1. ' This revision is directed against the judgment, dated 24-4-1997 and decree, dated 29-4-1997 passed by the District and Sessions Judge, Karachi Central.
2. ' The brief facts of the matter are that applicant entered into an agreement with the respondent for sale of house on Plot No,143/15, Federal 'B' Area Karachi owned by respondent in sum of Rs,50,000 by virtue of sale agreement, dated 7-1-1976. A sum of Rs,30,000 was received by the respondent towards sale consideration and separate receipt was executed by him on the same day i,e, 7-1- 1976, vacant possession of the suit property was handed over to the applicant and applicant was enjoying the peaceful possession without any hindrance/obstacle of any kind. Applicant used to pay regularly monthly premium of Rs, 250 towards the loan taken by the defendant from K.E.S.C., thus he paid a sum of Rs,15,750 and that respondent taking undue advantage of weak eye-sight of the applicant with mala fide intention approached the applicant at his Estate Agency along with his son and one more person on 2-6-1981 and asked him to hand over the fire containing the relevant documents in order to ascertain the actual position of the payment towards the said loan and to know about the remaining balance. The applicant in good faith took out the papers and kept the same on the table, respondent with bad intention forcibly took away the said file from the possession of the applicant, on demand to return of the said file he was beaten by the respondent, his son and his associate. He received injuries on his person, such report was lodged on 2-6-1982 being the F.I.R. No,150 of 1981. The counter report was also. Lodged by .The respondent on the same day wherein he claims the rent of the house at the rate of Rs,250 p.m. Respondent had also filed a Rent Case bearing No, 2686 of 1981 claiming rent at the rate of Rs,1,500 with arrears from 1-7-1978 to 30-6-1981 for a period of 3 years amounting to Rs,54,000 for ejectment from the suit property on false allegations. After service of notice the applicant filed an application for arbitration but the same was dismissed by the Court. The preliminary. Objection was also filed in the rent proceedings which was not considered and ex parte order of ejectment was passed, an appeal was preferred which was registered as F.R.A. No,863 of 1982, the same was also dismissed on 13-9-1982. It was the case of the applicant that he was not inducted as a tenant but took possession as owner after making payment vide sale agreement, dated 7-1-1976 and he is residing as owner since the day of purchase. According to applicant cause of action accrued to him on 7-1-1976 when respondent entered into agreement of sale and received Rs,30,000 and on 2-6-1981 when the respondent forcibly took away the original document.
3. ' Abdul Karim respondent contested the suit. He has denied that he had entered into an agreement of sale on 7-1-1976 regarding the suit property. He also denied that he has agreed to sell the house for Rs,55,000 or any other amount. He had also denied the execution of any receipt. He had also denied the receipt of Rs,30,000 or any other amount whatsoever. He also denied that he had ever handed over the vacant possession of the property and other relevant documents on 7-1-1976 or thereafter on any other date. On the contrary according to the respondent applicant was put into possession of the house as tenant but not in the manner as claimed by the applicant in the plaint.
4. Applicant for some times behaved properly but afterward he became greedy and totally stopped paying agreed ,rent of Rs,1,500. Respondent also denied that applicant used to pay monthly premium of Rs,250 to. The K.E.S.C. Towards the loan taken by him for purchase of the house and also denied that. Applicant had paid a sum of Rs,15,750 to K.E.S.C. According to the respondent on 2-6-1981 applicant had asked his son Abdul Karim to come to his Estate Agency for due rent but when his son reached there he was beaten and refused to pay' the rent so due against the applicant. That applicant has failed and neglected to pay the rent from July 1978. Respondent also denied that he ever approached the applicant at the Estate Agency and demanded the file containing the relevant document and took away the document forcibly but admitted that report and counter report was lodged. Respondent also admitted that rent case has been filed by him for ejectment but has denied that it was fraudulent or with mala fide intention. Moreover, applicant has failed/avoided and neglected to pay the rent and committed default in payment of rent.
