' This revision petition arises out of a suit for specific performance of agreement, dated 7-5-1962 filed by the petitioner on 1-9-1971 in the Court of Senior Civil Judge, Lahore. The respondent resisted the suit and claimed that the alleged agreement to sell was forged and that the same could not be enforced against him. He filed his written statement in the Court which gave rise to the following issues:-
(1) Whether the suit is time-barred? OPD
(2) Whether the valuation of the suit for the purposes of court-fee and jurisdiction is correctly assessed? OPP
(3) If not, what is the correct valuation? OPD
(4) Whether the suit is not maintainable in the present forna? OPD (4-a) Whether the suit is mala fide, if so its effect? OPD (4-b) Whether the parties entered into agreement to refer the matter in dispute for arbitration, if so its effect? OPP (4-c) Whether the defendant executed the agreement to sell, dated 7-5-1962? OPP (4-d) Whether the agreement to sell, dated 7-5-1962 is a foirged document? OPD (4-e) Whether the agreement dated 7-5-1962 is unconscionable, if so its effect? OPD (4-f) Whether the plaintiff is estopped to bring this suit? OPD (4-g) Whether the plaintiff is in possession of the suit property, if not its effect? OPP (4-h) Whether the plaintiff is entitled to the decree for specific performance of the agreement dated 7-5-1962, if so on what terms? OPP
(5) Relief.
' In support of his case the petitioner produced Muhammad Hus5. Cain P.W.1 marginal witness, Muhammad Siddique P.W.2, Jamal Din, P.W.3, l [uhammad Siddique son of Muhammad Latif P.W.4, Miraj Din P.W.5, Aitmad All P.W.6, Abdul Ghani Postman P.W.7, Arif Mahmood P.W.8. Muhammad Akram petitioner himself appeared as P.W.9. He also tendered in evidence the document Exhs.P.1 to P.9. On the other hand, the respondents produced Arif Mahmood D.W.1, Abdullah Khan D.W.2, Muhammad Sadiq D.W3, Sadiq All D.W.4 and Muhammad Din D.W.S. The respondent himself appeared as D.W.6. He tendered in evidence document Exh.D.Ws.1 to 3. After perusing the oral as well as documentary evidence produced by the parties the trial Court decreed the suit vide the judgment and decreed dated 17-12-1984. Th e respondent challenged the same by way of an appeal which was allowed by the learned District Judge vide his judgment and decree dated 12-11- 1286. It may be mentioned that the Appellate Court recorded additional evidence; to find out as to who deposited the sum of Rs,10,000 in the Bank Account of the respondent. In this connection the Court recorded the statenaent of Muhammad Akram petitioner and that of Hassan Raza Bank Officer, I Z.W.1.
2. The petitioner's learned counsel submits that the appellate Court had reversed findings of the trial Court illegally on issues No, 4(b), 4(c) and 4(d). He explains that in the written statement respondent had admitted the arbitration agreement, dated 23-10-1969. He adds that the parties are first cousins and due to mutual trust and confidence it was hoped that the agreement would be honoured by the respondents. However, when he backed out then it was decided mutually that the dispute be referred to arbitration. He further submits that the agreement dated 7-5-1962 was proved by cogent material and there was no justification to reverse the findings of the trial Court on the said issue. As regards fmdings on issue No,4(d) he submits that the onus to prove that the agreement was forged one was on the respondent who failed to discharge the same. He points out that had there been any valid agreement to sell between the parties then there was no question of referring the dispute for arbitration. He submits that initially the respondent had merely disputed the legality of the agreement on the ground that it was not properly stamped. The document was impounded and duly exhibited vide order, dated 4th November, 1981. The said order was challenged by way of review which was dismissed by the learned District Judge vide his order, dated 4th of April, 1982. He further submits that the agreement to sell pertain to a vacant building site which was jointly purchased by both the parties vide sale-deed dated 23-6-1953. The present petitioner also purchased the other half portion belonging to the respondent. Originally an oral agreement had taken place in January, 1961 for a sum of Rs,12,000. A sum of Rs,10,000 was deposited by the petitioner in the bank account of the respondent on 15-5-1962. The written agreement was executed on 7-5-1962. Thereafter, the petitioner constructed a building thereon consisting of a residential portion and 10 shops. On instructions from his client the learned counsel states that the shops have recently been demolished by the Lahore Municipal Corporation. He further submits that the learned District Judge illegally allowed additional evidence at the appellate stage to enable the respondent to fill up the lacunas left by him in evidence. Lastly he submits that the appellate Court misread the evidence and drew wrong conclusions therefrom.
