MOHSIN AKHTAR KAYANI, J. By way of this common judgment I intend to decide all the above mentioned matters arising out of same judgment between the same parties.
2. In R.F.A. No. 512 of 2022 appellant Mohammad Qasam Shad has assailed judgment and decree dated 30.07.2022, passed by learned Civil Judge 1st Class-West, Islamabad, whereby, suit for specific performance, permanent and mandatory injunction filed by respondent No.1/Muhammad Iqbal Malik has been decreed in his favor. The appellant/Mohammad Qasam Shad has also filed W.P No.3742 of 2022, with the prayer that the impugned judgment dated 30.07.2022 may be set- aside and his application under section 476 Cr.P.C. filed before the trial court in the suit for specific performance may be accepted. The Review Appeal No. 09 of 2024 has been filed by respondent No.1/Muhammad Iqbal Malik seeking review of order dated 26.04.2024, passed in R.F.A No. 512 of 2022, whereby, this Court has passed direction to get verified signatures of the appellant/Mohammad Qasam Shad on Exh.P.1/1 through hand writing expert.
3. Brief facts referred in these matters are that respondent No.1/Muhammad Iqbal Malik filed a suit for specific performance, mandatory and permanent injunction in respect of House No.6, street No.39, sector F-7/1, Islamabad, which was sold out through an agreement to sell dated 02.04.2012 against sale consideration of Rs.35,000,000/- in presence of marginal witnesses at United Kingdom, whereby, the respondent Muhammad Iqbal had paid an amount of Rs.7,500,000/- as earnest money on 10.12.2012 in presence of witnesses and it was agreed that remaining amount will be paid at the time of transfer of the suit house in the name of respondent Muhammad Iqbal Malik or his nominee. It is claimed that possession of the premises was already handed over to respondent No.1, however the suit property was yet no transferred. Consequently, a suit for specific performance was filed which was contested by the present appellant Muhammad Qasam Shad through written statement, whereby, he denied execution of any agreement and claimed that any such agreement is false, fabricated and fictitious nor the document was signed on the particular date, even he denied receiving of any amount. On the basis of divergent pleadings of the parties the trial court framed issues on 08.05.2017, whereby, the primary issue i.e. issue No.1 was framed as under: "Whether the plaintiff is entitled for a decree for specific performance of agreement to sell dated 02.04.2012 as prayed for? OPP"
The respondent himself appeared as PW.1 and additionally produced Malik Noor Zaman/PW.2, Daleel Khan, PW.3, Muhammad Nazeer Malik/PW.4, Abdullah Malik/PW.5 and Muhammad Saeed Shah as PW.6, whereas, the appellant appeared through special attorney Musarrat Shad/DW.1. The trial court received documentary evidence Exh.P.1 to Exh.P.5/1-2, Exh.DA, Exh.DA/1, Exh.P/D-1 as well as through mark documents. The suit was decreed in favor of the respondent.
4. Learned counsel for the appellant inter alia contends that the trial court has not considered evidence in its true perspective and the agreement to sell/Exh.P.1 has been denied, by the appellant, even the consideration has been denied and respondent No.1/decree holder has failed to prove the entire transaction which is required to be proved in terms of Article-17 of Qanun-e- Shahadat Order, 1984. During hearing of the captioned appeal R.F.A. No.512 of 2022, order dated 26.04.2024 was passed by this Court with consent of the parties to get verified the signatures/Exh.P.1/1 of appellant Muhammad Qasam Shad through hand writing expert. Resultantly, the FIA has declared the said signatures as artificial/printed. It was in the interest of justice that the appellant was allowed to prove his stance by resorting to the forensic science/handwriting expert, therefore, the contention of the appellant has been proved.
5. Conversely, learned counsel for the respondent contends, that he had proved his case through cogent and reliable evidence by producing all the witnesses of the agreement and the transaction, even respondent filed review application of the order dated 26.04.2024 and has also produced original agreement through another C.M. No. 1353 of 2024 dated 02.10.2024 in R.F.A. No. 512 of 2022, which was required for consideration and comparison of the signatures.