5. Respondent admitted that in the rent case an application under section 34 of the Arbitration Act was filed which was disposed of on merits. Preliminary objection was also dismissed. After dismissal of the preliminary objection, the applicant remained absent and ultimately ejectment order was passed against him as the applicant avoided to contest and defend the case. Writ petition was also filed against the ejectment order which was also dismissed in limine. The case of the respondent is that applicant was put iR possession of the suit property as a tenant on or about February, 1975 since then he is in possession , of the premises as tenant but has failed to pay the rent. It is denied that applicant was put in possession by the respondent in the capacity of owner on account of purchase after taking payment of Rs,30,000 towards sale consideration vide sale agreement and receipt, dated 7-1-1976. According to respondent no cause of action ever accrued to the applicant for filing the suit as he has never signed any sale agreement or received any amount of Rs,30,000 or any other amount from the applicant as such there was no occasion for him to issue any receipt in acknowledgement of the payment. The reliefs claimed in the suit for specific performance of contract were in the following terms:
(i) Decree for Specific Performance of Sale Agreement dated 7-1-1996 directing the defendant/respondent to execute the sale-deed in favour of plaintiff of the suit property. Failure of to do so the Nazir of this Hon'ble Court be directed to execute the sale-deed in his favour.
(ii) Declaration that the sale agreement, dated 7-1-1976 is valid, legal effective, operative and binding on the respondent.
(iii) Declaration that ejectment order, dated 31-7-1982 is null and void, ineffective, inoperative, and of no legal effect as the same having obtained by the defendant fraudulently by playing a fraud upon the Court.
(iv) To grant permanent injunction restraining the defendant, his agents, servants, legal heirs, administrators, representatives, attorneys' successors and/or any other person/persons claiming through or under him not to eject, disturb, dispossess or interfere in any manner whatsoever with the peaceful possession of suit property viz. House situated on Plot No,143/15, Dastagir Society, Federal 'B' Area, Karachi and/or to execute the said ejectment order, dated 31-7-1982. "
6. ' Out of the pleadings of the parties the following issues were settled by the Court.
(1) Whether the defendant agreed to sell the house in suit for a sum- of Rs,55,000 to the plaintiff and executed the alleged agreement of sale, dated 7-1-1976?
7. (2)Whether the plaintiff paid a sum of Rs,30,000 to the defendant and the defendant executed the alleged receipt, dated 7-1-1976?
(3) Whether after execution of said sale agreement and receipt of Rs,30,000, dated 7-1-1976 the defendant handed over the vacant possession of the property in suit and other relevant documents to the plaintiff?. If not whether the plaintiff was in possession prior to 7-1-1976?
(4) Whether the plaintiff used to pay a sum of Rs,250 as monthly premium towards the loan taken by the defendant from K.E.S.C. Ltd.?
(5) What should the decree be?
8. ' During trial applicant examined himself and produced the documents and examined Afzal Hussain Khan, Abdul Hakeem, Muhammed Ismail and Rehmat Ali. On behalf of the respondent he examined himself, Muhammad Siddiq, Muhammad Nazim, Mahmood Hashim and Aslam Anwar and various documents were produced including the statement of witness in criminal proceeding, as well as, the documents from Pakistan Telephone and Telegraph Department. After conclusion of the trial the III Senior Civil Judge, Central Karachi was pleased to dismiss the suit filed by the applicant/plaintiff vide judgment, dated 30-5-1996 and decree, dated 1-8-1996. Against the order of the trial Court Civil Appeal No, 17/96 was preferred before the District Judge, Karachi Central which- was also dismissed by the learned District and Sessions Judge, Karachi (Central) and decree, dated 29-4-1997. Hence this revision.
9. ' I have heard Mr. Anwar Hussain, learned counsel for the applicant who contended that judgments and decrees of the Courts below are wrong and bad in exercise of the jurisdiction illegally and with material irregularity. That Court below erred in law and failed to exercise jurisdiction in not comparing the signature of the respondent on the agreement and receipt with his National Identity Card. That learned District Judge acted with material irregularity by not properly discussing the evidence and material contradictions of the respondent and ins witnesses, particularly in respect of the alleged tenancy and even the learned Civil Judge has also failed to consider the same as such great prejudice has been caused to the appellant. That Courts below have not considered that the F.I.R. And statements before the police furnished a different story of the respondent on the point of tenancy, rate of rent, arrears of rent and payment etc. That the District Judge has acted with material irregularity in not properly appreciating that the final order of the Rent Controller which has been passed after evidence and respondent has failed to prove the tenancy and relationship of landlord and tenant between the parties and the same is very much relevant and necessary in this case and that both the Courts below have not properly considered the e'vidence.
