' The plaintiff has brought the suit for specific performance of the contract of sale of immovable property. In the alternative he has claimed decree for the amount advanced by him and damages besides praying for grant of consequential reliefs.
' The plaintiff's case as disclosed in the plaint is based on the following averments:- ' The defendant No,1 is the owner of the property being plot of land bearing No, 333/A, Block No, 1 measuring about 249 sq. yards or thereabout situated in K .D.A .'s Town Expansion Scheme No,24 Ghulshan-e-lqbal, Karachi with construction thereof (hereinafter referred to as the sale property).
The construction on the aforementioned plot was made by the defendant No,l by investing his own money and also by taking loan of Rs,38,000 from the House Building Finance Corporation, Karachi which was secured by executing a mortgage deed in favour of the said corporation. According to the plaintiff he being in need of accommodation for his family was induced by the defendant No,2 who is the father of the defendant No,1 to purchase the said property and it was represented by the defendant No,2 that he was the lawful attorney of the defendant No,1 his son, by virtue of a registered instrument executed on 6-2-1975. According to the plaintiff against the receipt, dated 4th April, 1978 a sum of Its.5,000 was paid as advance to the defendant No,2 received the same from the plaintiff, wherein the total sale consideration was shown Its .1,175,000 but subsequently in agreement of sale which was executed on 25-5-1978 by the plaintiff and the defendant No,2 the bargain was struck at Rs,1,50,000 for the sale and purchase of the said property. A photo stat copy of the said agreement was filed along with the plaint marked 'A' which during the evidence was subsequently marked Exh. 5/2.
' It was also pleaded that besides payment of Rs,5,000 under the receipt dated 24th April, 1978 but before the execution of the said agreement of sale (Exh. 5/2) the plaintiff paid a further sum of Rs,50,000 by means of Cheque No, SCG 058730, dated 21st May. It was also pleaded that under the said agreement, the defendant No,1 acting through his father/attorney namely the defendant No,2 was under an obligation to hand over vacant possession of the said property to the plaintiff by 7th June, 1978.
' A joint application, dated 25th May, 1978 for the transfer of loan in favour of the plaintiff was made to the House Building Finance Corporation at Karachi. A photo stat copy of the said application was filed with the plaint as Annexure 'B' (subsequently marked Exh. 5/4). In the meantime in order to expedite the transfer of the loan in his favour the plaintiff paid sum of Rs,13,000 to the House Building Finance Corporation at Karachi towards the outstanding installments as the mortgagor/defendant No,1 had not paid a single installment.
' At the request of defendant No,2, the plaintiff paid a further sum of Rs,25,000 in addition to the payments of Rs,5,000 and Rs,50,000 already made to the defendants mentioned vide receipt, dated 8th August, 1978 executed by defendant No,2 vide annexure 'C' (Exh.5/8).
' The plaintiff further pleaded that having paid the various amounts mentioned above to the defendant No,2 he now had to pay only Rs,19,000 to the defendants besides Rs,38,000 to the House Building Finance Corporation. According to the plaintiff Rs,13,000 on loan account he had already paid to the said Corporation which had transferred the loan in the circumstances in the name of the plaintiff. The plaintiff also pleaded that he of and on, contacted the defendant No,2 and requested him to hand over peaceful vacant possession of the said property before and after the 7th June, 1978 but the defendant No,2 made lame excuses, avoided to complete the transaction and thus the plaintiff got pay order for Rs,19,000 prepared on 15th August, 1978 which he dispatched under registered insurance cover to the defendant No,2 through postal service but it was not taken delivery of intentionally. In the circumstances the plaintiff after notice filed the present suit.
2.Both the defendants made appearance in the suit and filed a joint written statement wherein inter alia it was pleased that the defendant No,2 is the owner of the property in the suit and that the defendant No,1 wasmerely Benamidar and that the same in the document of title and House Building Finance Corporation was mentioned as a more formality and for the same reason the defendant No,2 acted as a general attorney of the defendant No,1 in whose name the lease of the plot of land was made by the Karachi Development Authority. According to the defendants the bargain was settled at Rs, 1,75,000 and that the defendant No,1 had never participated in the said bargain also for the reason that defendant No,1 had no concern with the ownership of the house which fact according to the defendants had already been disclosed to the plaintiff. According to the plea in the written statement the plaintiff has unnecessarily dragged the defendant No,1 in the Court. It was further pleaded that sale consideration was agreed and settled at Rs, 1,75,000 and this fact was admitted on 24th April, 1978 in the receipt drawn by the defendant No,2 and which had been relied upon in the plaint. It was further pleaded that the plaintiff on 13th May, 1978 had brought draft of the proposed agreement which he handed over to the defendant No,2 for approval wherein also sale consideration settled between the parties was shown to be Rs,1,75,000 a copy of the said draft agreement was produced along with the written statement as Annexure 'A'. The defendant further pleaded that fraud and misrepresentation was committed by the plaintiff. Since this plea 6.-f fraud and misrepresentation alleged by the defendant in para. 5 of the written statement is the foundation of the defense, it would be relevant to reproduce the same in extensor here:- 'That the contents of para. 5 are denied and not admitted. The plaintiff to be put to strict proof thereof. As a matter of fact the bargain of sale, as stated in para. 4 above, was settled at Rs,1,75,000 which is admitted on 24-4-1978 on a receipt drawn by the defendant No,2 and has been relied upon in the plaint with the no objection to it that the sale consideration for Rs,1,75,000 is incorrect.
