1. Suit No. 602 of 1981, (renumbered 695 of 1985) was instituted by the plaintiff-respondent in the Court of the learned 1st Senior Civil Judge, Karachi In the background was a transaction, reduced to writing, dated 10-3-1979 styled as a "Declaration and undertaking" (Exh. P,2), signed by defendant applicant Muhammad Luqman alone, stipulating, that the said Muhammad Luqman had "sold" the double-storey building bearing No. J-15, "J" Market Knranoi Karachi. To respondent-plaintiff Bashir Ahmad in the sum of Rs.22,000 out of which total consideration the seller had received in cash RS.5000 by way of advance. Vacant possession was undertaken to be delivered within three months of the date upon payment of the balance amount of Rs.17,000. The Declaration was witnessed by Rasheed Ahmad and M. Rafiq the latter endorsing it on 11-3-1979. The document was attested by a Notar) Public on 23-4-1979. It was the case of plaintiff Bashir Ahmad in the suit instituted on 11-2-1981, that during the referred period of three months he had arranged for the balance consideration and contacted Muhammad Luqman who avoided to receive the same on one pretext or the other. However pursuant to repeated requests Muhammad Luqman, allegedly, on 10-1-1981 agreed to complete the transaction allowing plaintiff Bashir Ahmad ten days time for "completion of necessary relevant documents" and on such assurance Bashir Ahmad took out a public notice in the issue of daily "Huriyat" of the following day (Exh. P-3). This public notice, dated 11-1-1981, stipulated the Bashir Ahmad had contracted to purchase the referred property and by way o earnest money had also paid Rs. 5,000, which being so, if any member of the public was to conclude any transaction, pertaining to the property in question he would himself be responsible for the consequences. Bashir Ahmad nex pleaded that on 20-1-1981, when Muhammad Luqman was approached wit the balance amount for completion of- the sale he refused to receive the amount. This occasioned the legal notice dated 21-1-1981 (Exh. P-4). Such notice, however, did not disclose that any extension of time was agreed or that any further offer of payment was made on 10-2-1981. It narrated that the balance consideration having been offered, within the period of three month aforesaid, and avoided to be received, on one pretext or the other, in such way "sufficient time had passed" but neither the deed of sale was executed no vacant possession was handed over. Fifteen days' time from the date of receipt of the notice was allowed for completion of the sale. The plaint does no indicate whether or not the above notice was replied to but, in fact, reply date 10-2-1981 was addressed (Exh.D-2, duly supported by documentary material v proof of service). The non-disclosure may not be material because the suit for specific performance was instituted on 11-2-1981, probably before the receipt of the reply. In such reply to the notice, Muhammad Luqman did not deny the transaction but urged that, before the expiry of the stipulated period of three months, Bashir Ahmad approached the said Muhammad Luqmaa with ; request for refund of the amount of Rs. 5,000 since he, as the purchaser, was unable to pay the balance due to financial difficulties. The request was accede to and the amount of Rs. 5,000 was returned in the presence of witnesses.
2. Muhammad Luqman, entering defence, repeated the same pleas as in the above reply, denied the claim of extension of time as baseless and fabricated and put the plaintiff to strict proof. As to the newspaper publication defendant Muhammad Luqman maintained that he came to know of the same only when he was served with the summons and notices in the suit.
3. In evidence plaintiff Bashir Ahmad examined himself and a solitary witness, one Farooq Muhajar, though in the list of witnesses, submitted from his side, no less than six persons were named. In sharp contrast to what he had averred in the plaint regarding "repeated requests", the plaintiff stated that on 1-5-1979 he called Muhammad Luqman in the presence of witnesses and offered the balance amount of consideration seeking simultaneously delivery of possession of the property whereupon, since Muhammad Luqman promised to deliver up the property in the year 1981 as "his bungalow was under construction and his children were getting education", plaintiff Bashir Ahmad, acceded to the request. He allegedly, on 10-1-1981, again contacted Muhammad Luqman who "promised to execute the final deed on the 20th of that month". Public notice, dated 11-1-1981, according to plaintiff Bashir Ahmad,. Was got issued "on the advice of the defendant". On the 20th of January, 1981, when Bashir Ahmad contacted Muhammad Luqman, again in the presence of witnesses, he refused to execute the sale-deed and insisted that the plaintiff receive back the earnest money. Thereupon, the suit was filed preceded by a legal notice. In crone-examination, Bashir Ahmad plaintiff denied that he had approached Muhammad Luqman for refund of the amount of Rs.5,000 as, allegedly, he had needed the same or that such sum, in actuality, was returned. He was asked whether he was prepared to live the matter decided on oath but replied that he was not so prepared. He stated that he did not know that Muhammad Luqman had responded to the notice of his advocate, nor was he conversant with the signature of his advocate (relevance A.D. Receipt for the reply to notice). He denied it as incorrect that he got the public notice published without the consent of Muhammad Luqman. He also denied it as incorrect that he was paid back the amount taken from him or that the transaction was terminated by mutual consent. Plaintiff's only witness, Farooq Muhajar, who was not an attesting witness to the "Declaration" of sale, maintained that he was present when on 1-5-1979, Bashir Ahmad, the plaintiff, had "approached the defendant Muhammad Luqman to accept the remaining amount of consideration and deliver the possession to him but the defendant avoided on saying that still his house was not completed in Nazimabad, therefore, he should be given some time". It would be difficult to ignore here that while the plaintiff, travelling beyond the terms of the contract, the legal notice and the plaint, for the first time in his deposition, spoke of non --completion of the defendant's "bungalow" as the cause for the alleged first extension Farooq Muhajar termed the property as the defendant's "house". One is not a little intrigued, therefore, by the plaintiffs version that the defendant, who was, apparently selling a quarter was to move into a "bungalow". The witness does not say whether the time, as claimed by the plaintiff in his deposition, was extended on 1-5-1979 and, if so, to what extent. It will also be noticed that whereas the plaintiff stated that he had "called" the defendant on 1-5-1979 the witness deposed that the plaintiff had "approached" the defendant on the date. The witness does not even mention as to what, if anything, transpired on 10- 1-1981, the date of the second alleged demand, though he says that the balance was tendered again on 20-1-1981, occasioning the defendant's refusal. This was albeit the fact that the witness being the neighbour of the plaintiff was, allegedly, present on "each and every stage of the transaction". Thus, in spite of all that Farooq Muhajar stated, it remains a mystery as to how, where and in whose presence the second demand, as claimed by the plaintiff, was made on 10-1-1981 from the defendant. The testimony, therefore, is inconsistent with the version of the plaintiff, self-- effacing, sketchy and even of an interested person. Being uninspiring, it is surprising that the same was not rejected even though the depositions of defendant's two witnesses were promptly discarded for less significant faults, as will be seen shortly.
