IHSAN-UL-HAQ CHAUDHARY, J.- The relevant facts for the decision of this R.F A. Are that the appellants filed a suit for specific performance of agreement dated 17.7.1990. It was pleaded that respondent No. 1 agreed to sell land measuring 50 kanals 19 marlas situated in Chak No. 308/H.R., Tehsil Fort Abbas for a total consideration of Rs. 3,45,000/- out of which a sum of Rs.1,05,000/- was received by him as earnest money. It was added that the appellants were ready and willing to perform their part of the agreement but defendant No. 1 backed out and instead proceeded to transfer land to respondents Nos. 2 to 5. The suit was* originally filed against defendant No. 1 alone, who appeared and pleaded that the agreement to sell was based on fraud, forgery and fabrication. He denied its execution and receipt of consideration. It was added that he was being illegally detained by the police Fort Abbas when plaintiff No. 1 filed a habeas petition and this Court deputed Bailiff, who raided the Police Station on 16.7.1990 and recovered him. It was alleged that his signatures were obtained on stamp paper/plain paper for use in the writ petition but seem to have been converted into agreement to sell. The Trial Court framed issues on 29.3.1992 and subsequently, when respondents Nos. 2 to 5 were impleaded as defendants, the additional issues Nos. 9-A were framed on 8.3.1993. The same are as under:- "1. Whether the defendant entered into a valid agreement to sell in respect of property as described in the plaint with the plaintiff, executed a written agreement and receipt dated 17.7.90 acknowledging part payment of the agreed amount of Rs. 10,5000/-? OPP.
(2) If issue No. 1 above is proved whether the plaintiff is entitled to a decree for specific performance of contract with consequential relief on the basis of averments made in the plaint on payment of remaining amount of Rs. 2,40,000/-? OPP.
(3) Whether the impugned is a result of fraud and mis-representation hence the suit is mala fide?
OPD.
(4) Whether the land in question is pledged with Agricultural Development Bank of Pakistan? If so, to what effect qua the suit of the plaintiffs? OPD.
(5) Whether there exists divergence in the description of the property as mentioned in the plaint and the agreement in question?
(6) Whether the suit is incompetent in view of preliminary objection No. 4 for non-deposit of court- fee for a relief of possession of the property in dispute? OPD.
(7) Are the plaintiffs bereft of cause of action? OPD.
(8) Is the suit is mala fide and vexatious? If so, the defendant is entitled to special costs? OPD.
(9) Whether the plaintiff who is a relative of the defendant obtained his signatures while he was in Police Custody at Police Station Fort Abbas on the pretext of filing a writ if so, to what effect as per averments in reply to para No. 2 of the written statement? OPD.
(lO)Relief.
ADDITIONAL ISSUES: (9.A) Whether the transaction of the property in dispute vide mutations No. 350 and 351 dated 5.8.1992 by defendant No. 1 in favour of defendants No. 2 to 5 is void qua the rights of the plaintiffs as stated in para No. 7. A of the amended plaint? OPP.
(9.B) Whether the plaintiffs have no cause of action against defendants No. 2 to 5. As alleged in preliminary objection No. 1 of their written statement? OPD-2 to 5.
(9.C) Whether the plaintiffs are estopped by their words and conduct to call in question the transaction in their favour as stated in preliminary objection No. 3 of the written statement filed by defendants No. 2 to 5? OPD-2 to 5.
(9.D) Whether the defendants No. 2 to 5 are entitled to special costs as stated in preliminary < Ejection No. 2 their written statement? OPD-2 to 5.
(9.E) Whether the defendants No. 2 to 4 are bona fide purchaser for consideration vide mutation No. 350 without notice of this suit? If so, its effect? OPD. 2 to 4.
(9.F) Whether the defendant No. 5 is bona fide transfer of the property in dispute vide mutation No. 351 without notice of this suit? If so, its effect? OPD 5."
The suit was thereafter adjourned to 17.4.1993 for the evidence of the appellants when Mukhtar Ahmad, Girdawar and Muhammad Akram, Office Qanungo were present. The suit was adjourned to 15.5.1993 for complete evidence but again all the witnesses were not present and parties reported that there is likelihood of compromise between them. The suit was accordingly adjourned to 9.6.1993 for compromise and in the alternate for recording of evidence of the plaintiffs but on this date parties again requested for time for compromise. The suit was accordingly adjourned to 28.6.1993 for submission of compromise or recording of the evidence of the plaintiffs. But on this date the parties sought time to complete amicable settlement, therefore, suit was adjourned to 17.7.1993 and on this date parties reported that the efforts to settle the matter out of Court have failed so the suit was adjourned to 11.9.1993 for evidence of the plaintiffs. But as it was a gazetted holiday on account of death anniversary of Quaid-e-Azam, therefore, the suit was taken up on 12.9.1993. The evidence was not present due to misunderstanding. The suit was adjourned, accordingly, to 23.10.1993 when five witnesses were present but evidence could not be recorded as the Court was busy with other cases. The suit was adjourned to 10.11.1993 but on this date the Court was to tour, therefore, the suit was adjourned to 6.12.1993 for recording of the evidence of the plaintiffs, on which date statement of one witness was recorded arid the suit was adjourned to 9\8.12.1993. But as the learned Presiding Officer was on leave, therefore, suit was adjourned to 6.1.1994. The Court was again on leave and suit was adjourned to 30.1.1994 for the evidence of the plaintiffs but since no witness was present, therefore, the plaintiffs sought adjournment. The suit was accordingly adjourned to 20.2.1994.
