The facts relevant for the disposal of this regular second appeal are that Allah Ditta and Muhammad Din, defendants Nos.l and 2 were owners of the land measuring 358 Kanals and 7 Marlas situated in Mauza Lakhu Baryar, Tehsil and District Kasur. It is alleged that these defendants agreed to sell this land to the plaintiffs through agreement dated 29-12-1976 Exh.P.4 for a total consideration of Rs.70,000. They received an amount of Rs.25,000 as earnest money while the remaining sum of Rs.45,000 was to be paid on 15-3-1977 at the time of registration of sale-deed before the Sub-Registrar, Kasur. It is added that the defendants No.l and 2 failed to perform their part of the agreement. Therefore, the appellants filed a suit on 2-4-1977 for specific performance of the agreement. It transpired that the defendants No.l and 2 had sold land measuring 232 Kanals and 13 Marlas out of the disputed land through registered sale-deed dated 21-5-1977 to Muhammad Siddique for a sum of Rs.1,00,000 therefore, he was impleaded as defendant No.3 in the suit. Further, relevant facts are that the defendants No.l and 2 had created two mortgages in respect of various portions of the disputed land. The first mortgage deed dated 26-3-1957 is Exh.P.7.
It was in favour of Shah Muhammad etc. for Rs.2,000 for a tenure of eight years. The other mortgage deed dated 8-6-1967 is Exh.P.9. The mortgagees were Muhammad Sadiq and Rehmat Ali. The mortgage money was Rs.2,000 again but the period was six years.
2. The defendants contested the suit. The learned trial Court accordingly framed the following issues:- "(1) Whether the agreement dated 29-10-1976 is illegal, against facts and based on fraud? OPD.
(2) If issue No.l is not proved, on what terms the plaintiffs would be entitled to a decree for specific performance? OPPs.
(3) Whether the suit is not maintainable? OPD.
(4) Whether the suit land is mortgaged and the mortgagees are necessary party to the suit? OPD.
(5) Whether the suit is under-valued or the plaint under-stamped? OPD.
(6) Whether the plaintiff has no cause of action and the suit is liable to be dismissed with special costs? OPD.
(6-A) Whether the plaintiff made any payment on the agreement, if so, to what extent? OPP."
3. Before proceeding any further, I would like to make it clear that in this case originally only one issue whether the agreement dated 29-10-1976 is illegal, against facts, based on fraud and without consideration, was framed on 30-11-1977. The onus of this issue was on the defendants and the second was relief. The defendants examined Noor Muhammad as D.W.1 and Ata Muhammad as D.W.2 on 11-2-1979. Thereafter the defendants Nos.l and 2 submitted an application for recasting of the issues on the ground that the issues framed are not in conformity with the pleadings while some important issues on the basis of preliminary objections raised in the written statement had been omitted. The issues were, accordingly, recast on 16-3-1980. The suit was thereafter posted for evidence of the defendants. There was yet another application, as a result of which, issue No.l was recast and an additional issue as 6-A was framed. This was done vide order dated 9-5-1981 and then the suit was posted for evidence of the plaintiffs for 6-7-1981. The plaintiffs examined Mian Feroze Din, Advocate as P.W.1, Fida Hussain, Petition-Writer as P.W.2, Muhammad Ali, marginal witness as P.W.3 and Muhammad Sadiq, one of the plaintiffs appeared as P.W.4. The plaintiffs concluded their entire evidence on 30-9-1984. Thereafter, Allah Ditta one of the defendants appeared as D.W.1 on 11-11-1984 and on the same date statement of Muhammad Siddiq defendant No.3 was recorded as D.WA It seems that he was wrongly marked as D.WA It should have been D.W.2.
4. The learned trial Court, after hearing the arguments, proceeded to decree the suit vide judgment and decree dated 4-5-1985. The defendant No.3 alone filed an appeal in the Court of the District Judge, Kasur, who entrusted the same to Mr. Naveed-uz-Zafar, the then Additional District Judge, Kasur, for disposal. The learned Appellate Court accepted the appeal vide judgment and decree dated 19-1-1988. Hence this R.S.A.
5. This appeal was admitted to regular hearing and notices were issued to the respondents. The respondents have appeared and contested the appeal.
