SAYED NAJAM-UL-HASSAN KAZMI, J. - This appeal calls in question judgment and decree, dated 13.9.994, passed in favour of respondent. No. 1, in a suit for specific performance of an agreement of sale, dated 25.7.1990.
2. Sh. Muzaffar Iqbal respondent No. 1, filed a suit to enforce agreement of sale, dated 25.7.1990, in respect of southern portion of property No. S-II-12-S-7, situated in Bej Nath Street New Anarkali, Lahore. It was claimed that in terms of the said agreement, Iqbal Ahmad (respondent No. 2 herein) had agreed to sell southern portion of the property, in consideration of Rs. 3,75,000/- and received Rs. One lac as earnest money and that despite readiness and willingness on the part of respondent No. 1, to perform obligations under the sale agreement, respondent No. 2 failed to honour his commitment which necessitated the filing of the suit. Institution of suit was made on 11.4.1991.
Application under Order XXXIX rule 1 and 2 of CPC was also filed to restrain the vendor (respondent No. 2) from making alienation of property or changing its character pending decision of the suit.
3. Suit was resisted by respondent No. 2 (vendor) by filing written statement dated 7.11.1991, wherein, the execution of the agreement of sale was not denied, though it was pleaded that respondent No. 2 was an ailing person and taking benefit of his ailment the agreement was obtained by respondent No. 1. It was not denied that a sum of Rs. One lac was paid as earnest money while the balance sale consideration i.e. Rs. 275,000/- was payable at the time of registration of the sale- deed. The suit was resisted mainly on the ground that the property was not divisible, therefore, the agreement could not be enforced.
4. Vide order, dated 17.12.1991, learned Civil Judge allowed the application for temporary injunction subject to deposit of Rs. 275,000/- by respondent No. 1, till 11.1.1992. In pursuance of this order, respondent No. 1, deposited Rs. 275,000/-, on 9.1.1992.
5. On 12.1.1992, following issues were framed, out of the conflicting pleadings.
Issues. (1) Whether the suit is not maintainable in its present form?
(2) Whether the plaintiff is estopped by his own conduct to file the- present suit?
(3) What is the effect of preliminary objection No. 3 of the written statement?
(4) Whether the plaintiff has no cause of action?
(5) Whether the suit is mala fide and as such the defendant is entitled to special casts u/S. 35-A of CPC?
(6) Whether the agreement, dated 25.7.1990 was duly executed by defendant?
(7) Whether the plaintiff paid to the defendant the amount of Rs. 1,00,000/- as earnest money?
(8) Whether the plaintiff is entitled to the decree as prayed for on the grounds as detailed in the plaint?
(9) Relief.
6. On framing of issues, the case was fixed for the evidence of respondent No. 1. For the evidence of the respondent, the case was listed for 15.3.1992, 26.5.1992, 15.7.1992, 1.10.1992 19.11.1992 and 20.12.1992.
On 20.12.1992, the case was adjourned to 13.1.1993, as learned counsel for the parties stated that the parties were trying to settle the issue through a compromise. For the compromise purpose, the case was adjourned to 13.1.1993 and 20.1.1993. On 20.1.1993 the Court observed that no compromise could he effected, therefore, the case was adjourned to 21.3.1993 For evidence of respondent No. 1.
On 21.3.1993 no evidence was produced and the case was adjourned to 28.4.1993 on which date, an application under Order 1 Rule 10 of CPC was filed by the appellant (Khurshid Ahmad) for his impleadment as a defendant on the plea that there was allegedly an agreement of sale in his favour which provided for payment of sale consideration in instalments. Appellant is admittedly real brother of the vendor (Iqbal Ahmad) who claimed his impleadment on the plea of alleged agreement of sale in his favour. On 16.6.1993, learned counsel for the vendor (respondent No. 2) recorded statement that he had no objection to the impleadment of the appellant in the proceedings. The application was allowed vide order, dated 6.7.1993. Resultantly amended plaint was filed, appellant was impleaded as defendant No. 2 in the suit. After completing pleadings, following additional issues were framed by the learned Trial Court on 12.9.1993:- 8-A Whether prior to agreement of sale allegedly executed in favour of the plaintiff by defendant No. 1 regarding half of the disputed property, any agreement to sell on 11.1.1990 was made with defendant No. 2? OPD-E 8-B Whether the factum of alleged agreement to sell dated 11.1.1990 in favour of the defendant No. 2 is collusive qua him and defendant No. I and the same is ineffective and inoperative qua the rights of the plaintiff? OPP
9. Relief.
7. On consideration of the evidence led by the parties, the learned Civil Judge concluded that the agreement, dated 11.1.1990, claimed by the appellant was anti-dated, collusive and inoperative in law and that respondent No. 1 was entitled to the enforcement of agreement of sale, dated 25.7.1990. The suit of respondent No. I was decreed vide judgment, dated 13.9.1994 which has been assailed in this appeal.
