' IHSAN-UL-HAQ CHAUDHRY, J.---The facts relevant for the decision of both the appeals are that the appellant is owner of a portion of property commonly known as SE-17-R-25, Katcha Habib Ullah Road, Lahore, having purchased the same from its transferee from the Settlement Department. He entered into an agreement Exh. P.1, dated 30-4-1976 with the respondents whereby he agreed to sell the same to them for a total consideration of Rs,3,20,000 out of which Rs,10,000 were received as earnest money and the balance was to be received at the time of execution and registration of sale-deed within two months. The appellant further proceeded to execute a special power of attorney Exh. P.2 on 10-5-1976 in favour of respondent No,1. These are the basic and admitted facts.
2. Now we proceed to refer to the facts giving rise to the suit for declaration, that the agreement to sell, dated 30-4-1976 and the special power of attorney in favour of the defendants are no longer legal and valid documents and the alleged agreement, dated 11-6-1976 is void, non-existent and fraudulent document with consequential relief, by the appellant out of which R.FA. No,43 of 1985 has arisen. It was pleaded that since the deal did not mature, therefore, the appellant through notice in the Daily ' MASHRIQ' notified that special power of attorney in favour of the respondent No,1 stands cancelled and the agreement to sell had expired. The respondents sent reply Exh.P.-5/2, dated 16- 7-1976 through their learned counsel, whereby the appellant was informed that he had already received the balance of the sale price through second agreement to sell Exh.P.4, dated 11-6-1976 and delivered the possession of the property to the respondents. The respondents in written statement reiterated the contents of their reply to notice and claimed ownership over the property.
The trial Court accordingly framed two issues. Issue No,2, was, however, re-cast by the District Judge on revision while issues Nos. 3 to 5 were framed subsequently. This way the parties went on trial on the following issues:-- "(1) Whether the agreement to sell, dated 30-4-1976 and Special Power of Attorney were not existing in law? OPP
(2) Whether the plaintiff has on 11-6-1976 executed second agreement in favour. Of defendants and also received a sum of Rs,3,10,000 towards payment of balance sale price of the property? OPD .
(3) Whether the suit is not maintainable in its present form? OPD
(4) Whether the suit has not been properly valued for the purposes of court-fee and jurisdiction, if so, what is the correct valuation? OPD
(5) Whether the plaintiff is estopped from filing the present suit? OPD
(6) Relief."
' The appellant himself appeared as P.W.1 while examined Anwar as P.W. 2 and Hafeezullah Butt as P.W.3. On the other hand, the respondents examined Ashfaq Ahmad as D.W.1, Mumtaz Hussain as D.W.2, Syed Azhar Hassan Naqvi as D.W.3, Zaka A. Malik, Handwriting Expert, as D.W.5 and respondent No,1 appeared himself as D.W.4.
3. It was during the pendency of the above suit of the appellant that respondents also proceeded to file a suit on 28-6-1978 in forma pauperis for declaration and in the alternate for specific performance of agreement, dated 30-4-1976 and 11-6-1976. The suit was contested by the appellant. The trial Court framed following issues:--- "(1) Whether the suit is not maintainable in its present form? OPD
(2) Whether the present suit is liable to be stayed under section 10 of C.P.C.? OPD
(3) Whether the defendant executed agreement, dated 30-4-1976 and 11-6-1976 and the plaintiffs had paid sum of Rs,10,000 and sum of Rs,3,10,000 respectively as consideration? OPP
(4) Whether the plaintiffs are entitled to specific performance of agreement? If so, on what terms and conditions? OPP
(5) Relief."
' The respondents examined Sajjad Hussain as P.W.1. Safdar Mahmood, M.I.C. As P.W.2, Ashfaq Ahmad as P.W.3, A.G. Pasha Handwriting Expert as P.W.4 while respondent No,1 appeared himself as P.W.S. On the other hand, appellant examined Aftab Ahmad Khan as D.W.1, MA. Abbasi as D.W.2, MA.
Naumani Handwriting Expert as D.W.3 and appellant himself appeared as D.W.4.
It will be seen from the pleadings as well as the issues framed in the two suits that the suits are two facets of the same controversy. In such circumstances the suits should have been consolidated.
We are conscious of the fact that the second suit was filed quite late but nevertheless this was no reason to proceed with the same separately. This not only resulted in duplication of proceedings, wastage of time of the Courts but also confusion in the judgments of trial Court. The arguments were addressed in R.FA. No,80/83 while the same arguments were adopted by both the sides in R.FA. No,43 of 1985 and we would say rightly so. Therefore, these appeals are being decided by single judgment.