4. In defence, Muhammad Luqman examined himself and witnesses Haji Muhammad Rafiq and Abdul Rasheed. Defendant Muhammad Luqman stated that after about two and a half months of the date of the contract Bashir Ahmad approached him and stated that he wanted to cancel the transaction and that the advance amount be refunded to him whereupon such amount was returned in the presence of witness Abdul Rasheed. Defendant also stated that he was prepared to take special oath in that context. He had made reply to the legal notice, copy of which he produced (Exh.D-2) with acknowledgement (Exh.D-3). In cross-examination, he denied that any house belonging to him was under construction when the agreement was executed. No evidence in rebuttal was led by the plaintiff. He denied that Bashir Ahmad had sent the balance consideration through Farooq Muhajar to him, which he had refused. It is another matter that neither in the averments of the plaintiff nor in the deposition of the said Farooq Muhajar was it brought out that the "balance" was sent through the latter to the defendant. The defendant, on his part, reiterated that he personally returned the advance money to Bashir Ahmad. He, however, could not give the details of the date, month or year when the money was returned and the contract was cancelled but that could be on account of a multiple question being asked from him in cross-examination and want of recollection of specifics though the period of two and a half months, from the date of the transaction, the plaintiff had already mentioned in his examination-in-chief, recorded on the same date. The amount, according to him, was returned at evening time outside his house on which occasion he himself, Abdul Rasheed and Bashir Ahmad plaintiff, were present. The amount was in the shape of 100 and 50-rupee notes. He denied that he had resiled from the contract because value of the property had increased. No evidence of enhancement of value was, however, tendered from the side of the plaintiff. Defendant's witness Haji Rafiq, Mr. Muhammad Abdullah has conceded, is the same person who signed as an attesting witness to the deed confirming the transaction in the suit. The witness stated that, subsequently, he learnt from the defendant that the deed was cancelled. Bashir Ahmad plaintiff, also later told him that he had received back the amount of advance from defendant-Muhammad Luqman. In cross-examination, he stated that he was alone when Bashir Ahmad told him that he had received back the advance amount from defendant Muhammad Luqman. He knew Muhammad Luqman for the last 20 years. He had cordial relations with both the parties. He denied that he had deposed falsely. This evidence was discarded as hearsay. It is incomprehensible as to how admissions made by the parties to a witness, duly testifying, can be cancelled as mere hearsay (See Article 30, Qanun-e---Shahadat,1984), defendant's other witness, Abdul Rasheed, stated that he was a neighbour of the parties he knew about the transaction and that after two and a half months of the transaction Muhammad Luqman had given back the amount of Rs.5,000 in his presence to Bashir Ahmad, at the time it being stated by Muhammad Luqman that Bashir Ahmad "was not purchasing the property". Two more persons besides the parties and himself were present when the amount was returned. In cross-examination, he stated that it was 4-00 or 4-30 p.m. When the amount of Rs.5,000 was returned, which was in the shape of 100 and 50-rupee notes. Thus he corroborated the defendant, who had deposed that refund was made at evening time and in the shape of identical currency notes. He knew Muhammad Luqman for twelve or thirteen years. He used to supply vegetables to him and to the other Muhallah people. The amount was returned to Bashir Ahmad inside the house of Muhammad Luqman. Defendant in context had, however, stated that the amount was returned outside his house. He had no talk with Bashir Ahmad "for the last one month".
5. On the basis the foregoing evidence but without duly recapitulating or and sing it. The two courts below have decreed the suit for specific performance. The appellate Court did nit even frame the points for determination, as required by Order XLI, rule 31, C.P.C. The easiest course such circumstances would here been to set aside the d eats and decrees assailed in this revision application and remanded the matter for redetermination but that will only prolong the agony of the parties. For that reason the entire, gamut of the controversy has been and will be examined here, with such results as are to follow.
6. A great deal has been said by the trial Court about some inconsistencies in the defence evidence, which on that score has been disbelieved by it. Nothing whatever has, however, found mention about the shifting stands from the side of the plaintiff, his case being taken for granted because the defendant did not dispute the transaction. Both the Courts have relied heavily on the fact that no receipt for return of the amount of Rs.5,000 was executed, evidencing the cancellation of the agreement and the defendant's version rests totally on oral evidence.
7. In the first place, it is settled law that a plaintiff must succeed on the strength of his own case. True that once the transaction was admitted in defence the burden to prove its rescission shifted on the defendant. The defence evidence, therefore, quite legitimately had to come up for scrutiny but that does not imply that such scrutiny was to be totally divested from the overall circumstances of the case. Those circumstances manifestly included due examination of the plaintiffs side of the story and particularly whether the plaintiff had succeeded in substantiating the various stages of the case put up in support of the claim and if not, to what extent the rule of pre-ponderance of evidence relative to rescission was satisfied. This was all the more so because specific performance is a discretionary relief and the discretion, being judicial, need not necessarily be exercised merely upon proof of an enforcible transaction.
8. Thus there have been obvious inconsistencies in the legal notice and the averments in the plaint.
9. The legal notice, which preceded the plaint and is the earliest version of the plaintiff, does not speak of any extension of time on 1-5-1979 or of the subsequent specific extension on 10-1-1981 or for a period of ten days ending on 20-1-1981, as brought out in Court. Out of these the alleged first extension on 1-5-1979 was not even disclosed in the plaint and for the first time surfaced in the evidence adduced from the plaintiff's side. Plaintiffs evidence itself is inconsistent on the point.
