SHAHID BILAL HASSAN-J: This single judgment shall decide the captioned appeal as well as connected appeal bearing R.F.A.No.78460 of 2017, having been filed against one and the same impugned judgment and decree.
2. Succinctly, the respondent No.1 namely Nadeem Akhtar is owner of suit land measuring 301- Kanals situated at Village Chattabad, Tehsil & District Hafizabad. Sarfraz Iqbal, respondent No.2 instituted a suit for specific performance of contract on 05.03.2011 against the respondent No.1 alleging therein that respondent No.1 entered into an agreement to sell with him regarding the suit land for a consideration of Rs.18,000,000/- and received Rs.3,000,000/- as earnest money vide document dated 04.02.2009; that period to accomplish the agreement was fixed till 04.03.2011. The respondent No.1 contested the suit and denied the execution of the agreement to sell ibid and receipt of any earnest money.
On 14.03.2014, the present appellant namely Amer Saleem also instituted a suit for specific performance of contract against Nadeem Akhtar, respondent No.1 and also impleaded the respondent No.2 namely Sarfraz Iqbal in the array of defendant(s) by maintaining that agreement to sell dated 01.03.2011 was entered into with him by the vendor/ owner for a consideration of Rs.51,000,000/- (five crore ten lac only); that earnest money of Rs.30,000,000/- (three crore only) was paid and period of accomplishment of agreement was fixed till 15.03.2011. The respondent No.1 filed consenting written statement and execution of agreement to sell, receipt of earnest money and sale consideration was admitted. The respondent No.2 contested the suit on different factual and legal grounds by submitting written statement.
Both the suits were consolidated by the learned trial Court and consolidated issues were framed.
Both the parties adduced their evidence in pro and contra. The learned trial Court, on conclusion of trial dismissed both the suits vide impugned judgment and decree dated 27.03.2017. The agreement to sell dated 04.02.2009 in favour of Sarfraz Iqbal was declared as forged, while the agreement to sell dated 01.03.2011 in favour of the appellant was declared as ante-dated and a counter-blast to the other agreement to sell. The valuation of the agreement to sell of Sarfraz Iqbal was Rs.18,000,000/-, hence, he filed the appeal in the Court of learned District Judge, Hafizabad. The valuation of the agreement to sell in favour of the appellant was Rs.51,000,000/- therefore, he has filed the appeal in hand before this Court. The connected R.F.A.No.78460 of 2017 was initially filed before the District Judge, concerned, which has been consolidated with the instant appeal.
3. Heard.
4. At the inception, it is observed that during course of arguments, the learned counsel appearing on behalf of the respondent No.1 namely Nadeem Akhtar Mirza has submitted duly sworn in affidavit, attested by Oath Commissioner on behalf of Nadeem Akhtar Mirza, contents whereof are reproduced as under:- Affidavit of Nadeem Akhtar Mirza S/O Col.Muhamamd Saalam Baig Mirza, Resident of Village Chatta Dad Tehsil and District Hafizbad. On oath
1. That the appeal R.F.A.No.23090 of 2017 titled as Aamer Saleem Vs. Nadeem Akhtar etc. against the decree dated 27.03.2017 is pending in the Lahore High Court Lahore and fixed for today i.e. 14.02.2019. I am the respondent No.1.
2. That my stance in the trial Court was consenting with the appellant Aamer Saleem. In the appeal, my stance is still the same. I thus state on oath that the appeal of Aamer Saleem may be accepted and his suit as prayed for may be decreed.
3. That I am permanently in CANADA and presently in Pakistan. Since I am going back to CANADA and would not be able to attend the Court in person hence, this affidavit may be considered as final and absolute statement by me.
Deponent.
Verification.
Verified on oath at Lahore on this 14th Feb. 2019 that the contents of the contents of above affidavit are true and correct to the best of my knowledge.
Deponent.'
