' WALI MUHAMMAD KHAN, J.---Muhammad Nawaz, appellant herein, through this direct appeal, calls in question the judgment dated 23-8-1992 passed by a learned Division Bench of the Lahore High Court, whereby Regular Second Appeal No, 95 of 1990 filed by the appellant against the judgment dated 4-6-1990 passed by the Additional District Judge, Faisalabad reversing the decree dated 28- 5-1985 passed by the Civil Judge, Faisalabad decreeing the suit for specific performance of agreement to sell dated 5-5-1973, was dismissed.
' The facts of the case, briefly stated, are that by means of an agreement to sell dated 5-5-1973, Ghulam Muhammad, predecessor-in-interest of Mst. Ahmad Bibi and others, respondents herein, agreed to sell the suit land in favour of the appellant for a sum of Rs,80,000 and acknowledging the receipt of Rs,65,000 undertook to execute a regular sale-deed on or before 22-5-1973 on receipt of the balance of Rs,15,000. Simultaneously, he executed a receipt regarding the receipt of Rs,65,000 where also reference to the agreement to sell was made. On the failure of the executant to honour the agreement to sell, the appellant on the last date mentioned in the agreement to sell for the purpose of the contract, approached the Sub-Registrar hoping that the executant would arrive there but when the executant did not turn up, he submitted an application Exh.P-6 to the Sub- Registrar. He also served a notice upon him through Chaudhry Nazir Ahmad, Advocate P.W.3 which was returned with the endorsement that "he has refused". Without loss of much time, he instituted suit for specific performance of the agreement to sell on 5-6-1973 in which notices were issued to Ghulam Muhammad since dead (then alive) but he did not attend the proceedings resulting in passing of the ex parte decree against him on 4-2-1974. The deceased/defendant submitted an application for setting aside the ex parte decree on 13-8-1974 which, after contest, was set aside on 20-6-1983. He submitted written statement on 7-7-1983 wherein he dubbed the agreement to sell as factitious and forged in connivance with the petition writer and the marginal witnesses. He alleged that Faqir Ullah father of the appellant was the cousin of his wife and he reposed full confidence in him. He alleged that a Khal used to flow through his land which was cancelled by the Irrigation Department. He in order to get the ownership thereof had asked the appellant for approaching the authorities for the purpose and the appellant had secured his thumb-impression on one blank stamp-paper and on a white paper and apprehended that the appellant might have dishonestly utilized these papers for forgoing the agreement to sell and the receipt thereof.
Keeping in view the pleadings of the parties four issues were framed in the suit, out of which issue No,2 is material for the disposal of the instant appeal and the same is reproduced hereunder:- "2. Whether Ghulam Muhammad, the deceased defendant validly executed an agreement to sell dated 5-5-1973 in favour of the plaintiff; if so, whether he received a sum of Rs,65,000 from the plaintiff under the said agreement ?"
' The plaintiff/appellant produced Fateh All P.W.1 the scribe of agreement to sell and receipt Exh.P-1 and Exh.P-2; Muhammad Aslam son of Gujjar P.W.2, Ch. Nazir Ahmad, Advocate P,W.3 to prove the issuance of legal notice Exh.P-3 (returned unserved) and postal receipts and acknowledgment due Exhs.P-4 and P-5 respectively; Muhammad Aslam son of Sardar Muhammad P.W.4 the attesting witness of Exhs.P-1 and P-2; besides his own statement as P.W.5. While, Nazir Ahmed D.W.1 attorney of one of the heirs of the deceased/defendant is the solitary witness produced from the defence side. On the appraisal of the evidence, the learned trial Court, vide its judgment and decree dated 28-5-1985, decreed the suit of the plaintiff/appellant for possession of the suit land through specific performance of the agreement to sell dated 5-5-1973, subject to deposit of Rs,80,000 in favour of the defendants/respondents uptil 11-6-1985 failing which the suit was to stand liable to dismissal with costs. The learned trial Court while deciding issue No,2 came to the conclusion that the agreement to sell was validly executed and the first part of the issue was decided in favour of the plaintiff/appellant, however, on the second part thereof it opined that payment of earnest money amounting to Rs,65,000 could not be satisfactorily established and consequently passed the decree conditionally on the payment of the entire amount of Rs,80,000. Both the parties challenged this judgment before the appellate Court. The plaintiff/appellant prayed for amendment of the judgment and decree by reversing the finding regarding non-proof of earned money while the defendants/respondents challenged the finding of the trial Court regarding the execution of agreement to sell and the resultant decreeing of the suit. The appeal filed by the defendants/respondents was dismissed for want of proper court-fee as well as limitation. While disposing of the appeal filed by the plaintiff/appellant, the appellate Court invoking the provision of Order 41, Rule 33 held that the agreement to sell and the receipt Exhs.P-1 and P-2 were not proved according to law and deciding issue No,2 against the plaintiff/appellant 'held him not entitled to the decree for specific performance. However, the conclusion of the appellate Court in para.15 shows that the appeal was dismissed but neither the judgment of the trial Court was set aside nor dismissal of he suit of the plaintiff/appellant ordered. The plaintiff/appellant filed Regular Second Appeal before the High Court and the defendants/respondents rest contented with the judgment of the appellate Court. The learned High Court did not see eye to eye with the opinion of the appellate Court regarding application of Order 41, Rule 33 as according to it on the dismissal of the appeal filed by the defendants/respondents the judgment of the Court against them had attained finality. However, the High Court was of the view that there was an element of deceit in the transaction in question and the trial Court should have refused to exercise its discretion in favour of the plaintiff/appellant and dismissed second appeal. Hence the instant appeal.