The Court recorded statements of Muhammad Anwar Badar, plaintiff No. 1 as PW1, Rehmat Ali, Petition Writer as PW2 and Abdul Rahim, Stamp Vendor as PW3. Thereafter the learned counsel for the plaintiffs requested for adjournment of the suit as he wanted to make application for referring signatures of defendant No. 1 to the Hand-writing Expert for comparison and report. The Trial Court refused to adjourn the suit. The learned counsel for the plaintiffs insisted for opportunity to make application for referring the signatures of defendant No. 1 to Hand-writing Expert. The Trial Court turned down the request through a detailed order arid ask d the plaintiffs to conclude their evidence. Thereafter the learned counsel look up the position that the plaintiffs wanted to assail this order through a revision petition and they requested for adjournment of the proceedings till filing of the revision and that the Trial Court shall not proceed with the trial of the suit. The learned Court asked the plaintiffs to examine the remaining witnesses also but they refused, therefore, the Trial Court proceeded to close their evidence and after hearing the arguments dismissed the suit vide judgment and decree dated 20.2.1992. Now this appeal, which was admitted to hearing and notice was issued to the respondents, who have appeared and contested the appeal.
2. Mr. Muhammad Mahmood Bhatti, learned Advocate for the appellants argued that the Trial Court proceeded in a hasty manner while closing evidence of the appellants. It is added that the order of the Trial court is completely silent as to the summoned witnesses, therefore, it is bad in law.
It is further argued that the appellants have deposited the expenses of seven witnesses, therefore, it was the duly of the Trial Court to procure attendance and evidence could not be closed. In this behalf, the learned counsel has referred to Mst. Bashir Bibi v. Aminuddin and 9 others (PLD 1993 SC 45), Messrs Naeem Engineering Corporation v. Government of the Punjab through the Secretary Agriculture and another (1988 SCMR 1167) and Muhammad Hussain and 5 others v. Akram Baig and 3 others (PLD 1988 Lahore 183). While on merits it is argued that the evidence of the plaintiffs particularly statement of PW1, the plaintiff No. 1, remained unrebutted, therefore, the suit could not legally be dismissed.
3. On the other hand, Ch. Naseer Ahmad, learned Advocate for respondents No. 2 and 4 argued that the plaintiffs were left with two more witnesses, which they refused to examine in the spite of opportunity by the Trial Court, therefore, the Trial Court had no option but to close their evidence. It is added that there was no occasion for granting further time to the plaintiffs for production of the evidence and in every s are to be passed according to the circumstances of the case. In this behalf, the reliance is placed on Sira] Din v. Lahore Development Authority and others (1992 CLC 102) and Zubair Akbar v. Mst. Mehreen Hayat and others (1992 CLC 1940). It is submitted that the entire evidence was present but as least two PWs and particularly PW3 made a statement which directly supported the defence and cut at the root of case of the plaintiffs, therefore, the plaintiffs withheld the remaining two witnesses. It is maintained that even earlier the defendants have insisted examination of complete evidence on one day in view of the fraudulent transaction.
4. We have given our anxious consideration to the arguments of the learned counsel for the parties, gone through the record and precedent cases. It is clear from the record that the plaintiffs had to examine in all two more witnesses, who were present but request was made to postpone the recording of their statements till the decision of revision against the order rejecting the request for referring the signatures of defendant No. 1 to the Hand-writing Expert. The relevant portion of the order reads as under:- jUEvidence<(/c^^-/-A**iilfetfReviiion.^/U'y Request[(URDU TEXT)] It is clear from the interim order that the plaintiffs were to examine in all two more witnesses, who were present. The adjournment was not sought on the ground that the witnesses were not available. We have utmost respect for the Members of the Bar but concede that a counsel of either of the parties should control the proceedings. The conduct of the proceedings is exclusive prerogative of the Courts. The plaintiffs should have produced the remaining two witnesses, also.