10. While in the plaint it is said that on 10-1-1981 time was "given" to the plaintiff for a period of ten days for "completion of necessary relevant documents in respect of the disputed property", Bashir Ahmad plaintiff, contradicting, deposed in Court that it was he, who had acceded to the request of the defendant for time. Then it is stated that demands were made, from time to time, for seeking completion of sale and such were made in the presence of witnesses. Few of those witnesses, who were not named, except one, who is a neighbour of the plaintiff, have been examined. How strong the evidence of the examined witness turns out to be has already been seen in passing. It is a principle of the law of evidence that if evidence, which can be readily produced by a party, is withheld without good cause such evidence, had it been led, it should be presumed, would have gone against the party, withholding it. (Article 129, Illus (g),' Qanun-e-Shahadat, 1984). Likewise, the plaintiff positively deposed in Court that the public notice was taken out on the "advice" of defendant Muhammad Luqman. Not a word to this effect was said either in the legal notice despatched by the plaintiff or in the plaint. On the contrary, Muhammad Luqman in the written statement denied any knowledge of the public notice. Muhammad Luqman was not even cross- examined on the point. As it is, it would have hardly been plausible for the defendant to render such advice, more so when probably it could not in routine be translated into action the very next day in the shape of a notice in the classified columns of a well-circulated newspaper. Then, could it stand to reason that a man who was promising to make compliance on 10-1-1981, occasioning a public notice the next day on his own purported advice, would unabashedly go back so soon on the agreed date fixed for satisfaction viz. 20-1-1981 ? These were serious matters but no note whatever thereof was taken at any level.
11. A crucial aspect of the matter emerging in consequence, which also was totally ignored by the two Courts below, was the period from 9-6-1979 (end of three months) and at least up to 10-1-1981 during which time. As per plaint, requests were made and specific performance was avoided.
12. According to the defendant's version, the matter had been sorted out and the contract was terminated within the stipulated period of three months commencing from 10-3-1979. If that was not so and if defendant Muhammad Luqman was indulging in persistent evasiveness before the date of the legal notice there would have been some correspondence and some evidence, if not written at least of an oral character. Indeed, in evidence, the version of the plaintiff underwent a radical change in comparison to what was alleged in the legal notice dated 21-1-981 and averred in the plaint, submitted on 11-2-1981. There, it was maintained that the time of performance was extended as early as on 1-5-1979 though for how long, the matter Was left to remain non--specific.
13. Thereafter, when the next offer was made, after a year and a half, on 10-1-1981, prompt compliance (within 10 days) was promised by the defendant, yet somehow occasioning issuance of an immediate publication (on the defendant's own advice) by the plaintiff. The plaintiff finally encountered refusal on 20-1-1981, which gave rise to an immediate legal notice on 21-1-1981 and the suit itself within a matter of days. Can any one believe such a convenient story, even if it did not involve the various contradictions noted elsewhere?
14. Reverting, while there is little trustworthy evidence from the side of the plaintiff there are at least two witnesses, who were examined in support of the defendant's version, one of them has been conceded to be an attesting witness at the bar before me. This was a witness, on such premise, not only of the transaction itself but also of what happened subsequent to the transaction. He referred to the admissions made to him by both the parties. This evidence could not be rejected on the basis of some small inconsistencies. After all witnesses are not parties to the proceedings and cannot be expected to remember each and every detail of acts, events or transactions with which they may not have been even remotely concerned. This should be more so when depositions come to be recorded after a good deal of time has gone by since the act, event or transaction took place regarding which the witnesses are deposing. In this case all the defence evidence was recorded on 14-2-1987 whereas the contract stood concluded on 10-3-1979. This applies equally to the other witness examined by the defendant. That witness namely, Abdul Rasheed has deposed about the refund having taken place in his presence. He has corroborated the defendant in material particulars as to the point of time namely, an evening two and a half months from the date of the transaction. He has also corroborated the evidence with regard to the specific currency notes, which passed hands at the time. One of the contradictions noted in his evidence is about the location. Muhammad Luqman said that such transpired outside his house when this witness stated that the event took place in the house of Muhammad Luqman. The deposition of the witnesses must have been translated in English before being transcribed. Thus if one were to say: " the translated version in English could well be that the amount was paid "in" or "at" the house of Muhammad Luqman. The translated versions of "inside" or "outside" the house having the same or similar connotations may not thus have been of any particular significance unless the two apparently conflicting versions were expressly brought to the notice of each witness testifying before the Court. This was not done. The witness has been branded also as a chance witness because he was merely supplying' vegetables to the defendant and the Muhallah people. What was ignored was that the witness in addition, claimed also to be a neighbour of the parties. His presence, therefore, could be duly accounted for. It was emphasised in the trial Court that the witness stated that at the time refund of Rs.5,000 was made, in his presence, there were apart from the parties, two other persons present. The defendant himself, however, maintained that there were only the two parties and witness Abdul Rasheed. This was no doubt a serious contradiction and made the testimony suspect. Still, could all the evidence, circumstantial and oral, supportive of the defence, be given the go-by on the account ? Perhaps not.
15. In civil matters the rule of preponderance of evidence prevails. Thus, on the one hand, there were shifting stands of the plaintiff, as highlighted above, and then the plaintiff demonstrably failed to explain the lapse of the period between 9-6-1979 (end of the stipulated three months) and 10-1- 1981, the crucial date according to plaintiff's own averments. On top of it all, he declined to take or suffer an oath as to the alleged refund, though repeatedly challenged. An attesting witness to the deed affirmed that refund was admitted by the plaintiff to him. Another witness said that the refund came about in his presence. If no refund was made and if the plaintiff failed to explain the time lag between 9-6-1979 and the date of suit, which on evidence, including circumstantial, he failed to do, what was he doing during all that period ? If remaining unaccounted for would not all such period be corroborative of the defendant's stand that the deal stood rescinded shortly after its being struck, upon refund being made?
16. It may be added here that law does not require that a written contract can only be rescinded in writing, as the Courts below seem to think. A written contract, subject to some exceptions, which are not attracted here, can with equal efficacy be terminated orally: proviso (4) to Article 103 of Qanun-e- V Shahadat, 1984. All that, in such situations, has' to assure is whether the evidence, oral and circumstantial, proves the rescission.