3. We have heard Ch. Nabi Ahmed Cheema, Advocate for the appellant; Mr. M. Munir Peracha, Advocate, for the respondents and have perused the record of the case with their valuable assistance.
' The dispute between the parties in the instant case is whether agreement to sell (copy Exh.P-2) and the receipt (Exh.P-1) were proved according to law and whether the consideration of Rs,65,000 out of the total of Rs,80,000 had been paid to the executant, predecessor-in-interest of the respondents. The learned trial Judge held that the agreement to sell had been duly executed but he was not fully satisfied with the payment of Rs,65,000 in view of the contradictory versions given by the P.Ws. And consequently, while passing a decree for specific performance of the agreement to sell ordered the payment of the entire sale consideration of Rs,80,000 by the plaintiff/appellant to the defendants/respondents. The learned first appellate Court came to a contrary conclusion and dismissed the suit of the plaintiff/appellant in the exercise of its extraordinary powers under Order 41, Rule 33, C.P.C. In spite of the dismissal of the appeal filed by the defendants/respondents against the decree for specific performance. The learned High Court, however, disagreed with the view of the first appellate Court so far as the exercise of powers by it under Order 41, Rule 33, C.P.C.
Was concerned but declined to grant relief to the plaintiff/appellant as according to its wisdom the trial Court should have refused to grant the discretionary relief of specific performance as, according to it, there was an element of deceit in the impugned transaction. Thus, all the three forums are at variance about the matter in issue and the grant of relief claimed by the plaintiff/appellant.
4. To set the controversy at rest, we have minutely gone through the record of the case and reappraised the evidence in the light of the observation made by the Courts below. The agreement to sell Exh. P-2 and the receipt Exh.P-1 are in writing and in the event of proof of their execution, the contents thereof are legally presumed to be correct unless proved to be wrong or tampered with.
Fateh Ali P.W.1 is the scribe of the documents who has deposed on oath that they were scribed by him at the instance of the executant. Muhammad Aslam P.W.4 is the attesting witness of the deeds and he too, has testified to the correctness and due execution thereof by Ghulam Muhammad predecessor-in-interest of the respondents. Had the executant flatly denied his thumb-impression on the documents in question the burden of proof of execution of the documents as well as passing of the consideration would have been on the person in whose favour they were executed, but in the instant case the executant has not specifically denied his thumb-impression on the deeds but has advanced a counter-version that his thumb-impressions were obtained by the appellant on blank papers for using them in connection with his dispute regarding a Khal with the Irrigation Department. The papers on which the agreement to sell is scribed comprises of two stamp-papers of Rs,3 and Re.1 each while the receipt is drafted on a white paper and all the sheets bear the thumb-impression of Ghulam Muhammad. No evidence has been produced by the defendants/respondents in- support of their counter-version. Besides the proof of the execution of the agreement to sell and the receipt referred to, above, the plaintiff/appellant's subsequent conduct also lends support to the genuineness of the transaction in question, inasmuch as, according to the terms of the agreement to sell, the sale-deed or mutation had to be completed up to 22-5-1973 on which date the appellant attended the office of Sub-Registrar hoping the executant to arrive there for the purpose of execution of a regular sale-deed and the registration thereof but when he did not turn up, the appellant submitted an application Exh. P-6 to the Sub- Registrar and also availed of the services of Ch. Nazir Ahmed, Advocate P.W.3 to issue a notice to the executant/respondent; for honouring his agreement and he accordingly issued a notice which was returned unnerved with an endorsement "refused". The appellant having not been able to secure the performance of agreement out of the Court, filed a suit on 5-6-1973 within a fortnight of the time fixed in the agreement. Taking all these factors into consideration, the trial Court was fully justified in concluding that the agreement to sell had been established according to law and there was nothing on the file to suggest about its forgery or the exercise of deceit by the appellant against Ghulam Muhammad, the executant thereof.