The plaintiff on 13-5-1978 brought a specimen "draft of agreement and placed the same in the hand of defendant No,2 for approval in which draft also the sale consideration was enumerated that the sale consideration settled between the parties is to be Rs,1,75,000. The plaintiff left the carbon copy of the specimen draft with the defendant. A copy of the same is filed and marked 'A'.
' In the night of 15-5-1978 the plaintiff brought at agreement duly typed on a stamp paper and asked the defendant to sign it. The plaintiff did not disclose to the defendant that the sale consideration has been changed in the agreement to the tune of Rs,1,50,000 instead of the amount Rs,1,75,000.
' The defendant' in good faith signed the agreement as the defendant had no reason in the mind that a fraud is being perpetrated with him. The plaintiff put the defendant entirely in a dark in respect of the change of the amount of consideration. The plaintiff paid another sum of Rs,50,000 and brought a receipt duly stamped and got the signature of defendant thereon. Since the plaintiff had an ulterior motive in his mind and was playing fraud therefore, he did not mention the amount of sale consideration as he had already done in the receipt for Its.5,000 on 24-4-1978. Again the plaintiff brought a 3rd receipt duly stamped and dated 8-8-1978 for obtaining signature of the defendant, this receipt was for Rs,13,000 in which also the amount of sale consideration was not shown. The omission of mentioning of sale consideration was not accidental but purposely the mention of sale consideration was omitted with the sale object "to keep the defendant in a dark of plaintiff's fraud which he has played by reducing the amount of sale consideration to Rs,1,50,000 instead of Rs,1,75,000.
' The defendant served the plaintiff with a notice, dated 24-9-1978 that sale consideration in full was not paid the question of putting the plaintiff in possession of the property does not arise. The plaintiff did not reply the defendants notice and in answer of the defendants notice filed the present suit and after filing of the suit sent a letter dated 3-10-1978. In this letter also the plaintiff did not disclose that the sale consideration has been altered or that what amount of sale consideration was settled between the parties which was also an attempt to keep the defendant in a dark in respect of plaintiffs fraud. That all the time after 24-4-1978 up to the date when the defendant was served with a Court notice of the present suit the defendant have been kept purposely and fraudulently in a dark in respect of plaintiff's fraud made by the plaintiff in the agreement of sale and the plaintiff had been obtaining advantage of defendants No, 2's old age and feeble plight of health. It is surprising that according to the plaintiff stamp paper of the agreement of sale was purchased by the plaintiff on 24th May, 1978 and the impugned agreement of sale was typed thereon 9 days prior to the purchase of it i.e, 15th day of May, 1978. The date purchase has been put by a dating machine and the machine has been put again to change the date of actual purchase which was apparently 4th May, 1978 afterwards to support the bears double impression of the dating machine in respect of month and the year. The figure "2" has been prefixed to figure "4". As a matter of fact this stamp was purchased on 4th May, 1978 and typed on 15th May, 1978 honestly mentioning the sale consideration to be Rs,1,75,000 afterwards when ulterior motive of fraud did ripe in the mind of the plaintiff the date of the stamp was changed and the date of execution of agreement, dated 15-5-1978 had been scored out and another date of 25th day of May, 1978 had been overwritten. This was not a mistake of accidental character but with the intention to conceal fraud page No,2 or the agreement was separately typed and inserted In the agreement. This fact finds support with the very important factor that the 2nd page of the agreement had been typed on a different machine. The pages Nos. 1, 3 and 4 had been typed on a typing machine different from that page No,2.
' The last attempt of concealing fraud from the eye of the defendant is borne out from the joint application in which the plaintiff did not mention the amount of sale consideration and thus kept the defendant in a dark. The fraud came to the knowledge of the defendant when a copy of the plaint was handed over to him with the summons of this llon'ble Court. In this application also the actual date 15th May, 1978 was changed by over writing to 25th May, 1978 which is apparent of the facts of the paper. A copy of the notice, dated 24-9-1978 is filed and marked "B".
' The defendants denied that they were under obligation to deliver vacant possession of the house in question to the plaintiff by 7th June, 1978. They also pleaded that the joint application mentioned in para. 7 of the plaint which was made to the House Building Finance Corporation for transfer the loan was in fact moved on 15th May, 1978. It was pleased that the date 15-5-1978 in the said application was subsequently changed. It was admitted that the sum of Rs,13,000 were paid by the plaintiff to the House Building Finance Corporation.
