SHAHID BILAL HASSAN, J. Succinctly, the respondent instituted a suit for possession through specific performance of agreement and permanent injunction with regards to agreement dated 02.09.2005 germane to the disputed property, allegedly entered into by the petitioner with the respondent for a sale consideration of Rs.10,00,000/- out of which Rs.200,000/- was paid as earnest money and remaining amount was to be paid on 02.12.2005 at the time of execution of the registered sale deed, against the present petitioner, which was duly resisted by her while submitting written statement. The learned trial Court, out of the divergent pleadings of the parties, framed issues and evidence of the parties was recorded. The learned trial Court, thereafter, vide impugned judgment and decree dated 18.12.2010, after hearing arguments of learned counsel for the parties, decreed the suit in favour of the respondent/plaintiff and against the petitioner/defendant. The petitioner being aggrieved of the said judgment and decree preferred an appeal; the learned appellate Court vide impugned judgment and decree dated 23.01.2012 dismissed the appeal; hence, the instant civil revision.
2. Heard.
3. Article 17(2)(a) of the Qanun-e-Shahadat Order, 1984 provides that in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly; meaning thereby when two persons enter into any agreement pertaining to financial or future obligations, the instrument should be attested by two men or one man and two women, so that one may remind the other. In the present case, it is case of the respondent that the petitioner entered into agreement to sell the disputed property in a consideration of Rs.10,00,000/- in presence of witnesses, thereafter the agreement was reduced into writing on 02.09.2005 and possession was delivered to him, which is still with him, this shows that the requirement of Article 17 of the Order, 1984 was fulfilled in letter and spirit.
Article 79 of the Qanun-e-Shahadat Order, 1984 enumerates the procedure of proof of execution of document required by law to be attested; for ready reference the said provision of law is reproduced here:- `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, and subject to the process of the Court and capable of giving evidence.'
However, in the present case, the execution of alleged agreement to sell is admitted one and it is specifically written in the same that the present petitioner would provide copy of Fard Milkiyat to the respondent 10 days prior to the target date, so that the stamp papers for the registered sale deed could be purchased and further proceedings could be completed, but the present petitioner admittedly did not provide the Fard Milkiyat as per terms of the agreement to sell because the alleged agreement to sell was not unilateral but was reciprocal. Thus, it is the petitioner who has failed to perform her part of agreement. Even she tried to further sale out the property, which forced the respondent to institute a suit for permanent injunction and injunctive order was obtained therein from the Court of competent jurisdiction. In a judgment, relied upon by the learned counsel for the petitioner, reported as Mst. Rehmat and others v. Mst. Zubaida Begum and others (2021 SCMR 1534), the Hon'ble Supreme Court of Pakistan has invariably held that:- "10. The crucial question that now requires consideration of this Court is as to whether the time is essence of the agreement dated April, 1973. Perusal of the said agreement reveals that the vendor Mst. Ashfaq Jahan sold the suit property as an absolute owner to the respondent No.1 Mst. Begum in lieu of Rs.45,000/- (Rupees Forty-Five Thousand Only), whereof a sum of Rs.500/- was paid as earnest money as mentioned in clause (1) of the said agreement. Clause 2 of the said agreement mentioned that "The balance of the said sale price that is, Rs.44,500/- (Rupees Forty Four Thousand and Five Hundred) only shall be paid by the SECOND PARTY to the FIRST PARTY in cash before the Registrar Hyderabad, at the time of registration of sale deed in respect of the said property or if the parties agree, at any time before registration. It is pertinent to mention here that no cut-off date was given in the sale agreement for the payment of remaining sale consideration as it was settled between the parties that the remaining sum could be paid at the time of registration of sale deed or at any time before registration. Clause 4 of the said agreement made it mandatory for the "First Party" that is the vendor Mst. Ashfaq Jahan to obtain all documents necessary for registration of the suit property in the following terms: "4) That the FIRST PARTY shall obtain all documents necessary for registration of the said property in the name of the SECOND PARTY, namely:- i. Income Tax clearance certificate. ii. No objection certificate from the Excise and Taxation Authority, Hyderabad. iii. Certificate/Receipt showing payment of electricity and water charges. iv. Mutation in the City survey record kept in the City Survey office, Hyderabad. ---."
