2002 SCMR 1089
2002 SCMR 1089
2002 SCMR 1089
versus
Civil Appeals Nos.327, 328, 1022 of 1995 and 1348 of 1996, decided on l lth
April, 2002.
(e) Contract---
Rai Muhammad Nawaz Kharal, A vocate Supreme Court with M.S. Khattak,
Advocate-on-Record for Appellant (in C.A. No. 1022 of 1995)
M.A. Qureshi, Advocate-on-Record (absent) for Respondents (in C.A. No. 1022
of 1995).
Mian Ghulam Hussain, Advocate Supreme Court for Appellant (in C.A. No. 1348
of 1996).
Abdul Waheed Chaudhry, Advocate Supreme Court for Respondents in C.A. No.
1348 of 1996).
JUDGMENT
4. The suit culminating in Civil Appeal No. 1022 of 1995 was based on an
agreement to sell dated 10-6-1974 whereby Amir Khan, father of the respondent
herein, had allegedly agreed to sell land measuring 6-1/4 acres to the appellant for
a sum of Rs.37,500 and had received earnest money to the tune of Rs.5,000. The
remaining sale price was to be paid by 30-7-1974 on which date the sale was to be
completed. The sale was not completed by the stipulated date. However, the
vendor allegedly received a further sum of Rs.3,000 from the vendee on 2-8-1974
and another amount of Rs.1,700 on 21-9-1974 on which .date another agreement
extending the date for completion of sale up to 30-10-1974 was executed. In the
second agreement the receipt of the aforesaid amounts of Rs.3,000 and Rs.1,700
were duly acknowledged. The vendor executed yet another document on
16-10-1974 acknowledging receipt of an amount of Rs.1,400 and confirming
earlier payments. It was also alleged in the suit that the vendor instead of
completing the sale had gifted the land in dispute in favour of his sons, vide a
registered gift deed dated 20-12-1976, which was followed by a mutation attested
on 28-1-1977. The appellant was non-suited by the learned trial Court on the
ground that the marginal witnesses of the agreement to sell were not examined by
him and both of them had appeared as witnesses of ; the defendants and denied its
execution by stating in clear words that when they had signed the document
neither Amir Khan was present nor any amount was paid by the. appellant in their
presence. The documents Exh. P-2 and Exh.P-4 were also not relied upon owing
to discrepancies in the statements of the witnesses. The appeal preferred by the
appellant was dismissed by the learned Additional District Judge, Faislabad on
8-4-1991 and the revision petition filed by him was dismissed by a learned Judge
in Chambers of the Lahore High Court.
5. In Civil Appeal No. 1348 of 1996 the revision petition filed by the appellant
was dismissed by a learned Judge in Chambers of the Lahore High Court on
14-11-1995. The revision petition was directed against the judgment dated
18-9-1995 of the learned Additional District Judge, Okara whereby the judgment
dated 16-10-1994 of the learned Civil Judge, Depalpur dismissing the appellant's
suit for specific performance of contract was upheld. The suit was dismissed on
the ground that execution of the agreement to sell dated 18-3-1991 had not been
proved in accordance with Article 79 of the Qanun-e-Shahadat Order, 1984 as
only one attesting witness was examined.
6. When the appals came up for hearing one of the appellants in Civil Appeals
Nos.327 and 328 of 1995, namely, Mst. Rasheeda Begum informed us that Mr.
Abdul Shakoor, Advocate Supreme Court, learned counsel for the appellants in
both the appeals, had died and she was not possessed of means to engage another
counsel. According to the grounds of appeal in Civil Appeal No. 327 of 1995 the
execution of the agreement to sell dated 22-2-1977 was proved by the appellants
by producing the original agreement, examining its scribe and other witnesses,
establishing payment of the earnest money and delivery of possession of the suit
land but the evidence was either misread or ignored by the High Court. It is also
mentioned therein that the attesting witnesses were not examined as both of them
were clerks of Mr. Nematullah Hissari, Advocate, husband of respondent No.2,
who had masterminded the whole plan to deprive the appellants of their legal
rights. The grounds of appeal in Civil Appeal No.328 of 1995 spell out that there
was enough material on record to show that the consent decree dated 16-9-1980
obtained by Mst. Jamila Begum was the outcome of fraud but the same was
ignored and the writ petition was dismissed merely on the ground that in the
parallel proceedings arising out of a regular suit brought by the appellants against
their opponents a civil revision had already been dismissed.
