MUHAMMAD SHAN GUL, J. Through this judgment the titled civil revision is sought to be decided.
2. This civil revision has been filed against judgments dated 22.5.2012 passed by a learned Addl.
District Judge and 09.5.2011 passed by a learned Civil Judge whereby the suit for specific performance of an agreement to sell filed by the petitioner was dismissed and the dismissal was upheld in appeal. This civil revision seeks to challenge concurrent findings recorded by the courts below.
3. Facts in brief are that the petitioner instituted a suit for specific performance of an agreement to sell alongwith permanent injunction against the respondent Ghulam Mustafa in respect of land measuring 04 kanals 02 marlas situated at Khasra No.497, Kot Bhutta, Tehsil and District Gujranwala. The petitioner stated that respondent Ghulam Mustafa was owner of 04 kanals 2 marlas land who had was agreed to sell the same to the petitioner in lieu of consideration of Rs.80,000/- vide agreement to sell dated 29.3.2004 and the respondent received Rs.50,000/- as earnest money and balance price of Rs.30,000/- was to be paid by 31.5.2004. That on 31.5.2004 the petitioner went to the respondent and paid up the remaining Rs.30,000/- and the respondent in the presence of witnesses signed on the back of the agreement to sell and delivered possession to the petitioner. But that thereafter the respondent reneged and refused to execute the sale deed and which is what prompted filing of the civil suit in question.
4. In the civil suit the respondent appeared and filed a contesting written statement and denied the factum of agreement to sell and, likewise, denied receiving any earnest money and attributed fraud to the agreement to sell in question. Thereafter, the respondent did not appear before the trial court and, hence, ex parte evidence of the petitioner was recorded and vide judgment dated 09.5.2011 the suit filed by the petitioner was dismissed on account of trite and acknowledged legal flaws which shall be discussed later.
5. This prompted the petitioner to file an appeal before the District Court and, likewise, vide judgment dated 22.5.2012, the appeal filed by the petitioner also met the same fate and was dismissed.
6. Learned counsel for the petitioner submits that in the presence of clear admission on the part of the respondent in his written statement about the agreement to sell there was no need for him to prove the agreement to sell in question and legal flaws noted by the courts below were not applicable in his case. He has relied on "Mst. Rasheeda Begum and others v. Muhammad Yousaf and others" (2002 SCMR 1089) and "Muhammad Shafi through L.Rs and another v. Aamir Hameed and others" (2013 CLC 131) to reinforce his submissions.
7. Notice was issued to the respondent but no one has appeared on his behalf.
8. In order to analyze the contentions raised by the counsel for the petitioner it is necessary to analyze and compare paragraph No.3 of preliminary objections in the written statement filed by the respondent with paragraph No.3 of facts in the written statement so as to appreciate the contention raised by the counsel for the petitioner: {URDU TEXT}}
9. It is evident from a perusal of these parts of the written statement that nowhere, not even for once, has the respondent admitted any agreement to sell between the parties. In fact, the respondent has unequivocally stated that the suit was based on malice; that the respondent had never entered into any agreement to sell with the petitioner and rather the respondent had only leased out the land in question to the petitioner and that by virtue of fraud and misrepresentation the Patta Nama for the lease in question had been sought to be converted fraudulently into an agreement to sell; that the suit merited to be dismissed. That, likewise, in reply to paragraph No.3 on facts the respondent has clearly averred that the suit in question was based on a figment of imagination; that the respondent never entered into any agreement to sell or contract for sale with the petitioner and had never received any earnest money and that the Patta Nama in respect of lease was being touted as an agreement to sell.
10. The above would reveal that the arguments raised by the counsel for the petitioner about the agreement to sell being admitted by the respondent is misplaced and misconceived. Not even for once has the respondent admitted the agreement to sell and hence it was incumbent upon the petitioner to prove the agreement to sell in accordance with law. The judgments relied upon by the counsel for the petitioner are, on the face of it, distinguishable because no admission is involved in the present matter.