6. The learned counsel for the appellants in support of this appeal raised the following points:-----
(a) That the defendants No.l and 2 had not specifically denied the execution of the agreement to sell Exh.P.4. It was termed as illegal and fraudulent. In this way, the execution of the same stands admitted. Issue No.l was, therefore, rightly framed and the onus correctly placed;
(b) That the learned Appellate Court ignored that the defendants although challenged the agreement on grounds of fraud etc. yet they have not given any particulars of fraud etc. as required under Order VI, Rule 4, C.P.C.;
(c) That although the learned Appellate Court criticised failure to frame the issue as to the execution, yet it did not frame the issue and remand the case as required under Order XLI, Rule 25, C.P.C.. The findings that the plaintiffs should have examined the Handwriting Expert is unjustified for the reasons that: firstly, the execution of the agreement was not specifically denied by the defendants; and secondly, in any case, the agreement and the receipts were proved by the plaintiffs as Exh.P.4 and Exh.P.5 respectively through the statements of P.W.2, P.W.3 and P.W.4. The onus, therefore, shifted to the defendants to rebut this evidence;
(d) That evidence of P.Ws Nos.2, 3 and 4 has been rejected without any legal and logical basis by the learned lower Appellate Court. The learned trial Court rightly treated them independent and natural witnesses;
(e) That the learned Appellate Court did not take into consideration that the plaintiffs did appear before the Sub-Registrar on the date appointed for the execution and registration of the sale-deed in the agreement;
(f) That the learned lower Appellate Court failed to appreciate that the mortgagees were neither proper nor necessary parties. In any case, they were not impleaded; and
(g) That the defendants Nos.l and 2, the owners, did not assail the judgment and decree of the learned trial Court in appeal. Therefore, the appeal by defendant No.3 alone who stepped into the shoes of defendants Nos.l and 2 was incompetent.
7. On the other hand, the learned counsel for the respondents argued that the plaintiffs failed to prove the execution of the agreement to sell, therefore, the appeal was rightly accepted by the lower Appellate Court. The question whether the defendants could prove that the agreement Exh.P.4 was result of fraud or not and was not material. It is argued that with reference to Order XLI, Rule 25, C.P.C. that since the parties have led their evidence and there was no prejudice, therefore, the lower Appellate Court rightly did not remand the case to the trial Court. In this behalf, reliance is placed on the cases of Mewa Ram v. Lal Sahai and another (AIR 1927 Allahabad 410), Vishnu Ramchandra and another v. Ganesh Appa ji Chaudhari and others (ILR 21 Bombay 325) and Kania Lal and others v. Narain Singh and others (AIR 1919 Lahore 119(2)). In this context, it is added that the irregularity, if any, is fully cured by section 99, C.P.C.. In this behalf, he has referred to Umar Din v.
Fazal Din and 10 others (PLD 1952 Lahore 166). The learned counsel also referred to sections 100 and 105, C.P.C. in this behalf, to show that there is no substantial error or defect. There was sufficient evidence, therefore, the case was rightly not remanded. In this behalf, he has relied on Pramatha Nath Chowdhury and 17 others v. Kamir Mondal and 3 others (PLD 1965 SC 434), Wali Muhammad v.
Dur Muhammad and others (1985 CLC 516), Messrs J. Tyler & Co. v. Messrs United Bank Ltd. (PLD 1982 Karachi 639), Chandra Kunwar v. Chaudhri Narpat Singh and others (ILR 29 Allahabad 184) and MA. Khokhar v. Sh. Manzoor Ahmad and L.DA. (1988 MLD 931). The arguments on this point were concluded with the submission that the parties accepted the issues as framed and produced evidence whatever they wanted to produce, therefore, remand and framing of proper issues was immaterial. In this behalf, he has referred to Mian Muhammad Latif, etc. v. The Lahore Improvement Trust, etc. (1985 CLC 2960), Qurban Hussain v. Haji Chaudhry Manzoor-ul-Hasan (1983 CLC 201) and Allah Wasaya-v. Irshad Hussain and another (PLD 1986 Lahore 29). The arguments are summed up with the submission that the parties have led sufficient evidence. They were fully aware of the dispute. The parties have neither been taken by surprise nor any prejudice had been caused, therefore, the lower Appellate Court rightly decided the appeal itself.
8. It is argued that the evidence of the P.Ws. was rightly and after full appreciation rejected. There is nothing wrong with the findings on this point. It is submitted that P.W.1 and P.W.2 did not advance the case of the plaintiffs in any manner. The application Exh.P.3 allegedly made to the Sub- Registrar could not be considered for two reasons: firstly it did not bear seal of the Sub---Registrar; and secondly, according to the last order it was consigned to record, therefore, the question arises how the original was with the learned counsel. If looked from this angle then the document would be deemed not produced from proper custody. The learned counsel for the respondents also raised a preliminary objection to the effect that in the present circumstances, the second appeal is not competent as the case of the appellants is not fairly and squarely covered by section 100, C.P.C.