After submission of the said affidavit, when the record maintained by the learned trial Court has been gone through, it has emerged that the said Nadeem Akhtar Mirza, respondent No.1, while submitting his written statement in suit titled "Aamer Saleem v. Nadeem Akhtar Miza, etc." submitted his conceding written statement having no objection on decreeing the suit in favour of Aamer Saleem and he also submitted written statement in suit titled "Sarfraz Iqbal v. Nadeem Akhtar Mirza, etc." and in reply to para 1-alif (on facts) he denied the entering of agreement to sell dated 04.02.2009 with Sarfraz Iqbal but admitted the execution of agreement to sell dated 01.03.2011 with Aamer Saleem, the present appellant for a consideration and denied that the same is ante-dated. After such a vivid admission on behalf of Nadeem Akhtar Mirza, there was no need to produce the marginal witnesses of the said document, because the case of Aamer Saleem is covered by Article 81 of the Qanun-e-Shahadat Order 1984. The simple reading of Article 81 divulges that where the execution of a document is admitted by the executant himself, the examination of attesting witnesses is not necessary. In this regard reliance is placed on Muhammad Afzal (Decd.) through L.Rs. and others v. Muhammad Bashir and another (2020 SCMR 197). Consistent stance of the Nadeem Akhtar Mirza, defendant, remained that he entered into agreement to sell with Aamer Saleem, the appellant and he, even, tendered a sworn affidavit before this Court. It is a settled principle of law that admitted facts need not to be proved, so production of two attesting witnesses in the case of Aamer Saleem was not necessary. In this regard reliance is placed on Muhammad Rafique and others v. Manzoor Ahmad and others (2020 SCMR 496), wherein it has been held that:- 'Now, the record and in particular the pleadings of parties clearly show that the vendor (i.e. the original contesting defendant) did not deny execution of the agreement to sell. A fact admitted need to be formally proved. Reliance in this regard was correctly sough to be placed on Muhammad Iqbal v. Mehboob Alam 2015 SCMR 21, where (at pg.25) this settled principle of law has been reiterated. Indeed, the cited judgment was also in relation to a suit for specific performance and the admission of the agreement to sell in the written statement.' (emphasis supplied)
5. In view of the above, when the stance of the appellant Aamer Saleem was admitted by Nadeem Akhtar Mirza, the learned trial Court ought to have proceeded with the matter as per mandate of Rule 6 of the Order XII, Code of Civil Procedure, 1908, which provides:- '6. Judgment on admissions. Any party may, at any stage of a suit, where admission of fact have been made, either on the pleadings, or otherwise, apply to the Court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties: and the Court may upon such application make such order, or give such judgment as the Court may think just.'
6. Pursuant to the above discussion and while placing reliance on the judgments supra, we conclude that after unequivocal and categorical admission as well as no objection on decreeing suit of Aamer Saleem by Nadeem Akhtar Mirza, the original vendor/owner of the disputed land, the impugned judgment and decree to his extent cannot be allowed to sustain further.
7. As far as the suit of the respondent No.2/appellant in connected R.F.A.No.78460 of 2017 namely Sarfraz Iqbal is concerned, it is observed that the said respondent No.2 has miserably failed to substantiate his stance by leading unimpeachable, trustworthy and confidence inspiring evidence as the witnesses produced by him are inconsistent on material points and even both the witnesses are interested ones, because P.W.2 is servant of Sarfraz Iqbal and P.W.3 is his brother in law, so keeping in view the material discrepancies as to proceeding towards the office of Sub-Registrar and managing of remaining sale consideration, their evidence has rightly been discarded by the learned trial Court. Moreover, the respondent No.2 namely Sarfraz Iqbal while appearing in the witness box admitted that he did not manage the remaining sale consideration when he allegedly visited the office of Sub-Registrar. So much so, Sarfraz Iqbal admitted that no receipt for purported payment of huge amount of Rs.3,000,000/- as earnest money was executed; such stance cannot be believed. The alleged agreement to sell in favour of Sarfraz Iqbal is written on plain paper and name of scribe is missing thereon, which speaks volumes about its veracity and the learned trial court has rightly observed that non-production of scribe of the document Ex.P1 amounts to withholding the best available evidence and it may be inferred that said scribe if had been produced would not have supported the stance of the respondent No.2/appellant in connected appeal namely Sarfraz Iqbal as per Article 129(g) of the Qanun-e-Shahadat Order, 1984.
Even the respondent No.2 did not make any exertion to get the signatures of Nadeem Akhtar Miza, respondent No.1 compared with the admitted one after specific denial of execution of agreement to sell Ex.P1 and making of signatures thereon by him (Nadeem Akhtar Mirza). The learned trial Court has compared the signatures of Nadeem Akhtar Mirza on Ex.P1 with the admitted ones (made on written statement and reply to application) in exercise of jurisdiction under Article 84 of the Qanun-e-Shahadat Order, 1984 and found the same different. When we put a bird's eye view over the disputed document Ex.P1 and admitted signatures of Nadeem Akhtar Mirza, we have found the assessm ent and comparison made by the learned trial Court to be true and correct. In Messrs Waqas Enterprises and others v. Allied Bank of Pakistan and 2 others (1999 SCMR 85), the Apex Court of the country held:- '7. It is settled principle that in certain eventualities Court enjoins plenary powers to itself compare the signature alongwith other relevant material to effectively resolve the main controversy.'
In this regard further reliance is placed on judgment reported as Ghulam Rasool and others v.
Sardar-Ul-Hassan and another (1997 SCMR 976).
8. Pursuant to the above, we find no misreading and non-reading of evidence alleged to have been committed by the learned trial Court while non-suiting the respondent No.2/ appellant in connected appeal R.F.A.No.78460 of 2017 namely Sarfraz Iqbal, as he failed to prove his case by leading sound and solid evidence.
9. For the foregoing reasons, the appeal bearing R.F.A.No.23090 of 2017 is allowed, impugned judgment and decree to the extent of dismissal of suit of Aamer Saleem is set aside, consequent whereof the suit of Aamer Saleem is decreed with a direction to deposit the remaining sale consideration Rs.21,000,000/- (two crore 10 lacs only) with the Deputy Registrar (Judicial) of this Court within 30 days, failing which his suit will be deemed to have been dismissed, whereas the connected appeal bearing R.F.A.No78460 of 2017 preferred by Sarfraz Iqbal, while maintaining the impugned judgment and decree, stands dismissed. No order as to the costs.