17. Now we may turn to the transaction itself. It is a Declaration of Sale, inscribed on a Rs. 25 stamp paper (+ Rs. 5 adhesive)', where the seller expressly stipulates that he has "sold" the property in question. He undertakes to 'deliver possession in three months' time. No further documentation is contemplated in the deed. Value of the property is manifestly more than Rs.100, making the relative disposition compulsorily registrable. The document thus neither bears the requisite stamps nor is it registered, as mandated by section 17 of the Registration Act and section 54 of the Transfer of Property Act, 1882. The instrument should, therefore, have been impounded for insufficiency of stamps and could not be admitted in evidence. This was the effect of sections 33 and 35 of the Stamp Act. However, in view of section 36 in the, same Act, nothing can be done at this stage. Such section, once an under stamped or unstamped instrument is admitted in evidence, precludes any controversy on the point except to the extent permitted by section 61.
18. As to non-registration, the consequence is in contemplation of section 49 of the Registration Act, 1908, and such is that a document required to be registered under the Act, but falling short of the requirement, shall not "operate to create, declare, assign, limit or extinguish, in present or in future, any right, title or interest, whether vested or contingent, to or in immovable property". The section is a comparatively recent induction on the statute book in virtue of the Registration (Amendment)
19. Ordinance, 1962, which replaces its erstwhile precursor in the principal Act of 1908. For comparison and analysis the two versions are reproduced below:-- SECTION 49 OF THE REGISTRATION ACT AS IT STOOD BEFORE THE AMENDMENT OF 1962 Effect of non-registration49. No document required by of documents required tosection 17 or by any provision of the be registered Transfer of Property Act. 1882 to be registered shall -- (a)affect any immovable property comprised therein, or (b)confer any power to adopt, or (c)be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered; Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of-Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter 11 of the Specific Relief Act, 1877, or as evidence of part performance of a contract for the purposes of section 53-A of the Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument.
20. (The underlined words and the proviso to the section were added and enacted through the Transfer' of Property (Amendment) Supplementary Act- XXI of 19291 SECTION 49 OF THE REGISTRATION ACT. AS AMENDED BY THE REGISTRATION (AMENDMENT) ORDINANCE. 1962
49. Effect of non-registration of documents required to be re is ere.--No document required to be registered under this Act of under any earlier law providing for or relating to registration o) documents shall--
(a) operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title. Or interest, whether vested or contingent, to or in immovable property, or
(b) confer any power to adopt unless it has been registered Under the original text of section 49, preceding the enactment of Act XXI of 1929, an instrument, required by law to be compulsorily registered, could not be admitted in evidence except for a collateral purpose such as for ascertaining the nature of possession: Varada Pillai v.
21. Jeevarathanammal, AIR 1919 PC 44, Nor could it create any right in immovable property and the Privy Council in Skinner v. Skinner (1929) 56 IA 363, inter alia, approving Sanjib Chandra Sanyal v.
22. Santosh Kumar Lahiri, ILR 49 Cal. 507 (involving an unregistered lease) ruled that to allow such a document "to be used as the foundation of a suit for specific performance appears to their Lordships to be little more than an evasion of the (Registration) Act." The brunt of this Privy Council ruling was, however, legislatively overtaken by exempting suits for specific performance, if based on unregistered dispositions, under the added proviso to the section, inserted through the Transfer of Property (Amendment) Supplementary Act, XXI of 1929. Simultaneously inserted were also sections 27-A and 53-A in the Specific Relief Act, 1877 and in the Transfer of Property Act, 1882, respectively, codifying the supervening equitable principle of part performance together with matching amendments in section 49 ibid. Itself and in particular, as stated, addition- of a proviso thereto; saving entitlements in the way of specific performance and admissibility for collateral purposes. At the same time, however, subject to the amendment and insertion of the proviso to the section, the operative clauses (a) to (c) in section 49 of the Registration Act were retained.
23. The effect of the amendments introduced in the year 1929, therefore, was that whereas an unregistered document, requiring mandatory registration, could still, as a rule, not affect the property comprised therein nor could it be received as evidence of any transaction affecting such property, the same, by way of exception, became admissible in evidence in a suit for specific performance or to support a defence in the way of part performance or to sustain a collateral transaction not itself required to be effected by a registered instrument. In essence, resultantly, the 1929 amendments left section 49 of the Registration Act substantially denuded of any sting.
24. This is how the law stood till the advent of the Registration (Amendment) Ordinance in 1962.
25. Through a sweeping change brought about by that amendment, section 49 of the Registration Act, as it then stood, was omitted and substituted by the provision currently occupying the field, as reproduced above. Now, the first and foremost post amendment change was that the embargo on an unregistered document, otherwise registrable, from being received in evidence was lifted and with that also disappeared the proviso from the section, which as regards the doctrine of part performance had very little meaning because of the all too obvious availability of section 27-A of the Specific Relief Act, 1877 and section 53-A in the Transfer of Property Act, 1882 and as regards admissibility for collateral purposes became no more than a mere surplusage. The other, a more potent but less discernible, change in the phraseology of section 49 in the Act comprises of the substitution of clauses (a) and (c) of the original version by the current clause (a), which is far more elaborate and comprehensive as regards the impact of an unregistered instrument, or lack of it, on immovable property and rights therein. Gone, correspondingly with the amendment, is also the licence allowed by the proviso inserted in 1929, where under "an unregistered document affecting immovable property" could be received in evidence in a suit for specific performance. The catchwords there, may it be noted, were "affecting immovable property", allowing manifest leverage for suits of specific performance in relation to clauses (a) and (c) of the operative part of section 49. Such a document thus may still be received in evidence in such a suit but that should be nothing peculiar as to suits for specific performance because the amendment has made such documents admissible in all suits and proceedings. Suits for , specific performance would, however, be selectively targeted by the amended provision because in spite of admissibility of an unregistered instrument, registrable compulsorily, such pursuant to the amendment shall not "operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, to or in immovable property". The 1962 Amendment, therefore, can plausibly be said to have revived the Privy Council dictum in Skinner v. Skinner ibid. Declaring that to allow an unregistered document, registrable by law, to be used as foundation for a suit of specific performance appears "to be little more than an evasion of the (Registration) Act".