6. Arguments heard, record perused.
7. Perusal of record reflects that the appellant Muhammad Qasam Shad is owner of House No.6, Street No.39, Sector F-7/1, Islamabad, which was allegedly sold out to respondent Muhammad Iqbal Malik through agreement Exh.P.1 against consideration of Rs.35,000,000/- in presence of marginal witnesses at United Kingdom, whereby, Rs.7,500,000/- was paid as earnest money on 10.12.2012 in presence of witnesses, and Muhammad Ramzan Shad has received Rs.5.000,000/- on behalf of appellant Muhammad Qasam Shad, though the agreement as well as consideration has been denied by the appellant in his written statement, therefore, issues were framed. As such the primary onus to prove the case of specific performance is upon the plaintiff in terms of Article-117 of Qanun-e-Shahadat Order, 1984. In order to discharge initial burden the respondent Muhammad Iqbal Malik/decree holder appeared as PW.1, whereby, he stated on oath that he purchased the subject house from Khawaja Ghulam Akbar and transferred the same in the name of his brother.
As per stance of PW.1 he obtained POA from owner Khawaja Ghulam Akbar and then shifted in the subject house in the year 1979 with his family, but later on defendant No.2/Muhammad Ramzan Shad transferred the subject house with mala fide in the name of Muhammad Qasam Shad the appellant. PW.1 further took the stance that Muhammad Qasam Shad and Muhammad Raman Shad who were in financial constraints expressed their intention to sell out the suit house, therefore, in the presence of entire family appellant entered into agreement to sell on 02.04.2012 against total sale consideration of Rs.35,000,000/- and Rs.7,500,000/- was paid in shape of 50,000/- through banking channel, whereafter, he paid additional amount of Rs.5,000,000/- through separate receipt and then deposited the balance sale consideration of Rs.25,000,000/- in the court account.
8. During the course of cross-examination PW.1/Muhammad Iqbal Malik acknowledged that Exh.P.1 was executed on 02.04.2012 at United Kingdom which was written by Muhammad Qasam Shad, even the terms were fixed by him. The price was fixed on 15.03.2012, though the same was not written in the agreement. The document/Exh.P.1 was not executed on the stamp paper neither Exh.P.1 was verified from Pakistan Embassy in UK nor by the Birmingham Consulate, and suit was filed on the basis of simple agreement which he states as under: The respondent/PW.1 Muhammad Iqbal Malik has also acknowledged another astonishing fact that: In addition to above the respondent Muhammad Iqbal Malik produced PW.2/Malik Noor Zaman who acknowledged that: He further confirms that: As such the evidence of PW.2/Malik Noor Zaman is out of consideration as he does not fall within the required parameters of Article-79 of Qanun-e-Shahadat Order, 1984, whereas, PW.3/Daleel Khan claims that both the parties are known to him and he was present at the time of execution of agreement between real brothers, however, during the course of cross-examination be confirmed that: Therefore, the above statement also stands excluded in terms of Qanun-e-Shahadat Order, 1984.
The fourth witness produced by the respondent/decree holder was Muhammad Nazeer Malik. He is also known to both the parties and confirms that both the parties entered into the deal in question in his presence, whereas, agreement was executed in United Kingdom and he was present at the time of agreement where consideration was fixed at Rs. 35,000,000/-. During the course of cross- examination PW.4 was confused and was not able to verify the number of house whether the same was House No.10 or House No.06 and confirms that: Similarly, his evidence is also not of any credibility as he is neither a witness to the content nor to the execution of document/Exh.P.1. The other witness Abdullah/PW.5 the real son of respondent/Muhammad Iqbal Malik, recorded his evidence through E-Court who confirmed that Exh.P.1/1 was executed in his presence on 02.04.2012 and he recognized his signature as Exh.P.1/1/2 and all the parties have signed the document in his presence. He also asserted that 50,000/- were paid by the plaintiff/respondent from Pakistan in the family company account Jupitor properties of defendant No.1/Muhammad Qasam Sham which is equivalent to Rs.7,500,000/-. He also produced witness statement Exh.PW.5/1 and confirmed his thumb impression on signature.
