordinance, 1962 through Khyber Pakhtunkhwa Civil Courts (Amendment) Act, 2017, the pecuniary jurisdiction of the District Court was enhanced. Hence, the appeal was remitted to the District Judge, Abbottabad, for disposal, which was dismissed by him, vide judgment and decree dated 07.06.2018. Hence, this regular second appeal.
4. At the very outset, learned counsel representing the respondents No.1 and 2 raised preliminary objections on the maintainability of this regular second appeal on the grounds, firstly, that sections 100, 101, 102 and 103 CPC have now been deleted by the Khyber Pakhtunkhwa Code of Civil Procedure (Amendment) Act, 2020 (Khyber Pakhtunkhwa Act No. XLIX of 2020) and, secondly, that the second regular appeal is competent only on the question of law and went on to say that this appeal has been filed on the ground of error of facts. On merit, he submitted that sanctity is attached to the concurrent findings of facts arrived at by the Courts below as the same are not suffering from misreading and non-reading of evidence on record and prayed for dismissal of the same.
5. As against that, the learned counsel appearing on behalf of the appellants submitted that during pendency of this regular second appeal, sections 100 to 103 CPC were deleted by Khyber Pakhtunkhwa Code of Civil Procedure (Amendment) Act, 2020 and went on to say that the said Act carries Saving Clause, therefore, it would not affect legal proceedings and remedy initiated before deletion of sections 100 to 103 CPC and it could be continued even after deletion of the said sections by the Act No. XLIX of 2020. He next contended that both the Courts below have committed error of law and failed to advert to every aspect of the case and the judgments of the learned lower fora are not in consonance with the evidence on file, which resulted in gross miscarriage of justice, therefore, warrants interference. He further submitted that he has raised substantial questions of law in his memo of appeal and in support of his contention, he read out the contents of the memo of appeal. On merit he concluded that concurrent findings of facts could not be termed as sacrosanct and can be reversed by the High Court in regular second appeal, if same were based on mis-reading of evidence or erroneous assumption of facts and patent error of law and prayed for setting aside the impugned judgments and decrees of the Courts below.
6. I have given my anxious consideration, to the respective arguments of the learned counsel for the parties and have also perused the record of the case with their able assistance, minutely.
7. Before proceeding on merit, I deem it appropriate to decide the preliminary objections raised b) the learned counsel for the respondents No.1 and 2. No doubt, sections 100 to 103 CPC have now been deleted by the Khyber Pakhtunkhwa Code of Civil Procedure (Amendment) Act, 2020 (Khyber Pakhtunkhwa Act No. XLIX of 2020), however, section 19 of the. Act ibid carries Saving Clause, which reads as under:-- "19. Repeal and Savings----(1) The Khyber Pakhtunkhwa Code of Civil Procedure (Amendment) Act, 2019 (Khyber Pakhtunkhwa Act No. XL of 2019) is hereby repealed and shall be deemed to have never existed on the statute book.
(2) Notwithstanding the repeal of the above said Act, all suits, applications or appeals instituted and any other proceedings commenced, initiated or continued under the repealed Act, till the commencement of the Khyber Pakhtunkhwa Code of Civil Procedure (Amendment) Act, 2020, shall be deemed to have been Validly instituted, commenced, initiated or continued under the Khyber Pakhtunkhwa Code of Civil Procedure (Amendment) Act, 2020."
A plain reading of the above section reveals that despite deletion of aforesaid provisions from the statute book, it shall not affect any legal proceedings or remedy in respect of any such right, privilege, obligation or liability accrued under the repealed sections, as is reflected from section 19 of the Act No. XLIX of 2020, as if the repealing Act has not been passed. It is, therefore, obvious that all proceedings which are contemplated are to continue as if the repealing Act had not been passed, thus, it becomes quite clear that the second appeal filed under section 100 CPC has to be in accordance with rules of procedure enforced at the time of commencement of appeal and the same has to be followed. In this behalf, reference may be made to the case reported as Mian Rafi- ud-Din v. Chief Settlement and Rehabilitation Commissioner' (PLD 1971 SC 252), wherein, the Honourable Supreme Court held as under:- "It is well settled that when law is altered during pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begin and not the law that existed at the date of judgment or order. This is, however, subject to exception that the new law shall apply, if it is a mere rule of procedure or it has been applied retrospectively to the pending proceedings."
This rule, as stated in Craies on Statute Law, Sixth Edition, page 400, is as follows: "It is a general rule that when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. But there is an exception to this rule, namely, where enactments merely affect procedure, and do not extend to rights of action."
