1. This revision arises out of judgment dated 31-5-2002 in Civil Appeal No,162 of 2001 whereby, the IIIrd Additional District Judge, Karachi, reversed the judgment, and decree recorded by IIIrd Senior Civil Judge, Karachi South in Suit No,419 of 1999 and the suit for specific performance of agreement, declaration and permanent injunction filed by the applicant, was dismissed.
2. Briefly stating the facts as may be relevant for deciding this revision are that the applicant/plaintiff averred that he was tenant of the respondent in respect of Flat .No,R-1 First Floor Plot No,C-30, 22nd East Street, D.H.A. Karachi. The applicant/plaintiff was also tenant in respect of shop constructed on the same plot which shop was got vacated by the respondent under threat of kidnapping the son of respondent and involving him in false criminal cases. It was further averred that the respondent had agreed to sell the flat under his tenancy against a sum of Rs,4,00,000. It was asserted that he had paid a sum of Rs,2,50,000 on various dates leaving a balance of Rs,1,50,000 payable at the time of execution of the sale deed. He relied on a receipt dated 20-7-1998 for said purpose. It was further stipulated in the receipt that if the respondent failed to finalize the transaction by April, 1999, the applicant/plaintiff shall be deemed to be the owner of the subject flat and no more be responsible to pay rent any further. It was further averred that the respondent turned hostile and attempted to dispossess the applicant who filed a Suit No,367 of 1999 for permanent injunction. The suit was decreed in his favour on the statement by the defendant therein that he shall not be dispossessed without due process of law.
3. Defendant denied various allegation in his written statement and claimed that receipt is forged no such transaction ever took place between the parties. Out of pleadings following issues were framed:--
(1) Whether the plaintiff has no cause of filing of present suit?
(2) Whether defendant has agreed to sell out the subject flat to plaintiff and received Rs,250,000 from the plaintiff on different dates as a part payment of sale consideration?
(3) Whether the receipt dated 20.-7-1998 is forged, fabricated and arranged one?
(4) Whether the defendant has failed to perform his contractual obligation?
(5) Under whatstatus/capacity . the plaintiff presently is in possession/occupation of the subject flat?
(6) Whether the plaintiff is entitled for the reliefs as claimed?
(7) What should the decree be?
4. Plaintiff/applicant examined himself as P.W.1 Sami Akhtar Khan P.W.2 and Khalid Latif as P.W.3, whereas, the respondent only examined himself, learned trial Court decided all the issues in favour of the applicant/plaintiff and decreed the suit. Respondent filed an appeal and the Appellate Court in consideration of the fact that other witness of the alleged receipt was not examined as required under Article 79 of the Qanun-e-Shahadat Order, 1984 failed to prove the case of specific performance which judgment is impugned through this revision. Mr. S. Mukhtar Hussain Naqvi learned counsel for the applicant/plaintiff vehemently contended that the reliance of the learned 1st Appellate Court on Article 79 of Qanun-e-Shahadat, 1984 is not based on proper appreciation of law as the requirement of examining two witnesses were fulfilled. It was further contended that the learned Appellate Court laid much emphasis on non-examination of other marginal witness, Khalid S.M. who though served declined to give evidence. it was further contended that 1st Appellate Court misinterpreted the directions given by the learned trial Court for the deposit of the balance amount as same was deposited immediately on failure of the respondent to receive the same. Mr. Shakir Naqeshbandi learned counsel for the respondent supported the judgment of the Appellate Court.
5. He attempted to press the application under Article 84 of the Qanun-e-Shahadat to compare the signature of one of the marginal witness Khalid S.M. on purported receipt as Exh.P.W.1/4 available on record who was not examined by the trial Court. No counter-affidavit to said application was filed.
6. I have heard the arguments and perused the record.
7. The case as set up by the applicant/plaintiff in the plaint that he was tenant of the respondent in respect of both the shops at ground floor and a flat subject-matter of instant proceeding. It is an admitted position that the applicant/plaintiff agreed to vacate the shop against consideration of Rs,3,00,000 and had executed a receipt that has been produced as Exh.P.2/1 duly signed by the applicant and respondent in said receipt the applicant had not only acknowledged and. received Rs,4,00,000 on account of security deposit and so also a sum of Rs,6,000 on account of white wash.