26. Having said as much, the exercise would be left unfinished unless the objectives behind the 1962 Amendment are explored. It has already been noticed that while a document, required by law to be compulsorily registered remained technically inadmissible in evidence under section 49, as always before, the amendment of 1929 had rendered the provision toothless by making exceptions for collateral purposes, pleas for part performances and claims of specific performance. Through the amending Ordinance of 1962 the requirement and rule of particularised instruments to be registered was more emphatically under-scored: hence the elaborate language employed in the substituted section. The reason is patent enough, the serious nature of the transactions requiring registration warranted the re-supplied emphasis. If such was not the case the consequences are not difficult to visualise. Take a look at the document in these very proceedings. Such is signed by the seller alone. It is purportedly executed on 10-3-1979. One of the attesting witnesses has attested it on 11-3-1979. The Notary Public has, yet, notarized it on 23-4-1979 even though neither the executant nor the witnesses signed before him nor was any one identified to him nor he avowed to personally known any of them. Such a document could always be disowned, creating uncertainties and controversies about valuable proprietary rights. It enhances the creditability of Muhammad Luqman, the seller, that he did not do it. Hence the rule that such-like documents, involving high interests, must be registered so as to obviate and preclude trifle disputes and ensure maintenance of more or less permanent records, for men do not live for ever but immovables are more enduring, furnishing part of the rationale behind the law of registration. This is what the statute of 1962 has ensured by administering a warning to the concerned in no uncertain terms. At the same time, by doing away with the prohibition to admit such documents in evidence regrettably what had become a mere technicality, the amendment has made an unregistered document referable nay even usable to sustain or prove another e.g. An earlier agreement of sale, execution whereof may have been denied by an unscrupulous party. Correspondingly, and this is important, while a suit for specific performance can no longer, under the amended version of section 49, be based on an unregistered deed of sale, such may still be founded on an earlier agreement to sell and if that be denied the deed of sale may be admitted in evidence to prove such. This arises, as reiterated in Pak. Employees Cooperative I-dousing Society v. Anwar Sultana, PLD 1969 Kar. 474, because the Registration Act strikes only at documents and not at transactions. Such is a clear improvement upon the previous law and more particularly the pre-1929 law. It is another matter, though, that in the instant case the plaintiff had no earlier agreement to fall back upon. Reverting, there also remains no embargo for an unregistered document to be utilised for seeking refunds of payments made during the course of the transaction or indeed, as stated above, to secure any other collateral purpose, since that concession was made by the Privy Council way back in Varada Pillai v. Jeevarathanammal, AIR 1919 PC 44, and was recognised in the 1929 amendment but does not seem to have been deviated from in the current state of legislation.
27. The implications of section 49 in the Registration Act, as that section stands now, are obvious for our purposes. The document involved in these proceedings, having been compulsorily registrable, but remaining unregistered and thus creating no interest in property, it was open to serious doubt, whether the discretionary relief of specific performance could be based thereupon; all the more so because no possession of the immovable property, having come to be delivered to the purchaser, shelter could not even be taken under the principle of part performance, covered by section 53-A of the Transfer of Property Act.
28. Something may be said at this juncture about an assertion from the side of the defendant that in the suit for specific performance no prayer for possession had been made, and, therefore, decree for possession could not be passed. In view of what has been said here the argument is rendered merely academic. However, the Courts below, on the point, have correctly concluded that a prayer for specific performance includes a prayer of possession, if possession still remains with the seller.
29. Furthermore, in the matter of grant of relief a Court has sufficient latitude, as envisaged in Order VII, Rule 7, C.P.C" and even an altered relief can be granted on grounds, which are not inconsistent with the case set up in the pleadings: Muhammad Yaqoob v. Muhammad Ishaque 1980 CLC 2056.
30. Another aspect of the matter may conveniently be focussed now: Muhammad Luqman, the defendant, as adverted to above, had averred in his written statement that he was prepared to take a special oath that the advance amount of Rs. 5,000 was returned by him, thereby putting an end to the contractual obligations. In cross-examination Bashir Ahmad, the plaintiff, was also offered to take such an oath and deny that the said amount, in actuality, had not been refunded.
31. Later, in his examination-in-chief, Muhammad Luqman again offered to take that kind of oath himself. This too, not producing any positive result, in terms of Article 163 of the Qanun-e-Shahadat, 1984, an application was moved before the trial Court seeking that Bashir Ahmad, the plaintiff, may be required to take oath that he had not secured refund of the above-referred amount. The application was dismissed by the trial Court.
32. It has been urged before me from the side of the applicant-defendant that, in the first place, the trial Court was wrong in not calling upon Bashir Ahmad to render oath as demanded and that, in any case, because Bashir Ahmad refused to respond to the challenge an adverse inference should have been drawn against his claim in the suit.
33. Article 163 of the Oanun-e-Shahadat, which was invoked at the trial, is a new arrival in our system of laws. It has an exclusive chapter with title of its own and runs thus: CHAPTER XIl DECISION OF CASE ON THE BASIS OF OATH
163. Acceptance or denial of claim on oath.--(1) When the plaintiff takes oath in support of his claim, the Court shall, on the application of the plaintiff call noon the defendant to deny the claim - oath (2)The Court may pass such orders as to costs and other matters as it may deem fit.
(3) Nothing in this Article applies to laws relating to the enforcement of Hudood or other criminal cases.
34. The Article is based on the Islamic concept of deciding certain matters on parties' baths in specific circumstances, all matters not admitting of decision on mere oaths; hence the partial exception in clause (3) of the Article. The making of oaths, including those by witnesses, was apparently not a matter of routine under the Muslim Law. It was only when the truth of a testimony was challenged that an oath was to be administered to a deponent. Two witnesses were usually required to prove a claim and if a plaintiff had only one, the plaintiffs taking oath personally would meet the requirement, as is borne out by a tradition of the Holy Prophet, (p.b.u.h.) reported from Baqar in Imam Malik's Mowatta. If a plaintiff had do witnesses he had the option, as will be discussed below, to demand oath from the defendant, the claim coming to be defeated on the defendant taking up the challenge but on defendant's refusal the plaintiff, according to Imam Shafei, was to take an oath in affirmation and with it the decree. The preponderant view, however, has been that upon such a refusal the Qazi must straightaway pass decree because the refusal indicate either a concession of the thing claimed or an acknowledgement of the validity of the claim. Imam Shafei, on his part maintains, and to his opinion I respectfully subscribe, that the Oazi ought not to pass a decree immediately on the refusal of the defendant but must first administer an oath to the plaintiff and then pass the decree against the defendant because the refusal to take an oath admits of three different constructions:
(i) It in may proceed from a desire to avoid a false oath; (ii)it may proceed from an unwillingness to take an oath, although in testimony of the truth, from an opinion of its being derogatory to the deponent's character; and (iii)it may. Proceed from a doubt and uncertainty whether the matter be true or false; and as tile refusal to make an oath is a matter of uncertainty, it cannot amount to proof (since anything of an uncertain nature is incapable of constituting proof); and as the oath of the plaintiff manifests the right, the Court must, therefore, be had to that."
