CH. IJAZ AHMED, J,---The brief facts out of which present appeal arises are that agreement to sell was executed, between the appellant 3.nd respondent No,1 qua the house in question. i,e, House No, XVIII-12- Si39 situated in Pindi Arrian of .Sialkot City for consideration of Rs, 2,40,000 on 8-4-1990.
Respondent No,1 had received Rs,40,000 as earnest money on 8-4-1990 in shape of cheque No, 13127619,, dated 8-4-1990. The appellant had to pay the balance amount to respondent No,1 within three months and in case the respondent No,1 failed to execute sale-deed in favour of the appellant the appellant shall be entitled to get the sale-deed executed through intervention of Court. Respondent No,1 refused to execute sale-deed in favour of the appellant. The appellant being aggrieved filed a suit for possession through specific performance before the Civil Judge 1st Class, Sialkot on 9-6-1990 against the respondent No,
1. Subsequently respondent No,2 defendant No,2 Mst.' Suraya Begum was added with the permission of the CourtRespondent filed written statement controverted the contents levelled in the plaint. Out of the pleadings of the parties the trial Court framed following issues:-- ISSUES:
(1) Whether the suit is not maintainable in view of P/O Nos, 1 and 2 of the written statement? OPD
(2) Whether the suit is false frivolous? OPD
(3) Whether the suit is incorrectly valued for the purpose of court-fee and jurisdiction? If so what is the correct valuation and what is its effect upon the suit? OPD
(4) Whether the impugned agreement is a result of fraud, misrepresentation and coercion and hence not enforcible? OPD (5)Whether defendant No, I agreed to sell the house in dispute to the plaintiff for Rs,2,40,000 and received Rs,40,000 as earnest money on 8-4-1990? OPP
(6) Whether the plaintiff is entitled to the decree prayed for? If so, on what terms? OPP
(7) Relief:
2. The trial Court dismissed the suit vide judgment and decree, dated 26-4-1992. The appellant being aggrieved filed this appeal. The learned counsel of the appellant submits that agreement to sell was executed in presence of Haji Habibullah P.W.4, Muhammad Sarwar P.W.5 and Muhammad Amin son of Muhammad Ramzan respondent No,1. The execution of agreement to sell was not .denied by the respondent in the wi4tten statement. The trial Court decided Issue Nos,4 and 5 against the appellant without appreciation of evidence and record in its true prospect. He further submits that thumb-:mpression of respondent No,1 was admitted by respondent No,1 in his evidence but this fact was not considered by trial Court at the time of deciding the case against the appellint, therefore, findings of the trial Court is result of misreading and non-reading of record.
He further urges that trial Court decided the case against the appellant on a different ground, which was not alleged by the respondents in their written statement, therefore, trial Court was erred in law to dismiss the suit of the appellant. He further submits that it is settled principle of law that parties are bound to adduce evidence within parameter of the pleadings and the evidence, which was adduced beyond .the parameter of the pleadings is not maintainable in the eyes of law.
He further urged that trial Court was erred in Law to rely upon plaint, written statement and order of the suit between the respondents Nos,1 and 2 as the aforesaid documents were not proved by the respondent in accordance with the provisions of Qanun-eShandat Order, .1984. He further urged that agreement to self was executed by respondent No,1 in favour of appellant in presence of eldest son Muhammad Amin, therefore, trial Court was erred in Law to give findings against the appellant that the agreement to sell was executed by respondent No,1 under undue influence, misrepresentation and fraud. He further urged. that appellant proved the agreement to sell by producing attesting. witnesses P.W.4 Haji Habibullah and P.W.5 Muhammad Sarwar, this fact was not considered by the. trial Court that the agreement to sell was proved by the appellant by producing evidence in terms of Article 17 of Qanun-e-Shandat Order, 1984. He further submits that respondent adduced evidence beyond para. No,2 sf the written statement but this aspect was not considered by the trial Court in its true prospect. He further submits that P.W.1 and P.W.2 were not cross-examined by the respondents/defendants on material points, therefore, their statements to that extent be accepted. He further submits that judgment of the trial Court is not in accordance with law laid down by the Superior Courts. In support of his contentions he relied upon the following judgments:---
(i) Abdul Ghani v. Settlement Commissioner (Industries) and others (1988 MLD 1908).
(ii) Mst. Khair-un-Nisa v. Malik Muhammad Ishaq and 2 others (PLD 1992 Supreme Court 25).
3. The learned counsel of the respondents submits that trial Court has given findings after proper appreciation of evidence that age of respondent No,1 is 100 years. He further urged that it is heavy onus on the appellant/plaintiff to prove that agreement to sell was executed, with freewill of the respondent No,l. He further submits that respondent No,1 admitted that appellant got a thumb- mark of, the respondent on a piece of paper. He further urged that Bank account was opened in the bank in the name of respondent No,1 by introducing the respondent No,1 to the Bank Manager.
