This appeal is directed against judgments and decrees of Malik Mukhtar Ahmad Khokhar, Civil Judge 1st Class, Multan dated 27-10-1984 and District Judge Multan dated 30-1-1988 whereby the suit filed by the appellant for specific performance of contract was dismissed. The appellant's case as emerges from his plaint is that he filed a suit for specific performance against respondent alleging that respondent's predecessor Malik Wazir Ahmad entered into agreement dated 3-1-1975 to sell his house in favour of the appellant/plaintiff for a sum of Rs.5,500. The date for execution of sale was agreed as 31-12-1975. Rs.1,200 were paid to Malik Wazir Ahmad as earnest money at the time of agreement. He subsequently received another amount of Rs.1,000 on 2-10-1975. Yet another amount of Rs.1,000 was received by him on 8-3-1976. Unfortunately Malik Wazir Ahmad said predecessor of the respondent expired on 22-3-1976. After his death his successors-in-interest denied the execution of the agreement, therefore, the appellant was constrained to institute the suit on 9-12-1979.
2. The suit was contested. Written statement was filed by the respondent---defendant wherein eight preliminary objections were raised and various averments made in the plaint were denied.
On pleadings of the parties following issues were framed:--
(1) Whether the suit is time-barred? OPD
(2) Whether defendants Nos.2 to 7 are minors? If so, its effect?
(3) Whether all the heirs of Wazir Ahmad deceased have not been impleaded as parties to this suit? If so, its effect? OPD
(4) Whether this suit is not maintainable? OPD
(5) Whether the Civil Court has got no jurisdiction to try this suit? OPD
(6) Whether the plaintiff has no cause of action to file this suit? OPD
(7) Whether the description of the suit property is incorrect? OPD
(8) Whether the suit has been correctly valued? If not, what is the correct valuation? OPD
(9) Whether the plaintiff is estopped by his conduct to bring this suit? OPD
(10) Whether Wazir Ahmad deceased entered into an agreement to sell of the suit property with the plaintiff? If so, what were the terms thereof and what is its effect?
(11) Relief.
The parties led evidence in support of the respective claims on the above issues. The learned Civil Judge on conclusion of trial dismissed the suit on 27-10-1984. The respondent challenged judgment and decree through appeal before the learned District Judge, Multan which too was dismissed vide judgment and decree dated 30-1-1988. Issue No. l relating to limitation was taken up first. The learned trial Court held the suit as barred by time on the ground that agreement was executed on 3-1-1975 and the suit should have been filed before 3-1-1978 or in the alternative if according to the plaintiff-appellant the date of execution be taken as 20-12-1977 being the specific date the suit should have been instituted by 20-12-1977 but the suit was filed on 9-12-1979. The finding was based on the fact that Exh.P.2 was not original receipt but reliance has been placed on certified copy, therefore, the same was treated as not proved. The issue was decided against the appellant and in favour of the respondent. The finding was upheld by the learned first Appellate Court. The main issues in the case relating to fact in issue were Nos.6 and 10. Both the issues being interconnected were dealt with together and after discussing the evidence led by the parties both the issues were decided against the appellant and in favour of the defendant --respondent by the learned Civil Judge. The finding was upheld and maintained by the learned District Judge and as a result thereof the suit was dismissed and appeal against the dismissal was not accepted, therefore, instant Regular Second Appeal has been filed before this Court.
3. The R.S.A. Was admitted to regular hearing inter alia on the grounds that the documents i.e. Agreement to sell Exh.P.I and receipt Exh.P.2 had been placed before the learned Rent Controller in proceedings initiated by the respondent against the appellant under section 13 of the Rent Restriction Ordinance, 1959. In the suit, subject-matter of this Regular Second Appeal, the appellant placed certified copies of the documents forming part of the file before the learned Rent Controller.
The only oral evidence produced by the appellant was the statement of plaintiff. The main ground urged by the learned counsel is that Exhs.P.I and P.2 were part of judicial record as they had been exhibited by the learned Rent Controller during the proceedings, therefore, the same need not be proved. The certified copies produced during trial stood proved as no objection had been raised at the time of their production or exhibitation before the learned Rent Controller. In support of his contention the learned counsel has placed reliance on the case of "Khan Muhammad Yousaf Khan Khattak v. S.M. Ayub and 2 others" (PLD 1973 SC 160). At page 178 of the judgment their Lordships- have observed by placing reliance on the case of "Bengal Friends & Co. v. Gour Benode Saha & Co.
(PLD 1969 SC 477) which is as follows:-- ---.....Where nobody disputes signatures or the writing in the document nor raises any objection to the admissibility of the documents into evidence no question of proof arises."
It is further observed that one is called upon to prove only those facts on which issue is joined. In Bengal Friends and Company's case rule has been enunciated that documents which are not copies of judicial record could not be received in evidence without proof of signatures and hand writing of the person alleged to have signed or written them as required by section 6 of the Evidence Act.
4. I have gone through the judgments referred to by the learned counsel and I am of the view that the learned counsel has not properly considered or appreciated the principles laid down therein. It is true that when certified copy of any document forming part of judicial record is placed on the file, its mere production will prove that the same is true copy of the original document and the fact that it is true copy of the document cannot be objected. It does not mean that the proof as required by the provisions of Qanun-e-Shahadat, 1984 need not be complied. In this very case it has been held that when the parties are on issue then they have to prove the facts as required by the provisions of the Qanun-e---Shahadat, 1984. Subsequently in the same judgment at page 2 it was observed that there was merit in the submission that provisions of sections 67 and 47 of the Evidence Act were not complied with as there was no evidence on the record regarding identity of handwriting and signatures of the executor. The learned first Appellate Court, therefore, was right in observing that the Exh.P.1/2 should have been proved by placing on record originals of the same.
The record of the Courts should have been requisitioned to prove the contents of the documents.
Since primary evidence was available, therefore, its proof as required by Articles 78 and 79 of Qanun-e-Shahadat, 1984 should have been furnished. Since the same was not done, therefore, the document stood not proved. As observed above the certified copies placed on the file will be treated as secondary evidence as laid down by Article 76(g). The certified copy, therefore, cannot be treated as primary evidence. Of course production of original documents i.e. Agreement and receipt fulfils the requirement of Article 73 of Qanun-e-Shahadat, 1984 but this proof envisaged under Articles 78 and 79 has to be furnished. The appellant, therefore, failed to discharge the onus placed on him as such findings recorded by the learned Courts below on Issues Nos.6 and 10 do not call for any interference. They are upheld and maintained.
5. In view of the findings recorded on issues Nos.6 and 10 by keeping in view the same principles, the findings recorded by the learned Courts below on Issue No. l regarding limitation are also upheld and maintained. The suit filed by the appellant-plaintiff was barred by limitation as such was not maintainable.
6. The uphsot of the above discussion is that the appeal fails and judgments and decrees passed by the learned Courts below are upheld and maintained. The appellant's suit had rightly been dismissed.
7. In view of the fact that significant question of law was involved, the parties are left to bear their own costs.