During the course of cross-examination he confirmed that he signed the document on 02.04.2012 and had also recorded his statement on 24.02.2015 in embassy of Pakistan. He further confirmed that Muhammad Saeed Shad has not put his thumb impression on the agreement. The most astonishing fact which he acknowledged was that his father was not present in United Kingdom when he put his thumb impression on the agreement through following evidence: The last witness produced by the decree holder/respondent was PW.6/Muhammad Saeed Shad who acknowledged that Iqbal Malik and Muhammad Qasam Shad both are his relatives whereas, Qasam Shad is his brother and the plaintiff was his real uncle and younger brother of his father. He confirmed that 50,000/- were received in United Kingdom whereas, remaining consideration had to be paid within a period of one year which was not paid and agreement was cancelled. He acknowledged his signature Exh.P.1/11.3 on the agreement. During the course of cross-examination he acknowledged that he is patient of paralysis and his speech has been effected. He is not aware qua the date of execution of the agreement. He further confirmed that:
9. While considering the above evidence of 06 plaintiff witnesses, certain astonishing factors surfaced on record which are as under: i. The marginal witnesses are not clear about the date, time and transaction and there is contradiction among the statement of witnesses. ii. The payment of 50,000 as part of earnest money was not proved. iii. Three witnesses were not actual witness of the execution or contents of the agreement. iv. The document in question was executed in United Kingdom. v. The attestation of the document was carried out later on in the embassy. vi. The amount of 50,000/- as sale consideration was received in Jupitor Properties account which has nothing to do with the appellant. vii. There is inconsistency between the witnesses with respect to execution and contents of the agreement. viii. Abdullah Malik/PW.5 when put his thumb impression on the agreement, the plaintiff/decree holder was in Pakistan. ix. Muhammad Saeed Shad/PW.6 confirms that the agreement was cancelled due to non- payment.
10. All these aspects if seen in context of valid agreement it appears that the terms and condition narrated by the witnesses are entirely different from the written document Exh.P.1, therefore, in such eventuality when the terms and conditions of agreement were not certain as drawn from the contents of the statements of six PWs the specific performance of such an agreement could not be enforced, even otherwise, cancellation of agreement to sell has been established by PW.6/Muhammad Saeed Shad. Though, the appellant has taken altogether different stance that no such agreement was executed nor any payment was made, therefore, during the course of arguments before this Court, I have confronted both the sides as to why the agreement was not verified from handwriting expert because that is the only better way to settle the issue as to whether the document was signed by the appellant Muhammad Qasam Shad or otherwise and such aspect was conceded by both the sides, resultantly, order dated 26.04.2024 has been passed to the following effect: "After hearing the initial arguments at some length, both the parties have been confronted with Exhibit P-1/1, which has been denied by the appellant, who is owner of the property in question and denies his signatures on the agreement to sell, however, at this stage, learned counsel for respondent No.1 contends that he has earlier filed application for obtaining hand writing expert opinion qua signatures of appellant/Muhammad Qasam Shad on Exhibit P-1/1, but his application was turned down, consequently, he filed Writ Petition No. 2599/2022, but during pendency of said writ petition, learned Trial Court has decided the main suit, resultantly, his petition has become infructuous.
2. At this stage, both the parties are in agreement to get verify the signatures of the appellant/Muhammad Qasam Shad on Exhibit P-1/I through hand writing expert with any admitted document on record including but not limited with his signatures on CNIC in the NADRA record, Special Power of Attorney Exhibit D-A as well as Wakalat Nama submitted in the Court of learned Senior Civil Judge.
3. In view of above, office is directed to transmit above referred exhibits/documents to the hand writing expert of FIA for verification and comparison of signatures of the appellant/Muhammad Qasam Shad. Office shall also prepare the paper books with the assistance of learned counsel for appellant."
