' This second appeal assails judgments and decrees, dated 29-10-2001 and 13-1-2003 passed by the learned Civil Judge and learned District Judge, Sheikhupura, respectively.
2. Precisely, rclovant facts are that appellant filed a suit forspecific performance of an agreement to sell, dated 5-6-1990 executed by respondent No.2 as an attorney of respondent No.1 agreeing to sell land measuring 292 Kanals, 15 Marlas, described in the plaint for a consideration of Rs.10,95,000, out of which an amount of Rs.1,10,000 was paid as earnest money. Last date for execution and completion of sale-deed, on payment of remaining amount, was fixed as 10-9-1990. It was pleaded that possession of the land in dispute was already with the appellant and there being a dispute between respondent No.1 and Shahzada Asif, registration of sale-deed was not practicable and general attorney of respondent No.1 was in serious need of Rs.700,000, which was paid on 11-8-1990 through a receipt executed by respondent No.2 and time for execution of sale-deed was extended till 31-7-1993. On conclusion of dispute, as referred above, the appellant required the respondents to execute sale-deed after receipt of remaining amount of Rs.2.85,000, but they refused to perform their part of contract coercing the appellant to file the suit in hand.
3. Respondents being defendants in the suit, denied assertions of the appellant in his plaint and pleaded that appellant failed to pay the balance sale price within the time fixed in the original agreement and in this manner agreement between the parties came to an end. They denied execution of receipt. Dated 11-8-1990 and also denied to have received an amount of Rs.700,000.
Respondents also pleaded that suit is barred by limitation and it has been filed with unclean hands. Controversial pleadings of the parties necessitated framing of issues and recording of evidence, whereafter the learned trial Judge, who was seized of the matter, vide his judgment and decree, dated 29-10-2001 dismissed the suit of the appellant.
4. Appellant aggrieved of the decision of the trial Court, dated 29-10-2001 filed an appeal before this Court (R.F.A. No.774 of 2001), which was sent back to the District Courts vide order, dated 28-10- 2002 on account of enhancement of pecuniary jurisdiction of District Courts up to Rs.25,00,000 vide amendment in section 18 of the Civil Courts Oridnance, 1962 through Punjab Civil Court (Amendment) Ordinance No.LV of 2002. The learned District Judge, Sheikhupura, after remittance of appeal took it up and after hearing the parties dismissed it vide judgment and decree, dated 13- 1-2003. Appellant feeling aggrieved of concurrent judgments and decrees of the two Courts below, filed this second appeal before this Court, which was admitted to regular hearing and has now been laid for final determination.
5. Learned counsel for the appellant submits that execution of original agreement to sell and power of attorney in favour of respondent No.2 is admitted between the parties and as regards Exh.P1, receipt showing payment of Rs.700.000 to the respondents, its execution thoughdenied by them, was proved by producing both the marginal witnesses and its scribe. According to him, in the given circumstances of the case, the suit of the appellant could not have been dismissed. It has further been submitted that on account of non-attestation of mutation in favour of respondent No.1 time was extended through agreement/receipt, dated 11-8-1990 because title in her favour, had not matured at that time. It has further been submitted that entire sale price having been paid, possession of land under the -sale having been transferred to the appellant, sale in his favour was complete. Detailing payment, he referred to Exh.P.2, whereby an amount of Rs.1,10,000 was paid as earnest money and another amount of Rs.700,000 was paid through Exh.P1 and the remaining amount was deposited under an order, dated 24-7-1995 passed in F.A.O. No.176 of 1995. It has also been argued that minor discrepancies banked by the two Courts below are of no significance as those are bound to happen by lapse of time. According to him, all the ingredients/requirements for proof of a document, were fulfilled and in spite of its, a contrary view taken by the two Courts below, run counter to the evidence on the file.