8. Learned counsel for the appellant argued that the agreement in favour of the appellant was genuine, the appellant had been regularly making payment of the instalments, the execution of the agreement was not denied by the vendor, respondent No. 1 could not prove to be purchaser in good faith, for consideration and without knowledge of the prior agreement claimed by the appellant and that the discretion has not been exercised judicially by the Court below. It was added that the onus was upon respondent No. 1 to prove that he had no knowledge of the agreement of the appellant and having failed to discharge the onus, he could not succeed being alleged purchaser subsequent in time. It was lastly argued that an application under Order XI Rule 14 of CPC was filed by the appellant for the production of the record of the stamp paper pertaining to the agreement of sale of respondent No. 1 which was not decided though the Trial Court had observed that it would be decided at the time of final hearing of the suit.
9. Learned counsel for the respondent No. 2, (vendor) supported the appellant.
10. Learned counsel for respondent argued that the agreement, verbally claimed by the appellant was collusive, the appellant could not prove existence of any genuine agreement prior in time, the appellant and vendor being real brothers had conspired with each other to prejudice the case of respondent No. 1, the appellant did not produce the stamp vendor or the register of stamp vendor to show purchase of stamp paper prior in time, the appellant jumped in the proceedings two years after the filing of the suit in connivance with the vendor and that respondent No. 1 was bona fide purchaser for value without notice who had already deposited the balance sale price on 9.1.1992 in pursuance of the order passed while granting application for injunction.
11. We have anxiously considered the respective submissions of learned counsel for the parties and had the advantage of going through the evidence on record.
12. The judgment and decree, for the enforcement of sale agreement of plaintiff-respondent No. I has not been challenged in appeal by the vendor, who was the principal defendant in the suit. The appeal has only been filed by Khurshid Ahmad, who happens to be real brother of the vendor and claims a prior agreement of sale, dated 11.1.1990 in his favour. In this view of the matter, in so far as the judgment-debtor is concerned, he has not assailed the judgment in appeal and the tussle is only between the two claimants, who respectively claim agreements of sale in their favour.
13. The suit was instituted by respondent No. 1, claiming that agreement of sale dated 25.7.1990 was executed in his favour by the vendor (respondent No. 1) who agreed to sell the property in issue, for a consideration of Rs. 3,75,000/- and received Rs. One lac as earnest money. In defence, respondent No. 2 did not deny execution of the document or receipt of the earnest money. The only defence was that the agreement was obtained by taking benefit of the alleged ailment of the vendor and that the property was not divisible. Both these objections 'could not be supported by any admissible evidence on record. This being so, the execution of the agreement was not in issue.
Nevertheless, respondent No. 1 produced evidence to prove the existence of the sale agreement and his entitlement to have a decree for its enforcement. PW-1, who is also cousin of the vendor as wes as the appellant, deposed in favour of respondent No. I and proved the agreement as being marginal witness thereof. PW-2, who is an independent witness also proved the execution of the document. In their testimonies, nothing could be extracted to shake the credibility of the witnesses.
Respondent No. 1 himself appeared as PW-3 and made statement, in support of his case. The respondent also produced PW-4, Sub-Accountant from Treasury evidence, to prove that he had purchased stamp of Rs. 32,000/- on 24.3.1991, for the purposes of preparation of sale-deed in his favour. From the evidence led by respondent No. 1 it is discernible that the agreement of sale is not only admitted by the vendor but also its execution is proved by two independent witnesses, one PW-1, a relative of the vendor and also the appellant and PW-2 who was a tenant in the property at one time and also a neighbourer of the vendor, living in the same .Locality. In the presence of this evidence, the execution of the sale agreement in favour of respondent No. I was proved beyond and the findings to this effect, recorded by the learned Trial Court, does not warrant any interference.
