' This revision calls in question the two judgments passed by the learned Vth Senior Civil Judge, Karachi (South) and the learned 1st Additional District Judge, Karachi (South), dated 2-11-1989 and 30-1-1991, respectively.
2. The facts of the case are that the respondent filed a suit against the appellant for specific performance of a contract alleging that, the appellant was allotted a plot of land bearing No.48 Khayaban-e-Belal, Phase-VIII, measuring about 2,000 square yards by Pakistan Defence Officers Housing Authority --(respondent No.2), which he agreed to sell to respondent No.1 for Rs,45,000 by an agreement of sale, dated 19-9-1976. The applicant also executed the following documents in favour of the respondents: "(1) Transfer Affidavit dated 19-9-1976.
(2) Loan affidavit dated 19-9-1976.
(3) A duly stamped receipt dated 19-9-1976 for the sum of Rs,45,000.
(4) Application dated, 19-9-1976, addressed to respondent No. 2 requesting that mutation in the name of the respondent be effected in the respondent No.2's record and file an undertaking dated 19-9-1976 to the effect that the applicant had not executed or registered any sub lease of the said plot etc."
' Thereafter, respondent No.1 approached respondent No.2 for completion of the transfer in the name of the former but respondent No.2 kept the matter pending and did not transfer the plot in the name of respondent No.1.
3. In the meanwhile, Defence Officers Housing Authority Order (VII of 1980) was promulgated in the Gazette of Pakistan, Extraordinary, dated 9-8-1980 whereby the Defence Officers Cooperative Society was dissolved and the said Authority came into existence. Respondent No.2 then refused to transfer the said plot in the name of respondent No.1 without execution of some fresh documents.
The latter, therefore, contacted the applicant to once again complete the formalities but the applicant refused to complete the same and insisted on further payment which was declined by respondent No.1 and it was under such circumstances that Suit No.1092 of 1986 was filed by respondent No.1 against the applicant and respondent No.2 in the Court of the Vth Senior Civil Judge, Karachi (South).
4. Respondent's suit was resisted by the applicant. According to him, when the applicant was posted as Second Lieutenant with 30 FF Regiment and was undergoing training at the School of Infantry Tactics at Quetta, he at the advice of one Major Khan Hamayun Masood, applied for allotment of a plot to the then Defence Officers Cooperative Housing Society, Karachi. A similar application was also made by the said Major Khan Hamayun Masood. The applicant being a young and inexperienced officer, was advised to sign a blank application for allotment of the plot alongwith certain other documents, and believing in good faith that the same was necessary for securing allotment of the plot in the said society, he signed such application. Thereafter, the signed blank documents were handed over by the applicant to the said Major Khan Hamayun Masood which were later passed on to Major Maqsood Ahmed Janjuwa. After some time the applicant received a cheque for Rs,2,000 from Major Khan Hamayun Masood, but had received no intimation in regard to the particulars of the plot which was said to have been allotted to the applicant, nor any particulars in respect of purchaser of the said plot were supplied to him. As the applicant at the relevant time was posted at Gilgit, he was unable to ascertain the facts. However, notwithstanding the same, he advised Major Khan Hamayun Masood that he had not accepted the transaction and the same would not be ratified by him. Thereafter, in 1983, respondent No.1 approached the applicant through his uncle at Lahore and demanded the transfer documents as per requirements of respondent No.2. It was only then that the applicant came to know about the said transaction and realised that the blank documents signed by him were the subject-matter of a suit between the applicant and respondent No.1. Consequently, according to the applicant, the whole transaction was a result of deceit and fraud. It was further pleaded by the applicant that on 19-9-1976 when the documents are alleged to have been prepared by him, he was in Dir and not in Karachi.
5. The learned trial Court on the basis of the aforesaid pleadings of the parties framed issues as follows:---
(1) Whether this Court has no pecuniary jurisdiction to try this suit?
(2) Whether agreement of sale dated 19-6-1976 was executed in between the plaintiff and defendant No.1?
(3) Whether the defendant No.1 failed to perform his part of contract?
(4) Whether plaintiff is entitled for Specific Performance of Contract? or in alternative for decree of Rs,50,000 ?
(5) What should the decree be ? "
6. The learned trial Court on the basis of evidence respectively adduced by the parties decided all the material issues in favour of respondent No.1. The learned trial Court held that the transaction was a genuine one otherwise the cheque of Rs,2,000, which was admittedly received by the applicant as advance of the sale consideration, would not have been encashed by the applicant. It also was not convinced by the contention of the applicant that he was in Dir at the relevant time.