35. (Hamilton's Hedaya, Book XXIV, Chapter II, page 402)
36. The opinion of Imam Shafei should not militate against the tradition of the Holy Prophet (p.b.u.h,) that "evidence is incumbent on the part of the applicant and an oath on that of the respondent" because according to another tradition, followed consistently by the Khulfa-e-Rashideen, in cases where the plaintiff has only one witness in support of the claim that shortcoming may be overcome by his himself disposingon oath ac to the correctness of the claim. This will also show that, in view of the objections raised by Imam Shafei, it may neither be just nor expedient to decree the plaintiffs claim solely upon the refusal of the defendant to respondent to the oath demanded of him.
37. We have, however, travelled a long way since. Not only are oaths routinely administered in our times but the terminology of oaths itself administered to parties and witnesses as a matter of course is of a very serious character and virtually partakes of the terms of special oaths visualized in the Oaths Act, 1873. In the result, these oaths, having become common place, stand denuded of requisite sanctity, aiding and assisting falsehood rather than the truth: Perhaps if oaths were administered with caution and relatively sparingly the sanctity thereof may come to be suitably restored. Selective administration of oaths, as in Islamic times, may thus be helpful in the discovery of truth; Khan Sher v. Kabla (Mst.) PLD 1988 Peshawar 65.
38. Reverting, there is some case-law, which seeks to interpret Article 163 but alongside the relevant citations, may also be examined the background -in 'the Islamic Fiqh, drawing upon which the provision has been enacted. There are two precedents, which shed light on the subject and may straightaway be cited: "The Holy Prophet (p.b.u.h.), in a case where a defendant objected to the allegations said first to the plaintiff, `have you evidence' and on his answer in the negative, he then said, `it belongs to you to demand an oath from the defendant'."
39. (Charles Hamilton's Hedaya, Book XXIV, Chapter 1, Page 401).
40. It thus seems that first evidence is to be demanded of the plaintiff and, on his inability to produce it, an oath is to be exacted from the defendant. There is some conflict, however, between Imam Abu Haneefa and Imam Abu Yousuf (the position. Of Imam Muhammad being somewhat uncertain) whether the right of a plaintiff to exact oath from the defendant arises upon total unavailability of evidence or unavailability at the time the matter is called up in Court for determination, but such, being a finer point of distinction, need not detain us: Charles Hamilton's Hedaya, Book XXIV, Chapter II, Page 401.
41. In another precedent of the Holy Prophet (p.b.u.h.), Ishaas bin Qays narrates that: "I brought a Jew with whom I had a dispute over a piece of land before the Holy Prophet (p.b.u.h.) for decision of the dispute. He asked me, `you have witnesses'. On my reply that there is none the Holy Prophet (p.b.u.h.) asked the Jew to take oath. On this I submitted that the Jew will take oath and will devour my property as he will feel no hesitation in taking an oath. The Holy Prophet (p.b.u.h.) replied that whoever gets any property through a false oath, will face the wrath of Almighty Allah as it is in the Holy Quran that`as for those who purchase a small gain at the cost of Allah's covenant and their oaths, they have no. Portion in the hereafter. Allah willneither speak to them nor look upon them on the Day of Resurrectionnor will he cleanse them of sin; they shall have a grievous penalty'."
42. (See Ainul Hedaya, Vol. 3, page 444, as reproduced in The Principlesand Digest of the Qanun-e- Shahadat by Mr. Justice Khalil-ur-Rehman Khan, Vol. 2, page 1871).
43. It seems thus evident that under the original concepts in Islamic Fiqh a plaintiff has first to raise a claim. If he has witnesses in support of the claim the matter has to be decided on the basis of evidence led, apparently, from either side. It is only in cases where there are no witnesses available in support of the claim that the plaintiff, upon raising the demand, is entitled to exact do oath from the defendant and that is the plaintiff's right. If the defendant declines to make oath the plaintiff (on taking oath himself) should have his decree. Alternatively, on the defendant making oath of denial the plaintiff must fail. It is these concepts of Fiqh, which are implicitly ingrained in the framingof Article 163 of the Qanun-e-Shahadat. Similar views were expressed byAbdul Karim Khan Kundi, J. (as he then was), in Khan Sher v. Kabla (Mst.) PLD 1988 Peshawar 65, where Nazir Ahmad v.
44. District Judge, Leiah PLD 1986 Lahore 137, was substantially dissented from. The rule seems to be also recognised by the Supreme Court in Muhammad Fazil v. Bibi Sughran 1991 SCMR 1371.
45. It would consequently appear that the cases of Muhammad Shahbaz v. Ghulam Rasool, 1987 CLC 1512, Muhammad Sharif v. Bashir Ahmad, 1987 CLC 2006, Husni v. Nayyar Qayyum 1987 CLC 2485 and Rehmatullah v. Nasir Khan, 1991 MLD 1011 may have to be construed somewhat broadly to give effect to the Injunctions in Islam forming the background for the promulgation of Article 163 in the Qanun-e-Shahadat. Thus, for instance, the application from the plaintiff, spoken of in clause (1) of the Article need not be in writing and may be only oral. Likewise, under clause (2) in the Article, within the ambit of "and other matters" may also fall orders for decreeing or dismissing the suit, since the preceding phrase "as to costs" does not involve any genus and need not be interpreted EJUSDEM GENERIS. Article 163(2), as regards the consequence of a proceeding under Article 163(1) of the Qanun-e-Shahadat, seems to have left much to the discretion of the Court because the outcome of an exercise under Article 163(1) cannot always be anticipated with mathematical certainty, many a matters in the Fiqh not admitting of bare .Oaths and oaths therein being only permissive and suggestive rather than conclusive.
