CH. MUHAMMAD IQBAL, J. Through this single judgment, I intend to decide the titled Civil Revision [No.1291/ 2011] as well as connected Civil Revision No.515/2011, as both these cases have been against the same judgment and decree dated.
2. Brief facts of the case are that the Muhammad Sarwar, respondent No.1 [hereinafter referred to as "the respondent/ plaintiff'] filed a suit for specific performance against the petitioner [hereinafter referred to as the "petitioner/ defendant] contending therein that he purchased the land measuring 98 Kanal 06 Marla situated in Moza Jajja Tehsil Pattoki District Kasur from Muhammad Siddique (husband of the petitioner/ defendant) through an agreement to sell dated 07.07.1992 against consideration of Rs.250,000/- out of which Rs.200,000/- were paid as earnest money, it was settled that remaining consideration would be paid at the time of execution of the sale deed. Muhammad Siddique died on 21.08.1992 whereafter his legal heirs, the petitioner/ defendant refused to perform part of the agreement to execute the sale deed.
The respondent/plaintiff initially filed suit only against Mst. Kosar Bibi, petitioner/defendant and on her alleged conceding statement, it was decreed on 04.12.1993. Thereafter, petitioner (Mst. Kosar Bibi) as well as Ali Muhammad etc. (respondents Nos.2, 3 and 5) filed two separate petitions under section 12(2), C.P.C. which were accepted by the learned trial Court on 31.03.2001, the judgment and decree dated 04.12.1993 was set aside and the suit was revived. The order dated 31.03.2001 was challenged by the respondents but the said order remained upheld by this Court.
Thereafter, the petitioner/defendant as well as respondents Nos.2, 3 and 5 filed contesting written statements. The learned trial Court framed issues, recorded pro and contra evidence of the parties and finally dismissed the suit vide judgment and decree dated 24.04.2009. The respondent/plaintiff filed an appeal which was allowed by the learned appellate Court vide judgment and decree dated 09.02.2011, the judgment and decree dated 24.04.2009 passed by the learned trial Court was set aside and the suit filed 9 by the respondent/plaintiff was decreed as prayed for. Hence, these civil revisions. "Whether the plaintiff is entitled to the decree for specific performance of the contract as prayed for?"
Onus probani of this issue was upon the respondent/plaintiff who appeared as P.W.1 and deposed that he purchased the land measuring 98 Kanal 06 Marla from Muhammad Siddique against consideration of Rs.250,000/- in the presence of Yaqoob and Riaz, who had died; that the agreement was written by Rafiq Shah Stamp Vendor, Pattoki who had also died; that he paid Rs.200,000/- in the presence of Yaqoob, Alif Din and Kosar Bibi agreement (Exh.P.1) was written; after death of Siddique, her widow refused to execute sale deed; that he filed a suit wherein compromise was effected and he paid Rs.70,000/- to defendant and decree was passed but thereafter petition under section 12(12), C.P.C. was accepted; that the defendants are in possession of the suit property. During cross-examination, he deposed that:--
3. I have heard the arguments of learned counsel for the parties and have gone through the record with their able assistance.
4. The controversy in this case revolves around issue No.1. which is as under:-- Muhammad Yaqoob (P.W.2) deposed that about 15 years ago agreement was written; that Sarwar entered into an agreement with Siddique for consideration of 250,000/-; that he is the marginal witness of the agreement. During cross-examination, he deposed that:-- Alaf Din (P.W.3) deposed that about 15 years ago, agreement was written in his presence.