10. Mr. Anwar Hussain learned counsel has referred the following case-law:
(1) Ashiq Ali and 3 others v. Muhammad Hashim and 8 others 1984 MLD 951.
(2) Muhammad Abdul Rehman v. Mst. Noor Jehan Begum 1989 MLD 2002.
(3) Zar Wali Shah v. Yousuf Ali Shah and 9 others (1992 SCMR 1778).
(4) Saheb Khan through Legal Heirs v. Muhammad Pannah (PLD 1994 SC 162).
(5) Muslim Commercial Bank Ltd. v. Amir Hussain and another (1996 SCMR 464).
11. ' Mr. Zafar Alam, learned counsel for the respondent vehemently opposed the admission of the revision and learned counsel agitated that revision is not maintainable, the trial Court as well as the 1st Appellate Court have considered, discussed the evidence and documents Produced by the parties and that there is no material irregularity/illegality in the judgments. That this is third round of litigation between the parties prior to this, suit of the applicant/plaintiff was dismissed by III Senior Civil Judge, Central Karachi vide judgment and decree against which First Appeal No, 1 of 1992 was filed while deciding C.M.A. No, 1041 of 1992 filed by the applicant under Order 41, rule 27, C.P.C. With ,a prayer that documents mentioned in the accompanying list may be allowed/to be brought on record and after hearing the learned counsel for the parties my Lord Justice Abdul Rahim Kazi (as he then was) was pleased to dismiss the application vide order, dated 4-6-1995, whereas first appeal filed by the applicant was also allowed by the learned Judge of this Court with the following observations.
12. "In view of the above discussion there are sufficient grounds to remand the suit to the trial Court for adjudication according to law after hearing the arguments of the Advocate for the parties on each and every issue and at the time of their decision comprehensive reasons should be given. The suit is, therefore, remanded back to learned IIIrd Senior Civil Judge for disposing it off after discussing at the issues separately."
13. ' After remand of the suit and rehearing the learned counsel for the parties the III-Senior Civil Judge dismissed the suit of the plaintiff/applicant which was agitated in appeal before the District Judge, Karachi in Civil Appeal No, 17 of 1996.
14. ' Mr. Zafar Alam, learned counsel referred the following case-law:
(1) Haji Muhammad Din v. Malik Muhammad Abdullah (PLD 1994 SC 291).
(2) Abdul Aziz v. Muhammad Rafiq Qureshi (PLD 1994 Karachi 474).
(3) Asadullah Khan v. Abdul Karim (1995 CLC 1889).
(4) Abdul Hameed v. Suhrab through Legal Heirs (PLD 1977 Kar. 589).
15. ' I would like to discuss the case-law referred by Mr. Anwar Hussain, learned counsel for the applicant.
1. (1984 MLD 951). Facts of this case are that Survey No,4367-5 acres in Deh Jakhro belonged to applicant's father Muhammad Yousuf and on his death the land became their property and that respondents were haris on the disputed land. They used to cultivate the said land and give Zamindari share of produce to them, the applicants filed the suit against the respondents whereas respondents denied the allegations of applicants claiming that the suit land was sold by Muhammad Yousuf father and predecessor-in-interest of applicants to Ghulam Hussain and Misri, the predecessor in-interest of the respondents for consideration of Rs,7,000 as per agreement of sale executed by him on 14-1-1952 in favour of the aforesaid vendees Ghulam Hussain and Misri after obtaining sanction from the Collector for the alienation of the land under section 5 of Sindh Rural Credit and Land Transfer Act, 1947. Muhammad Yousuf died and sale-deed could not be registered as promised by him. The respondents in pursuance of the agreement had been put in possession of the suit-land and they continued to hold the possession of the land as an owner.