3. On the pleadings of the parties the Court framed the following issues by consent of the parties:- "(1) Is the suit not maintainable as framed?
(2) Whether the defendant No,1 could lawfully transfer the Benami property in dispute as an ostensible owner?
(3) Whether the bargain was settled at the reduced consideration on price of Rs,1,51,000 for the registration of a conveyance deed?
(4) Whether the defendants as Mortgagors approached the House Building Finance Corporation, Karachi as mortgagees to augment the excellence of the sale of the said property for a consideration price of Rs,1,50,000?
(5) Whether a fraud was committed by the plaintiff on the defendants in the instant transaction?
(6) Whether the defendants wilfully committed a breach of the agreement?
(7) Is the loan of the House Building Finance Corporation still subsisting in the name of the defendant No,1?
(8) Did the defendants decline to accord physical possession of the property in dispute by 7-6- 1978 on receipt of the balance consideration price?
(9) What should the decree be?
(10) General and costs."
4. At the trial the plaintiff examined himself as Exh.
5. Both the defendants examined themselves, their depositions have been as marked Exh. 7 and Exh.
8. They also produced Noor Muhammad (Exh. 6) and Zahid Hussain (Exh. 7) two officers from House Building Finance Corporation. It may be mentioned here that deposition of Mr. Zahid Hussain has also been marked Exh. 7 though deposition earlier made by Muhammad lqbal Qureshi the defendant No,1 had already been marked Exh. 7 which is a minor discrepancy having no bearing un the merits. The last witness examined by the defendant was one Muhammad Ibrahim Exh.
9.
' After hearing the learned Advocate for the parties who had taken me through the record my M/I findings on the issues are as follows:- " Issue No,1. This issue was not pressed by the learned Advocate for the defendants. Issues Nos. 2 & 2-A.were also not pressed by the learned Advocate for the defendants."
5. No arguments were advanced either by Mr. Faizuddin or Mr. A.S. Pingar under Issues Nos. 4, 6, 7 and 8. These issues are accordingly treated as not pressed by any of the learned Advocates for the parties.
6. Issues Nos. 3 and 5 were taken together and the learned Advocates addressed the Court on these issues as the main issues in the suit.
' The issue No,3 is answered in the affirmative while the issue No,5 in the negative.
' My reasons for the conclusions reached as above are as follows!
' Mr. A. Sattar Pingar, Advocate for the defendants argued on behalf of the defendants that the plaintiff cannot claim the specific performance of the agreement of sale (Exh. 5/2) for the following reasons:-
(i) That the dates mentioned in the agreement (Exh. 5/2) of which specific performance is sought have been changed by scoring off "15th" and writing "25th" so as to read "nth day of May, 1978" instead of "15th day of May, 1978" on pages 1 and 4 of the agreement (Exh. 5/2).
(ii) The page No,2 of the agreement (EXh. 5/2) was removed and a new page in its place as page No,2 now appears as if this new page is the part of the said agreement. According to the learned counsel this was done with the intention to show that the lump sum price of the house agreed upon is Rs, 1,50,000 as against Rs, 1,75,000 which was original sale consideration agreed upon between the defendant No,2 and the plaintiff. In support of his contention the learned counsel submitted that color of the page No,2 which appears in Exh. 5/2 is different from the following pages 3 and 4 of the said document Exh. 5/2.
(iii) The first page stamp paper was purchased and bore stamped date "4th May, 1978" but subsequently it was converted to read as "24th May, 1978."
' In order to appreciate the points raised as above in the arguments by the learned Advocate for the defendants I may first refer here to the case of Eshenchunder Singh v. Shamachurn Bhutto and others 11 M.I.A. 7, wherein as to the rule of pleadings and proof it was pointed out as absolute necessity that the determination in a cause should be founded upon a case either to be found in the pleadings or involved in or consistent with the case thereby made, that each proposition of fact set up is a statement which it is incumbent on the part to have distinctly alleged in order that it might be the subject-matter of direct testimony. It was further held:- "It will introduce the greatest amount of uncertainty into judicial proceedings if the final determination of causes is to be founded upon inferences at variance with the case that the plaintiff has pleaded, and by joining issue in the cause has undertaken to prove."
' Reference may also be made to the case of Siddik Muhammad Shah v. Mst. Saran and others AIR 1980 P C 57(1) wherein the principle was laid down that a claim which was never made in the defence presented no amount of evidence can be looked into upon that plea which was never put forward. The principle laid down about pleadings and proof stated above, by the authoritative rule laid down by the Hon'ble Supreme Court of Pakistan in the case of Government of West Pakistan v.
Haji Muhammad PLD 1976 SC 469 (473), as follows:- "It is a well-established rule that if a plea of fact is not pleaded no case can be founded upon it."
' The rule laid down as above has to be strictly applied in cases where a party in his pleadings makes allegations of miss presentation, fraud breach of trust or undue influence and in all other cases in which particulars may be necessary beyond such are exemplified in the forms in Appendix 'A' to the Civil Procedure Code with dates and items if necessary as are required to be stated in the pleadings (Order VI, rule 4, C.P.C.).