In this behalf, reference may also be made to the cases reported as 'Basant Singh v. Rampal Singh' (AIR 1919 Oudh 217), 'State of Punjab v. Mohar Singh' {(1955)i SCR 893}, 'State of Orisa v. MA Tulloch & Co' {(1964) 4 SCR 461} and 'Brihan Maharashtra Singh Syndicate v. Jamardan' (AIR 1960 SC 794).
In view of the discussion made hereinabove, the preliminary objection No.1, raised by the learned counsel for the respondent No.1 and 2, is overruled. So far as second preliminary objection is concerned, I deem it appropriate to address the same in the last para of my judgment.
8. In my view, in the present case, three questions require determination (i) whether the respondents No.1 and 2 have set out the particulars of oral agreement in the plaint in terms of Rule 2 of Order VI CPC, if not its effect? (ii) whether the oral agreement allegedly executed between the parties was void, due to uncertainty? (iii) whether the impugned judgments and decrees of the learned lower fora are the result of misreading and nonreading and mis-interpretation of evidence on record, if so, its effect?
9. It is by now settled that a party which has come forward to seek a decree for specific performance of contract of, sale of immovable property on the basis of an oral agreement alone, heavy burden lay on such party to prove that there was consensus ad idem between both the parties for a concluded oral agreement. An oral agreement by which the parties intended to be bound is valid and enforceable; however, it requires to be proved through clearest and most satisfactory evidence. In this context, reliance can be placed on the judgments reported as ' Mian Muhammad Akbar Dhareejo v. Muhammad Ramzan Khokhar '(2021 CLC 1132), 'Salim Akhtar v.
Nisar Ahmad' (PLD 2000 Lahore 385). `Manzoor Ahrnad V. Haji Hashmat Ali through Legal heirs'
(2000 CLC 419) ' Manzoor Hussain Khan Vs. Mst. Asia Beguni and 21 others' (1990 CLC 1014). In this respect reference may also be made to the case reported as `Maqbool Ahmad V. Suleman Ali'
(PLD 2003 SC 31), wherein it was observed that a person entering into an oral agreement had to prove the oral agreement according to the definition of agreement in section 2(h) of the Contract Act, 1872. In the case reported as 'Allah Ditta V. Liaqat Ali' (2005 YLR 245), it has been ruled that an oral agreement requires to be proved by the beneficiary through cogent evidence of the bargain, especially after its denial by the other party. In the case of 'Messrs Adin Khan and Giloti Transport Company V. Government of Pakistan, State and Frontier Regions Division and two others' (1997 CLC 369), it has been held that an oral agreement, for its proof, requires clearest and most satisfactory evidence. In this context, reliance can also, be placed on the judgments reported as `Government of Pakistan and 3 others V. Kamruddin Valika' (1996 CLC 1086), 'Khayaban-e-Iqbal
(Pvt) Limited and 2 others V. Mustafa Haji Muhammad' (1996 CLC 1758), 'Muhammad Farooq & Company (Pvt) Limited Vs. Messrs Pakistan Tobacco Company Limited rind another' (1997 CLC 520) and Qazi Muhammad Saqib Khan V. Ghulam Abbas' (2003 MLD 131).
10. On perusal of contents of plaint, evidence and documents on record, I found that the respondents No. 1 and 2 had alleged that an oral agreement of sale of the suit house was made between the contesting parties. In paragraph No.9 of the plaint, the respondents/plaintiffs sated as under:--- "That the said oral agreement took place between the Defendant No.1 to No.3 and plaintiff No.1 in the presence of Brigadier Zulfiqar and his wife at the residence of Defendant No.1 to No.3 at Lahore and they also agreed to submit applications, through Mr. Rukhsar Ahmed Abbasi, (property dealer) to prove the demarcation as per personal Division plan (Annex-D-2) and for waiver of the dues on the suit property. Copy Affidavit by Brigadier Zulfiqar attached Annexe."
No doubt, in latter paragraph, the plaintiffs attempted to plead that dues of the suit house were paid and bank draft was prepared at the instruction of appellants/defendants and 31.01.2005 was fixed as last date of deal and so on and so forth, but before whom, the plaint is silent. A plain reading of the above para of the plaint reflects that it does not specify terms and conditions of the agreement. The evidence produced by the respondents/plaintiffs does not depict that the appellants had either received the earnest money or sale consideration was passed to them from the respondents to bind them to bargain. The plaintiffs/respondents in the present case did not set out particulars of such oral agreement in terms of Order VI Rule 2 of the Civil Procedure Code, 1908 read with Form No.47 and 48. It will be advantageous to reproduce the same herein below.