The learned counsel argued that the scope has been determined by the Supreme Court in the cases reported as Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 SC 617) and Mir Haji Khan and 11 others v. Mir Aijaz Ali and 2 others (PLD 1981 SC 302).
9. The learned counsel for the appellants while replying to the arguments submitted that since the first Appellate Court has proceeded on surmises, conjecture and misdirected itself as to the real controversy, therefore, it is a fit case for interference by this Court. The learned counsel in this behalf, has referred to Bhagwab Singh v. Ujagir Singh and others (AIR 1940 Patna 33) and Babunandan Singh and others v. Phunesh Singh and another (AIR 1937 Allahabad 105). The learned counsel while summing up the arguments submitted that the plea of fraud in the absence of the particulars cannot be gone into. In this behalf, he has referred to the cases reported as Faqir Muhammad etc. v. Sheikh Nasim Ahmad (PLD 1979 Lah. 356) and Ghulam Shabbir v. Nur Begum and others (PLD 1977 SC 75). It was submitted that although it is the duty of the Court to frame proper issues yet parties cannot also be absolved of their responsibility. In this behalf, he has referred to Mansab Ali v. Hafizan and 5 others (PLD 1993 Lahore 1).
10. I have given my anxious considerations to the arguments of the learned counsel for the parties.
The learned counsel for the appellants argued that the defendants have admitted the execution of the agreement. They only termed it as fraudulent, illegal etc. The pleadings on this point were reflected by issue No.l. The defendants never raised a little finger as to the form of issue, therefore, it would be deemed that they have accepted the position as understood by the learned trial Court after going through their written statement. Therefore, it did not lie in the mouth of the defendants to deny the execution and contest the appeal on the ground that the agreement has not been proved.
11. The position on record is that the defendants did not deny the agreement but termed it as fraudulent. They did not make an effort to discharge the onus of issue No.l, which was heavily on them, therefore, the argument of the learned counsel for the appellants that in the absence of the particulars of the fraud as required under Order VI, Rule 4, C.P.C. the defendants could not be allowed to lead any evidence is irrelevant for the simple reason that defendants have not produced any evidence on issue No.l. This issue No.l having not been proved, therefore, the issue was to be answered against the vendors and the natural consequence that the defendants were bound by it was to follow. On the other hand, the defendant Allah Ditta in his statement simply denied the execution of agreement while Noor Muhammad D.W.1 and Ata Muhammad D.W.2 deposed as to the sale of the part of the land in favour of Muhammad Siddiq defendant No.3 and to the same effect is the statement of this defendant himself. Although the evidence produced by the appellants was natural, independent and inspired confidence yet the lower Appellate Court brushed aside the same illegally and illogically and, on the other hand, at the same time accepted the statement of defendant Allah Ditta as gospel truth. Now assuming for sake of the arguments that the execution of the agreement to sell was in issue and the onus was on the plaintiffs. They have produced scribe and marginal witness to prove this agreement. This was sufficient to shift the onus to the defendants. The best evidence, in the circumstances, could be that of the Handwriting Expert but the defendants did not get their thumb impressions examined by Handwriting Expert to contradict the plaintiffs and their witnesses.
12. This is not all. The plaintiffs though not required yet produced the scribe of the document as P.W.2, the marginal witness as P.W3 and one of the plaintiffs appeared as P.W.4 to prove the execution and payment of the earnest money. They further examined P.W.1 Mian Feroze Din, Advocate to corroborate their case. This witness stated that he sent a notice Exh.P.2 to the defendants Nos.l and 2 and also appeared before the Sub-Registrar in the application moved by the plaintiffs. The despatch of the legal notices is proved by postal receipts Exh.P.5 and Exh.P.6/A.
The plaintiffs also got notice published in daily `Saadat' dated 12-2-1977. The same although was placed on file yet was not got exhibited. These facts coupled with the agreement Exh.P.4 are sufficient to hold that the plaintiffs were claiming right in the land. The lower Appellate Court has observed that the evidence of P.W.2 and P.W.3 did not conclusively prove the execution of the agreement. The execution is fully proved and the criticism was irrelevant. The fact of the matter is that the lower appellate Court did not appreciate the controversy in accordance with the facts on record and issues framed by the trial Court. The appellants have led natural evidence to prove the execution of the agreement and payment of earnest money. The defendants simply denied the same. Their statements alone have been accepted as gospel truth. It is strange that on the one hand there was much effort to find faults with the natural and independent witnesses while on the other hand, simple denial by the defendants has been accepted as conclusive. The defendants to dislodge the statements of P.W.2, P.W.3 and P.W.4 should have examined Handwriting Expert. This was not done. The learned counsel for the appellants made an offer right in the beginning of his arguments that the appellants are still prepared to refer the matter to the Handwriting Expert for examination of the thumb-impression subject to the condition that the other side also join them in this request. The-learned counsel for the respondents said nothing doing with this offer because, according to him, the plaintiffs should have produced the Handwriting Expert and to the same effect are the observations of the lower Appellate Court. It passes one's comprehension that why the plaintiffs should have summoned the Handwriting Expert to prove an admitted or the document, which they have otherwise proved.
