' This civil revision under section 115, C.P.C. Impugns the judgment and decree dated 20-4-1995 passed by learned VIII-Additional District Judge, Karachi East dismissing the appeal of applicant Muhammad Ishaque wherein the applicant had assailed the judgment and . Decree dated 27-9- 1994 passed by learned VI-Senior Civil Judge, Karachi East dismissing the suit of applicant/plaintiff instituted against respondents Azizuddin; Mst. Manawar Sultana, Mst. Rubina and Abu Zaib.
2. The applicant/plaintiff's case in his suit was that by an agreement to sell dated 14-6-1979 he agreed to purchase House No.35/P, Korangi 2-1/2, Karachi from its owner Hafeez Ahmed Shaikh at Rs.25,000 and down payment of Rs.8,000 as earnest money was made, while the balance was agreed to be paid at the time of registration of the sale-deed in favour of the applicant. At that time the applicant was tenant of Hafeez Ahmed Shaikh the former/deceased husband of Mst.
Manawar Sultana, respondent/defendant No.2 at the rate of Rs.150 per month. According to applicant it was late Hafeez Ahmed Shaikh who approached the applicant for purchase of the house in question on the ground that he was in need of money, to which the applicant agreed and accordingly the aforementioned agreement to sell was executed. Further proceedings as to registration could, however, not be taken as Hafeez Ahmed Shaikh died shortly after executing the said agreement, more particularly, for the reason that Hafeez Ahmed Shaikh had left behind two minors namely Mst. Rubina and Abu Zaib, the respondents Nos.3 and 4. The tenancy continued and the applicant paid rent to respondent/defendant No.2, but when the latter declined to accept the rent the applicant deposited the same in Court. In November,- 1981 the respondent No.2 served a notice upon the applicant levelling wrong allegations against him to which the applicant responded promptly and sent a reply to her. Later on, in May, 1983 the applicant learnt from KDA that the respondent No.1 namely Azizuddin had purchased the quarter in question from respondent No.2 for Rs.25,000 and the sale-deed was duly registered on 3-10-1982 at Karachi. The applicant alleged that in fact the agreement of sale was well within the knowledge of respondent No.1 being neighbour of the applicant and that he had also participated in the negotiations held between the applicant and respondent No.2. The applicant, in the circumstances, filed a suit for declaration, injunction and cancellation of sale-deed dated 31-10-1982.
3. The respondents resisted the suit, inter alia, on the ground that no agreement of sale was executed as alleged, and that even the copy of said agreement was not filed with the plaint or relied upon and that the suit was barred under Article 131 of Limitation Act. The respondent No.1 took a specific plea that he had no prior notice of the alleged agreement of sale and as such it was not binding on him. He maintained that he purchased the suit premises within the knowledge of applicant/plaintiff who, at that time, did not raise any objection and thereafter the applicant fraudulently prepared the said sale agreement. According to him, after the death of Hafeez Ahmed Shaikh, the applicant did not disclose the fact of agreement to anybody.
4. The respondents/defendants Nos.2, 3 and 4 also took several pleas on the same lines stating the specific terms that no agreement had taken place between applicant and Hafeez Ahmed Shaikh and there was no existence of the alleged documents viz. Agreement of Sale dated 14-6-1979 and it was a concocted story.
5. On the pleadings of parties the learned trial Court framed the following issues:--.
(1) Whether owner Hafeez Ahmed Shaikh executed the sale agreement dated 14-6-1979 in favour of the plaintiff? If yes, what its legal effect?
(2) Whether sale-deed in respect of said house executed by defendant No.2 in favour of defendant No.1 is void and without legal effect?
(3) Whether plaintiff is entitled to the relief claimed?
(4) Whether suit is not maintainable under law?
(5) Whether suit is time-barred?
(6) Whether suit is undervalued and insufficiently stamped?
(7) What should the decree be?
6. The parties led evidence on these issues and on assessment of material on record learned VI- Senior Civil Judge, Karachi East dismissed the suit and the appeal against the same also failed, as stated earlier.
7. I have heard Mr. M.A. Qadri, learned counsel for applicant,Mr. Syed Ishtiaq Ali, learned counsel for respondent No.1 and M. Liaquat Hussain, learned counsel for respondents Nos.2, 3 and 4 and perused the record.
