1. ' The appellant instituted Suit No,32 of 1973. Against the respondent for specific performance of an agreement of sale, dated 9th September, 1971 in respect of agricultural land bearing Survey Nos.229, 230, 201 and 202 in Deh 93, Taluka Mirpur Khas, measuring 19.24 acres. The suit was contested by the respondents who denied execution of the agreement and took the plea that respondent had taken a loan of Rs,7,000 from the appellant who had obtained his signature on a promissory note as well as on a blank stamp paper which was later on converted into an agreement of sale. On the basis of the above controversy between the parties the trial Court framed the following issues:- "(1) Whether defendant entered into agreement of sale in respect of suit land on 9-9-1971, with the Plaintiff and received Rs,36,000 as full consideration from the hitter?
(2) Whether Plaintiff is money lender?
(3) Whether defendant borrowed Rs,7,000 from the Plaintiff as contended in the written statement?
(4) Whether suit is barred under M.L.R. 115?
(5) Whether Plaintiff is entitled to Specific performance of the contract?
(6) Whether the Plaintiff is entitled to specific performance of the contract?
(7) What should be the decree?"
2. ' Issues No,1, 2 and 6 were held as not pressed. Issue No,3 was answered in the affirmative. Tinder issue No,4 it was held that the suit was not barred under M.L.R.115. Issue No,5 was answered in the negative. On the basis of the above findings the trial Court dismissed the suit of the Plaintiff/appellant for specific performance of the contract of sale but decreed the suit for Rs,7,000 with proportionate costs. Learned counsel for the appellant contends that the trial Court did not properly appreciate the evidence on record in arriving at the conclusion that Issue No,1 could not be proved by the appellant. It is contended by the learned counsel that in order to prove issue No,1 the appellant had examined himself and one of the attesting witnesses All Mardan and in the submission of the learned counsel this evidence was sufficient to prove the execution of the document and payment of consideration thereunder. The learned trial Court while discussing Issue No,1 reached the conclusion that the appellant/plaintiff failed to examine the scribe of the document which was fatal to the case of the plaintiff/appellant. The learned trial Court also found that with regard to scribe there was contradictory statements made both by the appellant and his witness All Mardan and as such no reliance could be placed on the document Ex.66 in respect whereof the specific performance was sought by the appellant/ plaintiff in the suit. Issue No,1 is crucial issue in the case-and it is only on proof of this issue that the plaintiff/appellant could succeed in his suit for specific performance, of the alleged agreement of sale, dated 9-9-1971.
3. Although the evidence of an scribe may not be necessary in every case to prove execution of such an agreement between the parties but it is significant that in the present case the respondent alleged that the property which is subject matter of agreement, dated 9-9-1971 is only partly owned by him. The other persons who were alleged to be the owners of remaining land were neither party to the agreement, dated 9-9-1971 nor were they party to the suit of applicant. The respondents examined the Revenue Tapedar in the case who produced Deh forms 8 and 10 and according to the entries in those forms the applicant was owner of only two survey numbers out of the four mentioned in the agreement of sale, namely, survey Nos.229 and 230. The learned counsel for the appellant contended before me that the incorporation of the other two survey numbers in the agreement namely survey Nos. 201 and 202 which were not owned by the respondent was made ion the basis of the decree in suit No, 81/1967 which was instituted by respondent No,2 against the respondent No,1. This contention of the learned counsel for the appellant is based on no evidence at all and Fiilaised for the first time in the arguments before me. It is significant that neither the plaintiff in his evidence asserted that the respondents had given him a copy of the decree in suit No, 81/1967 for the purpose of incorporating the survey numbers in the agreement of sale nor it was so suggested to the respondents in cross-examination. It is also significant that the defence taken in the case was that at the time the signature of respondent was obtained on the document it was blank and he was assured by the appellant that it is only for the collateral purpose of securing the loan advance to the respondent by the appellant. It is an admitted position in the case that the document was neither written by the plaintiff/appellant nor by the defendant but it was written by a third person who is described in the evidence of the plaintiff's witnesses as a Master. The plaintiff in his examination in chief stated that this matter who wrote Ex.66 was sent for by Ali Mardan, a witness of the plaintiff/appellant while All Mardan in his own evidence asserted that this matter was brought by the parties when they came to his otak. It is not the case of the plaintiff that the said witness is not available or cannot be examined for reasons beyond their control. In the above stated circumstances of the case the ascribe of the document (Ex.66) was an important witness and omission on the part of appellant to examine him in the case was rightly held by the Courts below as fatal to the case. The learned trial Court, therefore, rightly held that Issue No,1 was not proved and no exception can be taken to this finding of trial Court on this issue. As the plaintiff failed to prove Issue No,1 the Court below rightly refused the relief of specific performance. The trial Court however, decreed the suit of plaintiff in the sum of Rs,7,000 which was admitted by the respondents as a loan having been obtained from the appellant. This part of the decree is not challenged by the respondents/defendants and, therefore, it needs no interference. However, learned counsel for the plaintiff/appellant rightly contended that the learned trial Court while decreeing the suit of the plaintiff on the admission of the defendants should have also awarded interest from the date of the suit till the amount is paid. I enquired from the learned counsel for the respondents if the respondents after the decree in the trial Court have deposited the sum of Rs,7,000 with interest as decreed but he was unable to make any positive reply. Keeping in view the circumstances of the case and the fact that the respondents had admitted claim of the plaintiff to the extent of Rs,7,000 and in spite of that admission he failed to deposit the amount so far I direct that the plaintiff will be entitled to interest from the date of the decree till the amount is paid, on the sum of Rs,7,000. In case it is found that the respondents had deposited the amount of Rs,7,000 in the case the plaintiff will be entitled to interest from the date of decree upto the date of deposit of the amount otherwise the interest will be payable until the amount is paid to the appellant. The decree of the trial Court is modified to the above extent.