13. The lower Appellate Court after narrating the facts and reproducing the issues observed that no specific issue was framed about the execution of the said agreement by the respondents Nos.9 to
13. This, according to him, had to some extent led to miscarriage of justice. Similarly, it was also observed by the Additional District Judge in the last paragraph that no issue has been framed about the rights of the subsequent vendee. After raising this controversy he concluded that it was not only the duty of the Court to frame proper issues but also for the parties. Now if this conclusion is accepted then the appellants before him have nothing to argue further. Thereafter, he proceeded to observe that it was the duty of the plaintiffs to prove the execution of the agreement of sale. This is beside the issue and against the position accepted by the defendants. Why the plaintiffs should have laboured to prove an admitted document and under what law this obligation was placed on the plaintiffs? The learned counsel for the respondents had nothing to justify these observations. Then he raised another issue as to the mortgagees and held that they were proper if not necessary parties but did not discuss the matter to the logical conclusion.
The learned counsel for the appellants argued that it seems that the side winds have been raised purposely. Otherwise if there was any merit or substance in these points then why the Additional District Judge had not framed additional issues as deemed proper, impleaded mortgagees as parties and remanded *the case: Be that as it may, the lower Appellate Court should have avoided to introduce the controversy which creates apprehensions in the mind of the all concerned. This is no judgment in the eye of law as would be seen from the next para;
14. The lower Appellate Court has recorded in para. 9 of its judgment that issues Nos.l and 2 are decided against the plaintiffs as they were not proved. This is clearly against record as the onus of issue No.l was on the defendants and the record shows that there was no effort on their behalf to prove this issue. While dealing with the issue No.6 as to the cause of action, it was held that since he has already observed that the plaintiffs have failed to prove issue No.l, therefore, they have no cause of action. This is patent illegality committed by the lower appellate Court. The approach of the lower' Appellate Court is clearly perverse.
15, Then comes the question on what terms and conditions the plaintiffs were entitled to specific performance. They have proved the terms and conditions through Exh.P.4. He failed to note sale- deed Exh.D.l by the defendants No.l and 2 in favour of defendant No.3, according to which, the mortgaged land was only Rs.1,500 and that was left in the hands of the vendees. The same could have been done in respect of the plaintiffs. In any case, the mortgages were neither proper nor necessary parties to the suit as the plaintiffs were to take the land subject to mortgage
16. It is clear from the above discussion that the lower Appellate Court misdirected itself while basing its judgment on the fact that the agreement to sell had not eon proved. Neither there was any issue nor the defendants have denied the execution of the agreement. In fact by conceding issue No .l the defendants had accepted that the trial Court had rightly read the pleadings. The right of second appeal has only been given to strike down such perverse judgments. There is no merit in the preliminary objection.
17. In the end I feel compelled to record here that neither the witnesses of .the defendants were properly numbered nor the exhibited documents as is clear from the earlier para. of this judgment.
It is primarily the duty of all the Courts to keep the record in order but if somehow or the other some discrepancies creep in then it was the duty, in the first instance, of the Court which decided the suit to correct the number of the witnesses as well as exhibit numbers of the documents. In this case, it was not done. This duty then shifts to the lower Appellate Court but it seems that it also did not go through the record carefully. The result was that now there are two D.W.1 and there is no DW.3.
Similarly, the postal receipts 194 and 195 were marked Exh.P.5 and Exh.P.5/1 in the statement of Syed Faqir Hussain, learned counsel for the plaintiffs while the receipts themselves bear Exhs.P.5 and 6/A.
The matter be referred to the Hon'ble Chief Justice so necessary instructions could be issued to all the Courts to maintain the record properly and it may be made clear that such lapses shall be adversely considered in future.
18. The upshot of this discussion is that the judgment and decree of the lower Appellate Court dated 19-11-1988 is set aside by accepting this appeal with costs and judgment and decree of the trial Court dated 4-5-1985 is restored.