The Bank Manager admitted in evidence that he opened the account in favour of respondent No,1 after introducing respondent No,1 by appellant to him. He further admitted that according to the rules and regulation of Bank he had to open the account, after securing a photograph of the account holder, he did not get any photograph of respondent No,l. The respondent No,1 did not withdraw the said amount till the time the Bank Manager got recorded his statement before the trial Court. He further urged that house in question was gifted in favour of respondent, No,2 on 20- 4-1981. Subsequently suit was filed by respondent No,1 under the influence of Muhammad Amin his son before the Civil Court. Written statement was also filed by respondent No,2 and finally the suit was withdrawn vide order, dated 7-1-1986. Whereas the agreement to sell was executed allegedly by respondent No,1 in favour of appellant on 8-4-1990. He further submits that possession of the house in question was with respondent No,2. He summed up his argments that suit of the appellant is not Maintainable, in view of section 21(1)(A) of Specific Relief Act. The learned counsel of the appellant in rebuttal submits that agreement to sell was executed by respondent No, i in favour of appellant. The property in question was in the name of respondent No,1 as is evident from Exh. P-4 for the year 1987/88 which reveals that property tax of the property in question was paid by respondent No,l. He further submits that appellant has filed application under Order 41, rule 27, C.P.C. to place on record, registered sale-deed executed by respondent No,l in favour of other persons but the same was not disputed by respondents.
4. We have given our anxious consideration to the contentions of the learned counsel of the parties.
It is admitted fact that P.W.1 Syed Zaheer-ul-Hassan, Manager Allied Bank has admitted in cross- examination that it was the appellant who had introduced the respondent No,1 to him when the account was being opened. He also admitted that respondent No,1 is an illiterate person. He also admitted that for each and every illiterate account holder it is compulsory to produce his photographs to the bank at the time of the opening of the account, he also admitted that no such photograph was ever produced before the bank for the record. It is admitted by both the parties that uptill now neither the respondent No,1 has operated that account nor he drawn single penny from the said account. The conclusion arrived by the trial Court is based upon objective appraisal of the evidence and correct application of law. The learned trial Court has rightly come to the conclusion that agreement to sell was executed between the appellant and respondent No,1 in violation of section 16 of the Contract Act. It is also well-settled principle of Law that the burden to prove in respect of document purported to have been executed by an illiterate person effecting his right or interest in the immovable property is on the person claiming the right or interest under the document. It is for him to establish affirmatively that it was substantially understood by him and it was really his free and intelligent act if he is illiterate. It must have been read over to him and the appellant failed to adduce evidence in terms of aforesaid Principle of Law. In arriving to this conclusion we are fortified by the following judgments:--
(i) Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 Supreme Court 1).
(ii) Muhammad Ramzan v. Mst. Chiragh Bibi (1989 CLC 418).
(iii)Irshad Hussain v. Ijaz Hussain (PLD 1994 SC 326).
It is also settled Principle of Law that the discretion of Court neither in case of declaration nor in suit of specific performance could be exercised in favour of party, which -indulged in forging and fabricating of document in order to deprive others of their valuable property and try to cheat the Court. There cannot be a better example that the case in hand where the plaintiff/appellant has not approached the Court with clean hands, then he is not entitled to any discretionary relief. In arriving to this conclusion we are fortified by the following judgments.
(i) Abdul Aziz'z case (1994 SCMR 111).
(ii) Ghulam Nabi's case (PLD 1983 SC 344).
(iii)Ali Muhammad Khan's case (PLD 1981 Karachi 170).
(iv)Nawab Meach Chaudhry's case (PLD 1962 Dacca.655) and (v)Mir Hashmat Ali's case (PLD 1965 Dacca 56).
It is strange enough that the appellant has given Rs,40,000 to respondent No,1 but he did not operate his account coupled with the fact that the account was opened by the Bank under the influence of appellant in violation of the banking rules coupled with the fact that appellant alleged that agreement to sell was executed in presence of Muhammad Amin son of respondent No,1 who did not go alongwith respondent No,1 in the bank to deposit the said amount in the Bank. It is pertinent to mention here that appellant failed to produce Muhammad Amin son of the appellant to prove that agreement to sell was executed by respondent No,1 with his freewill as per principal laid down in aforesaid case of Ghulam Ali meaning thereby that the appellant withheld his best evidence. This fact is sufficient to come to the conclusion that the appellant failed to prove that agreement to sell was executed without undue influence of the appellant by respondent No,1 and it is not result of misrepresentation and fraud.
5. In view of what has been discussed above, after appreciation of the evidence and record, we uphold the findings of the trial Court. The application for additional evidence has no force as the appellant had sufficient time to produce the evidence before the learned trial Court and at belated stage no party is allowed to fill in the gap by filing such type of applications for additional evidence.
In arriving to this conclusion we are fortified by the law laid down by this Court in the following judgments:
(i) Ali Muhammad and others v. Mehnga (1991 CLC 1574) and
(ii) Ghulam Muhammad and another v. Shah Wali (PLD 1956 Lahore 756).
In case the application is accepted even then the case of the appellant is not made out in view of the aforesaid circumstances. Further in the interest of justice and fairplay respondent No,1 is directed to issue a cheque qua account opened by the bank in favour of respondent No,1 so that appellant shall withdraw the aforesaid Rs,40,000 alongwith profit. Respondent No,1 is directed to complete all the formalities in favour of the appellant to that extent so that appellant shall be able to withdraw the said amount alongwith profit from the bank.
6. In view of what has been noticed above, the appeal is disposed of with the aforesaid observation.