4. The trial Court after hearing the arguments dismissed the suit of the appellant and simultaneously decreed the suit of the respondents vide judgments, dated 29-3-1983. Therefore, now present appeals, which were admitted to hearing and notice was issued to the respondents, who have entered appearance and contested the appeals.
5. The learned counsel for the appellant addressed arguments in R.FA. No,80/83 directed against the judgment and decree in the suit for declaration and specific performance filed by the respondents. 1-le opened the arguments with the submission that the agreement to sell Exh.P.4 was not only patently forged and fabricated but this fact was proved by the opinion of the Handwriting Expert and other evidence produced by the appellant. It is added that the respondents not only failed to prove the subsequent agreement but also failed to prove payment of the consideration and delivery of possession. It is clear from the evidence on record that they did not have the capacity to pay. In this behalf, reliance is placed on Allah Rakha v. Sadhu Masih and others 1982 CLC 2352. It is added that the respondents failed to prove the execution and payment of consideration through independent reliable evidence. On the other hand, the marginal witness of the alleged agreement, namely Athar H. Naqvi appeared as D.W.3 in the other suit and his statement is Exh.D.5 on this file. He clearly deposed that no amount was paid in his presence. It is argued that the signatures on the Exh. P.4 are clearly forged and fabricated as is clear from pen pauses, dragging, spaces, ends of the alphabets and there is clear grafting. The learned counsel in this behalf has referred to Lt.-Col. Muhammad Yusuf, Commissioner, Quetta Division v. Syed All Nawaz Gardezi PLD 1963 (W.P.) Lahore 141. It is added that the facts pleaded by the respondents were unnatural and that the trial Court while rendering the judgment in this case heavily relied on the facts proved in the case of the appellant. In this behalf, the learned counsel has referred to discussion on issue No,3 at pages 377, 379 of the paper book. It is maintained that this was legally not correct and it leads to the conclusion that the plaintiffs have failed to prove the case. It is submitted that it passes one's comprehension that when the original agreement was not on this file how the trial Court recorded that it has compared the signatures itself. In this behalf, the learned counsel has referred to page 381. In the end it is argued that both the relief of declaration and specific performance are in discretion of the Court and this was a fit case to refuse to exercise discretion in favour of the plaintiff. The learned counsel in this behalf has referred to Nawab Din .v.
Ghulam Qadir and 9 others 1994 MLD 1275, Muhammad Khan and others v. Muhammad Boota and others 1994 MLD 1622, Muhammad Irshad and others v. The State 1994 MLD 1299, Nowab Meah Chowdhury v. Syed Ezaz-ud-Din Ahmad and others PLD 1962 Dacca 655; Mir Hasmat All v. Birendra Kumar Ghosh and others PLD 1965 Dacca 56; Bank of Bahawalpur Ltd. v. Punjab Tanneries, Wazirabad Ltd. And 2 others PLD 1971 Lah. 199; Ahmad Bakhsh v. Mst. Zeb Illahi PLD 1981 BJ 60, All Muhammad Khan v. Riazuddin Khera PLD 1981 Kar. 170; Abdul Kadir v. Mir Ashraf Ali Khan and 2 others 1982 CLC 110, Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344, Abdul Aziz and another v. Abdul Rehman and others 1994 SCMR 111. Moreso when the plaintiffs failed to exhaust all. Satisfactory modes to prove execution of agreement Exh.P.4 beyond suspicion.
In this behalf, reliance is placed on the cases of Nawab Din (supra) and Mst. Bushra and 5 others v.
Muhammad Yasin and another 1994 SCMR 1622.
6. On the other hand, the learned counsel for the respondents argued that the appellant is guilty of tampering with special power of attorney Exh.P.2. It is added that this fact alone goes a long way to show the character and conduct of the appellant. The next submission is that agreement Exh.P.1 is admitted and the rule is that the time is not the essence of the contract in respect of immovable property. In this behalf, reference is made to Seth Essabhoy v. Saboor Ahmad PLD 1973 SC 39, Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690 and Muhammad Anwar Khan Ghouri v. Sheikh Muhammad Taqi PLD 1977 Kar.