7. I would deal with the above rule with reference to the principles of law laid down by the Superior Courts, further hereinafter, after dealing with the averments made in the pleadings, the case set up therein by the parties and the evidence led in the case.
' The plaintiff in his deposition (Exh.5/1) produced receipt, dated 24th April, 1978 in which the consideration for the sale is shown as Rs,1,75,000 out of which Rs,5,000 was paid.
' The plaintiff further stated that he purchased the stamp paper on 24th May, 1978. As to the corrections made in the typed date "15th day of May, 1978" to read "25th day of May, 1978", the plaintiff deposed:- "The agreement was prepared in draft form on 15th May, 1978. This date was mentioned in the draft.
I purchased the stamp paper on 25th May, 1978 and the agreement was typed out on the stamp paper from the draft prepared earlier. The date namely 15th May, 1978 was also typed on this agreement."
' The plaintiff then explained in his deposition:- "This was a mistake because the typist had typed the same date was borne out by the draft. I, therefore, pointed it out to the defendant No,2 and as the agreement was executed on 25th May, 1978 the typed date was corrected to 25th May, 1978 and on all such corrections the signatures of defendant No,2 (was) were obtained. 1 produce the original agreement which is marked Exh. 5/2.
Each page of the agreement bears my signature and the signature of defendant No,2".
' In cross-examination the plaintiff while admitting that colour of page 2 of Exh.5/2 is different from pages 2 and 3 of Exh.5/2, stated that the colour of pages 3 and 4 is same. He further stated:- "All the pages of Exh.5/2 bear signatures of both the parties."
' As regards changes made in the dates and signatures made on such alterations the plaintiff in cross-examination replied:- "In Exh.5/2 the date was typed as 15th May but it was scored off and instead 25th May was written by Yousuf Qureshi. He had changed the date himself. The cutting has been initialled by him. It is incorrect to suggest that I had scored off the date and changed it to 25th. It was done by Yousuf Qureshi and initialled by him. On the last page also the date has been changed by Yousuf Qureshi.
It is incorrect to suggest that the date of purchase of stamp was changed by me."
' Denying the suggestion made the plaintiff expressly stated that it was incorrect to suggest that the dates were changed by him or that he forged the signatures of the defendant Yousuf Qureshi.
When asked about copy which it was suggested was a copy of the draft agreement the plaintiff replied that it .was not the draft agreement which had been prepared by the parties. He further stated that the alleged draft does not bear his signature.
The discussion as above would show that the evidence given by the plaintiff is consistent with the case pleaded in the plaint as to the agreement of sale Exh.5/2 made between the parties, signed and executed by the plaintiff and the defendant No,2 and that it bears the date 25th May, 1978.
' The agreement has been made in the name of the defendant No,1 for whom defendant No,2 acted as the attorney. This gentleman, the defendant No,1 namely Muhammad Iqbal Qureshi has been examined as Exh.7 (D.W.2). He, in examination-in-chief admitted the agreement Exh.5/2 without any reservation or making any allegation of fraud, forgery or alleging any change in the said agreement. In his examination-in-chief in reply to the question put by his counsel Mr. A.S. Pingar, he deposed:- "I am defendant No,1 in this case. Defendant No,2 is my father. I see Exh.5/2 which was executed between the plaintiff and defendant No,2 at Karachi in May, 1978. I was not present at time of execution of the agreement which is Exh..5/2. I had authorised my lathy]. the defendant No,2 through a Power-of Attorney to execute the alLrecinciit which is Exh.5T2 on my behalf. I was not present during negotiation orihe sale of property in dispute at any lilac."
(The underlines have been made by me.)
' The defendant No,1 (D.W.2) (Exh.7) admitted that he was aware of the handwriting and signature of the defendant No,2 his father and then a further question put as to Exh.6/2 (the agreement) he replied in cross-examination as follows:- ' I see Exh.5/2. The signature pn the 1st line of page No,1 signature in the margin on the same page, the three signatures on page No,2 in the margin and one signature in the margin on page No,3, one signature on page No,4 in the last line and one signature over the word Vendor (Attorney) appear to be that of my father but they were not done in my presence I have got good relations with my father."
The above evidence of the defendant No,.1 completely knocks out the new case set up by the defendant No,2 in evidence that the signatures on each page or on the alterations in the dates changing "15th May" to "25th May" are forged. I have no hesitation in observing that the evidence given by the defendant No,2 is false to set up vexatious defence.
8.I now revert to the written statement in which the following pleas of fraud and misrepresentation have been pleaded.
' The sale consideration was not disclosed or shown in some of the documents and letter, dated 3rd October, 1978 sent by the plaintiff and the defendant No,2 was kept in dark in respect of plaintiffs fraud committed in the agreement of sale and the plaintiff had been obtaining advantage of defendant No,2's old age and feeble plight of health.