3. On the other hand, the respondent's learned counsel submits that the agreement Exh.P.W.1/1 (Mark 'A') is a forged one. It was said to have been executed on 7-5-1962. But strangely enough, the earnest money was said to have been paid on 5-5-1962. The amount of Rs,10,000 is claimed to have been deposited by the petitioner in the respondent's account. The learned counsel submits that the said amount was actually deposited by the respondent at the time of opening of the account. Even if it is presumed for the sake of argument that the said amount was deposited by the petitioner it may be relatable to liquidation of another liability of the petitioner but is not relatable to the agreement to sell which was allegedly executed on 7-5-1962. He further submits that the possession of the disputed building consisting of shops and residential portion was shown to have been delivered to the petitioner in the year 1961, which is not believable because the alleged agreement had not taken place in the said year. He next submits that the alleged agreement was not proved in accordance with the law. The only marginal witness produced was Muhammad Hussain P.W.1 whose statement is contradictory. Further submits that the parties were having disputes over some other properties as well and the arbitration agreement pertained to the said dispute. It did not cover the matter relating to the property in dispute. He adds that still another partition suit in respect of some other properties is pending before the civil Court. He next submits that no evidence was led to prove the alleged oral agreement. He points out that in the plaint no assertion was made at all in respect of oral agreement and the petitioner plaintiff could not be allowed to lead any evidence to prove the alleged oral agreement to sell. He further submits that if any oral transaction had taken place between the parties, then the alleged agreement, dated 7-5-1962 is only an acknowledgement of the said transaction. He submits that the onus of issue No,4(d) was sufficiently discharged by the respondent's statement that he had never executed the alleged agreement. In this connection he places reliance on the case of Allah Din v.
Habib PLD 1982 SC 465. As regards the additional evidence he submits that the appellate Court had, in fact, allowed the present petitioner to produce additional evidence and the respondent had not produced any evidence. According to him it was an opportunity provided to the petitioner to improve upon his case. He adds that the petitioner had acquiesced in the order for production of additional evidence availed of the opportunity and could not be allowed to turn round object to it at this stage. In this connection he places reliance on the case of Mst. Alfan v. Muhammad Nur PLD 1965 Lahore 401. He further submits that concept of filling up of lacunas is no longer relevant.
4. The material on the record shows that initially plot bearing Khasra Nos. 5911/4, 5911/5 and 5911/6 measuring Kanal 8 Marlas, 161 square feet was jointly purchased by Muhammad Akram petitioner and Muhammad Siddique respondent in half equal shares on 23-6-1953. Thereafter, Muhammad Siddique respondent agreed to sell his half share of the plot in favour of the petitioner for a sum of Rs, 12,000 and handed over physical possession of the plot to him. The agreement was reduced into writing on 7-5-1962 which shows that two days earlier the petitioner had deposited a sum of Rs,10,000 in the bank account of Muhammad Siddique respondent. The execution of the agreement is proved by the statement of the petitioner and the marginal witness namely Muhammad Hussain P.W.1. He clearly stated that Muhammad Siddique respondent had signed in his presence. He further stated that at one stage the dispute between the parties was referred to arbitration and that he was one of the arbitrators. The petitioner had produced the agreement before the arbitrators and during the proceedings Siddique had accepted the execution of the agreement but he demanded more money from the petitioner. Despite lengthy cross-examination, nothing significant was elicited from this witness to shake his credit. Thus the execution of the agreement mark 'A' was fully proved. The mere fact that the agreement was reduced into writing on 7-5-1962 and the deposit of Rs,10,000 was made on 5-5-1962 is not fatal to the agreement because the reason is explained in the agreement itself. Due to close relationship the parties had originally entered into an oral agreement and taken some steps in furtherance of the same by delivery of possession of the plot to the petitioner and deposit of Rs,10,000 by him in the respondent's newly opened bank account and thereafter reduced the agreement into writing.