391. This fact is sufficient to maintain decree in their favour. The next submission is that the appellant was a close friend of the respondent No,1 and was in need of funds for the construction of hotel at McLeod Road, Lahore, therefore, a sum of Rs,3,10,000 was advanced to him without any receipt. However, the same was admitted in agreement Exh.P.4. The next argument is that the sale- deed could not be finalized because there was a stay issued by the High Court against the appellant restraining him from transferring the property. It is submitted that the same was not only proved by Sajid Hussain Petition Writer but also by statement of Safdar Mahmood P.W.2. It is added that the appellant was in possession of garage, servant quarters and bath room of the property. It is explained that the agreement Exh. P.4 was proved and bears the genuine signatures of the appellant. There is no pen pauses, no space, no drops, no dragging and no grafting. It is added that inaction on the part of the respondents is of no consequence. In this behalf, realiance is placed on the case of Fazal Muhammad v. Muhammad Usman PLD 1970 Lah.
560. It is argued that it is a finding of fact recorded by the trial Court with reference to the evidence on record, therefore, no interference is possible in the appeal. In this behalf, the learned counsel has referred to case of Haji through his Legal Heirs and others v. Khuda Yar through his L.Rs, PLD 1987 SC 453. The trial Court rightly decreed the suit because the consideration has been paid and only title deed was to be executed. In this behalf, the learned counsel has referred to Muhammad Safdar Ansari and another v. Abdul Majeed PLD 1988 Lah.
216. It is added that there are four rules laid down for exercise of discretion and the trial Court exercised the same strictly in accordance with the judgments of the superior Courts. In this behalf, the learned counsel has referred to the cases of Ch. Nazar Muhammad and others v. Shafiq Ahmad Khan and others PLD 1963 (W.P.) Lahore 23), Marker Employees' Union v. Marker Alkaloids Ltd. And others (1976 SCMR 82), Taj Din v. Abdur Rehman PLD 1963 (W.P.) Kar. 825, Abdul Majid v. The State PLD 1976 Kar. 762, Mushtaq Ahmad Gurmani v. ZA. Suleri and another PLD 1958 (W.P.) Lah. 747 and Ansar Ahmed v. Bank of America, Karachi PLD 1975 Kar.
252. It is argued that the document itself is the best evidence and the trial Court rightly acted upon the same. The agreement was legally enforceable. The learned counsel in this behalf has referred to Saleh Muhammad and others v. Subedar-Major Muhammad Bakhsh PLD 1960 (W.P.) Lah. 231, Seth Essabhoy (supra) and Haji Abdullah Khan and others (supra). It is added that the trial Court, which recorded the evidence, was in a better position to appreciate the evidence of the witnesses.
The next submission is that the certified copies of statements, documents from the other case were rightly and legally brought on the file of this suit. In this behalf, the learned counsel has referred to Rahim Bakhsh v. Ghulam Muhammad and another 1983 SCMR 1137. The arguments are summed up with the submission that the Court has inherent power to adopt any procedure to do complete justice between the parties. The learned counsel in this behalf has referred to Mst. Amina Begum and others v. Mehar Ghulam Dastgir PLD 1978 SC 220.
7. The learned counsel for the appellant while summing up the case argued that the allegation of tampering with power of attorney Exh.P.2 is false on the face of it because the period of two months was clearly mentioned in the agreement Exh. P.1 and its tenure and for this reason was expended vide clause (5) of Exh. P.4 till the registration of the sale-deed. It is added that this plea was introduced with the sinister motive to prejudice the Court about the conduct of the appellant and also to show that the respondents have suffered at the hands of the appellant. It is submitted that in view of the registration of criminal case F.I.R. No, 47 under section 147/148/149/342/452, P.P.C. The relations between the parties were strained and there was no question of the respondents obliging the appellant by advancing huge amount of Rs,3,10,000.