16. Trial Court out of the pleadings of the parties framed the issues and was pleased to decree the suit.
17. Being aggrieved by the judgment of the Civil Judge Second Class Mehar, the respondent went in appeal before the learned District Judge who by his judgment, dated 27th October, 1975 allowed the appeal and set aside the judgment of the trial Court, against the judgment of the District Judge, the applicants filed revision application and after hearing the parties at length Munawar Ali Khan, J. Observed as follows: "It is obvious from the above authorities that if the transferee has been put into the possession of the property transferred to him in pursuance of an unregistered document, his possession is protected and he will continue to enjoy possession despite non-registration of the document provided of course the transferee is not responsible for the said non-registration. In the instant case registration was possible only after the transferor had obtained the requisite sanction from the Collector. Since neither Muhammad Yousuf transferor, in his lifetime nor his heirs namely the applicants after the death took steps for obtaining sanction from the Collector, it is the applicant's side which is to blame for the non-registration of the sale document. Accordingly the respondents are fully protected in enjoyment of the possession of the land in dispute and the applicants cannot enforce any right except that provided in the agreement against the respondents in respect of the disputed land. In view of above discussion the revision application was dismissed as stated above."
18. ' On the face of it this authority has no relevance to the facts of the present case. In this authority neither original agreement was produced before the trial Court nor the applicant is in possession of the property as owner whereas case of the respondent is that applicant is a tenant and rent case against the parties has also been filed.
(2) (1989 MLD 2002). In this suit for specific performance of the contract, plaintiff entered into an oral agreement with the defendant for the purchase of Plot No,4-F, Block' F' measuring 2,000 sq.
19. Yards in North Nazimabad Karachi with small construction thereon for Rs,84,000. The contract was evidenced by receipt which was in the following terms.
20. "I Noor Jehan Begum wife of Mahboob Rizvi, resident of Plot No,4-F measuring 2000 sq. Yds. I have agreed to sell this plot for a total consideration of Rs,84,000 to Mohomed Abdul Rahim son of Haj I Fariduddin and one Cheque bearing. No,K/A 5383302 drawn on Muslim Commercial Bank Jodia Bazar for Rs,8,400 as earnest money. I have executed this receipt. Further I will show the file to the Advocate of the purchaser containing title documents for preparation of agreement."
21. ' In the plaint it was averred that defendant duly encashed the cheque through her bank namely Habib Bank Ltd. Foreign Exchange Branch, Karachi on the same date and the said bank credited the amount of the cheque to the defendant's Account bearing No, 2344. The plaintiff also wrote letter dated 20-2-1975 to the defendant requesting her to finalize the sale and execute the necessary documents within the agreed time. The letter was returned with the remarks ' refused'.
22. According to the plaintiff, plaintiff had always been ready and willing to perform his part of contract. The matter was contested by the defendant and defendant stated in her written statement that she never entered into in any agreement with the plaintiff for sale of the above property nor ever authorised any person to sell the same. Defendant never received any payment from plaintiff through cheque. In this background of the matter eight issues were settled, evidence was recorded and a learned Judge of this Court was pleased to decree the suit.
23. ' I am afraid the facts of this case in any case are not applicable to the case in hand. It is nowhere case of the applicant that the amount of Rs,30,000 was received by the respondent through cheque or that same was transferred in his account by any bank. Moreover, as stated hereinabove original agreement in any case has not been produced, the evidence so produced by the parties has been discussed, analysed and appreciated by the Courts below as such this case is not applicable to the facts of the present case.
(3) (1992 SCMR 1778) Appellant Zar Wali Shah filed suit for declaration that an evacuee property transferred to his uncle Saeed Shah in fact belonged to the appellant to the extent of 1/3rd share; as he had contributed in the payment of price of said property to the extent of Rs,28,000 at the time of its purchase by Saeed Shah in an open auction. Reliance was also placed on an agreement alleged to have been executed by Saeed Shah, dated 21-4-1974 acknowledging 1/3rd share of the appellant in the suit property. The respondents/defendants also filed suit against the appellant claiming declaration of ownership as heirs of Saeed Shah and challenging the correctness of Nararnama, dated 21-4-1974. They also prayed for the recovery of mesne profit from the appellant.