No doubt, the applicant had relied upon a certificate allegedly issued by one Lieutenant-Colonel Farahat Ullah dated 29-1-1989, according to which the applicant was doing his duty on 19-9-1976 at Dir in N.-W.F.P. but as no witness was examined by the applicant on the point, therefore, the learned trial Court came to the conclusion that the contention had not been conclusively established. The applicant's own evidence on the point was not believed as conclusive by the learned trial Court as there was word of the applicant against that of respondent No.1. The learned trial Court was also not impressed as no action had been taken by the applicant against respondent No.1. Even respondent No.2 had not been informed by him in respect of the alleged fraud. The learned trial Court, therefore, came to the conclusion that since it was the applicant who had failed to fulfil his part of the contract, respondent No.1, was entitled to a decree for specific performance and the suit of the said respondent was decreed against the applicant and respondent No.2.
7. The applicant being aggrieved by the said judgment appealed before the learned Ist Additional District Judge (South) Karachi, but his appeal was dismissed and the judgment of the learned trial Court was upheld vide judgment of the District Judge dated 30-1-1991.
8. It is pertinent to point out that both the learned Courts below have given concurrent findings of fact on the aforesaid issues. The only point urged by Mr. Hassan Akbar, before me is that Exh.6B, which was a certificate issued by one Lieutenant-Colonel Farahat Ullah, reference to which has been made earlier in this judgment, indicates that the applicant was in Dir and not in Karachi at the relevant time when the transfer document are alleged to have been prepared by him and both the learned Courts below have overlooked this material aspect of the case. Admittedly, the said document was introduced into evidence not by Lieutenant-Colonel Farahat Ullah himself, but the same was produced by another witness, namely Maqsood All who had been examined as witness by the applicant. Mr. Hassan Akbar, has strenuously argued that after the said certificate was allowed to be introduced into evidence without any objection, no question can be raised now in regard to its inadmissibility. Support in this regard had been sought from the case of Mst. Taj Bibi v.
Syed Ahmed Shah 1989 SCMR 101. In this case it was held by the Supreme Court that where no objection is taken in the Court of the first instance to the reception of a copy of a document in evidence, it is not within the province of the Appellate Court to raise or recognise such objection in appeal. In another case, relied upon by Mr. Hassan Akbar, which is reported as Qamarul Hassan v.
United Bank Ltd. 1990 M LD 276 a learned Judge of this Court while referring to the provisions of Articles 78 and 79 of the Qanun-e Shahadat has held that for proof of signatures or handwritings, no specific manner of proof has been laid down by the provisions of Article 78 of the Qanun-e- Shahadat. It has been further held that although several modes of proof have come to be judicially recognised, yet the best one is the examination of the person who had signed or written the document. However, where a document was not, duly proved by a person signing the same but the circumstances prove its execution, reliance still can be placed on such document.
9. Suffice it to say that both the cases referred to by Mr. Hassan Akbar, are not attracted to the facts of the present case. In the present case, the applicant wanted to lead evidence in support of his contention viz., that he was posted in Dir at the time of the execution of the transfer documents in respect of the property. Admittedly, no witness was examined by him on the point. Mr. Hassan Akbar by stressing that the certificate itself proves the fact that the applicant was in Karachi at the relevant time, has in fact overlooked the elementary principles laid down in the Evidence Act (now Qanun-e-Shahadat). Even if it is accepted as contended by Mr. Hassan Akbar that certificate (Exh.6B), which was admitted into evidence cannot be ruled out of consideration as an inadmissible document, nevertheless the same can hardly be relied upon as substitute for proof of the fact that the applicant was in Dir and not in Karachi. The fact was required to be proved by direct evidence and not by a certificate issued by a person who was not himself examined as a witness. Consequently, there being no evidence on the point, except for the word of the applicant himself, which was not admitted by respondent No.1 as according to him, the applicant was present in Karachi at the time of the execution of the relevant documents, both the learned Courts below have rightly held that there being word of the applicant against that of the said respondent, there was no conclusive proof in regard to the fact that the applicant was in Dir and not in Karachi.
Since no other point has been urged by Mr. Hassan Akbar, and the findings of the learned Courts below on the question urged by him are not open to exception, I find no force in this revision application.
10. In the result, this revision is dismissed. The parties arc left to bear their own costs.