2. That the stamp paper was purchased on 4th May, 1978 by a dating machine but the machine has been put again to change the date to read 24th May, 1978 instead of 4th May, 1978 by prefixing figure "2" to figure "4".
3. This was not a mistake of accidental character but with the intention to conceal fraud whereby page No,2 of the agreement was separately typed and inserted in the agreement so that sale consideration may be read as Rs,1,50,000 instead of Rs,1,75,000. This fact according to defendants in written statement finds support with an important factor that the 2nd page of the agreement had been typed on a typing machine different from page No,3.
4. The last attempt of concealing fraud from the eye of the defendant is borne out of the joint application in which the plaintiff did not mention the amount of sale consideration and thus kept the defendant in a dark. The fraud came to the knowledge of the defendant when a copy of the plaint was handed over to him with the summons of this Honorable Court. In this application also actual date 15th May, 1978 was changed by over writing to 25th May, 1978."
' The written statement was filed by the defendants after service of summons accompanied by copies of the plaint and the annexures thereto. These annexures included photo stat copy of the agreement of sale Annexure 'A'. This photo stat copy of the agreement was produced by Mr. A.S. Pindar, Advocate for the defendants during his argument in the Court, which according to him is marked 'A' on the first page in his own hand i.e, in the handwriting of Mr. Pingar, Advocate. This copy has been kept by me on the record of this case.
' An important factor to be taken note of in the case is that both these copies which are copies of the original agreement (Exh.5/2 show that wherever the date "15th has been scored off" and 25t written to read as "25th day of May, 1978" these corrections bear the signatures of the defendant No,2. Not only the corrections are initially by the defendant No,2 but on each page in the margin of the agreement Exh.5/2 the defendant No,2 had put his signatures. These signature also can be seen in the photo copy produced by defendants own Advocate In view of these undisputed facts it is evident that the changes in t dates were made by and with the consent of the defendant No,2 himself No allegation of 'forgery in these signatures of defendant No,2 on ea page and on corrections in Exh.5/2 having been raised in the writ statement the attempt made during his evidence by the defendant No that his signatures on the changes in the dates are forged cannot entertained. It is the settled law that all allegations of fraud a forgery in the pleadings which are the basis of defence must be express pleaded with full particulars and that general allegations of fraud a forgery, however, strong may be the words in which they are stat are insufficient even to amount as averments of fraud or forgery which the Court would take any notice. It is also to be remember that a charge of fraud or forgery must be substantially proved as 1: and that where one kind of fraud as pleaded has not been prove another kind of fraud/forgery cannot be allowed to be substituted evidence. Though the proposition of law as abovementioned is support by a large number of decisions of various Courts I would however confine by referring only to some of the authoritative judgments of t superior Courts of Pakistan.
' In the case reported as Muhammad Afzat Khan v. Ch. Manz. Illahi and others PLD 1975 Lah. 1276 a learned Division Bench of Lahore High Court after referring to the provisions of rule 4 or or VI, C.P.C. which provide that in all cases in which the particular: may be necessary beyond such as are exemplified in the forms a particulars (with dates and items if necessary) shall be stated in pleadings, it was held:- "Cases of misrepresentation, fraud breach of trust, wilful defa or undue influence have been specifically mentioned in the r itself. In the present case since forgery of the dissolut deed was being relied upon, it was a case, which fell wit rule 4 and the stating of particulars was necessary.
Th particulars not having been specified the petitioner would ordinarily be allowed to prove the commission of any forger (The underlines have been made by me).
' Reference may now be made to the case reported as Fahd Muhammad and others v. Sheikh Nasirn Ahmad PLD 1979 Lah.
356. the said suit for specific performance of agreement of sale which accord to the plaintiff was not finalized by registration of sale-deed, the t was extended by another agreement executed by the defendants. the sale-deed was not still finalized, the suit was filed for spec performance. The suit was resisted by the defendants who plea that the plaintiff had no cause of action as the date under the agree had already expired. The defendants denied the execution of subsequent agreement extending the time for registration and dubbed he said document, if any, as bogus and fictitious. The suit was decreed y the trial Court against which an appeal was preferred which was also dismissed. The defendant thereupon filed Second Appeal in the High Court.
' The learned High Court proceeded to consider the allegations f fraud and forgery in the light of principles laid down in rule 4 of order VI, C.P.C. and held: "Apart altogether from the above position the learned counsel was asked to argue on the plea of forgery, fraud and misrepresentation keeping in view the provisions of Order VI, rule 4, C.P.C. He could not proceed further and had to abandon this argument, in view of conspicuous absence of not only the particulars but altogether non-mentioning of the alleged fraud and misrepresentation in the written statement. Even the plea of forgery regarding Exh.P.1 in para.4 of the written statement is by way of a cursory mention. Order VI, rule 4, C.P.C. reads as under:- "Particulars to be given where necessary. In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleadings."