24. The suit for appellant was dismissed while respondent suit was decreed. Subsequently, his petition for leave to appeal was converted into appeal by their Lordships of the Supreme Court. At the time of the hearing of the appeal both the parties were afforded opportunity with the assistance of their learned counsel to further discuss, out of Court the question of amicable settlement. At the time of hearing of appeal the counsel had submitted a failure report on this question. The learned counsel mainly concentrated their arguments on the genuineness of the Iqrarnama and their Lordships also tried to compare the signatures offered from both the sides which process also did not help their Lordships to reach any final conclusion. In this background of the matter the appeal was allowed and the case was remanded to the trial Court for fresh decision with the direction that all the legitimate facilities will be granted to both the parties not only to produce evidence but also to make necessary amendments in the pleadings and proceedings without of course permitting them to change the main positions insofar as the cause of action is concerned.
25. ' With due respect to the authority, it is clear that facts of this case' has no bearing to the facts of the case in hand. As mentioned hereinabove original agreement of sale if any has not been produced before the trial Court the comparing of signatures etc. Have not been carried on.
26. Moreover, application filed by the applicant in First Appeal No, 1 of 1992 with the prayer that documents mentioned in the list may be allowed to be brought on record was dismissed by the learned Judge of this Court's order, dated 4-6-1995 referred hereinabove. Moreover, prayer of the applicant for bringing additional evidence at the appellate stage was also dismissed by the learned District Judge, Central Karachi vide judgment against which present revision has been filed. Therefore, this authority in any case is not helpful to the case of the applicant.
(4) PLD 1994 SC 162 The facts of this case are that appellant Sahab Khan filed suit for specific performance of an agreement, dated 30-10-1962 whereby Muhammad Pannah the respondent is alleged to have agreed to sell to Saheb Khan half share in the House bearing No, C.S.1937/15, Ward 'B', Karma Bagh, Larkana, in the Court of Civil Judge, Larkana. The suit of the appellant was decreed and the respondent approached the Additional District Judge, Larkana who allowed the appeal and reversed the judgment of the Civil Judge, Larkana. Saheb Khan against the judgment of the Additional District Judge approached this in revision to challenge the same. However, this Court dismissed the application holding that "I while sitting in revision cannot disturb the above finding of fact, unless find it is perverse or contrary to record. In this background the matter reached before their Lordships of the Supreme Court and after considering the entire evidence so adduced by the parties the appeal was accepted. In this matter dispute was between son and father-in-law who were residing in the same house and the original agreement was produced which was perused by the trial Court and the witnesses were also examined which supported the case of the applicant whereas in this case original agreement in any case has not been filed. The witnesses adduced on behalf of the applicant in the trial Court have been disbelieved by the trial Court as well as by the appellate Court. Both the Courts below have discussed the evidence and answered the issues settled by the Court. The reasons advanced by both the Courts below are very cogent and sound, therefore, in my opinion this authority is quite different and distinguished from the facts of the case in hand.
(5) 1996 SCMR 464. In this case their Lordships of the Supreme Court have observed that handwriting expert need not be examined in every case, Court itself is entitled to make independent comparison of handwriting apart from opinion of expert as contemplated by Article 84, Qanun-eShahadat, 1984. Since original agreement has not been produced before the trial Court how the trial Court could have made independent comparison of the handwriting itself. In my humble view this authority is also not applicable to the case in hand.
27. ' Now I would like to discuss the case law referred by Mr. Zafar Alam Khan, Advocate.
(1) PLD 1994 SC 474. In this case my Lord, Wajihuddin Ahmed, J. Has held that: "According to the rules of evidence, applicable in this country, a signature or writing may be proved by adducing the evidence of a person or persons conversant or acquainted with such signature or writing (Article 61, Qanun-e-Shahadat) or by examination at' the level of expert(s) of the disputed signature (s)/writing in comparison with the admitted ones (Article 59, Qanun-e-Shahadat) or even by like comparison at the level of the Court itself (Article 84, Qanun-e-Shahadat). These are standard modes of proof. Obviously, in view of the foregoing, since the applicant-plaintiff had failed to prove the execution of the disputed document the burden to rebut, if any, had not shifted and the suits should have failed on that score alone. No comparison of signatures, at any level, therefore, seems to have become requisite."
28. ' Here in this case also original agreement in any case has referred hereinabove has not been produced and the Courts below have rightly discarded the evidence of the applicant and dismissed the suit and appeal of the applicant. This case is helpful to the case of the respondent.