6. Learned counsel for the respondents refuted the arguments of the appellant, supported judgments and decrees of the two Courts below and urged that neither there is any legal flaw in the appellate judgment nor any evidence has been misread by it, as such, in absence of any legal defect, no interference in second appeal can be made by this Court. It has also been argued on behalf of the respondents that onus to prove issues No.8 and 9 was placed on the appellant, but both the Courts below have concurrently returned findings that appellant failed to discharge its onus and could not prove execution of Exh.P.1 or payment thereunder. Learned counsel for the respondents further elaborated his arguments by saying that document Exh.P.1 is a forged document which was never executed by respondent No.2 and the witnesses produced to prove its execution are closely related to the appellant. He submits that respondents filed an application an 23-6-2001 for comparison of signatures of respondent No.2 over Exh.P.1 before the trial Court, which was replied by the appellant and contested it, denying comparison of signatures and accordingly, this application was dismissed on 31-7-2001. According.To him, this contest of comparison of signatures, shows forged nature of Exh.P.I. He also contends that there are material contradictions between both the marginal witnesses of Exh.P.1, produced by the appellant as P.W.2 and P.W.3 and at the same time their depositions are at variance to that P.W.1, who is scribe of this document. It is claimed that both the marginal witnesses are closely related to the appellant and thus being interested witnesses, cannot be relied. Learned counsel for the respondents referred to document Exh.P. I and its copy Mark-A to show forged nature thereof, on the ground that beneath Exh.P.1.Name of theexecutant is mentioned as Shahzada Alamgir, General Attorney, with an addition of Suleman thereover, whereas this addition of Suleman does not appear in Mark-A. Learned counsel asserts that this addition if Suleman in the name of executant was made by the appellant at the time when the original document Exh.P.1. Was produced in evidence and earlier there was no such writing. He concluded his arguments by saying that time was essence of the original agreement, which lapsed on 10-9-1990 till when the respondents had been willing and ready to perform their part of contract, as their title stood cleared under a compromise decree, dated 24-5-1990, but appellant had no money with him and in order to grab the property, he forged Exh.P.1. He submits that there is no evidence on the file to show that the appellant was willing, within the stipulated time, to pay the remaining amount to the respondents and to have the sale-deed executed from them, as such, the agreement stood rescinded and the earnest money was forfeited in favour of the respondents.
7. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. The only dispute which hinges between the parties is with regard to Exh.P.1., receipt, execution of which has specifically been denied by the respondents. In order to prove execution of Exh.P.1.Appellant produced Malik Nemat Ali P.W.1,, who is scribe of it and deposed that it was written and signed by him. P.W.2 Muhammad Afzal is a marginal witness of this document, who stated that he signed it. Similarly, P.W.3 is the second marginal witness, who also stated that he signed this document. P.W.1 in his cross-examination deposed that signatures on Exh.P.1. Were obtained by his helper but payment wat.: made in his presence. During cross-examination, he could not tell as to whom this payment was made. P.W.2 in his cross-examination, in the first instance, stated that agreement was written on 11-8-1990 and an amount of Rs.700,000 was paid and in the same breath he corrected himself and said that agreement was written on payment of Rs.1,10,000. It is also in his cross-examination that receipt Exh.P.1 was scribed on furnishing of Fard of the land in question. This witness admitted that dispute between respondent No.1 and Asif Khan ended on the basis of compromise in 1990. In answer to a question by the respondents, this witness could not tell the period for which the time was extended for execution of sale-deed, besides it he showed his ignorance regarding reason for execution of Exh.P.1. P.W.3 Muhammad Akram deposed that he had no knowledge of terms of the agreement and that of Exh.P.1. It is in his cross-examination that scribe of Exh.P.1. Handed over the amount to respondent No.2. According to him, stamp papers were purchased by Shahzada Alamgir and identity card numbers of the witnesses were mentioned on the receipt. P.W.4 is Muhammad Idrees appellant, whoadmitted in his cross-examination that time was essence of the contract and final date between the parties was 10-9-1990. He admitted that he is in possession of the property for the last 13/14 years. He further admitted that dispute between respondent No.1 and Muhammad Asif Khan stood concluded by a decree of the Court, dated 24-5-1990 on the basis of compromise. It is in his statement that identity card numbers of Muhammad Afzal witness was written on receipt Exh.P.1. He further deposed that amount of Rs.700,000 was collected by him from his relatives.
8. Minute scan of evidence shows that P.W.2 and P.W.3, who are marginal witnesses of Exh.P. I are closely related to the appellant, one is his cousin and the other is his nephew, and those being so closely related their depositions cannot be relied without some independent corroboration.
