SHAHID BILAL HASSAN, J.
Succinctly, the respondent, on 19.06.2010, instituted a suit for specific performance of agreement to sell dated 19.04.2010 regarding the suit property measuring 178-Kanals 18-marlas situated in Mauza Mehram Sial, Tehsil and District Jhang, against the present appellants, which was duly contested by them while submitting written statement. Out of the divergent pleadings of the parties, the learned trial Court framed issues and evidence of the parties in pro and contra was recorded. The learned trial Court decreed the suit in favour of the respondent/plaintiff vide impugned judgment and decree dated 27.01.2016. The appellants being aggrieved preferred an appeal bearing R.F.A.No.287 of 2016 before this Court; however, on 30.06.2016 pursuant to promulgation of Punjab Civil Courts Ordinance, 2016 the above noted RFA was forwarded to the District Court Jhang for adjudication which was dismissed vide impugned judgment and decree dated 04.02.2021 by the learned appellate Court; hence, the instant regular second appeal.
2. Heard.
3. It is claim of the appellants that they are illiterate, rustic and village household ladies. In respect of a transaction germane to property with a pardanasheen, village household and rustic ladies, the Apex Court of the country in a judgment reported as Phul Peer Shah v. Hafeez Fatima (2016 SCMR 1225) has given the parameters and conditions to be fulfilled in a transparent manner and held that:- 'In case of a (property) transaction with an old, illiterate rustic village Pardanasheen in lady the following mandatory conditions should be complied with and fulfilled in a transparent manner and through evidence of a high degree so as to prove the transaction as legitimate and dispel all suspicions and doubts surrounding it:- i. That the lady was fully cognizant and was aware of the nature of the transaction and its probable consequences; ii. That she had independent advice from a reliable source/person of trust to fully understand the nature of the transaction; iii. That witnesses to the transaction were such, who were close relatives or fully acquainted with the lady and had no conflict of interest with her; iv. That the sale consideration was duly paid and received by the lady in the same manner; and v. That the very nature of transaction was explained to her in the language she understood fully and she was apprised of the contents of the deed/receipt, as the case may be.'
Moreover, this Court has held that old and illiterate ladies are entitled to the same protection which is available to the Parda observing lady under the law, reliance is placed on Muhammad Afzal v.
Muhammad Zaman (PLD 2012 Lahore 125). Furthermore, in Ghulam Muhammad v. Zahoran Bibi and others (2021 SCMR 19), the Apex Court of country has held:- 'It is settled law that the beneficiary of any transaction involving parda nasheen and illiterate women has to prove that it was executed with free consent and will of the lady, she was aware of the meaning, scope and implications of the document that she was executing. She was made to understand the implications and consequences of the same and had independent and objective advice either of a lawyer or a male member of her immediate family available to her. '
In a recent judgment reported as Muhammad Naeem Khan and another v. Muqadas Khan
(decd) through L.Rs. and another (PLD 2022 Supreme Court 99), the Apex Court of the country has invariably held:- 'If any such plea is taken then it is a time-honored parameter that in case of a document executed by a pardanashin lady, the' burden of proof is on the party who depends on such a deed to persuade and convince that Court that it has been rad over and explicated to her and she had not only understood it but also received independent and disinterested advice in the matter. The aforesaid parameter and benchmark is equally applicable to an illiterate and ignorant woman who may not be a pardanashin lady. If authenticity or trueness of a transaction entered into by a pardanashin lady is disputed or claimed to have been secured on the basis of fraud or misrepresentation, then onus would lie on the beneficiary of the transaction to prove his good faith and the court has to consider whether it' was done with freewill or under duress and has to assess further for an affirmative proof whether the said document was read over to the pardanashin or illiterate lady in her native language for her proper understanding.'
However, in the present case, none of the above said parameters have been met with and no such evidence, showing that the appellants were having an independent advice and were fully aware and cognizant of the nature of the transaction, was brought on record by the respondent.
Moreover, evidence as a whole has to be read and considered. The appellant No.2 while appearing in the witness box as D.W.1 consistently denied the alleged fact of entering into purported agreement to sell Ex.P1 by the appellants with the respondent as well as execution of receipt Ex.P2 after receipt of earnest money and in a categorical manner stated that the notice Ex.P4 is forged and fictitious. Even she did not show her reluctance when a question was put upon her that if her thumb impressions and signatures are set for comparison, rather she had no objection on sending her signatures and thumb impressions for comparison. However, the respondent, after such a categorical no objection, did not move any application for sending the signatures and thumb impressions of the appellants to the finger print bureau for comparison purposes, which omission goes against the respondent that had the same been sent, adverse report would have been received, which would have been against the present respondent. Apart from this, the learned Courts below have used pick and choose method while recording its findings especially referring recording its findings especially referring to half suggestion, which otherwise was:- In addition to the above, the payment of alleged earnest money of Rs.500,000/- has also not been proved because the respondent while putting suggestion, which has been denied by the D.W.1 as such that 'It is incorrect that I received Rs.500,000/- as earnest money. It is incorrect that after that I received Rs. 1,000,000/-.' himself improved rather negated the averments made in the plaint in this regard, because the payment of Rs.1,000,000/- subsequently was not pleaded by the respondent.
Even for the sake of arguments, it is admitted that the respondent has succeeded in proving his case, it is a settled law that suit can be refused to be decreed even if the agreement has been proved it is a discretionary relief and this discretion can be exercised on equitable terms. Since it is discretionary relief and in the present circumstances, the same can be refused as law bid down by the Apex Court of the country 1994 SCMR 111:- 'Grant of specific performance of agreement being discretionary relief can be refused even if execution of agreement was proved.'
4. Pursuant to the above discussion, the impugned judgments and decrees are nothing but a result of misreading and non-reading of evidence on record, which cannot be allowed to hold field further.
5. The crux of the discussion above is that the appeal in hand is allowed, impugned judgments and decrees dated 27.01.2016 and 04.02.2021, passed by the learned Courts below are set aside, consequent whereof suit instituted by the respondent stands dismissed. No order as to the costs.