46. It is in the foregoing light, in my view, that Article 163 of the Qanun-e--Shahadat should be interpreted. The making of oath by the plaintiff, spoken of in the Article, seems to me to be the equivalent of an offer to and ultimate taking oath by the plaintiff. (the matter admitting of such oath) if the defendant, on a request of the plaintiffhaving been called upon to deny the plaintiff's claim on oath, principally (though not always) when the plaintiff has no (available or satisfactory) witnesses, fails to repudiate that claim on oath. Alternatively, upon the defendant taking an oath of repudiation, in cases where the plaintiff has no witnesses, the claim must fail, there being no necessity or relevance for the plaintiff to take any oath of his own whatever. To my mind, the order in which the oaths are envisaged. In the Article is immaterial. The Qanun-e-Shahadat, as its preamble will show, is designed to revise, amend anti consolidate the law of evidence so as to bring it in conformity with the Injectionof Islam as laid down in ,the holy Qur'an and Sunnah" and the provision thereof "shall have effect notwithstanding anything contained in any otter law for the time being in force": Article 165. No diametrically different 'interpretation of the Article seems to be permissible because in case it is only implemented literally and oath is pitched against oath not only the objective of enforcing the Islamic tenets will be defeated but the Article may itself become nugatory as occurred in the case of Muhammad Shahbaz v. Ghulant Rasool, above, or as came to occasion the straining of the meanings in the Article in the case of Muhammad Sharif v. Bashir Ahmad ibid. This is not to say that the Article does not permit oath to be pitched against oath: it does because, in specific situations, the Fiqh does likewise but in those peculiar cases, one oath cancelling the other, it becomes incumbent on the Qazi to dissolve the transaction.
47. Having examined, the effect of Article 163 of the Qanun-e-Shahadat, 1984, in the light of Islamic Jurisprudence on which such Article is manifestly based, it remains to be said that the provision is very broadly worded and perhaps advisedly so. The directives in the Qur'an and Sunnah, as if by design, are largely based on generalised principles. The reason is not far to seek. Such are guidelines to mankind for all times, past, present and future. The principles of Islam are calculated to fit into the ever involving and changing times. Aids of IJMA, IJTEHAD, ISTADLAL, QYAS etc. Have been mandated with this precise end in view. The current and pragmatic mode for due construction and application of the tenets of Islam is legislation. Accordingly, if there be no attending contradiction or transgression pf such tenets legislative authorities, in times that have followed, may choose to draw upon .Them, in the first place, anti build thereupon, in the second.
48. Indeed, the codified version in Article 163 of the Oanun-e-Shahadat and preceding it the various contingencies envisaged in the enacted provisions of sections 8 to 1~ in the Oaths Act, 1873 (enacted in the colonial past:) may have done just that. Sections 8 to 12 of the Oaths tact, which also are relevant for out purposes here are in the under-noted terms: "OATHS ACT, 1873.
49. 8.Power to tender certain oaths.--If any party to, or witness in, any judicial proceeding offers to give evidence on .Oath or solemn affirmation in any form common amongst, or held binding by, persons of the race or persuasion to which he belongs, and not repugnant to justice or decency, and not purporting to affect any third person, the Court may, if it thinks fit, notwithstanding anything herein before contained, tender such oath or affirmation to him.
9. Court may ask polity or witness whether he will make oath proposed by opposite-party.--If any party to any judicial proceeding offers to bebound by any such oath or solemn affirmation as is mentioned in section 8, if such oath or affirmation is made by the other party to, or by any witness in, such proceeding, the Court may, if it thinks fit, ask such party or witness or cause him to be asked, whether or not he will make the oath or affirmation: Provided that no party or witness shall be compelled to attend personally in Court solely for the purpose of answering such question,.
50. 10.Administration of oath, if accepted: --If such party, or witness agrees to make such oath or affirmation, the Court may proceed to administer it, or if it is- of such a nature that it may be more conveniently made out of Court, the Court may issue a commission to any person to administer it, and authorise him to take the evidence of the person to be sworn or affirmed and return it to the Court.
51. 11.Evidence conclusive as against person offering to be bound.--The evidence so given shall, as against the person who offered to be bound as aforesaid, be conclusive proof of the matter stated.
52. 12.Procedure in case of refusal to make oath,--If the party or witness refuses to snake ' the oath or solemn affirmation referred to in section 8, he shall not be compelled to make it, but the Court shall record, as part of the' proceedings, the nature, of the oath or affirmation proposed, the fact that he was asked whether he would make it, and that he refused it, together with .Any reasons which he may assign for his refusal."
53. Section 8 of the Oaths Act applies t4 parties in judicial proceedings, irrespective of the fact whether a party be plaintiff or defendant, applicant or opponent, petitioner or respondent. The section extends to witnesses in judicial proceedings as well, it being immaterial on whose behalf the witness appears. Any person falling in the foregoing categories may offer to give evidence on oath or solemn affirmation in any form, common amongst or held binding by persons of the race or persuasion to which he belongs and not repugnant to justice or decency or purporting to affect any third person. In that event, under the section, the Court may, if it thinks fit, notwithstanding anything container. In the earlier part of the Act tender such oath or affirmation to the offerer: In a case covered by section 8, it is the Court alone which has to exercise its discretion in allowing or not allowing the special oath offered and no 'consent of any other person is relevant. The discretion being judicial requires to be exercised on sound judicial lines. The Act does not expand upon the consequences of such an oath, if allowed. It, therefore, reamins for the Court to determine its effect.
54. In the instant case, defendant Muhammad Luqman offered to take such an oath but the trial Court failed to exercise its powers under section 8, neither allowing the request nor rejecting it. The Court, therefore, acted with material irregularity.
55. Section 9 in the Oaths Act proceeds in a direction opposite that which is envisaged in section 8 and whereas it is a party or a witness in a judicial proceeding under the section who offers to make special oath, under section 9 it is a' party to such proceeding, who offers to be bound by an oath or solemn affirmation as is mentioned in section 8, if such oath or affirmation is made by the other party to or by any witness in such proceeding. Here again, however, the Court may if it thinks fit ask such other party or witness or cause him to be so asked whether or not he would make the required oath or affirmation. Needless to add that the discretion under the section remains judicial and allows no room for arbitrariness.