8. Said amount was in addition to the goodwill of Rs,3,00,000 i.e, Rs,200,000 (rupees two lacs) in the shape of pay order and Rs,1,00,000 in cash. The respondent/defendant during pendency of suit made an application seeking direction against the plaintiff/applicant to produce all the original monthly rent receipt in respect of subject flat. Said application was allowed vide order dated 22-9- 1999, whereby the plaintiff/applicant was directed to produce the receipt in his possession at the time of his evidence such direction to get the receipt produced was in view of the fact that the respondent through an application under Order 7, rule 14 read with Order 12, rule 12 stated that the purported receipt dated 20-7-1998 which bears his signature on Revenue stamp affixed thereon in fact were signature available on revenue stamps affixed on rent receipts which stamp were removed from rent receipt and affixed on the disputed receipt (P-1/1) the case hinges on the validity and authenticity of Exh.P/1 the purported receipt dated 20-7-1998. From the own showing of the plaintiff/applicant the respondent was bent upon to get the shop in his possession vacated and had in fact extended threats and intimidated him to vacate. However, such shop was vacated after receipt of Rs,3,00,000 as a goodwill and refund of security deposit vide receipt dated 28-4- 1998 as Exh.P.2/1 plaintiff/applicant though stated that on the same day he had returned Rs,1,00,000 as part payment in respect of the subject flat. The fact that he alleged harassment and intimidation at the hand of respondent. From pleadings it appears that parties were hostile against each other yet, plaintiff chose not to obtain any receipt for rupees one lac alleged to h-we been paid by him and so also no receipt were obtained for the alleged payment said to have been made on 4-5-1998, 14-5-1998 and 20-6-1998 respectively as mentioned at the foot of the purported receipt as Exh.P.1/1. I had occasion to examine the original receipt available in the R&P (at page 123) the stand taken by the respondent that such Revenue stamps bearing his signature thereon were peeled off from rent receipts and affixed on the purported receipt subject-matter of the instant proceeding is not without substance. Admittedly the applicant had not produced all the rent receipts strengthen such doubts 1 have examined all the rent receipts so produced and found that on Exhibits P.1/15, P.1/24, P.1/32, P.I/65 and P.1/67 complete signature of respondent is available on one Revenue stamp and rent receipts Exhibits P.1/39, P.1/40, P.1/80, P.1/81, and P.1/82 are receipts with a pair of Revenue Stamp containing complete signature when I examined the receipt Exhibit P.1/1 distinguishing feature which is noticeable is that Exhibit P.1/1 Revenue Stamps are crossed with parallel lines at the upper left of first pair of Revenue Stamp and bottom right of other pair of Revenue Stamp. None of the Revenue Stamps on rent receipts Exhibits P.1/6 to P.1/83 bear such crossing two signatures of the respondent one on each set of stamps appeared to me to be from different ball point pen such difference is quite notable when examined with ordinary magnified glass and even the parallel crossing made across both sets of. Revenue Stamps one at the top right corner of the stamps and other at the bottom left of the other pair of Revenue Stamps seems to be yet another ball point pen. Since the case of both the parties hinges on the authenticity and validity of such receipt. Heavy burden was cast on the applicant/plaintiff to prove such receipt beyond reasonable doubt.
9. To establish and prove authenticity and validity of matter pertaining to commercial transaction reduced into writing creating future obligation may it be financial or otherwise, law requires that it shall be attested by two men or one man and two women so that one may remind the other; if necessary and evidence shall be led accordingly.
10. 'Disputed receipt Exh.P.1/1 is in writing incorporating certain terms and conditions, such terms and conditions do create future reciprocal obligation against the contracting parties. Such transaction by virtue of Article 17(2)(a) of the Qanun-e--Shandat Order,. 1984 are now required by law to be attested in' the manner stated therein and discussed above. Said provision runs as follows: 17(2)(a).---In the matter pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly; In the instant case, respondent/defendant had denied the execution of the Exh.P.1/1 under such circumstances and in view of the discussion made it becomes all the more necessary for the applicant/plaintiff to have proved the execution of said receipt Exh.P,1/1 by calling two attesting witnesses as required under Article 79 of the Qanun-e-Shahadat Order; the view expressed in Manzoor Hussain Khan v. Mst, Asia Begum and 21 others 1990 CLC 1014 that agreement to sell does not require attestation by witness. I humbly beg to differ; it appears decision was rendered over nighting implication of Article 17(2)(a) of the Qanun-e-Shahadat.
11. In this case admittedly one witness to the disputed receipt was examined, other witnesses filed an affidavit denouncing the subject transaction.
12. Contention of Mr. Ali Mukhtar Naqvi, learned counsel for the appellant/ plaintiff that plaintiff was also examined who is also a witness to the said receipt Exh.P.1/1 thus provisions of Article 79 of Qanun-e-Shahadat Order requiring examination of two witnesses had been fulfilled. Such arguments were aptly repelled by the learned First Appellate Court observing "plaintiff is direct party and beneficiary to the receipt hence he cannot be treated as attesting witness and the requirement of law is that at least two attesting witnesses are to be examined; which in my humble view would be other than the executant and beneficiary of the documents". Reliance was also placed on Abdul Khaliq v. Muhammad Asghar Khan and 2 others PLD 1996 Lahore 367 and Sana Ullah and another v. Muhammad Manzoor and another PLD 1996 SC 256 while concurring with the observation of the learned Appellate Court I would dispel such arguments for two reasons firstly the applicant/plaintiff is not a signatory to the said disputed receipt Exh.P.1/1. Secondly, even if the plaintiff have had signed the receipt he would have been the executant of the instrument. Attesting witness in terms of the Article 79 of Qanun-e-Shahadat Order, 1984 read with section 3 of Transfer of Property Act is a person who had witnessed the execution of the instrument by the executants and also signed the instrument for the purpose of attesting signature, of executant.
13. The findings recorded by. First Appellate Court is well considered, I do not see any jurisdictional error apparent on record. The revision for the foregoing reason is dismissed.