"2. Pleading to state material facts and not evidence: Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence....and in rule 3 it is provided that the forms in Appendix A when applicable, and where they are not applicable forms of the like character, as nearly as may be, shall be used for all pleadings.
"47. Specific Performance (No.1)
(i) agreement (ii) immovable property therein described (iii) for the sum of rupees (iv) the plaintiff has called upon the defendant specifically to perform the agreement on his part (v) the plaintiff has been and still is ready and willing to perform agreement on his part of which the defendant has had notice (vi) facts showing when the cause of action arose and that the Court has jurisdiction (vii) The value of the subject matter of the suit for the purpose of jurisdiction is rupees and for the purpose of Court fee is rupees."
"48. Specific Performance (No.2)
(i) agreement which is hereto annexed (ii) the immovable property described in the agreement
(iii) the tendered payment (iv) the demanded transfer of the suit property (v) the plaintiff is still ready and willing to pay the purchase money of the said property to the defendant and (vi) that the defendant transfers the said property to the plaintiff by a sufficient instrument following the terms of agreement."
In my view, the agreement was void due to uncertainty as envisaged in section 29 of the Contract Act, therefore, it could not be enforced as provided by section 21 (c) of the Specific Relief Act, 1877. It is also strange that no period was fixed for completion of agreement in paragraph No.9 of the plaint. In the present case, the appellants have specifically denied the claimed oral agreement to sell and payment of any sale price thereunder. The respondents/plaintiffs in order to discharge onus of proof examined five witnesses including the statement of one of the claimant/respondent.
It was pleased by the respondents that agreement was made in presence of Brigadier Zulfiqar (PW-1) and his wife. However, they did not mention her name despite the fact that she was their sister. They also failed to produce her as a witness in support of their claim for the reasons best known to them. She could have been best evidence of vital importance. It is by now settled that litigant is required to observe rule of best evidence and if best evidence is available and withheld, then in such situation, a presumption under illustration (g) to Article 129 of Qanoon-e-Shahadat Order, 1984, fairly be drawn that had said evidence been brought on record, same would have been unfavourable to said litigant. Non-production of her as a witness makes the claim of the respondents highly doubtful. Now coming to statement of Brigadier Zulfiqar, it was observed that PW-1, being brother-in-law of the respondents/ plaintiffs, he is an interested witness, as admitted by him during cross examination that the plaintiffs are his brothers-in-law. He deposed that at the time of inspection of the documents on 10.09.2004, it was agreed upon that dues of the GDA will be paid by the buyers and the same would be adjusted towards total consideration, which is Rs.2,700,000/-, However, as stated in the preceding para, this fact is not mentioned in Paragraph No.9 of the plaint. It is also noted that the affidavit Ex.PW 2/13 submitted by Brigadier Zulfiqar (PW-1) does not speak about the payment of dues to GDA and its adjustment towards total sale consideration. It is by now settled that no person can be allowed to plead evidence beyond the scope of pleadings, and even if such evidence is led, the same can conveniently be ignored by the Court. Therefore, while ignoring this part of evidence, there is no proof that the parties agreed upon that the dues of GDA will be paid by the buyers and the same would be adjusted towards total consideration, which is Rs.2,700,000/-. The scan of the evidence on the file shows that PW-2 Khurram Khan Panni, who is an advocate by profession, as admitted by him in his cross- examination, he is one of the respondent/ plaintiff, deposed that the appellants orally agreed and asked the plaintiffs to deposit the dues of the defendant No.4 and shall also pay commission to Mr. Rukhsar Ahmad Abbasi (PW-3) (property dealer), who made efforts in the purchase of the suit property and retain the remaining amount approximately Rs.110,000/- as part of total consideration and shall pay the remaining consideration of Rs.2,590,000/- through demand draft to be prepared in the name of Mushtaq Ahmad (co-appellant) and fixed 31.01.2005 as last date of the deed, which is also reflected from the receipts and affidavits submitted by PW-3 and demand draft Ex.PW 2/2, Ex.PW 2/3 and Ex.PW 2/4, respectively. This demand draft Ex.PW 2/4 was issued in the name of Malik Mushtaq only. He was neither authorized by other appellants to receive the remaining sale consideration nor was appointed as their attorney to do so. However, the said demand draft was cancelled by the respondent, as admitted by PW2, consequently, no money was transferred in the account of the said appellant. So far as the clearance of dues of Hazara Hill Tract through Ex.PW 2/5 is concerned, it does not reflect that it were paid by the respondents on the instruction or request of the appellants. No doubt, the publication Ex.PW 2/10 had been made in the newspaper on the instruction of Khurram Khan Panni (co-plaintiff) regarding deal of the suit property, however, it does not confirm in any manner that bargain was struck between the parties, being a unilateral publication. During arguments, learned counsel for the respondents heavily placed reliance