5. As regards the payment of consideration which was the subject-matter of the second part of the issue franked in the case, the trial Court, as a measure of abundant caution passed the decree for specific performance of agreement to sell subject to the payment of the entire sale consideration on account of the divergent versions of Fateh Ali P.W.1 and Muhammad Aslam P.W.4 regarding quantum of amount paid to the executant. The plaintiff/appellant did not accept this verdict and preferred appeal before the Additional District Judge showing his grievance against it. The respondents also preferred appeal before the first appellate Court which was dismissed on the ground of limitation and proper court-fee, before the decision of the appeal filed by the appellant and thus the portion of the judgment of the trial Court whereby the execution of the agreement to sell has been held as proved and the plaintiff/appellant entitled to decree for specific performance attained finality. In the circumstances, the matter in issue before the first appellate Court was restricted only to the question of consideration and it was not required to go into the other questions of the due execution and genuineness of the agreement to sell which, as already stated, had become final against the respondents, more so when its judgment in the appeal filed by the respondents had not been challenged before the higher forums in appeal/revision. The reasons advanced by the learned first appellate Court in annulling the judgment of the trial Court regarding execution of the agreement to sell are not very much convincing and, therefore, the same cannot be maintained.
6. The learned first appellate Court availing of the provision of Order 41, Rule 33, C.P.C. Has decided the appeal against the appellant not only on the matter from which he felt aggrieved but also on the portion of the decree passed in his favour. For ready reference the said provision is reproduced hereunder:-- "33. Power of court of appeal.--The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection:
7. Provided that the Appellate Court shall not make any order under section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order."
8. The above provision came up for consideration before this Court in the case of Messrs S.M. Yusuf and Bros. v. Mirza Muhammad Mehdi Pooya (PLD 1965 Supreme Court 15) and after considering the authorities cited at the Bar, the purpose underlying the above provision and its application to the various disputes were summarised as follows:- "The terms employed to confer the power are of the widest amplitude to enable an appellate Court to pass decrees according to the justice of the case. The language used is affirmative, and the rule is further strengthened by non obstante clauses, giving the clear impression that the intention is beneficial, so that no legal right should be denied which the appellate Court considers should be allowed within the framework of the suit. The non obstante clauses are particularly significant. The fact that the appeal is as to a part only of the decree will not, by itself, restrain the appellate Court's power. Here the whole decree was before the appellate Court, but the other non obstante clause is directly relevant, for it totally avoids any condition that a party seeking the benefit of the rule should itself have filed an appeal or objection. Therefore, the mere fact of the plaintiff not having filed an appeal against the failure of the trial Court to grant a decree against Amanullah Kirmani would not by itself be sufficient to justify refusal to exercise the power under the rule. The principle as stated in the judgment of the High Court, namely, that in the absence of a counter-appeal being filed a decree against another defendant cannot be given not only constitutes a fetter upon the extremely wide power given to the appellate Court by the Code, but may also be thought to be in direct contravention of a clear provision in the rule.
' We have accordingly referred to the earlier judgment of the same Court in the earlier case of Bakhsh Illahi & Sons to examine the arguments there set out. Four precedent judgments are cited.
From three of them, which are mentioned without reference to their particular facts, general propositions are extracted to the effect that the power given by the rule is widely expressed and must be applied with discretion, where interference is required 'to adjust the right of the parties in accordance with justice, equity and good conscience' or `where the failure to exercise the power' would lead to 'impossible, contradictory and unworkable orders'. These particular considerations undoubtedly are circumstances which would justify the exercise of the discretion conferred by the rule, but it is right that we should say that if these propositions are to be understood as limiting the exercise of the power within the circumstances specified, they would be in excess of the power given to the Courts to interpret and apply a rule expressed in such wide terms as is rule 33. The rule confers unfettered discretion, and anything expressed in negative or restrictive terms, affecting its application, must be accepted as applying only to the particular facts of the case to which the rule is being applied by interpretation. Such an interpretation cannot be extended to all or any other cases, for, in each one, the application of the rule must be made beneficially and in accordance with the relevant facts. The single case cited by the High Court with reference to its facts is that of Muhammad Khaleef Sherazi (AIR 1926 P.C. 34) which clearly shows points of difference from the present case. The facts were of a much more complicated character than they are in this case and in the result the Privy Council declined to interfere on behalf of the plaintiff to declare the liability of one of the defendants against whom his case had been expressly dismissed by the trial Court, and he had not appealed against that decision. The Judicial Committee holding that in effect, the plaintiff was moving an appeal direct to the Privy Council from the decree of the trial Judge which is not allowed under the Civil Procedure Code opined further that Order XLI, rule 33, C.P.C., was not intended to apply to such an appeal."