8. Learned counsel for parties invariably advanced their arguments for and against execution of the agreement to sell dated 14-6-1979, its effect and the validity of the registered sale-deed executed by Mst. Manawar Sultana, respondent No.l in favour of Azizuddin. On factual side the applicant, at the trial attempted to discharge his burden by examining himself and producing the relevant documents. In his support he examined two witnesses namely Imtiaz Ghani purportedly one of the two attesting witnesses and P.W.3 MuhaMmad Tariq Siddiqui, Assistant Director in KDA, who produced some documents from the record of KDA. In rebuttal respondent No.1 namely Azizuddin, respondent No.2 Mst. Manawar Sultana and respondent No.3 Mst. Rubina examined themselves as witnesses and the respondent No.1 produced the relevant documents also. Two witnesses Haji Abdul Razzakand Zahoorul Haq were also examined on the side of respondents/ defendants.
9. The respondent No.1 all along projected his case on the basis of registered sale-deed dated 30- 9-1982 [Exh.8/B (Copy Exh.6/1)] and claimed that he was transferee in good faith with out notice of the previous agreement to sell dated 14-6-1979 on which the applicant has founded his case. In this regard, it is to be noted that under clause (b) of section 27 of the Specific Relief Act, specific performance of a contract may be enforced against any other person claiming under him by a title arising subsequently to the contract, except a transferee for value A who has paid money in good faith and without notice a the original contract. In this way, specific performance cannot be enforced against the respondent No.1 if he demonstrates that he was a transferee in good faith without notice of the original contract that is to say the agreement to sell in question. Burden to prove this fact under the settled law heavily lies on the respondent No.
1. Reference in this context may be made to Mukhtar Ahmed v. Bashir Ahmed (PLD 1994 SC 674).
10. Instantly, in view of the peculiar facts of this case the point of fact about lack of notice of the original agreement, cannot be dealt with independently without touching the Issue No.1 framed by the trial Court, as to whether the agreement dated 14-6-1979 was executed by Hafeez Ahmed Shaikh in favour of the applicant, since it is the case of applicant that Azizuddin, the respondent No.1 who claims absence of notice being neighbour of the applicant was also involved in the negotiations held between the applicant and the respondent No.2. On factual side, therefore, it is essential to examine the initial question of execution of the agreement dated 14-6-1979. While dilating upon this point it is to be borne in mind that the elementary legal requirement with regard to proof of the document itself, would involve interpretation of Article 79 of Qanun-e-Shahadat, but in this context it is essential to point out that the Qanun-e-Shahadat Order came into force in the year 1984, whereas the said agreement is said to have been executed on 14-6-1979, as such its execution is to be proved within the relevant provisions of the Evidence Act, 1872 and not under Qanun-e-Shahadat Order, 1984. Reliance in this regard may be placed on Noor Muhammad v.
Nazir Muhammad (2002 SCMR 1301), Din Muhammad v. Fateh Muhammad (2001 PSC 117) and Muhammad Anwar v. Muhammad Isma il (1992 MLD 860).
11. The legal position about the mode of proving a document is manifestly clear on this point, but surprisingly the learned Appellate Court has applied the Qanun-e-Shahadat to this case retrospectively and has taken the view that under Article 17 of Qanun-e-Shahadat theexecution of the document in question being an agreement to sell was to be proved through two attesting witnesses, while the applicant/plaintiff has examined only one of them. He has concluded in following words:-- "So the evidence led by plaintiff in support of his case that he had entered into agreement with the deceased Flafeez Ahmed Shaikh is very doubtful as according to law there requisite number of attesting witnesses has not come forward to appear in Court to give evidence in support of execution of Ex.P/1 (Agreement to Sell)."
12. It would be pertinent to mention that the judgment was delivered by the learned Appellate Court in the year 1995. The learned Judge could at least refer to Muhammad Anwar v. Muhammad Ismail (1992 MLD 860) wherein the law laid down was that proof of a document, having come into existence in the year 1979, was not to be furnished in accordance with the provisions of Article 79 of Qanun-e-Shahadat Order, 1984. Learned Appellate Court's view, applying the provisions of Qanun- e-Shahadat with retrospective effect, cannot be maintained. Section 68 of the Evidence Act is the appropriate provision of law to be applied herein.
