Munir A. Sheikh, J.--By this common judgment, we propose to decide Civil Appeal No, 96 of 1997 and Civil Petition No, 161-L of 2003, as questions of law and facts are identical in both of them.
2. Civil Appeal No, 96 of 1997 by leave of the Court has arisen from execution proceedings of the ejectment order passed in favour of the respondents-landlords by the Rent Controller which was admittedly upheld up to this Court in appeals. The objection petition filed by the appellant against the execution of the ejectment order was dismissed by the Executing Court which order was upheld by the High Court against which this appeal by leave is directed. Civil Petition No, 161-L of 2003 has arisen from a civil suit filed by the respondents against the petitioner for specific performance of agreement of sale dated 5.6.1990 which was decreed by the trial Court in their favour. The appeal filed by the petitioner was dismissed by the First Appellate Court through judgment dated 21.5.2002 against which regular second appeal filed by him has also been dismissed through the impugned judgment dated 7.11.2000 by the Lahore High Court against which leave is sought.
3. The facts of this case are that the shop in dispute is admittedly owned by Muhammad Latif to whom it was transferred by the Settlement Department being evacuee property. It was occupied by his brother Muhammad Afzal (appellant in CA 96/97), against whom ejectment petition was filed. The appellant Muhammad Afzal on the other hand filed a civil suit for specific performance of agreement of sale dated 5.6.1990 allegedly executed by Muhammad Latif in his favour about the shop in dispute according to which he agreed to sell the said shop for an amount of Rs, 1,40,000/-.
It was contested by Muhammad Latif on the ground that he did not execute the said agreement of sale. The said agreement of sale which was produced in evidence as Exh. P1 is a composite document which shows that the same was executed as a consequence of the reference made to the Punchayat about the dispute between the parties. The case of respondent-Muhammad Latif was that the said Punchayat was convened on his request which was made in writing and the dispute referred was only about the house which was also owned by the parties jointly and not the shop which had been transferred to him.
4. The trial Court after recording evidence came to the conclusion that the execution of the said agreement of sale had been proved, therefore, through judgment dated 26.6.1996, the suit was decreed. The appeal filed by Muhammad Latif, respondent in CA No, 96 of 1997 was dismissed against which second 'appeal filed by him has also been dismissed through the impugned judgment dated 7.11.2002 against which Civil Petition No, 161-L of 2003 has been fled.
5. Syed Najamul Hassan Kazmi, ASC, learned counsel for the petitioner in the said civil petition argued that the execution of the said agreement had not been proved in accordance with the provisions of the Qanun-i-Shahadat Order relating to proof of a document. He argued that according to the case of Muhammad Afzal, decree-holder, the Punchayat was presided over by Dr. Bashir Ahmad and the said agreement was scribed by Muhammad Iqbal which event took place in the house of Muhammad Rafique Rana. He maintained that neither Muhammad Iqbal nor Dr. Bashir Ahmad nor Muhammad Rafique Rana had been examined to prove the execution of the said document by the petitioner.
6. Learned counsel further maintained that the original agreement was not produced and the case of the plaintiff was that the same had been lost and permission was granted to produce secondary evidence with specific condition that the provisions of the law regarding to execution of the said document would be complied with meaning thereby that it was made clear that grant of permission to produce secondary evidence would not have the effect of relieving the plaintiff relying upon the said document from the requirements of proving its execution in accordance with law.
7. Dr. Bashir Ahmad when appeared as witness as to proof of loss of the original document to decide question of grant of permission to produce secondary evidence because as Chairman of the Punchayat, he was in possession of the same was, cross-examined by the petitioner on the said limited question who admitted that Mark-C was the copy of the same application which was moved by Muhammad Latif before him for convening the Punchayat. It is prima facie manifest from the said document that the dispute referred to the Punchayat was regarding the house and no mention of shop was made. In the evidence, two agreements were produced, one regarding the house and the other about the shop in question. They are two separate documents. Dr. Muhammad Bashir when cross-examined admitted that both the documents were the same.
8. Mr. Gul Zarin Kiani, ASC, learned counsel for the appellant in CA 96/1997 when questioned as to how the execution of the agreement dated 5.6.1990 Exh. P1 regarding the shop could be held to have been proved in the above circumstances submitted that the appellant had summoned Dr. Bashir Ahmad, Muhammad Rafique Rana and Muhammad Iqbal about which expenses had also been deposited to whom summons were issued but they were not produced because there was direction by the High Court for disposal of the suit before a particular date.