(2) PLD 1994 SC 291. In this case their Lordships of the Supreme Court observed as follows: "It is well-settled law that a concurrent finding of fact by two Courts below cannot be disturbed by the High Court in second civil appeal much less in exercise of the revisional jurisdiction under section 115, C.P.C. Unles the two Courts below while recording the finding of fact have either misread the evidence or have ignored any material piece of evidence on record or the finding of fad recorded by the two Courts below is perverse. The jurisdiction of the High Court to interfere with the concurrent finding of fact in revisional jurisdiction under. Section 115, C.P.C. Is still narrower.
29. ' In this matter application was filed by the applicant under Order 41, rule 27, C.P.C. For production of documents as additional evidence was rejected by Abdul Rahim Kazi, learned Judge of this Court.
(3) PLD 1997 Kar.
589. In this case this Bench has observed that best evidence available with plaintiff was scribe who had written agreement in question but had not been examined. Stamp vendor who had issued stamp had also not been examined by the plaintiff. Here in this case also as mentioned hereinabove original agreement has not been produced, scriber who had written the agreement has also not been produced. ' The witnesses so produced before the trial Court were not considered by the Courts below to be trustworthy and their evidence has rightly been discorded by the Courts below.
(4) It would be pertinent to refer Baji Muhammad Din v. Malik Muhammad Abdullah (PLD 1994 SC 291), wherein, their Lordships of the Supreme Court have observed as follows: "It is well-settled law that a concurrent finding of fact by two Courts below cannot be disturbed by the High Court in second civil appeal much less in exercise of the revisional jurisdiction under section 115, C.P.C. Unless the two Courts below while recording the finding of fact have either misread the evidence or have ignored any material piece of evidence on record or the finding. Of fact recorded by the two Courts below is perverse. The jurisdiction of the High Court to interfere with the concurrent finding of fact in revisional jurisdiction under section 115, C.P.C. Is still narrower."
30. ' There is also latest case law of their Lordships of the Supreme Court reported as Roazi Khan and others v. Nastr and others (1997 SCMR 1849), wherein their Lordships have held that "evidently the scope of revisional jurisdiction is curative and narrower, which can be appropriately invoked where subordinate forums have committed jurisdictional error or misread the evidence or ignored material aspects affecting very root of the case or suggest perversity".
31. ' I have gone through the material placed with the case and I have also minutely examined the judgments of the Courts below. No doubt it has rightly been pointed out by Mr. Zafar Alam Khan, Advocate for the respondent that this is third round of the litigation between the parties as mentioned hereinabove. The suit of the appellant was dismissed and first appeal was filed, during pendency of the appeal appellant filed application under Order 41, rule 27, C.P.C. Requesting permission for bringing documents to be allowed to be brought on record which application was dismissed by this Court mentioned hereinabove. The first appeal filed by the applicant was allowed by this Court with a direction to the trial Court to discuss the evidence, to bear the arguments of the Advocate for the pares on each and every issue and decide the matter. After remand of the matter, the trial Court after hearing the parties dismissed the suit. The trial Courts also discussed the evidence issue-wise and analysed the documents so produced before the Court. The reasons assigned by the trial Court appears to be very sound and balanced which were a stated in appeal before the learned District Judge, Central, the appellate Court also regarded the contentions raised by the apps was pleased to dismissed the appeal comprehensive, sound and cogent reasons.
32. ' The application for bringing additional evidence before the appellate Court was also dismissed by the appellate Court which according to me are very sound and does not call for any interference.
33. The findings of the Courts below in any case are not perverse, the Courts below have very rightly considered the evidence so adduced by the parties and have rightly dismissed the suit and appeal of the applicant. The Courts below have not committed any jurisdictional error and have also not misread the evidence and have also not ignored the material aspects.
34. ' The case-law cited by the learned counsel for the applicant as mentioned hereinabove is not relevant and helpful to the case of the applicant, whereas case-law relied upon by Mr. Zafar Alam, learned counsel for the respondent is very much helpful and applicable to the facts of the case dismissed hereinabove. I am also fortified in this view by two judgments of their Lordships of the Supreme Court mentioned hereinabove and I am of the considered opinion that present revision is devoid of merits and substance which must fail which is accordingly dismissed in limine. On 11-11- 1997 after hearing the learned counsel for the parties the same was dismissed by short order, above are the reasons for the same.