8. We have given our anxious consideration to the arguments of the learned counsel for the parties, gone through the record and precedent cases. The basic point for determination is that whether agreement to sell Exh.P.4 is a genuine document or not? The respondents have proved the same by statement of Mukhtar Hussain, the typist, which was recorded in the suit of the appellant and statement of Ashfaq Ahmad P.W.3. The other marginal witness Syed Azhar Hassan Naqvi had appeared as witness of the appellant again in the other suit filed by him and his statement is Exh.D.5. Azhar Hassan Naqvi has categorically stated that neither the appellant signed nor the amount was paid in his presence. It is interesting to note that the respondent No,1 as P.W.5 also admitted that payment was not made in the presence of Azhar Hassan Naqvi. The parties also tried to prove and disprove the document by examining Handwriting Experts. The plaintiffs examined A.G. Pasha and on the other hand, the appellants examined MA. Naumani as D.W.3, who has also prepared transparencies Exh.D.2/1 and Exh.D2/2. We have gone through the reports, photographs prepared, original of the agreement and are clear in our minds that the signatures of the appellant on Exh.P.4 was a crude effort to forge his signatures. When the admitted signatures and disputed signatures, as at page 171 of the paper book, are compared then it is clear that there is marked difference between the disputed signatures and admitted signatures. The admitted signatures dearly show fluency, same angles, same spacing which one gets used to with the passage of time.
9. The disputed signatures and admitted signatures of the appellant besides other are at pages 161 and 163 of the paper book and on comparison it would become evident that the disputed signatures are forged. We have observed that this was a crude effort because in the disputed signatures the effort has been made to copy the signatures and the whole attention of the forger was on the copying of the words and he completely missed the other characteristics of the signatures namely, the size of signatures as well as words, angles, spaces between the different parts of the name. Besides this there is no fluency. There is marked difference between the book of ( shape of line, {{URDU TEXT}} on the joint of and shape of ({{URDU TEXT}} ) copier could not observe these characteristics of the signatures of the appellant. We have not referred to any of the reports because the difference was so clear and that it did not require any expert opinion to hold that signatures are forged. We have already observed that perhaps the forgery was done in great haste.
10. Now coming to the other factors. The admitted position is that case F.I.R. No,47 under section 147/148/149/342/452, P.P.C. Was registered at the instance of Abdul Hakim Zaidi against the appellant and respondent No,1 on 17-5-1976. It is also clear from the statement of respondent No,1 as P.W.5 that he suspected that he has been involved in this criminal case at the instance of the appellant. It seems that after the agreement to sell Exh.P.1 the respondent No,1 tried to get the possession forcibly. The tenant, who was the complainant, suspected that this effort has been made at the instance of the appellant, therefore, he named the appellant also as one of the accused but after investigation the appellant was discharged from the criminal case. The plaintiff while appearing as P.W.5 clearly admitted that subsequently offence under section 307, P.P.C. Was also added and this was done at the instance of the appellant. The agreement Exh.P.4, as already noted, is dated 11-6-1976. In fact, it was abortive attempt to assume possession over the head of appellant. This naturally had annoyed the appellant, therefore, it is not possible to yieve that the relations between him and respondent No,1 remained any longer more friendly. Thirdly, the respondents have neither shown their capacity to make the payment of Rs,3,10,000 nor led any other evidence to prove payment of the consideration. On the other hand, the financial position of the plaintiffs does not seem to be very sound firstly because only Rs,10,000 was advanced as earnest money and secondly, they filed suit in forma pauperis. They have neither proved any bank balance at the relevant time nor payment of any income-tax to prove their financial position. The payment, also, has not been proved because Azhar H. Naqvi, marginal witness of agreement Exh.P.4, who appeared as D.W.3 in the connected case and his statement was produced as Exh.D.5 in the suit for specific performance, stated that no payment was made in his presence. The same was admitted by respondent No,1 in his cross-examination while appearing as P.W.S. The relevant portion reads as under--- {{URDU TEXT}}
11. The main points of the agreement Exh.P.4 are payment of Rs,3,10,000 and delivery of possession.
The position of payment we have already discussed and as to the possession the same is now not claimed by the plaintiffs themselves. The property continued to be in possession of the appellant.
Fourthly, it is clear from page 2 of the agreement that lot of space was left only in order to facilitate copying the signatures from other document. It seems that for this reason major portion of page 2 was left blank and the alleged signatures were appended at the foot of the page. The alleged agreement seems to have been forged and fabricated in great haste.