The case was bound to be adjourned for the evidence of the defendants and, in the meanwhile, they could have very well pursued their remedy against the rejection of their request in the revisional Court. There is merit in the argument of the learned counsel for respondents Nos. 2 to 4 that the plaintiffs were completely shocked by the statement of PW3 and they were apprehensive that the remaining two witnesses may also follow the pursuit and state the truth and in any case plaintiffs required time to tutor those witnesses to cover up the effect of statement of PW3. The defendants right from the first date had insisted for production of complete evidence by the plaintiffs on one date. We would say rightly so because if the witnesses were examined on different dates then they would keep in mind the contradictions as they would be knowing the cross- examination before hand. This way the purpose of cross-examination of the witnesses would be frustrated. It is always desirable in such cases where allegations are of fraud and fabrication of the documents that the witnesses of the plaintiffs should be examined on one and the same date rather it is absolutely essential to know the truth and to do justice.
Conversely speaking, it is clear from the above interim order of the Trial Court that the plaintiffs were not to examine official witnesses earlier sought to be summoned through Court. Their intention becomes further clear from the fact that they neither deposited the process fee for summoning these witnesses for 20.2.1994 or any of six preceding dates in the suit nor they submitted any list under proviso to Rule 1 of Order XVl (Lahore Amendment) C.P.C., which reads as under:- "Provided that no party who has begun to call his witnesses shall be entitled to obtain process to enforce the attendance of any witness against whom process has not previously issued, or to produce any witness not named in a list, which must be filed in Court on or before the date on which the hearing of evidence on his behalf commences and before the actual commencement of the hearing of such evidence without an order of the Court made in writing and stating the reasons therefor."
It is clear from the record that process fee was not deposited for summoning any of the four officials on 23.10.1993 or any of the six dates thereafter including 20.2.1994. Therefore, there is no merit in the argument that the evidence at least to the extent of summoned witnesses could not be closed. In fact there was no witness summoned for this date. If looked in this background then the judgment of Hob'ble Supreme Court in the case of Messrs Naeem Engineering Corporation (Supra) is clearly distinguishable, wherein it was held as under:- "8....... In producing the witness on 3.7.1976 the appellants have adequately discharged their responsibility. Further, they had also deposited the process fee for the next date and that was only thing they could do. If the witness, who was a government servant, did not attend the Court on the date fixed, it was the duty of the Court to have proceeded against the defaulting witnesses as provided for under Order XVl, rule 10, C.P.C."
Similarly, case of Mst. Bashir Bibi (supra) is also not relevant because the witness failed to comply with the summons and it was held that in such circumstances the responsibility cannot be placed on the shoulder of party to produce evidence. Whereas in this case the plaintiffs themselves refused to get the evidence recorded in spite of opportunity, therefore, they now cannot turn round and complain failure of Trial Court to afford them sufficient opportunity to examine witnesses.
5. Now coming to the merits. The plaintiffs failed to prove that there was a valid agreement, enforcible by the Court, between the parties. The statement of PW1 on issues Nos. 1 and 2 was nullified by statement of PW3, who deposed that he issued the stamp paper at night in the Police Station. This is not all. The plaintiffs to prove a valid agreement were to prove part of the consideration paid as earnest money. There is no independent evidence to prove the same. PW2 has categorically stated that payment was not made in his presence. The applicant No. 1 as PW1 admitted that he moved a habeas petition for recovery of defendant No. 1 from the Police Custody and this Court deputed a Bailiff He stated that stamp paper for the execution of the agreement was purchased on 16.7.1990 and at that time the defendant No. 1 was not in police custody. The relevant portion of his statement reads as under:- [(URDU TEXT)] He is contradicted by his own witness PW3, the stamp vendor, who admitted in the cross- examination that stamp paper was issued by him after Ishha Prayer in the Police Station. The relevant portion of the statement reads as under:-- [(URDU TEXT)] Therefore, the Trial Court rightly held that the plaintiffs have failed to prove that the agreement was legal document and with valid consideration. They have themselves refused to examine the marginal witnesses of the agreement to sell on the flimsy ground that they wanted to file a revision petition. There was no need for getting the signatures compared as they were not dnied by defendant No. 1. The Trial Court clearly noted as under:- "12..... Plaintiffs did not care to examine the marginal witnesses of theagreement of sale on falirasy ground that their remaining evidence will be produced after comparison of the signatures of defendant No..1. The course of action is aimed to prolong the proceeding and to fill up lacuna created by the admission of PW-3."
There is nothing wrong with the above findings. The Trial Court has further taken note of the fact that PW2, scribe of the document, is not a licensed Deed Writer, has not maintained the register in a proper manner and admitted that defendant No. 1 was not personally known to him. The time of execution of the document given by him does not tally with the time given by PW1. In this view* of the matter, the Trial Court rightly decided issues Nos. 1 and 2 against the plaintiffs.
6. The learned counsel for respondents Nos. 2 to 4 submitted that although the awarding of special costs of Rs. 10,000/- is fully justified but in order to avoid further possible litigation he has instructions to state that the clients have no objection to the special costs being remitted.
7. The upshot of the above discussion is that this appeal is partially accepted. The result is that the judgment and decree of the Trial Court are maintained except as to special costs of Rs. 10,000/-.