It is well-settled that a plea of fraud and misrepresentation, without particulars is not an adequate plea. General allegations, however strong may be the words in which they are stated are not sufficient even to amount to an averment of fraud, misrepresentation, etc. of which any Court ought to take notice. The plea of forgery likewise cannot be taken into consideration unless its particulars are set out. There can also be no dispute to the proposition that the general principles upon which the Courts act in requiring particulars to be given of the allegations or matters stated in plaints are applicable equally to defences and the rules relating to the giving of particulars are in general applicable to all pleadings. This plea raised by the learned counsel, therefore, is also without merit."
' In the present case as well I had called upon the learned advocate for the defendants to point out anything in the written statement wherein inspire the fact that photo stat copy of the original agreement (Exh. 5/2) was available with the defendants, any plea was ken by them that the signatures of the defendant No,2 on page 1, 2 r 4 on the alterations or in the margin on each page of the said greement are forged. The learned counsel for the defendants however as unable to point out to me any such plea in the written statement. he learned counsel however referred to cases reported as Satish handra Chatterji v. Kumar Satish Kantha Roy A I 11 1923 Privy Council 3, Krishnarao Raghunath Yardi v. Ghamon Ghama Valad Chima AIR 935 Bombay 144, Ghulam Mohayyuddin v. Sher Khan 1970 SCMR 00 and Nanmatha Nath Kuri v. Muhammad Mokhlesur Rehman PLD 969 SC 565. After going through these cases I find that they do not dvance the case of the defendants. In the case of Satish Chandra hatterji v. Kumar Satish Kantha Roy and others (Supra) the Honorable Judges of the Privy Council observed that charges of fraud and collusion must no doubt, be proved by those who make them and prove them by established facts or inference from those facts taken together as a whole and that suspicious and surmises and conjectures are not permissible substitutes for those facts or those inferences.
' In the case of Karishan`Rao v. Ghamon Ghama (supra) a learned Judge of the Bombay High Court placing reliance upon the case of Abdul Hoosein v. Turner I L R 11 Bombay 620 held that a charge of fraud must be substantially proved as laid and that when one kind of fraud has been alleged by a party another kind or fraud not alleged by the party in the pleadings cannot be substituted for it on failure of proof of the alleged fraud. This case in my opinion also goes against the defendants who having not pleaded any forgery cannot be allowed now to lead or rely upon any evidence in an attempt to prove a new case of forgery attempted to be set up for the first time at the evidence stage.
' In the case of Manmatha Nath Kurt v. Moulvi Muhammad Mokhlesur Rehman PLD 1969 SC 565 after observing that mere omission on the part of the plaintiff to mention in the plaint that the suit was filed under Fatal Accidents Act would not alter the nature of the suit, it was held that according to the accepted principles of construction, Muffassil pleadings are to be construed liberally.
' In the case of Ghulam Mohayyuddin and another v. Sher Khan and 4 others after repelling the contention raised by the counsel for the petitioners that allegations made in the plaint should not be taken into consideration in proof of the case of the petitioners and evidence produced by them should be looked into for this purpose, while refusing to grant leave to appeal the Honorable Supreme Court held:- "The contention urged by the learned counsel is without substance. It is well-settled principle of law that the allegations in the plaint are to be taken into consideration for finding out the truth of the case set up at the trial."
It would thus be seen that the above cases referred by the learned counsel for the defendants in no way advance the case of the defendant. On the contrary the principles laid down by the Hon'ble Supreme Court in the case of Chulam Mohayuddin v. Sher Khan (supra) knocks out the very basis on which the learned counsel tried to attack the enforcibility and validity of the agreement Exh. 5/2 on the allegation of forgery which allegations were made for the first time during evidenc though such a plea had not been raised by the defendants in thei written statement and upon which even no issue had been framed.
9.In the light of the discussion as above I have no hesitation in holding that the alterations made in the agreement Exh. 5/2 whereby typed written dates "15th" were scored off and "25th" were written in hand so as to read "25th day of May, 1978" were made under the signatures of the defendant No,2 himself.
' Besides, I find that each page of the agreement Exh.5/2 also bears the signature of the defendant No,2 in the margin. The plea that the dates were changed or page 2 was substituted in Exh.5/2 by fraud and forgery, is a false story as I find that even the page No,2 bears signature of the defendant No,2 and that this fact has not been denied or challenged in the written statement.
Here it may be observed that the defendant No,1, who was examined in the case is the son of the defendant No,2. This gentleman in his deposition (Exh.7) expressly admitted after seeing the agreement (Exh. 5/2 that the said agreement was executed between the plaintiff and defendant No,2 at Karachi in May, 1978. He also admitted that he was aware of the handwriting and signatures of his father. This witness, the defendant No,1 throughout his statement at no place stated that any of the signatures in Exh.5/2 (the agreement) was not in the handwriting of his father, the defendant No,2. The property in suit stands in the name of the defendant No,1 on whose behalf the defendant No,2 had agreed to sell the property in suit as per agreement Exh. 5/2 but he did not even allege that the agreed sale consideration was Rs,1,75,000 and not Rs,1,50,000 or that the page No,2 of Exh.5/2 was substituted.