56. Section 10 in the Act, which follows, implicitly has a direct nexus with section 9 and, where the Court, in its discretion and in line with section 9, has thought fit to ask the other party or witness to make such oath or affirmation, as he has been challenged to make and, that .Party or witness, in terms of section 10, agrees to make the requisite oath or affirmation, the Court may proceed to administer it or, if exigencies so require, cause it to be so administered. Section 11 is again ancillary to section 9 and contemplates that the evidence given by the person challenged to make the oath or affirmation envisaged in- section 9 shall, as against the person who offers to be bound by the same, be conclusive proof of the matter stated. The last section in the series, spearheaded and controlled by section 9 is section 12 and that takes care of a situation where the party or witness, challenged to make the oath or solemn affirmation under section 9, in the terms stated in section 8, refuses to make such oath or affirmation. In that event, the person challenged shall not be compelled to make the oath or affirmation but the Court would be obliged to record, as part of the proceedings, the nature of the oath or affirmation proposed, the fact of the concerned person being asked whether he would make it and his refusal to do so together with any reason which he may have assigned for his refusal.
57. A great deal of confusion in the interpretation of section 12 has arisen because of the expression in the commencing part of that section viz. "if the party or witness refuses to make the oath or solemn affirmation referred to in section 8" and an inference is often drawn that the section is an appendage of section 8 in the Act and has nothing to do with section 9 above. In reality, the position is the opposite. Section 12 has little to do with section 8 as such because under the latter section the latter it is a party or witness who offers himself to make the oath or solemn affirmation and there can be no scope for such party or witness refusing to do either. The question of refusal arises only under section 9, where the opposite number of a party or a witness is challenged to make oath or affirm solemnly. The words in section 12 "the oath or solemn affirmation referred to in section 8" are thus merely an abbreviated reference to section 9, where the kind of oath or affirmation challenged to be exacted is as "mentioned in section 8". It is, therefore, the unhappy language used in section 12, which has given rise to the foregoing confusion. Hopefully, what has been said here clears that confusion.
58. Now we come to the crucial question, whether the provisions of sections 8 to 12 in the Oaths Act, 1873, can be read in conjunction with Article 163 of the Qanun-e-Shahadat and if so to what extent.
59. Clause (1) of Article 163 enjoins that, "when the plaintiff takes oath in support of his claim, the Court shall on the application of the plaintiff, call upon the defendant to deny the claim on oath". The provision, subject to the concepts of Muslim Jurisprudence, arms a person, occupying the position of a plaintiff, to offer as well as demand oath. Note that the term "plaintiff' in Article 163(1) appears to denote a person occupying the character of a "plaintiff' in civil disputes (Article 163(3)) and with reference to rules as to procedure and burden of proof even a defendant may, in specific situations, come to fill that character. Clause (2) in the Article, consequently, empowers the Court to pass such orders as to costs or otherwise as it deems fit. Such orders, the words not admitting an ejusdem generis construction, should include a decree, if found requisite. All this, as discussed, is to follow the pattern enshrined in the pristine concepts of Fiqh, as adapted to modern-day demands. Sections 8 to 12 in the Oaths Act approach the somewhat identical matter in a different perspective. There the offer of a party to take special oath in support of its case as well as its desire to exact an oath of the kind from its opposite number is subject to discretion of the Court. The result of an exacted oath, however, remains the same as under Muslim law viz. That the party demanding it is bound to concede ground, when the challenge is taken. Likewise, when the challenge is declined by the opposite party the challenger, as opined by Imam Shafei, does not obtain an automatic redress and the Court is required to record the reasons for the refusal, if any, drawing its own conclusions in due time. The provisions of Article 163 in the Qanun-e-Shahadat and of sections 8 to 12 in the Oaths Act appear, therefore, to complement rather than to contradict each other.
60. Article 163 seems to be designedly coded as a generalisation so as to accommodate the entire Muslim thought (including exceptions) on the subject whereas sections 8 to 12 in the Oaths Act are more specific to given situations but, on principle and in essentials, are largely in line with Islamic Jurisprudence. The last is a tribute, in no small measure, of a colonial power, at the height of its glory, to the efficacy of Islamic laws for a satisfactory resolution of judicial proceedings, irrespective' of the nature of such proceedings.
61. Now in the instant case it was the defendant who in his written statement offered to take the special oath but none is shown to have been entertained, even though the offer was repeated during the course of defendant's . Examination-in-chief. Likewise; .The defendant challenged the plaintiff to make the requisite oath while the plaintiff was under cross-- examination but that the plaintiff declined. Matters did not end there and the defendant made an application under Article 163 of the Qanun-e-Shahadat at a later stage, seeking that the plaintiff be required to take special oath in terms stated. The application itself was dismissed. If the defendant had made the offer, manifestly envisaged in section 8 of the Oaths Act, the Court could have declined it only for good and sound reasons, since in no other way its discretion could be exercised. That was not done.
62. Correspondingly, when the defendant challenged the plaintiff to make an oath, contradicting the defendant's averment, as regards the return of earnest money, the Court could have refused the move but again, for reasons to be recorded. It neither accepted nor rejected the demand though the plaintiff himself declined. Likewise, if the plaintiff had refused to accede to the challenge, in terms of `section 12 of the Oaths Act, requisite endorsement on the record should have been made but none was made. Defendant's application under Article 163 itself was rejected, again on a technical 'ground namely, that it did not lie. To the extent of the claim of refund of .Earnest money, the defendant filled the character of a plaintiff and the application under Article 163 of the Qanun- e-Shahadat may have been quite competent. Alternatively, the application could have been treated as one under section 9 of the Oaths Act and disposed of accordingly. Such too did not come to transpire.
63. While it is settled' law that a refusal of a party to take oath, in contemplation of section 9 of the Oaths Act, cannot result in itself defeating the claim or defence of that party such is an important piece of material under section 12 of the Acct and can always be considered in conjunction with other facts of the case to arrive at a proper finding. This we can do even at this stage. The refusal, together with other material on the record, has definitely weakened the plaintiffs claim in the suit.
64. For all that has been said above, it seems to me that the plaintiff --respondent failed to make out a case for the decree of specific performance. The two Courts below, therefore, fell in error to pass such a decree. Because in doing so, jurisdictional errors were also involved, the matter attracts the invocation of powers under section 115 of the Code of Civil Procedure. This civil revision application is, accordingly, allowed and the impugned judgments and decrees are set aside, leaving the parties to bear their own costs.