8. Mian Ghulam Hussain, Advocate Supreme Court, learned counsel for the
appellant in Civil Appeal No.1348 of 1996, also contended that an agreement to
sell was not required by law to be attested by two witnesses, therefore, the
execution of the agreement to sell in question (Exh. P-1) stood roved in the light
of the statement of one of the attesting witnesses.
9. Mr. Abdul Wahid Chaudhry, Advocate Supreme Court, learned counsel for the
respondents in C.A. No.1348 of 1996, on the other hand, maintained that an
agreement to sell was required to be attested by two witnesses and the agreement
to sell involved in the appeal was neither proved by examining the marginal
witnesses nor through any other mode.
10. It will be pertinent to mention at this stage that in the case of Muhammad
Saeed (supra) leave was granted to consider the question as to whether the
agreement to sell involved in the case was required by law to be attested by
witnesses. The appeal was allowed on 25-8-1991 and the case was remanded to
the High Court for re-decision of the appeal to determine as to whether the vendor
had agreed to sell the house. The appellants herein cannot draw any premium
from the judgment rendered in the case as the question alluded to in the leave
granting order was not determined and the case was remanded on finding force in
the contention that even if the agreement of sale is excluded for the reason that the
attesting witnesses had signed the same before it was signed by the execution, still
there was evidence on the record to show that the executant had executed the said
agreement.
"(2) Unless otherwise provided in any law relating to the enforcement of Hudood
or any other special law--
Provided that it shall not be necessary to call an attesting witness in proof of the
executant of any document, not being a will, which has been registered in
accordance with the provisions of the Registration Act, 1908 (XVI of 1908),
unless its execution by the person by whom it purports to have been executed is
specifically denied."
Prop of the aforementioned legal vacuum cannot be taken to offset the effect of
failure to prove the execution of an agreement to sell in accordance with the said
mode. However, where an agreement to sell has been reduced to writing but not
attested by witnesses its execution and the contract embodied therein can be
proved by other strong evidence and attending circumstances which may vary
from case to case. Needless to mention that such evidence can also be produced in
the first category of cases as supporting evidence.
13. Having determined the main questions involved in these appeals we would
now turn to the merits of each appeal. In Civil Appeal No.327 of 1995 the
agreement to sell was executed on 22-2-1977. It was attested by two witnesses
Muhammad Tufail and Muhammad Yar and also bears their signatures. None of
them was examined by the appellants, therefore, it goes without saying that
execution of the agreement to sell. has not been proved within the contemplation
of section 68 of the erstwhile Evidence Act. The explanation for their
non-examination lacks plausibility. The bald statement of the petition-writer
Nazar Mohyuddin (P.W.4) who had allegedly scribed the agreement to sell is not
enough to prove execution of the document in question. The appeal is, therefore,
without substance.
14. Civil Appeal No.328 of 1995 is also devoid of substance because the
appellants have not only failed to prove that the consent decree in favour of Mst.
Jamila Begum was the outcome of fraud and misrepresentation but they also have
no cause of action to assail the same having been non-suited in the main case.
15. In Civil Appeal No. 1022 of 1995 the agreement to sell pressed into service
was in the shape of an extract from the register of a Petition Writer. According to
the said extract the agreement to sell was executed on 10-6-1974 and was attested
by Mahurram and Muhammad Ali. None of them was examined by the appellants.
The appellants have also not cared to place on record and prove the documents
whereby the receipt of sale consideration paid from time to time was
acknowledged and the contract was reiterated. The plea of novation of contract is
also more imaginary than real for want of positive and tangible proof. This appeal
is also devoid of force.
16. The agreement to sell in Civil Appeal No. 1348 of 1996 was executed on
18-3-1991 and attested by Muhammad Rafiq and Muhammad Sarwar. Having
been executed after promulgation of the Qanun-e-Shahadat Order, 1984 its
execution ought to have been proved in accordance with Article 79 (ibid) but the
evidence - on record consists of only one attesting witness. Payment of earnest
money has also not been proved on record. The evidence produced by the
appellant does not meet the requirements of Article 79 of the Qanun-e-Shahadat
Order, 1984. The appeal is, therefore, liable to be dismissed.
For the reasons aforesaid, we find no substance in these appeals which are
accordingly dismissed. No orders as to costs.
S..A.K./R-41/S Appeals
dismissed.