13. For ready reference the text of section 68 of the Evidence Act is reproduced below:-- "68. Proof of execution of document required by law to be attested.---If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: [Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will which has been registered in accordance with the provisions of the Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied. ]"
14. In this case out of the two attesting witnesses namely Syed Zafar Ali and Imtiaz Ghani, the latter has been produced and examined as witness in the trial Court; consequently, the formalities having been completed within the meaning of section 68 of the Evidence Act, the Court had to appraise the evidence on record to determine the question whether the said agreement is a genuine document and has really been executed at the given point of time. This question has further gained immense significance in view of the development that the executant of the agreement namely Hafeez Ahmed Shaikh is dead.
15. Before adverting to the level of appraisal of evidence made by the Courts below it would be pertinent to consider the contention of learned counsel for applicant that the judgment delivered by the Appellant Court did not satisfy the requirements of law and was hit by the mischief of Order XLI, rule 31, C.P.C. Relying on Jurnma Khan v. Shamim (1992 CLC 1022) he argued that compliance with the requisition laid down in Order XLI rule 31, C.P.C. Is lacking, therefore, the case may be remanded back .To the Appellate Court for disposal on merits. He also referred to other case-law.
16. The significant decisions of this point are given by the Hob'ble Supreme Court in the cases: Roshi v. Fateh (1982 SCMR 542), Abdul Kabeer v. Abdul Wahid (1968 SCMR 464) and Nasir Abbas v.
Manzoor Haider Shah (PLD 1989 SC 568). In the last mentioned judgment is has been held that if the evidence on record has not been fully considered it would not fulfil the requirements of Order XLI rule 31, C.P.C. And such judgment is liable to be set aside on revision. On these lines the Lahore High Court has also taken the view in Khursheed Ahmed v. Muhammad Akram. Khan (2000 CLC 125) that affirmance of the view of the trial Court by the First Appellate Court simply for the reason that the trial Court has thoroughly examined the evidence, was not enough as the Court of first appeal has to come to its own independent conclusion on appreciation of evidence on record.
17. On the other hand learned counsel for respondent referred to Abdul Hameed v. Muhammad Zaki (1990 MLD 1129) on the point that if substantial compliance of Order XLI rule 31, C.P.C. Has been made and issues have been recast and discussed making it manifest that the Court was conscious of the matter involved, no serious exception be taken to the appellate judgment.,
18. This legal issue was also examined in Ali Muhammad v. Muhammad Abad (PLD 1999 Karachi 354) and Husana Bano v.Faiz Muhammad Magsi (2000 CLC 709) upheld by the Hon'ble Supreme Court in 2002 SCMR 667) wherein reference was made to a number of authorities including Nasir Abbas v. Manzoor Haider Shah (PLD 1989 SC 568) and Roshi v. Fateh (1982 SCMR 542). In the last mentioned case reliance was placed by the Honourbale Supreme Court on its earlier judgment in Abdul Kabeer v. Abdul Wahid (1968 SCMR 464).
19. The net outcome of the discussion on these points is that in each case the question regarding substantial compliance of Order XLI 'rule 31, C.P.C. Would depend on nature of the judgment which is under appealand even if the judgment of learned Appellate Court is not satisfactory and strict compliance of the said rule has not been made it is still acceptable if the findings are based on proper and legal evidence. Regarding the format in which the findings should be stated, there is no fixed rule. Nevertheless, it is not always the duty of Appellate Court agreeing with the view taken by the trial Court on the evidence, either to restate the effect of the evidence or to reiterate the reasons given by the trial Court and in that event the expression of general agreement with the reason of the trial Court would ordinarily suffice. Reference in this context may be made to Girijanandini v. Bijendra Narain (AIR 1967 SC1124).
20. Keeping in mind the principle of law discussed above it would be found that in the judgment under revision the learned Appellate Court has precisely restated the entire evidence and at the end has recorded a note of agreement with the view taken on different issues by the trial Court.
Technically speaking, the strict compliance of the Order XLI, rule 31, C.P.C. Is apparently lacking but in order to render substantial justice the irregularity may be condoned since the entire evidence has been taken into consideration. No exception, therefore, could be taken to the judgment of the Appellate Court on the score of this drawback alone, in view of the settled norms that the technicalities shall not defeat the ends of justice.
