1. On 31-5-1979, Muhammad Sadiq predecessor-in-interest of Mua77am Ali and 4 others, respondents, filed suit for the specific performance of agreement to sell agricultural land measuring 367.Kanals 2 Marlas, against Ghulam Qadh father of Muhammad Ashraf and 2 others, petitioenrs in the Court of Civil Judge, Ferozewala. The suit was resisted whereon following issues were framed:- (1)Whether the plaintiff has performed his part of the agreement?
2. (2)Whether the plaintiff is entitled to specific performance of agreement, if so, on what terms and conditions?
3. (2A) Whether the receipt dated 30-4-1978 is fictitious, if so its effect?
4. (2B) Whether the suit is improperly valued for the purpose of court-fee and jurisdiction and if so, its effect and what is the correct valuation?
5. (3)Relief.
2. Muhammad Sadiq deceased plaintiff appeared as PW 6. He produced Rana Ashraf Ali Khan PW 1, Syed Faiz Muhammad, Manager, Agricultural Development Bank of Pakistan PW 2, Muhammad Ayub PW 3, Inayat Ali PW.4 and PW 5 MA. Nomani Handwriting Expert. He tendered agreement to sell EX.P.1, cheque Ex.P.2, receipt Ex.P.3 and copy of Jamabandi PW.4/1 in evidence. In rebuttal, four witnesses, namely, Ahmad Riaz, Ghulam Sarwar, Muhammad Munir and A.G. Pasha, Handwriting Expert were produced by the petitioners. Asif Qadir petitioner entered the witness box as DW.5. A.G.
6. Pasha has proved his report Ex.DW 4/1. The trial Court found issues Nos.1,2-A and 2-B in favour of the plaintiffs. In view of its findings on issue No.2, trial Court dismissed the suit on 20-2-1988. The respondents filed appeal against the judgment and decree of the trial Court. On the other hand, the petitioners filed cross objections. The learned appellate Court vide single judgment and decree dated 2-5-1989 has dismissed the appeal and cross objections. Hence this revision.
3. Before me, the learned counsel has challenged the findings of the Courts below on all the issues.
7. He submitted that according to the terms of agreement to sell, Muhammad Sadiq deceased plaintiff had to deposit Rs.70,000 with Agricultural Development Bank of Pakistan on or before 27-1- 1979 which he failed to deposit; there was no occasion to pay Rs.22,548 to Ghulam Oadir deceased-defendant on 30-4-1978 against receipt and as such Muhammad Sadiq had failed to perform his part of the contract; that the primary evidence i.e. The original receipt of Rs.22,548 dated 30-4-1978 allegedly executed by Ghulam Oadir deceased-plaintiff was not produced in the Court; the order dated 27-11-1975 permitting the plaintiff to produce secondary evidence of Handwriting Expert in proof was illegal inasmuch as the legal requirements for the production of secondary evidence were not fulfilled; that although objection with regard to legality of receiving secondary evidence was raised in the memo of appeal, yet the same was not considered and in any case, there was no legal justification to grant decree for the specific performance of contract against the petitioners. Conversely, the learned counsel for the respondent has supported the judgment of the appellate Court.
8. 4.I have considerad the submissions made by the learned counsel for the parties and have examined the entire evidence that has been produced by the parties. I do not feel persuaded to agree with the learned counsel for the petitioners. Ch. Ghulam Qadir predecessor-in-interest of the petitioners had admitted having executed agreement to sell the suit land in favour of Muhammad Sadiq, the predecessor-in-interest of the respondents, At the time of execution of the agreement, he had received Rs.30,000 as earnest money and the remaining Rs.70,000 were to be deposited in the Agricultural Development Bank of Pakistan against his loan amount by 27-1-1979. The Courts below have concurrently found that the entire amount had been paid to Ghulam Qadir vide cheque No. 620043 dated 23-1-1979 and receipt Ex.P.3 dated 30-4-1978. The application for the production of secondary evidence of the payment of Rs.22,548 vide receipt dated 30-4-1978 was made before the trial Court. Without making prayer for the rejection of the application for the production of secondary evidence, the defendant in his reply expressed his willingness to the comparison of receipt EX.P.1 with the admitted signatures of Ghulam Qadir, by Handwriting Expert.
9. No doubt, according to the terms of agreement, the entire amount of Rs.70,000 had to be deposited in the Agricultural Development Bank of Pakistan and there was no occasion to pay the same or part thereof to Ghulam Qadir deceased-plaintiff but the fact remains that Ghulam Qadir had' not only agreed to receive Rs.22,548 on 30-4-1978, but had actually received the same through receipt Ex.P.3 A genuineness whereof has been believed by the Courts below for good reasons. That bcing the position, it does not lie in the mouth 9f the legal representatives of Ghulam Qadir to deny the receipt of the amount or the manner of its payment by Muhammad Sadiq to the deceased-plaintiff. It may be noted that since the petitioners had raised no objection to the comparison of the receipt, therefore, there was no occasion to prove the circumstances justifying the receiving of secondary evidence. The reason given by the trial Court for the dismissal of the suit has been considered and fully met with by the trial Court. I do not see any reason to disagree with the findings of the appellate Court on issue No.2. The judgments of the trial Court on issues other than issue No.2 and the judgment of B the appellate Court as a whole do not suffer any from illegality or material irregularity. The submissions made by the learned counsel are devoid of force and substance.
10. 5.Pursuant to the above discussion, the revision application fails and is missed, leaving the parties to bear their own costs.