' In the light of the above discussion the plea of the defendant No,2 in the evidence about any alleged forgery which plea had not been taken in the written statement, has to be ignored and rejected as a false plea introduced for the first time in evidence with mala fide intention.
10. Another important fact to take note of is that the agreement (Exh. 5/2) is witnessed by two persons (i) Muhammad Sultan Khan son-in-law of the defendant No,2 and (ii) Muhammad Ahmad Qureshi son of defendant No,2. Their signatures as attesting witnesses on Exh. 5/2 are admitted by the defendant No,2 in cross-examination. They are also shown as witnesses in the list of witnesses filed by the defendants. None of these attesting witnesses, though closely related to the defendant No,2, however was examined. It is obvious that the defendant No,2 rather the defendants withheld these material witnesses and they were not deliberately produced in the Court. In the circumstances on the failure of the defendants to call these attesting witnesses who could give firsthand account of the execution of the agreement Exh.5/2, I am of the opinion, that if these witnesses were examined they would have supported the case of the plaintiff which indeed the defendant No,1 had done during his evidence.
' Having found that Exh.5/2 the agreement of sale is genuine document which was executed by the defendant No,2 and that each page of it bears signature of the defendant No,2 and is attested by his close relatives Mr. Sultan Khan and Muhammad Ahmad Qureshi there is no difficulty in rejecting the plea No,1 raised in the written statement that page No,2 of Exh.5/2 had been substituted in place of the alleged original page No,2, or that the stamp paper was purchased on 4th May, 1978 and its date of purchase was changed so as to read 24th May, 1978.
11. The findings reached as above are further fortified by the fact that the defendants have not produced their own copy of the agreement of sale (Exh.5/2). Had they produced the said copy it would have shown the same dates as in Exh.5/2 and that the page No,2 of the agreement had not been substituted as alleged.
For the same reasons I find no difficulty in holding that there was no fraud in making the joint application to the House Building Finance Corporation and that there was no unauthorized change in it. The consideration shown in the agreement of sale (Exh.5/2) is the correct and final consideration agreed upon between the parties for which the defendants agreed to sell and transfer the suit property i favour of the plaintiff. It would be relevant to refer there to the notice, dated 29th September, 1978 (Exh.5/11) which is the first notice sent by the Advocate for the defendant No,l. In the said notice statin that the transaction of sale had not been finalized by the plaintiff within three months of the execution of the agreement of sale, dated 15th May, 1978, that the time was essence of the contract and holding the plaintiff guilty of breach of the agreement, the plaintiff was told that the said defendant No,1 was now free from all and every obligation contained in the said agreement and that the plaintiff could take the refund of the amount advanced by him at the time of the execution of the agreement.
' The plaintiff sent a reply on 3-10-1978 through his Advocate wherein after pointing out that the agreement of sale was entered into on 25th May, 1978 and not on 15th May, 1978 amongst others it was also stated:- "Indeed the time of three months was of essence on the contract. On contract, when your client declined to hand over peaceful vacant possession of the said property, my client was horrified and apprehended the mischief and dishonest on the part of your client. On 16-9-1978 he dispatched the balance amount of Rs,19,000 to your client by insured cover which was declined. Within the said Insurance cover there was a pay Order No, 873764, dated 15-8-1978 drawn in Payee's Account on National Bank of Pakistan, Karachi. I am sending herewith a photo stat of the pay order and covering letter for your information."
' The plaintiff also informed the defendant that he had already filed this suit in the High Court in which injunction had also been granted on 3rd October, 1978.
Important fact to be taken note of here is that in th abovementioned notice the plaintiff had expressly pointed that on Rs,19,000 remained payable to the defendants out of the agreed sal L consideration but this statement of the plaintiff was never denied b the defendants by sending any reply. It is also worth mentioning that the defendant did not even deny that the agreement was executed no on 15th May, 1978 but on 25th May, 1978.
' For the abovementioned reasons the genuineness of the agreement of sale Exh.5/2 for Rs,1,50,000 and its execution by the defendant No,2 with his signatures on each page stands conclusively proved.
12. Having reached the conclusion as mentioned in para. 6 above which answers the points Nos. 1, 2 and 3 raised by the learned counsel during his arguments. I may also now briefly refer to some of the other points which I may state, were half-heartedly raised during the arguments by the learned counsel for the defendants:
(i) As regards the plea that the plaintiff took advantage of the alleged old age of the defendant No, 2 or of his feeble plight of health or that he was kept in dark by the plaintiff while taking his signatures on the agreement of sale (the genuineness of agreement (Exh.5/2) having been conclusively proved as already discussed above). I may observe here that though this point was raised as one of the grounds while opening his case, the learned counsel for the defendant however advanced no arguments in support of this plea.