21. The crucial point, as stated earlier, is to determine, whether the said agreement to sell dated 14- 6-1979 is a genuine document and whether such an agreement was orally entered into by the parties concerned namely late Hafeez Ahmed Shaikh and applicant Muhammad Ishaque. The findings that are being assailed in this behalf are that of the trial Court which have been endorsed by the Appellate Court. The trial Court has appreciated the evidence and the other circumstances with regard to the said agreement and the document. The Court has also compared the signatures of late Hafeez Ahmed Shaikh on the documents purporting to be letters issued by Hafeez Ahmed Shaikh during his life time viz. Exhs.6/A and 6/B produced by the applicant himself with the signature on the original Agreement to Sell (Exh.P/1) produced by the attesting witness and has come to the conclusion that the signatures do not tally. The Court was empowered to undertaken this exercised within the meaning of Article 84 of Qanune-e-Shahadat. The observation made in Ali Ahmed v. State (PLD 1962 SC 102), Muhammad Din v. Liaqat Ali (1991 MLD 1970), Jawed Iqbal v, Nazeran Begum (2001 MLD 416) and Chitta Ranjan Sutar v. Secretary, Judicial Department (PLD 1967 Dacca 445) are also relevant in this context.
22. The most damaging drawback in the case is that the applicant, being the plaintiff, could not get the signatures compared through an expert. Notwithstanding this lacuna, the letters Exhs.6/A and 6/B allegedly written by Hafeez Ahmed Shaikh before execution of agreement do not show that actually such an agreement was concluded. At the most there is a reference that Hafeez Ahmed Shaikh expressed his a happiness if the applicant could buy the property. There is absolutely no indication that, applicant also conveyed his willingness to execute such an agreement, nor the letters would show that the proposal was accepted. On the contrary, the letter (Exh.6/K) written by applicant Ishaque on 25-6- 1979, shows that he okayed the deal with Amiruddin, father of respondent No.1 and in this manner he had no objection to sale in favour of respondent.
23. The trial Court has further taken note of the fact that the date 20th on the Agreement (Exh.P/1) has been changed to 14-6-1997 just to cover up the documents Exh.6/K and Exh.8/A. Again, the fact that the Hafeez Ahmed Shaikh was posted at Hyderabad in those days is also an admitted position.
How the meeting was arranged before the Oath Commissioner also could not be proved. The trial Court has also considered the fact that the applicant kept quiet for a sufficiently long time after death of Hafeez Ahmed Shaikh and did not call upon the respondent No.2 to implement the said agreement soon after the death of Hafeez Ahmed Shaikh. Above all the most serious and adverse impact on the case of applicant is his failure to file the agreement or its copy with his plaint. He even failed to include it in the list of documents relied upon in the plaint. Written statement was filed by respondent No.1, in July, 1984 wherein it was specifically pointed out that the alleged agreement of sale dated 14-6-1979 has neither been relied upon nor filed in the Court. The respondent No.2 filed the written statement on behalf of respondents Nos.2, 3 and 4 on 5-4-1990 and he, too, pointed out in the written statement that the document on the basis of which the suit was filed had not been produced before the Court. The amended written statement filed on 9-4- 1991 also reflected the same position. This agreement was produced at the trial by the witness Imtiaz Ghani.
24. The trial Court has further been impressed by the fact that satisfactory evidence came on record that two months prior to the death of Haeez Ahmed Shaikh, he was bedridden as such there was no question of his coming down to Karachi for executing agreement to sell on 14-6-1979. The applicant himself has admitted that Hafeez Ahmed Shaikh died in the month of July, 1979. Having taken into consideration all the ambient circumstances and the admitted facts the trial court had rightly come to the conclusion that the agreement to sell was not executed, and the document purporting to be such agreement was not genuine. The Appellate Court has also endorsed this view. There appears no reason to discard these concurrent findings of factsimply on the ground that one of the attesting witnesses has been examined in the Court. The finding of fact rendered by the Courts below is, in the circumstances, founded on sound reasoning and proper appraisal of evidence and as such is not open to exception.
25. In view of the above conclusion it follows that the agreement to sell dated 14-6-1979, which is the basis of the entire cause of action, was not a genuine document; it is needless to enter into a discussion as to whether the sale-deed executed in favour of respondent No.1 was to be maintained or not. The plaintiff had to prove his own case which he has failed to establish and since the elementary point with regard to claim of agreement to sell has collapsed, the entire superstructure collapses. There is, absolutely no legitimate reason to question the order of the lower Courts and their concurrent findings of fact as to the agreement to sell. In result thereof the claim based on the entire cause of action fails wholly. The revision is without merits and hereby dismissed with costs.