MUNIR A. SHEIKH, J.-- Leave to appeal is sought against the Judjustment dated 5-5-2000 of the Lahore High Court Multan Bench through which the appeal filed by the petitioner against the judgments of the two courts below dismissing his suit for specific performance of agreement of .Ale dated 10-5-1974, has been dismissed by affirming concurrent findings of facts recorded by them against the petitioner.
2. The petitioner alleged in the suit filed before the trial Court that Mst. Bobo widow of Muhammad Nawaz, the original allottee of the land, entered into an agreement of sale of the said land with him on 10.5.1974 for an amount of Rs. 1,75,000/- out of which an amount of Rs.1,25,000/- was paid as earnest money and further amount of Rs.40,000/- was paid after the death of Mst. Bobo to defendant No. 1/her legal heir. The suit was filed on 2-2-1991 which was contested by the heirs of Mst. Bobo on the ground that the suit was frivolous and vexatious as the agreement of sale was a fabricated and forged document.
3. The trial Court after considering the evidence produced by the parties came to the conclusion that the agreement of sale relied upon by the petitioner was a forged and fabricated document and had not been executed by Mst. Bobo. The suit was dismissed through judgment dated 11-12- 1993 by the said Court. The appeal filed by the petitioner was dismissed by the learned District Judge through judgment dated 21.7.1994 by affirming the findings recorded by the trial Court. It was, however, observed by the first Appellate Court that as the suit was frivolous and vexatious, the plaintiff should have been ordered to pay special costs u/S. 35-A, CPC to the respondents/defendants but it did not pass such an order as no issue had been framed to that effect.
4. The second appeal filed by the petitioner has been dismissed by the learned Judge in Chamber of the Lahore High Court through th impugned judgment dated 5-5-2000, against which leave to appeal has bee sought.
5. Mst. Bobo was a lady of about 70 years old as admitted during, the arguments by the learned counsel for the petitioner when asked about her age. She was resident of Kasur from where she went to Abdul Hakeem a village near Mian Channu from where she was taken to Multan to petition- writer, for the execution of the disputed agreement of sale. It wa witnessed by Nasir Ahmad and Shameer, PW1 and PW2, respectively wh appeared before the Court and deposed in favour of execution of the sai agreement of sale. The petition-writer was not, however, examined by th petitioner. There is nothing on the record that he was either dead or wa not otherwise available, for thumb impressions of the lady must have bee obtained by him on his register of petitions which should have bee summoned by the petitioner to compare her said thumb impression with he disputed thumb impression on the agreement of sale which he failed to as such an inference could safely he raised against him that the alleged thumb impressions of Mst. Bobo on the agreement of sale were no genuine .
6. Apart from this, admittedly, the petitioner was in occupation of the land as tenant of Mst. Bobo.
He filed suit before the revenue Court on 4-4-1990 alleging that he was being threatened by the respondents of dispossession otherwise than in due course of law whereas he was entitled to protect his possession as tenant till he was evicted through proper procedure, but strangely did not mention that he had already got an agreement of sale executed in his favour and had paid huge amount of Rs.1,65,000/- as alleged by him. The silence on the part of the petitioner in this suit about the existence of alleged agreement of sale also furnishes strong circumstantial evidence that the story of execution of the agreement of sale was made at later stage in order to file the suit and to grab the valuable land of the lady. It is well-settled law that in a case of rustic and uneducated lady of old age, the execution of agreement of sale of immovable property on her behalf should be proved through strong evidence. It should also be proved through evidence that she had the facility of opinion of male member of her family as to the nature of transaction which was going to be executed by her. No such evidence was produced by the petitioner's on the other hand as pointed out by the learned counsel for the respondents. Allah Bakhsh, plaintiff when himself appeared as PW4 stated that Mst. Bobo was known to the petition-writer, therefore, she was taken to Multan. PW I also made statement to this effect but inspite of that, petition-writer was not examined. We have also noticed that legal-representatives were brought on the record after the death of Mst. Bobo which include her nephews, therefore, it could not be said that she did not have any male member in her family.
7. After examining the evidence as a whole with the assistance of learned counsel for the parties, we have arrived at the calculated opinion that the findings of the Courts below that the execution of the agreement of sale had neither been proved nor the same was a genuine document, were correct. It was rightly held to be fabricated and forged document, therefore, the suit was rightly dismissed, which findings have not been shown to have suffered from any misreading, misconstruction or non-reading of any material piece of evidence.
8. Learned counsel for the petitioner, however has taken exception o the direction issued by the learned Judge of the High Court in paragraph -16 of the impugned judgment to the trial Court to send copy of its judgment dated 11-12-1993 to the learned District Judge for proceeding against the petitioner under Section 193, PPC for preparing forged document. He pointed out that under Section 195, PPC it was only the learned District Judge who being the inferior appellate Court in this case who was competent to lodge the complaint and the direction given by the ,High Court would ultimately prejudice the petitioner, for it would be taken by the Court trying the offence as if a finding had been recorded against the petitioner by the High Court. Learned counsel for the respondents has no objection if the said direction given in paragraph-16 of the judgment by the I learned Judge of the High Court is set aside and the matter is left at the discretion of the trial Court, to proceed against the petitioner in the matter itself or on application of the respondents.
9. With the consent of the parties, the said direction issued by the High Court in paragraph-16 of its judgment to the trial Court to send a copy of its judgment dated 11-12-1993 to the learned District Judge fo initiating proceedings' against the petitioner under Section 193, PPC hereby set aside and expunged. It will, however, be open to the trial Court either itself or on the application, of the respondents to proceed in its discretion independently in the matter as provided under the law.
10. Learned counsel for the petitioner has taken objection to the grant of Rs.50,000/- as special costs to the respondents by the High Court. He says that neither special costs were claimed by the respondents nor any issue was framed. We have examined Section 35-A, CPC which only provides that at the time of dismissal of the suit if the Court had arrived at the conclusion that the suit was vexatious and frivolous, it could grant special costs to the respondents-defendants to the extent of Rs.25,000/- and not more. This provision means only to compensate the respondent-defendant against the frivolous suits and does not in fact, amounts to awarding of damages which are normally required to be awarded on the proof of actual damages. It is in the nature of fine imposed on the plaintif for lodging a frivolous suit, therefore, in our view, specific issue was no required to be framed before the grant of such costs and it was sufficient in the written statement, such costs had been claimed in which case, it could be granted under issue 'relief'. In the written statement in this case, special cost was claimed.
11. The special costs granted to the respondents by the learned High Court of Rs.50,000/- is hereby reduced to Rs.25,000/- to which learn counsel for the respondents has no objection.
12. Subject to afore-mentioned modification, in the judgment of th. High Court, this petition is dismissed and leave to .