11. The reasons for the concurrent judgments in question are not difficult to discern. In fact, there are triple flaws in the case of the petitioner and, hence, his civil suit was rightly dismissed and the appeal against the same was rightly dismissed as well. The petitioner had to prove the agreement to sell i.e. Exh.P/1 but miserably failed to do so. A perusal of the agreement to sell shows that there were two marginal witnesses of the agreement to sell i.e. Muhammad Iqbal Khan and Muhammad Sadiq. However, the petitioner examined only one of these two marginal witnesses Muhammad Sadiq as PW-2 and did not examine the other marginal witness Muhammad Iqbal. What makes this aspect crucial and fatal is the fact that the petitioner did not produce or examine the scribe of the agreement to sell either. A person who had reduced such agreement into writing was a material witness and his presence and testimony was that much more relevant in view of the fact that only one marginal witness had been produced and in the absence of the second marginal witness the evidence of the scribe would have gained importance and helped the petitioner in establishing and proving his case. Most of all, the stamp-vendor who issued the stamp paper on which the alleged agreement to sell was reduced into writing was, likewise, not produced or examined either. Hence, evidence of only one marginal witness was not sufficient to prove execution of the agreement to sell in issue.
12. Learned counsel for the petitioner has tried to suggest that in view of admission on the part of the respondent there was no need to prove the agreement to sell. But this argument requires a short shrift in view of what has been noted in the preceding narrative with reference to the written statement filed by the respondent who outrightly denied the agreement to sell and declared it fraudulent.
13. Article 79 of the Qanun-e-Shahadat Order, 1984 is reproduced as follows: "79. Proof of execution of document required by law to be attested: 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 given Evidence.
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
14. In "Farzand Ali and another v. Khuda Bakhsh and others" (PLD 2015 SC 187), it has been held at paragraph No.10 as follows: "10. ... it is settled law that an agreement to sell an immovable property squarely falls within the purview of the provisions of Article 17(2) of the Qanun-e-Shahadat Order, 1984 and has to be compulsorily attested by the two witnesses and this is sine qua non for the validity of the agreement. For the purposes of proof of such agreement it is mandatory that two attesting witnesses must be examined by the party to the lis as per Article 79 of the Order ibid."
15. In "Farid Bakhsh v. Jind Wadda and others" (2015 SCMR 1044), it has been held at paragraph No.7 as follows: "7. The deed witnessing the agreement appears to have been signed by two attesting witnesses but appellant examined only one. He to cover up the lapse, in the first instance, sought to construe the requirements of Article 79 as being procedural rather than substantive, and then sought to equate the testimony of the Scribe with that of an attesting witness. But we cannot appreciate any of these arguments unless we know the nature of the document and requirements of law for proving it."
16. In "Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others" (PLD 2011 SC 241), it has been held at paragraph No.8 as follows: "8. The command of the Article 79 is vividly discernible which elucidates that in order to prove an instrument which by law is required to be attested, it has to be proved by two attesting witnesses, if they are alive and otherwise are not incapacitated and are subject to the process of the Court and capable of giving evidence. The powerful expression "shall not be used as evidence" until the requisite number of attesting witnesses have been examined to prove its execution is couched in the negative, which depicts the clear and unquestionable intention of the legislature, barring and placing a complete prohibition for using in evidence any such document, which is either not attested as mandated by the law and/or if the required number of attesting witnesses are not produced to prove it. ...... The purpose and object of the attestation of a document by a certain number of witnesses and its proof through them is also meant to eliminate the possibility of fraud and purported attempt to create and fabricate false evidence for the proof thereof and for this the legislature in its wisdom has established a class of documents which are specified, inter alia, in Article 17 of the Order, 1984."
17. In "Muhammad Andleeb Raza v. Muhammad Nazar and another" (2019 YLR 1974), it has been held at paragraph No.9 as follows: "9. The epitome of above discussion would be that the contract having been executed after promulgation of Order 1984, ibid, its execution ought to have been proved in accordance with Article 79 ibid, but the evidence on record is restricted to only one attesting witness, which does not meet the requirement of the referred provision."
18. Since concurrent judgments of the courts below are based on and rooted in trite law no interference in revisional jurisdiction is warranted and this revision petition is dismissed.