5. It is also evident from the record that the petitioner raised construction over the plot and rented out shops to the tenants. This fact is supported by the statement of Muhammad Siddique P.W.4 who is a tenant under the petitioner in two shops. At one stage the respondent filed an ejectment petition against him which was dismissed somewhere in the year 1981. Miraj Din P.W.5 is also a tenant under the petitioner. Muhammad Siddique respondent appeared as P.W.6 and admitted that the tenants in the shops have executed rent notes in favour of Muhammad Akram petitioner and that none of them executed any rent note in his favour. He also admitted that the tenants are paying rent to Muhammad Akram petitioner and that they are his tenants. He never claimed that he used to get any share from the rent collected by Muhammad Akram from the tenants. No such suggestion was even made to Muhammad Siddique or Miraj Din tenants when they appeared as P.W.4 and P.W.5 respectively. The petitioner got the map of disputed property sanctioned and after construction has been paying its property tax. The above facts go a long way to establish that the respondent had executed agreement to sell in favour of the petitioner.
6. As regards the payment of Rs,10,000 to the respondent, it may be mentioned in the outset that the original bank receipt regarding deposit of Rs,10,000 was produced by the petitioner and exhibited as D.W.1/3. The appellate Court recorded additional evidence to ascertain as to who had deposited Rs,10,000 in the bank. The objection of the petitioner's learned counsel to recording of additional evidence by the appellate Court carries no weight. The respondent's learned counsel has rightly pointed out that the petitioner had acquiesced in the order passed by the appellate Court for recording additional evidence and had availed of the opportunity by making a statement before the Court and producing the bank officer as a witness. The additional evidence was definitely required by the Court to enable it to pronounce judgment. While making statement before the appellate Court. Muhammad Akram petitioner firmly asserted that on the asking of Muhammad Siddique respondent, he went to the bank Manager to deposit Rs,10,000 and opened the account on behalf of Muhammad Siddique. He was cross-examined by the respondent's learned counsel but no suggestion was made to challenge the assertions made by the petitioner in his examination-inchief. The Court also examined Hassan Raza, Bank Officer as R.W.1. He clearly stated that he knew Muhammad Akram petitioner and that he (Muhammad Akram) had deposited the sum of Rs,10,000 on the basis of the document D.W.1/3 which was signed by him. He also denied the suggestion that the amount of Rs,10,000 was deposited by Muhammad Siddique respondent and not Muhammad Akram petitioner. This evidence fairly proves that the petitioner, who had produced the original bank receipt Exh.D.W.1/3 had deposited the sum of Rs,10,000 in the name of the respondent. Some irregularities in opening the account or departure from the usual procedure pointed out by the respondent's learned counsel are not sufficient to conclude that the amount was not deposited by the petitioner. Probably the bank officials, in their keenness to open the new account, made some departure from their settled procedure and opened the account in the name of Muhammad Siddique in his absence. However, the statement of Hassan Raza R.W.1 clearly establishes that the amount of Rs,10,000 was actually deposited by Muhammad Akram petitioner. This deposit is duly acknowledged in the agreement mark 'A'.
7. After considering the material on the record the trial Court had rightly concluded that the agreement marked 'A' was executed between the parties and that construction over the entire plot was raised by the petitioner in pursuance of the agreement. He had paid a sum of Rs,10,000 to the respondent by opening a new bank account in the name of the respondent and was entitled to a decree for specific performance of the contract on payment of the balance sale price. The appellate Court appears to have acted with material irregularity in reversing the judgment and decree of the trial Court without adequately meeting the reasoning advanced by the trial Court.
8. For the foregoing discussion, this revision petition is allowed, the impugned judgment and decree of the appellate Court is set aside and that of the trial Court restored, leaving the parties to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.