11. In compliance of above order this Court received report from FIA handwriting expert dated 07.06.2024 to the following effect: "Finding: The scientific examination of the documents in the above mentioned case with the help of Video Spectral Comparator (VSC ), Microscope and Magnifier has revealed that the questioned signature marked as QS on the original sale agreement dated 02.04.2012, Exhibit P-1/1 (2 pages), is affixed by artificial means (printer) and bears the characteristics of printed signature with respect to the provided specimen and routine signatures of Muhammad Qasam Shad on 9 attested specimen sheets marked as SI to S9, and R-1 to R-VIII on original special power of Attorney Exhibit D-A, original Wakalat Nama, original Overseas Pakistani CNIC, and original British and Pakistani Passports of Mohammad Qasam Shad"
12. In view of above development it appears that the document Exh.P.1 is forged document and signature of the appellant has been managed through printer which is not original, though this Court is mindful of the fact that evidence of handwriting expert is of a weak type of evidence and same is not of conclusive in nature rather expert's A evidence is only confirmatory or explanatory of direct or circumstantial evidence, but this confirmatory evidence demolishes the entire case of plaintiff and supports the case of appellant. The spirit of Article-59 of Qanun-e-Shahadat Order, 1984 would certainly aid and assist the court in determining genuineness or originality of thumb impression on disputed documents and adjudication of matter as held in 2019 CLD 894 (Lal Din v.
Muhammad Saleem (Deceased)). This Court for the purposes to resolve the root issue has ample powers to transmit the disputed document to handwriting expert for comparison, even the court itself was entitled to make independent comparison of handwriting apart from opinion of expert as contemplated by Article-84 of Qanun-e-Shahadat Order, 1984, as held in 1996 SCMR 464 (Muslim Commercial Bank Limited v. Amir Hussain), 2022 SCMR 933 (Khudad v. Syed Ghazanfar Ali Shah alias S. Inaam Hussain and others) and 2010 YLR [Sindh] 358 (Gulzar Nathani v. Naeem Ahmad), therefore, considering all these aspects and case of denial highlighted by the appellant through his evidence of DW.1 which is apparently clear that alleged agreement Exh.P.1/1 was not attested by two witnesses or marginal witness at the time of its alleged execution.
13. As it was the job of learned trial court to send the agreement Exh.P.1 for verification of signatures to the handwriting expert and it has such powers which the learned trial court overlooked to avail.
The provision of C.P.C. are merely rules of procedure and subservient to cause of justice. Such laws do not control the power of court to pass an order necessary for doing full justice in the circumstances of a case a held in 2005 CLC [Lahore] 686 (Giyani Khan v. Sher Ali) and 1997 SCMR 1692 (Province of Punjab v. Col. Abdul Majeed).
If the trial court has not framed the particular issue despite the fact that the case of appellant in written statement is based upon question of forgery of document, denial of execution of40HD agreement, its signature or even non receiving of sale consideration, the trial court is bound to at least exercise its inherent power for: i. Summoning of witness of record; ii. Call for author of the document, iii. Call witness of execution or content, or may; iv. Send the document for verification to handwriting expert for comparison of signature or thumb impression, or may; v. Compare the signature by itself with other admitted signatures.
All the above factors are not dependent upon the application of any party to the suit as the function of court is to determine the truth on the basis of evidence for which court can go deeper, beyond the available evidence or to the extent of those facts and procedures even which do not surface on record or have been brought on record. The extra ordinary powers of trial court to do complete justice are not limited in extra ordinary and exceptional circumstances where justice demands to: i. Ask any question to pay or confront any evidence, ii. Compel the party to produce any document; iii. Issue notice to admit fact, or; iv. Cross-examine the party or record better statement; v. Confront any document whether primary or secondary.
14. The appellate court in terms of powers conferred in Order XLI Rule 33, C.P.C. can make any order which ought to have been passed or made to pass or make such further order as the case may require. The appellate court under the said rule is empowered to invoke the provision to do complete justice or prevent the end of justice from being defeated and adjust the right of parties in accordance with the principle of natural justice, equity and good conscious as held in PLD 1989
[SC] 597 (Salah ud Din But v. Punjab Service Tribunal) and 2012 SCMR 1258 (Syed Sharif ul Hassan through LRs v. Hafiz Muhammad Amin and others)
An appeal being continuation of original suit; the appellate court can pass any order that can be made by trial court in the interest of justice. Section 107 C.P.C. provides powers of the appellate court which includes the power to determine a case finally. However, the appellate court in unique situation such as the one in the instant appeal to avoid delay and to save the parties from further lengthy procedure before remand, may put the following scenario to the parties e.g. i. To achieve consent of parties for calling of any person as witness who was not even produced by the parties neither mentioned in the list of parties; ii. Transmit the disputed document to handwriting expert for any confirmatory evidence, or; iii. May draw adverse inference against the party who is refusing to answer the question on oath or to refuse to file affidavit of fact qua any issue.