9. In the case of Anath Nath Biswa s v. Dwarka Nath Chakravarti (AIR 1939 Privy Council 86), interpreting Order 41, Rule 33. And Rule 22 the following observations were made:- "In a suit brought by them the co-sharers alleged that in respect of the revenue sale their co- sharer had been guilty of fraud or improper conduct to the prejudice of his co-owners in the estate, and contended that, by reason thereof the purchase was one in which they could claim to share by recovering their former interest upon payment of a proportion of the purchase money. The trial Judge accepted this contention and gave the plaintiff a decree directing the co-sharer to convey to them their former share on receipt of a proportionate part of purchase price. On appeal the decree-holders respondents without filing any cross-objections to the decree of the trial Court claimed that the revenue sale should be set aside for want of jurisdiction or irregularity: ' Held, that the claim to relief was founded upon different grounds from those upon which the trial Court's decree proceeded, and upon principles different from those which underlay the relief given by the decree. The case came clearly within the condition imposed by the concluding words of sub-rule (1) of rule 22, 'provided he has filed such objections in the Appellate Court, etc. Etc.,' and rule 33 could not rightly be used in such a case so as to abrogate the important condition which prevents an independent appeal from being in effect brought without any notice of the grounds of appeal being given to the parties who succeeded in the Court below."
10. The careful deciphering of the provision of Order XLI, Rule 33, C.P.C. Makes it amply clear that the Appellate Court has been invested with wide powers to do complete justice between the parties and may pass any decree or order in favour or against any party notwithstanding the fact that no appeal has been filed against a portion of the judgment passed in favour of the appellant or the respondent. The words "although such respondents or parties may not have filed any appeal or objection" are very much significant for the disposal of the controversy in hand. Rule 22 of Order XLI, C.P.C. Enjoins that any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross-objection to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow. Any party aggrieved from any judgment or decree has a remedy to prefer appeal against the judgment or decree to the Appellate Court having jurisdiction in the matter and if he feels dissatisfied with a part of the decree he can either straightaway go in appeal or wait till the other party approaches the Appellate Court in which case he has a right to defend the decree on any ground or file cross-objections which has the force of an appeal and the time allowed is 30 days from the service of notice of appeal upon him. If the party does not go in appeal or file cross-objection, the decree passed against him becomes final. However, the Appellate Court is invested with wide powers under Order XLI, Rule 33 to pass any order but by no stretch of imagination, it can be interpreted to mean that even if the appeal filed by the party has been dismissed, the Appellate Court in the exercise of its power under Rule 33, Order XLI can undo his earlier judgment and set aside the decree passed against the said party in the appeal filed by the opposite side regarding the part of the decree of which he feels aggrieved and deprive him even of that part of the decree granted in his favour against which the appeal filed by his adversary already stands dismissed. Another unsurmountable difficulty also arises in such an eventuality as the same Appellate Court would be passing two contradictory and inconsistent judgments/decrees, one against the respondent dismissing their appeal against the portion of the decree for specific performance and the other passing a decree in their favour by setting aside the decree for specific performance of the decree in the appeal filed by the opposite side against them, which has to be avoided at all costs. The learned High Court in the impugned judgment has already dissented from the view taken by the first appellate Court under Order 41, Rule 33, C.P.C.
And concurring with the High Court, we hold that the first appellate Court in the presence of the order of dismissal of appeal resulting in the maintaining of the decree for specific performance could not legally reverse the finding of the trial Court by setting aside the decree for specific performance and that too, in the appeal filed by the appellant in which the same was not sub judice.
11. The finding of the learned High Court that there was an element of deceit in the transaction in question and the trial Court should have refused to exercise the discretion in favour of the appellant is not supported by any evidence on the record. The trial Court was convinced about the due execution of the agreement to sell and it had properly exercised its discretion in favour of the plaintiff/appellant by granting a decree for specific performance of the agreement to sell. The finding of the learned High Court is, therefore, not sustainable in law.
12. Resultantly, the instant appeal is accepted, the judgment and decree passed by the High Court and the first appellate Court are set aside and that of the trial Court is restored with the result that the suit of the plaintiff/appellant for specific performance of the agreement to sell stands decreed on payment of Rs,80,000 (Rupees eighty thousand only) plus 15% mark-up from 28-5-1985 till the date of deposit otherwise the suit shall stand dismissed.
13. The judgment was orally announced on 24-4-1994 and it is expected that the plaintiff/appellant must have deposited the amount with mark-up within two months therefrom but since the judgment is completed and being released today, and the possibility that the trial Court might have declined to receive the amount in the absence of copy of the judgment, we consider it just and proper that the time of two months for the deposit of Rs,80,000 plus 15% mark-up shall be reckoned from today in case the deposit has not been made so far.