12. Now coming to the statement of Ashfaq P.W.3. The witness in the beginning claimed relations only with the respondent No,1 and subsequently deposed that he has also friendly relations with the appellant but towards the end of his statement he admitted that he knew the appellant through respondent No,1. All these facts go a long way to show that the agreement Exh.P.4 is forged and fabricated document. The respondents did not stop here but in order to prove that the appellant is a cheat they introduced the story of tampering with special power of attorney Exh.P.2 and pointed out to trial Court with reference to a photo copy that the last line has been added in the power of attorney during the pendency of the suit and got the documents sealed. The learned counsel for the appellant rightly referred to clause (5) of the disputed agreement Exh.P.4 to show that the power of attorney was for a specified period right from the beginning and that is why the respondents were constrained to introduce clause (5) in the forged and fabricated agreement to sell. We have seen the original Exh.P.2. It is clear therefrom that at the end full-stop has been put in the ink in which the last line was added. The appellant has categorically admitted that he added this line. The full-stop added with the pen is quite visible in the photo copy produced by the respondents. It seems that the respondents covered the space or raised the last line in one photo copy and thereafter got its copy to introduce the plea that the power of attorney has been tampered by the appellant. This was again done in haste therefore, they failed to note the full-stop at the end remained visible. This exposed their cleverness. It is not difficult in these circumstances to find out who is the cheat.
13. It is clear from the statement of Ashfaq Ahmad that even agreement Exh.P.1 was not meant to deal with the property. Its sole purpose was to secure the amount claimed by plaintiff No,1 from the appellant. The relevant portion reads as under:--- {{URDU TEXT}}
14. Now coming to the other argument that normally the time is essence of contract in case of an agreement pertaining to immovable property. There are two opinions about this basic principle.
The Lamed counsel for the respondents thereafter proceeded to argue that agreement to sell Exh.P.1 is admitted and the same could be specifically enforced but the learned counsel lost sight of the fact that the balance of sale price was shown to have been paid through Exh.P.4 while at the time of the execution of Exh.P.1 a nominal sum of Rs,10,000 was advanced as earnest money. The respondents, at no stage of the proceedings or even during the arguments in the appeal, took up the position that in case the agreement Exh.P.4 is excluded from consideration being forged wad fabricated then they are prepared to perform their part of the agreement in terms of agreement Exh.P.1. Besides this, we have already observed that agreement Exh.P.1 was only meant to secure the amount of Rs,10,000 and the parties never meant the transfer of property. Even if everything is accepted we would have refused specific performance on account of dubious conduct of the respondents. The discretion neither in case of declaration nor in suit of specific performance can be exercised in favour of a party, which indulged in forging and fabricating of document in order to deprive the others of their valuable property and try to cheat the Court. There cannot be a glaring and better example than the case in hand where plaintiffs have not approached the Court with clean hands. In this behalf, learned counsel for the appellant has rightly referred to the judgments in the cases of Abdul Aziz and another, Ghulam Nabi, All Muhammad Khan, Nawab Meah Chowdhury, Mir Hasmat All and Muhammad Khan and others (supra).
15. Now coming to the points that the trial Court, which has recorded the evidence, was in a privileged position to comment as to the demeanour and conduct of the witnesses and that as the trial Court has exercised discretion in favour of the plaintiffs the same may not be disturbed. These are the broad principles and the First Appellate Court, which is the judge of law and facts, has to re-assess the evidence and if the inferences and conclusions drawn by the trial Court are far from reality then those are to be discarded straightaway. It is only when there could be two opinions about a fact, issue or controversy that one reached by the trial Court is normally to be preferred but as far as the case in hand is concerned our conclusions are quite opposite. Therefore, there is no merit in the points raised by the learned counsel for the respondents.
' The relief is discretionary only in the sense that it cannot be claimed as a matter of right but the discretion is to be exercised on sound and reasonable basis, which are capable of satisfying the appellate Court. Therefore, the discretion is to be exercised in line with established, sound judicial principles and not arbitrarily. We are fortified in our view by the decisions in the cases of Ghulam Nabi, Mir Hasmat All and Ali Muhammad Khan (supra).
16. The next argument was that the certified copy of the statement of Muhammad Hussain Exh.
P.W.5/4, copy of the reply to legal notice Exh. P.W.5/2, copy of the agreement Exh. P.4 were correctly and legally brought on record. The learned counsel for the appellant although argued that certified copies of these documents and especially the statement of witness could not be placed on record but failed to take into consideration that the appellant has also produced certified copies of Exhs.D.3 and D5 in the same manner. Even otherwise the statements were available and if either of the parties wanted, they could have summoned those witnesses for further examination or cross- examination. This confusion arose as the suits were allowed to continue separately for which not only the trial Court but the parties to the suits are, also, responsible.
17. The upshot of the above discussion is that the impugned judgment and decree of the trial Court is set aside by accepting this appeal. The result is that F the suit of the respondents is dismissed with costs throughout.