9. We have gone through the proceedings dated 6.5.1996 of the trial Court from which it is clear that it was not the trial Court which closed the evidence of the plaintiff on that ground but the plaintiff himself closed his evidence by saying that he wanted to produce them to whom summons had also been issued but could not produce as he was bound to conclude the evidence in view of the direction issued by the High Court for disposal of the suit before a particular date.
10.Mr. Gul Zarin Kiani, ASC, learned counsel for the appellant attempted to maintain that though the dispute originally referred to the Punchayat might have been with regard to the house but during the proceedings before the Punchayat, the parties had agreed to settle the dispute about the shop also, therefore, the decision of the Punchayat covered the disputes of both the properties which culminated in the two agreements, one about the house and the other for the shop and the plaintiff was ready and willing to perform his part of the agreement with regard to the house. The plaintiff wanted to prove these facts by examining the said witnesses but could not do so due to misunderstanding about constraint of time. The Courts below appear to have been influenced by the fact that Muhammad Latif defendant when appeared as witness in his evidence denied the convening of any Punchayat. It was altogether ignored that execution of agreement should have been proved in accordance with law and the said statement of the defendant if permissible could be used as corroborative evidence or for raising inference as the case may be, against the maker thereof.
11. Be that as it may, we are not disposed to express final opinion about the evidentiary value of the said part of the statement of the defendant relied upon by the Courts below in decreeing the suit of the respondents, for we are of the considered view that the question of holding of Punchayat, the scope of the dispute referred to it and any development during the proceedings before the Punchayat to cover the dispute of both the properties were required to be proved through evidence.
12.The plaintiff had summoned Muhammad Iqbal, Dr. Bashir A hmad and Muhammad Rafique Rana to whom summons were also issued but they were not served and were not examined by them under the erroneous assumption that due to direction of the High Court for disposal of the suit before a specified date, they could not ask for adjournment. The execution of the said agreement of sale apart from the scope of the terms of reference to Punchayat was also to be proved in accordance with law.
13.We find that it is a fit case for remand to the trial Court for decision of the suit afresh after granting opportunity to the plaintiff to produce further evidence as to execution of the agreement of sale dated 5.6.1990, the scope of the terms of reference made to the Punchayat during the proceedings before the Punchayat.
14.For the foregoing reasons, Civil Petition No, 161-L/03 is converted into appeal, the same is accepted, judgment passed by the Courts or below are set aside and the case remanded to the trial Court for disposal of the suit afresh after allowing opportunity to the plaintiff to produce evidence as observed above. Needless to say that the defendant shall be allowed opportunity to produce evidence in rebuttal. The evidence already led in the case shall also be read as evidence.
15.No order as to costs.
16.Reverting to Civil Appeal No, 96 of 1997, it may be mentioned here that during the pendency of the ejectment petitioner, stay of proceedings of the ejectment petition was sought on the ground that there was an agreement of sale dated 5.6.1990 but the same was not allowed. An ejectment order was passed against Muhammad Afzal, which was upheld up to this Court as observed above. In the execution proceedings, an objection petition was filed for dismissal of the said petition on the ground that the order of ejectment was not executable in view of the decree passed in the said suit of specific performance which was rejected and has been upheld up to the High Court.
17. The suit filed by the appellants has been remanded and is still pending, therefore, the legal position which was obtaining at the relevant time when request of the appellant for staying proceedings in the ejectment petition was refused has been restored. The respondents cannot be deprived of the fruits of the ejectment order passed by the Rent Controller which was upheld up to this Court merely because appellant's suit for specific performance of agreement of sale of the property is pending. In case, he ultimately succeeds in the suit, the possession of the property may be delivered to him in execution of the decree as owner. Since at present, an ejectment order has been passed which has become final, therefore, execution of the same cannot legally be objected to.
18.For the foregoing reasons, Civil Appeal No, 96 of 1997 is hereby dismissed. The rent deposited in pursuance of the interim order passed by this Court shall be allowed to be withdrawn by Muhammad Latif/landlord.
19.No order as to costs.