5. Conversely, Kosar Bibi (D.W.1) deposed that her husband Muhammad Siddique who was owner of land measuring 98 Kanal 06 Marla; that he died about 15 years ago; that no agreement was executed by Siddique in favour of plaintiff nor he received any consideration; that plaintiff committed fraud; that her husband died in Services Hospital due to cancer; that he remained sick for about 06 months; that after the death of hoc. husband, plaintiff told her to accompany him for some help; that he took her 'to Chunian and told that he had transferred the land in her name and forcibly got her thumb impressions; that she refused to impose thumb impression; that she filed petition under section 12(2), that the stamp paper 18 a forged document. In cross-examination, she deposed that her husband was an educated person and was Lumbardar of the village; that she is an illiterate woman. In support of her assertions, the respondent defendant produced Sardar Muhammad Anwar (D. W.2)
6. Perusal of the evidence shows that the respondent/plaintiff as well as his witnesses did not describes the exact date of the execution of the alleged agreement to sell. The respondent/plaintiff produced only Muhammad Yaqoob, one marginal witness of the alleged agreement to sell and nothing has been disclosed with regard to the second marginal witness of the transaction. Under Article 17 read with Article 79 of the Qanun-e-Shahadat Order, 1984, it is duty of the beneficiary/ respondent No.1 to prove the alleged agreement to sell by producing two marginal witnesses but here in this case admittedly one marginal witness namely Muhammad Rafique was not produced in evidence by the petitioner/plaintiff without any reason which is blatant non-comp-liance of the above mandatory provision of law. Thus it can conveniently be held that the respondent/plaintiff has Mailed to prove the execution of the alleged agreement to sell as per law. Reliance is placed on Mst. Rasheeda Begum and others v. Muhammad Yousaf and others (2002 SCMR 1089), Hafiz Tassaduq Hussain v. Muhammad Din through L.Rs. and others (PLD 2011 SC 241) and Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 SC 187).
7. Furthermore, as per the stance of the respondent/plaintiff, one of the marginal witnesses of the alleged agreement to sell namely Muhammad Riaz had already died at the time of recording evidence but the respondent/plaintiff did not make any effort to prove the alleged agreement to sell through the mode prescribed under Article 80 of Qanun-e-Shahadat Order, 1984. Reliance in this regard is placed on cases cited as Sheikh Muhammad Muneer v. Mst. Feezan (PLD 2021 SC 538) and Muhammad Ali v. Sohawa (deceased) through L.Rs. and others (2019 CLC 626).
8. The order passed in petitions under section 12(2) C.P.C. (Exh.D.1), shows. that the respondent/plaintiff committed, fraud with the petitioners/ defendants. The said order was challenged by the respondent/plaintiff but it remained intact by the learned Revisional Court. The respondent/plaintiff did not further assail the said order, as such, the same has attained the status of finality. It is settled law that fraud vitiates the most solemn proceedings and any edifice so raised on the basis of such fraudulent transaction, that stood automatically dismantled and any ill-gotten gain achieved by committing fraud cannot be validated under any legal norms/laws. Reliance in this regard is placed on Muhammad Attique v. Jami Limited and others (PLD 2010 SC 993), Khursheed Begum and others v. lnam-ur-Rehman Khan and others (PLD 2009 Lahore o 552), Nawab Syed Raunaq and others v. Chief Settlement Commissioner and others (PLD 1973 SC 236), The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331) and Lahore Development Authority v. Firdous Steel Mills (Pvt.) Ltd. (2010 SCMR 1097).
9. Even otherwise, the grant of decree for specific performance comes within the sole discretionary power of the court which can refuse to grant the relief on the principle of equities even if the suitor has proved the case, as settled by the Hon'ble Supreme Court of Pakistan in its judgment titled as Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others (2019 SCMR 524) wherein it is held as under:-- "16. Finally, there is no cavil with the proposition that relief of specific performance is discretionary in nature and despite proof of an agreement to sell, exercise of discretion can be withheld if the Court considers that grant of such relief would be unfair and inequitable."
And similar principle has been reiterated in the case titled as Muhammad Miskeen v. District Judge Attock and others (2020 SCMR 406).
10. In view of above, it can conveniently be observed that the F respondent/plaintiff has miserably failed to substantiate his claim agitated in the plaint through any convincing and trustworthy evidence. These material facts have not been considered by the learned appellate Court who by committing misreading and non-reading of the evidence decided issue No.1 in favour of the respondent/plaintiff and against the petitioners/defendants, as such, these findings of the learned appellate court are not sustainable in the eyes of law which are hereby reversed and this issue is decided against the respondent/plaintiff.
11. From the above, it is established that the learned appellate Court did not consider the oral as well as documentary evidence and by committing misreading and non-reading of evidence, passed the impugned judgment and decree which suffers from patent illegality and irregularity, as such, the same is liable to be set-aside. Reliance is placed on the case of Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others (2016 SCMR 24).
12. Resultantly, this civil revision is allowed, the judgment and decree dated 09-02-2011, passed by the learned appellate Court is set aside and the judgment and decree dated 24.04.2009 passed by the learned trial Court is upheld. No order as to costs.