(ii)The allegation that stamp paper was purchased on 4th May, 1978 but the said date has been changed to read as 24th May, 1978 by prefixing figure "2" to "4" has not been proved. Neither the stamp vendor was examined nor any record of the sale of stamps which is kept by a licensed stamp vendor was summoned. Even otherwise from the reading of the date as it appears on the stamp paper. I find nothing to suggest that any fraud has been committed as alleged. In any case having come to the conclusion as mentioned above, that even the first page (which is typed on the stamp paper) and all other pages of the agreement (Exh. 5/2) bear the signatures of the defendant No,2, there is no force in the contention raised that any change was made in the date of purchase of the stamp paper. It may be observed that serious allegations of fraud as raised by the defendant No,2 cannot succeed on mere conjectures and surmises, in the absence of legal evidence establishing the alleged forgery or fraud, the burden of which lay heavily upon the defendants. The defendant's mere allegations (they having failed to examine material witness, i.e, the stamp vendor and to produce the relevant record of the sale of stamps by summoning the same from the stamp office), cannot discharge the onus which lies heavily upon them. Mere allegations made, cannot be substituted of legal evidence.
13. I would now take up Issue No,6. The argument of the learned counsel for the defendants under this issue is based upon the submissions made by him under issue No,5 as to the alleged fraud and forgery on the part of the plaintiff. I have however already held above, that no fraud or forgery was committed by the plaintiff. In view this finding I have no hesitation in holding that the plaintiff cannot be blamed for the non-performance of the agreement of stile.
14. Regarding Issue No,7. No arguments were advanced under Issue No,7 by any of the learned Advocates for the parties. However, it has come on the record as per evidence of Mr. Noor Muhammad, Assistant Manager, House Building Finance Corporation (Exh.6) that though vide its letter, dated 30th July, 1978 (Exh.5/6) the House Building Finance Corporation, Karachi, acceded to the request made for the transfer of the loan in the name of the plaintiff from that of the defendant No,1, the loan has not yet been transferred as the conditions mentioned in the said letter had not been fulfilled. The loan in the circumstances still stands in the name of the defendant No,l.
15. Regarding Issue No,8. Under this issue none of the learned Advocate advanced any arguments and. accordingly this issue requires no decision. It may, however, be mentioned that the agreement of sale vide its clause No,6 provides that the vendor shall hand over vacant possession of the said property to the vendee by 7th June, 1978.
16. Regarding Issue No,9. In view of the discussion as mentioned above, I find that the plaintiff is entitled to the specific performance of the agreement of sale (Exh. 5/2).
17. Regarding Issue No,10. For the reasons discussed above I have already held that the plaintiff is entitled to a decree for specific performance of the agreement of sale. While reaching this conclusion, I found that the defendant No,2 raised the pleas of fraud and forgery in the sale agreement (Exh. 5/2) allegedly committed by the plaintiff.
' These allegations were of serious nature as they involved and could expose the plaintiff to penal action. On the basis of these allegations the defendant No, 2 resisted the suit, but the defence thus set up has been proved to be vexatious and false to the knowledge of the defendant No,2. These pleas of fraud and forgery have not even been supported even by the defendant No,1 in whose name the property in suit stands. The defendant No,1 in his evidence has not stated a single word about any alleged fraud or forgery in the agreement of sale (Exh. 5/2). It is worth mentioning here that the defendant No,2 produced an obliging witness Ibrahim son of Qasim (Exh. 9). He is an estate broker. He stated that he knows the defendant No,2 (Muhammad Yousuf Qureshi). Though he did not say a single word that he even saw, this defendant No,2 write or received documents written by him (and admittedly was not present when the agreement of sale (Exh. 5/2) was executed) yet not only he denied the signatures of defendant No,2 on page No,1 of Exh. 5/2) but also denied the signature of defendant No,2 on page No,3 which the defendant No,2 himself admits to be his signature. It may also be mentioned that during his arguments Mr. Pingar, Advocate on a question put to him by Court, also admitted that the signature on page No,3 i3 that of the defendant No,2. Moreover this witness also denied the signatures at page 4 of the agreement (Exh.
5/2) whereas the defendant No,2 had denied his signatures only on the corrections on that page. It is obvious that the defendant No,2 in this case has not hesitated in producing false evidence to delay and defeat justice to support vexatious defence set up by him. I am, therefore, of the opinion that the defence taken by the defendant No,2 was false and vexatious that it is a fit case, in which special costs should be awarded by way of compensation under Section 35-A, C.P.C. It may be observed that by taking these false and vexatious pleas, not only the disposal of the suit has been prolonged and the suit has remained pending in this Court since 1978 but it has also resulted in obvious inconvenience and agony due to likelihood of exposing the plaintiff to criminal action.
' In the circumstances of the case it is ordered that the defendant No,2 should pay Rs,5,000 by way of compensatory costs under section 35-A of C.P.C., to the plaintiff.
18. The upshot of the above discussion is that the suit is decreed for specific performance of agreement of sale (Exh. 5/2) with costs. The defendant No,2 shall also pay Rs,5,000 by way of compensatory costs to the plaintiff in addition to the costs of the suit which is to be paid by both the defendants.