Though in such scenario both the parties must he given fair chance to explain the circumstances after the result of the question. document or a situation which may arise afterwards. The inherent powers of trial court under section 151 C.P.C. can be exercised at any stage of trial or at appellate stage if situation requires with or without consultation or objection of the parties.
15. Now adverting towards the findings given by learned trial Court on issue No.1, it appears that all these factors were not appreciated, even the entire conclusion drawn by the trial court while adjudicating issue No.1 is on the wrong principles, especially, when the very ;issue is otherwise not proved where Article-17, read with Article-79 of Qanun-e-Shahadat Order, 1984, puts specific limitation in every case of specific performance that if a document is required by law to attested at least by two witnesses, the same shall not be used as evidence until two attesting witnesses have been called for the purpose to prove its execution. Whereas, the evidence reflects that there are multiple differences between terms and conditions, time, date and place of execution and authenticity of signature which was finally confirmed by handwriting expert report that it was artificially placed through printer which was alleged by the appellant.
16. Learned counsel for respondent No.1 also argued his case on the strength of another application which was filed as C. M. No.1353 of 2024 in R.F.A. No.512 of 2022 with the claim that he has produced sale agreement as well as the receipts which were kept in safe custody at his house in United Kingdom and he produced the second page of the original agreement and receipt. Though the signature has already been declared forged, it further indicates that the signature are different from the admitted signature of Muhammad Qasam Shad. There is yet another astonishing factor that Exh.P.1 has a different clause-II in comparison to the original document produced today in the court, therefore, both the clauses have to be reproduced side by side which are as under: Clause No.Appended as Exh.P. 1Appended with CM No.1353/24 II And Seller will be responsible for all dues, taxes and misc. charges/expenses etc, and should be paid to CDA at the time of Tranfar, but if any charges/dues, installment (whole or part) is found at any later stage after transfer of the said house, the same shall be cleared and paid by the Buyer And Buyer will be responsible for all dues, taxes and misc, charges/expenses etc. and should be paid to CDA at the time of transfer, but if any charges/dues, installment (whole or part) is found at any later stage after transfer of the said house, the same shall be cleared an paid by the Buyer, Any payments will not be deducted by the Buyer from Sellers total sale price of 35 million Pakistani Rupees.
By comparing these two clauses I have confronted respondent No.1 who is present in the court along with his counsel, whereby, he could not answer this-aspect as to why there is a stark difference in clause-II of two documents which was produced by him as Exh.P.1/1 and now he has produced another second page of another document without any explanation as to where is the first page of the document. These aspects indicate towards a dubious conduct of the respondent No.1 who is unable to explain his own position and tried to improve his case by doing misrepresentation, therefore, original document (as claimed by the respondent) appended with C.M. No.1353 of 2024 shall be impounded for all legal proceedings.
17. All these factors persuaded this Court to conclude that respondent No.1 has failed to prove the agreement, its validity, even consideration factor. It is settled law that claim of specific relief is a discretionary relief and even in case where agreement to sell has been proved the exercise of discretion can be withheld by the court as held in 2019 SCMR 524 (Sheikh Akhtar Aziz v. Mst.
Shabnum Begum), 2015 SCMR 828 (Adil Tiwana v. Shaukat Lillah Khan Bangashi and 2017 SCMR 1696 (Muhammad Abdul Rehman Qureshi). The provision of section 22 of Specific Relief Act spells out equitable relief and discretion to the court, whereby, the court is not bound to grant such relief merely. because it is lawful to do so as held in 2012 SCMR 900 (Muhammad Sharif v. Nabi Bukhsh). There is no bar upon the court to refuse the relief, even when the agreement was proved as held in PLD 2015 (SC] 187 (Farzand Ali v. Khuda Bakhsh).