11. ---------. These conditions manifest that the agreement dated April 1973 contained reciprocal promises on the part of vendor as well vendee and both the parties were required to perform their respective part of the contract in order to accomplish the sale transaction; however, the vendor failed to perform her part of reciprocal obligations and did not procure requisite documents, except the Income Tax Clearance Certificate; which is also apparent from the perusal of notices Ex.19, Ex.116, Ex.118. As the vendor Mst. Ashfaq Jahan herself failed to perform her part of contract, therefore, she could not rescind and revoke the agreement dated April 1973, after the delivery of possession of the suit property to the respondent No.1 and the receipt of a sum of Rs.36000/= i.e. 80% of the total sale consideration in part performance of sale transaction. It can safely be concluded that the time was never the essence of the agreement dated April 1973 and the failure on the part of the promisor/vendor to perform her part of contract could not put her into a position of rescinding or revoking the contract in terms of section 51 of the Contract Act, 1872.
Moreover section 54 of the Contract Act, 1872 even makes the promisor liable to make compensation to the promise for any loss suffered by him due to non performance of a reciprocal promise on the part of promisor. Section 54 reads as follows:- "54 Effect of default as to that promise which should be first performed.--- In contract consisting of reciprocal promises. When a contract consists of reciprocal promises, such that one of them cannot be performed, or that its performance cannot be claimed till the other has been performed, and the promisor of the promise last-mentioned fails to perform it, such Promisor cannot claim the performance of the reciprocal promise, and must make compensation to the other party to the contract for any loss which such other party may sustain by the non- performance of the contract."
Moreover, in the present case, the petitioner did not exhibit any document but "marked", which has no sanctity in the eye of law as has been held in Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others (PLD 2010 Supreme Court 604) that:- "The document which has not been brought on record through witnesses and has not duly exhibited, cannot be taken into consideration by the Court."
Furthermore, the Hon'ble apex Court ruled in State Life Insurance Corporation of Pakistan and another v. Javaid Iqbal (2011 SCMR 1013) that:- 'We are not convinced that, such document, which has not been produced and proved in evidence but only "marked" can be taken into account by the Courts as a legal evidence of a fact.'
The said ratio was ruled in Anwar Ahmad v. Mst. Nafiz Bano through Legal Heirs (2005 SCMR 152).
Requirements of Article 76 of the Qanun-e-Shahadat Order, 1984 were not adhered to, thus, relying upon marked documents would be illegal as has been held in Fazal Muhammad v. Mst. Chohara and others (1992 SCMR 2182).
Apart from the above, it is a settled proposition of law that admitted facts need not to be proved; however, in the present case, the respondent produced one marginal witness and scribe of the agreement to sell (Ex.P1). Receiving of earnest money is not denied by the petitioner and she only stated that the respondent did not appear in the office of Sub-Registrar for registration of the sale deed and payment of remaining sale consideration, but as observed above, the petitioner did not provide copy of Fard Milkiyat to the respondent as per settled terms of the agreement to sell; thus, the learned Courts below after evaluating evidence on record in a minute manner have reached to a just conclusion that the respondent is entitled to the decree for specific performance of agreement to sell and discretionary relief has rightly been granted to him (respondent).
4. In addition to the above, concurrent findings recorded on facts, when do not suffer from any misreading and non-reading of evidence, howsoever erroneous, cannot be interfered with in exercise of revisional jurisdiction. Reliance is placed on Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469), Cantonment Board through Executive Officer, Cantt. Board Rawalpindi v. Ikhlaq Ahmed and others (2014 SCMR 161) and Muhammad Farid Khan v.
Muhammad Ibrahim and others (2017 SCMR 679).
5. In view of the above, the learned Courts below have rightly exercised vested jurisdiction and have not committed any illegality and irregularity while passing the impugned judgments and decrees, warranting interference by this Court in exercise of revisional jurisdiction. Resultantly, while placing reliance on the judgments supra, the civil revision in hand having no force and substance stands dismissed. No order as to the costs.