Contradictions in their statements are so glaring that those cannot be termed as minor variations and in presence of attending circumstances of the case, which go to negate stand of the appellant, their depositions are not save to rely. In the original agreement to sell only an amount of Rs.1,10,000 was paid as earnest money and just after two months appellant paid a huge amount of Rs.700,000 against only a receipt, without some independent witness, to acknowledge. Appellant has himself admitted that dispute between respondent No.1 and Muhammad Asif Khan stood resolved through a judgment and decree, dated 24-5-1990 and this date is even much before the date of the original agreement and this shows that on the date when Exh.P.1 was alleged to have been executed, there was no dispute pending regarding title of respondent No.1, for which purpose date for performance of agreement, could have been extended. In the original agreement, dated 5-6-1990 (Exh.P.2) last date fixed for performance of the agreement was 10-9-1990, which is less than three months. It is astonishing, through Exh.P.I. Receipt, time was extended for three years and there is no reason on the file that why the time was extended for such a long period. Conduct of the appellant in contest of application moved by the respondents on 23-6-2001 for comparison of signatures over Exh.P.1., also speaks volumes against him because had this document been genuine, appellant should have readily accepted the offer of comparison of signatures, but instead, he contested this application, from tooth to nail, to have its dismissal. To my mind, appellant should have readily accepted this offer of the respondents rather he should have moved for this purpose. Respondents have offered before me, once again that signatures on Exh.P.1 may be got compared from some hand writing expert or this Court may itself compare the signatures with those admitted on the file, which appeared at pages 7, 13, 14, 42 and 47 of the file of this Court.
Appellant has not shown his willingness even here to have such comparison, which further created doubt regarding genuineness of this document. Beneath Exh.P.1.Name of the scribed is mentioned as Shahzada Alamgir General Attorney and then the reever Suleman has been added. Similar is the position on right top of this document, but this addition of Suleman is not available in photostat copy Mark-A on the file. Appellant has not explained as to how this photostat copy without Suleman came into being. If we read Exh.P.1, the executant is Shahzada Suleman Alamgir, whereas if we read Mark-A, the executant is Shahzada Alamgir, which also negatively reflects on the genuineness of the document.
9. Question of time being essence of the contract has to be decided according to the intention of the parties, reflected in the agreement, its term, conduct of the parties after the agreement and all the attending circumstances. Parties undeniably agreed to conclude sale by specifying a particular date i.e. 10-9-1990 and stipulated penalties for default by any of the parties. After original agreement neither any additional earnest money was received nor time for completion of sale was extended. All this shows that parties intended to make time, essence of the contract. Appellant has himself admitted this fact while appearing as his own witness as P.W.4 and his preparation of Exh.P.1. Further strengthens the fact that time was essence of the contract and in order to repel it, Exh.P.1 was brought in. My view that time, in the instant case, was essence of the contract, has support of judgments in the cases of Seth Essabhoy v. Saboor Ahmad (PLD 1973 SC 39) Zaheer Ahmad and another v. Abdul Aziz and others 1983 SCM R 559, Sandoz Limited and another v.
Federation of Pakistan and others (1995 SCM R 1431), Mrs. Mussarat Shaukat All v. Mrs. Safia Khatoon and others (1994 SCM R 2189), Masud Sarwar v. Mst. Farah Deeba (1988 CLC 1546) and Abdul Habib Durrani v. Toriali (1999 CLC 207). Appellant having prepared Exh.P.1. Which is fake, as noted above, did not take any step under the agreement to sell, dated 5-6-1990 for having sale-deed executed i.e. Purchase of stamp papers needed for inscribing this deed, deposit of District Council fee and other allied taxes/fees, showing his willingness to perform his part of contract by paying the balance sale price, till the last date fixed for this purpose. His this conduct makes me to conclude that he was not ready and wiling to perform his part of contract within the stipulated time and thus suffered penalties provided by the agreement, dated 5-6-1990.
10. Both the Courts below have given exhaustive judgment after due appraisal of evidence on the file and after discussing all the pros and cons of the case. There appears to be no legal defect in their judgments, which are in consonance with the evidence on the file. Under section 100 of the Civil Procedure Code interference in second appeal is only permissible if the decision impugned is contrary to law or it has been rendered without deciding some material issue of law or had there beenany error or defect of procedure provided by law. Judgments of the two Courts below are neither, tainted with any illegality or irregularity nor are fanciful or arbitrary, thus for the reasons detailed above, no interference is called for by this Court in second appeal, which having no merit in it, is accordingly dismissed, leaving the parties to bear their own costs.