14. The next question for consideration will be as to whether any agreement of sale existed in favour of the appellant. The appellant produced Khawaja Sami Ullah DW-2 who admitted that the appellant and vendor were his cousins. He is resident of Gujranwala and claims to have come from Gujranwala to become witness to the appellant. The other witness is DW-3 Jan Muhammad who is maternal cousin of the appellant and is resident of Gujranwala. PW-4 Muhammad Zaman 'Khurshid is attorney of the appellant. The learned Civil Judge did not believe the testimonies of these two witnesses for number of reasons, including the reason that they were not the independent witnesses so far as the claim of the appellant was concerned as they were related to him, and they were not resident of the area where the vendor was living and they claimed to have come from Gujranwala to supply their evidence. There are many other reasons for which it can be safely concluded that the appellant could not prove the existence of any prior agreement. Firstly, the appellant himself did not appear in the witness-box though he was the most important witness to depose material facts. Secondly, the agreement was not witnessed by any independent person nor any independent witness was produced to prove the same. As noted supra, in the matter of the agreement of respondent, the agreement was proved by the two independent witnesses, in so far as the claim of respondent No. 1 was concerned while in the case of appellant, there was no independent witness. Thirdly, the stamp vendor who was the most important witness to prove the alleged plea of purchase of stamp on 10.1.1990 was not produced, though his name was entered in the list of witnesses, nor his register was produced. Respondent No. 1, had specifically pleaded that no stamp paper was never sold on 10.1.1990 and for this purpose, he placed on record a copy of the certificate stating that no such stamp paper was mentioned in the Goshwara to have been sold on 10.1.1990. Despite that, the appellant did not produce the stamp vendor nor produce his original record. With a view to seek relief or to defend the suit, it was mandatory for the appellant to prove the existence of an agreement of sale prior in time and for this purpose, the requisitioning of the record of Stamp Vendor was material. The withholding of material evidence leads no other impression except that the original was withheld as there was no entry of sale of the stamp paper on the given date and the document was fabricated subsequently. There are other circumstances which cannot be ignored. The alleged receipt Exh.D-22 of dated 11.1.1990 contains two signatures of Iqbal Ahmad and two thumb impressions which are unexplained. One signature is with blue ink while the other is with a different ink and different pen. Even the two signatures are not apparently similar to each other and intransitively differ with each other, in characteristic.
15. Another factor, which cannot be over-looked is that the appellant claims an agreement of sale on 11.1.1990 and till to date he has not filed any suit for specific performance. Amazingly, he claims making of alleged payment towards instalments till April, 1994 though the suit was pending since 11.1.1991. Respondent No. 2 has not pleaded in his written statement the existence of any agreement of sale with the appellant nor he ever made any such disclosure for two long years from the institution of the suit . It cannot be ignored that respondent No. 2 continued contesting the suit till 28.4.1995 and it was only at this stage when number of adjournments for evidence and compromise had been given, when the application under Order 1 Rule 10 of CPC was filed by the appellant. Strange enough respondent No. 2 made a statement through his counsel that he had no objection to the impleadment of the appellant as a party. It thus clearly indicates a collusion between the two brothers i.e. Respondent No. 2 (vendor) and the appellant, who; with the help of maternal cousins and relatives, made an unsuccessful efforts to non-suit the respondent by fabricating and anti-dated agreement, which, from the tenor of its drafting was indicative of the fact that the document was designed to circumvent the possibility of enforcement of the agreement of sale in favour of respondent No. 1. In these circumstances, the learned Civil Judge did not commit any C. Ror in concluding that the appellant had railed to prove any prior agreement of sale, there was a collusion between the appellant and respondent No. 2 and that the agreement claimed by appellant could neither he enforced nor used as an instrument of defence to non-suit respondent No. 1. Finding recorded on issues No. 8-A and 8-B, therefore, do not demand any interference.
16. As regard the objection that the application under Order XI Rule 14 of CPC filed by the appellant was not disposed of, the same is without substance. In the first instance, the appellant never pressed for the disposal of this application at any stage before the final decision of the suit and secondly, the non-disposal of the application does not affect the merits of the case. The production of the record of the stamp vendor pertaining to the agreement of respondent No. 1 neither necessary nor material for the decision of the suit due to the reason that the agreement of respondent No. 1 was not claimed to have been executed prior in time nor its execution was disputed. The only issue was as to whether the agreement claimed by the appellant had any existence prior to the agreement of respondent No. 1 and for resolving this controversy, the existing evidence was sufficient while production of the record of the stamp vendor pertaining to the agreement was not necessary, particularly when this was never the case of respondent No. 2 or for that matter of the appellant that the stamp of the agreement of respondent No. 1 was not purchased on 25.7.1990. Section 99 of CPC provides that no decree can be reversed or substantially varied nor the case could be remanded in appeal on account of any irregularity in any proceedings of the suit, not effecting the merits of the case or jurisdiction of the Court. The objection raised by learned counsel for the appellant, can at best be a procedural irregularity which did not effect the merit of the case as noted supra and, therefore, the decree cannot be varied or reversed on this account.
17. As regard the entitlement of respondent No. 1 to seek enforcement of the agreement of sale dated 25.7.1990, it is observed that respondent No. 1, not only proved the execution of the agreement, payment of the earnest money and his readiness and willingness to perform his part of the agreement but also deposited the total sale price, when so required by the Court. The balance sale consideration has been deposited in the Court on 9.1.1992 while the receipt of earnest money is not denied in the written statement. So much so, respondent No. 1 served the vendor with a notice for the performance of obligation under the sale agreement and also purchased stamp paper of Rs. 72,000/- which fact was proved by PW-2. All these facts would show that respondent No. 1 was always willing to perform his part and did take steps towards the enforcement of the agreement and, therefore, he was entitled to a decree, for the enforcement of the agreement under the order of the Court. The discretion in this case has been exercised in favour of respondent No. 1 on sound judicial principle and no ground is made out for interference in this regard.
18 For the reasons above, there is no substance in this appeal which is dismissed, leaving the parties to bear their own costs.