on the application Ex.PW 5/1, allegedly submitted by the appellant for obtaining ownership certificate for the sale of the suit property, however, the appellants raised serious objections on its genuineness and denied its execution by stating that it was not submitted by them. During trial, no efforts were made by the respondents/ plaintiffs to get the appellants' signatures verified through handwriting expert. Rukhsar Ahmad Abbasi was produced as PW-3. The record reveals that he too had submitted two affidavits Ex.PW 2/3 and Ex.PW 2/11. Perusal of contents of Ex.PW 2/3 reveals that he is neither witness of the oral agreement, nor any terms and condition of the agreement were settled before him which was allegedly executed between the contesting parties, nor speak about payment of dues to GDA and settlement of his commission and thereafter its adjustment towards sale consideration. However, contrary to that, he in the affidavit Ex.PW 2/11 and statement recorded before the learned trail Court gave details regarding payment of dues to GDA and his commission and its adjustment towards sale consideration: In his statement before the learned trial Court, he did not speak about the date of completion of agreement. PW-5 Mazhar Hussain, Clerk of GDA in his eross-examination admitted that there is nothing in the record of GDA to show that appellants had authorized anyone to deposit the dues of the suit house to GDA. He also admitted that the publication Ex.PW 2/10 does not speak about earnest money. Regarding demarcation of the suit property (Ex.PW 4/1) PW-4 deposed that it is unofficial and has no legal value. In cross examination he stated that it does not carry official stamp or signature of any officer of GDA. While replying to a question, he answered that it was not submitted by the plaintiffs. The application Ex.PW 4/1 depicts that it was addressed to Director GDA, even the note recorded on Ex.PW 4/1 reveals that pursuant to the said application no order was passed by the competent authority to carryout demarcation of the suit property. It is also an admitted fact that possession of the suit house is still with the appellants. in view of the discussion made hereinabove, it can safely be concluded that the respondents have failed to prove that an oral agreement was executed between the contesting parties.
11. Now turning to the second preliminary objection of the learned counsel for the respondents/plaintiffs as to whether this Court can, in second appeal reappraise the evidence and disturb the concurrent findings of the Courts below, which are not based on the grounds mentioned in. section 100 CPC as argued by the learned counsel for the respondents. In this respect, I seek guidance from the most celebrated judgment of the Honourable Supreme Court of Pakistan reported as 'Sheikh Akhtar Aziz v. Mst Shabnum Begum and others' (2019 SCMR 524). It will be advantageous to reproduce para-14 page 531 of the judgment, hereinbelow:- "As far as the argument of the learned counsel for the appellant that the learned High Court had travelled beyond the parameters of section 100, C.P.C., the same in the facts and circumstances of the case has been found by us to be totally misconceived Although in second appeal, ordinarily the High Court is slow to interfere in the concurrent findings of fact recorded by the lower fora. This is not an absolute rule. The Courts cannot shut their eyes where the lower fora have clearly misread the evidence and came to hasty and illegal conclusions. We have repeatedly observed that if findings of fact arrived by Courts below are found to be based upon misreading, non-reading or misinterpretation of the evidence on record, the High Court can in second appeal reappraise the evidence and disturb the findings which are based on an incorrect interpretation of the relevant law. We have examined the record and found that the issues have not properly been determined by the lower fora and there are material and substantial errors and defects in the reasoning and conclusions drawn by the trial as well as the first appellate Court which materially affected the outcome of the case on merit. The High Court was therefore, in our opinion, quite justified in interfering with this matter and correcting the errors of the lower fora in order to do complete justice."
Under the circumstances of the case, I found that the findings of the learned lower fora were vitiated by misreading of evidence on record. In my view, the impugned judgments and decrees of the Courts below are the result of misreading, non-reading and its mis-interpretation, therefore, the same can conveniently be termed as substantial error, which resulted in gross miscarriage of justice falling within the ambit of section 100 CPC, therefore, it can be upset being not sustainable in the eye of law. I have gone through the record minutely; it transpires that issues have not been properly determined by the learned lower fora and there are material and substantial error and defect in the reasoning and conclusion drawn by the learned trail Court as well as the first appellate Court, which materially affected the result of the case on record, calling for interference.
12. For the foregoing reasons, this appeal is allowed and the impugned judgments and decrees of both the Courts below, being result of misreading and non-reading of evidence on record and its misinterpretation, are set aside, and suit filed by the respondents is dismissed, leaving the parties to bear their own costs. However, the respondent No.3 is directed to refund the dues of the suit property, deposited by the respondents No.1 and 2.