18. This Court while dealing with the civil appeals in present case noted the wastage of time in the trial court where simple issues of execution and denial of agreement could have easily been settled by adopting the following procedures by the trial court: i. Record the better statement of parties with reference to the core issue in terms of Order X Rule 2, C.P.C. on the first date of hearing; ii. Direct the parties to produce all their original documents/record for inspection of the court in terms of Order XI Rule 14, C.P.C.; iii. Direct the parties to admit or deny the facts by giving affidavit in terms of Order XIX C.P.C.; iv. Direct the parties to place interrogatories in terms of Order XI C.P.C.; v. Appoint commission in terms of section 75 read with Order XXVI C.P.C. to record any statement, inspect any site, office or place; vi. Direct the parties to adopt any process of alternate dispute resolution including but not limited to mediation or negotiation, etc. if so agreed; vii. Summon the record keeper of Registrar Officer, CDA, Revenue, FGEHA or any other office to verify the title of the parties.
However, in the instant case, the trial court did not bother to look into the lethargic approach adopted by the plaintiff who has produced numerous PWs, out of which only two witnesses are relevant. The trial court should have directed the parties to place their timeline to produce the necessary evidence in terms of scheduling conference concept under Order IX-A and may issue warning with details of cost to be imposed in future if any delay had been noted in conclusion of evidence. Furthermore, the trial court must direct the parties to submit their cost of litigation statement, as mandated under the Costs of Litigation Act, 2017 and elaborated by this Court in 2022 CLC [Islamabad] 1064 (Edwin Coe LLP v. Naseim Ahmed Sarfraz), to include the following: i. The title of the matter, the case reference for the proceedings in relation to which costs are being filed and the name of the parry s counsel, his bar registration credentials and the number of years he has been in the practice of law as a licensed attorney. ii. The lump-sum fee charged by the counsel for the proceedings if the fee is payable an lump- sum basis, or the per hearing fee charged by counsel, or the hourly rate charged by the counsel and numbers of hours consumed in relation to the proceedings in question, as the case may be; iii. Incidental expenses incurred in relation to the proceedings, including expenses incurred in copying of documents and filing of the memoranda and pleadings; iv. Expenses incurred in procuring the report or testimony of any expert, required for such proceedings; v. Expenses incurred in relation to production of witnesses and documentary evidence; vi. Travel expenses incurred by the party to attend court proceedings, whether by itself or its attorney; Ili. Fees paid for service of notices; viii. Cost incurred in acquiring copies of court orders and pleadings of other parties; ix. Court fee; Stamp fee; Therefore, the High Court may issue practicing direction to the District Judges of each Division, to notify the administrative judges other than trial court who can verify the plaints, documents and claims of the parties at first instance and if that court is prima facie of the view that the suit is proceedable, then the matter may be, transmitted to other courts for conducting the trial, so that frivolous suits be eliminated at the first instance. It is also very important to note down here that if unnecessary time has been spent in conclusion of any trial due to unnecessary adjournments given by court, production of evidence, or failure to decide pending applications, whereby, no cost has been imposed in terms of the Costs of Litigation Act, 2017, the District Judge/MIT shall issue a report to the High Court with observations, after notifying the same to the trial judge, whereafter, special counseling sessions be given to such officer, whose working should he monitored for the next six months, and if he/she fails to improve, his case be transmitted to the AC committee for departmental action.
This Court has also observed that the trial courts are often reluctant to allow applications of production of evidence, summoning of witnesses, calling of record, correction/recasting of issues, etc. which later on at appellate stage culminate to remand the case and cause further delay in execution of justice, which in return creates trust deficiency among the citizens/common people.
Therefore, miscellaneous applications should be allowed liberally, unless the trial court comes to conclusion that such applications were filed to cause intentional delay.
19. After considering all these factors this Court is of the view that the trial court has committed serious error while appreciating the evidence, therefore, the impugned judgment and decree dated: 30.07.2022 is hereby SET-ASIDE and RFA stands ALLOWED.The review application through which order dated: 26.04.2024 was sought to be reviewed has become infructuous as the order has been complied with and hand writing expert report was received during its pendency therefore, review application bearing No. 9 of 2024 stands DISMISSED. As for as the Writ Petition No.3742 of 2022, whereby the petitioner has challenged dismissal of application in terms of section 476 Cr.P.C, is concerned the same stands ALLOWED and matter is remanded to the court concerned for decision afresh on merit to the extent of application under section 476 Cr.P.C, keeping in view the findings recorded by this Court as well as after hearing the parties including but not limited to recording of pro and contra evidences.