Legal Requirement to Prove Execution of Document in Ex-parte Proceedings

Legal Requirement to Prove Execution of Document in Ex-parte Proceedings Attesting Witnesses Case Laws Civil Law Knowledge - Civil Law Lahore High Court Litigation & Arbitration Pardha Nashin Lady Regular First Appeal Solutions - Civil Law Mr. Justice Shahid Waheed in his judgment has decided the issue regarding legal requirement to prove execution of document in ex-parte proceedings in Regular First Appeal No. 214 of 2011.

1. This first appeal under section 96 CPC arises from a suit which was instituted by the appellant to get a decree for specific performance of an agreement to sell dated 28.02.1996 (Ex.P1). The said agreement related to the sale of plot No.868, Block R-1, M.A. Johar Town, Lahore; and, it was attested by two persons i.e. Najam Alam Siddiqui and Javed Mirza. Non- compliance of the terms and conditions of the alleged agreement to sell (Ex.P1) was the cause of action to institute the above said suit in which the respondent had not appeared and thus was proceeded against ex-parte vide order dated 06.03.2009. The appellant produced ex-parte evidence. The appellant got himself examined as PW-1 and produced Muhammad Azhar Iqbal as PW-2. In documentary evidence the appellant tendered original agreement to sell (Ex.P1), site plan (Ex.P2), general power of attorney (Ex.P3) and some other documents, including general attorney (Ex.P4 to Ex.P7). Since the appellant had failed to produce attesting witnesses of the alleged agreement to sell (Ex.P1), the learned Trial Court dismissed the suit vide judgment and decree dated 19.01.2011. Hence, this appeal.

2. According to Article 17 of the Qanun-e-Shahadat, 1984 an agreement to sell requires compulsorily attestation by two witnesses, whereas Article 79 ibid ordains that if a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses are called for the purpose of proving its execution. The conjoint reading of the aforesaid two Articles makes it clear that it is essential for the plaintiff to have examined at least two attesting witnesses of the agreement to sell in order to prove its execution; and, to get a decree for its specific performance. This is exactly the same which was held by the Hon’ble Supreme Court of Pakistan in the case of Farzand Ali v Khuda Bakhsh and others (PLD 2015 SC 187).

3. We confronted the appellant’s counsel with the afore noted principle of law and asked as to how the appellant without producing two attesting witnesses of alleged agreement to sell (Ex.P1) could claim a decree as prayed for in the plaint. In response to said query, he submitted that: (a) since the respondent/defendant had not appeared before the learned Trial Court, there was no denial to the execution of agreement to sell (Ex.P1) and, therefore, the appellant by virtue of proviso to Article 79 of the Qanun-e-Shahadat, 1984 was not required to produce attesting witnesses of the agreement to sell (Ex.P1); and, (b) the evidence available on record was sufficient to decree the suit. The above arguments sans merit. It is an elementary principle, which forms the basis of all legal procedure, that no litigant is entitled to obtain relief form a Court unless he establishes to the satisfaction of the Court that his claim is well founded. The proviso to Article 79 of the Qanun-e-Shahadat, 1984 does not dispense with altogether proof of the document and claim. If a document is taken to be executed and proved simply because defendant does not appear and deny it, it may follow that every suit may be decreed against the defendant when he does not appear and deny the claim. But a decree cannot be granted without taking evidence simply on defendant’s non-appearance and upon verification in the plaint.

According to proviso to Article 79 of the Qanun-e-Shahadat, 1984 it is not necessary to call attesting witnesses in proof of the execution of any document, not being 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. This proviso does not contemplate admission of execution of document by implication. It attracts where, there is no specific denial to the execution of registered document. A document can be said to be admitted or specifically denied only when defendant appears before the Court and makes statement to this effect. The proviso to Article 79 of the Qanun-e-Shahadat, 1984, therefore, does not apply where there is no defendant’s statement at all. In the present case, there was no statement of the respondent-defendant as he had not appeared before the learned Trial Court and, therefore, it could not be said that the agreement to sell (Ex.P1) was not specifically denied relieving the appellant to prove the same by calling its two attesting witnesses. Even otherwise, the agreement to sell (Esx.P1) being not registered in accordance with provisions of the Registration Act, 1908 was extraneous to the proviso to the Article 79 of the Qanun-e-Shahadat, 1984. Thus, absence of the respondent- defendant did not absolve the appellant to prove the execution of the agreement to sell (Ex.P1) by calling its two attesting witnesses. The appellant had not produced the attesting witnesses of the agreement to sell (Ex.P1) and, therefore, the learned Trial Court was justified in declining to issue decree.

4. There is another aspect of the matter which has dissuaded us to grant relief as prayed for in the plaint. This is a case where appellant sought a decree for specific performance of an agreement to sell dated 28.02.1996 (Ex.P1) which was allegedly executed by the respondent-lady. It is by now well established principle of law that burden of proof in respect of genuineness of a transaction with an ignorant/illiterate/pardha observing lady and a document allegedly executed by such a lady lies on the person who claims benefit from the transaction or under the document. The beneficiary of a document is legally obliged to prove and satisfy the Court: firstly, that the document was executed by an ignorant/illiterate/pardha observing lady; secondly, that she had complete knowledge and full understanding about the contents of the document; thirdly, that document/deed was read over to her and terms of the same were adequately explained to her; and, fourthly, that she had independent and disinterested advice in the matter before entering into the transaction and executing the document. In this regard reference may be made to the cases of Janat Bibi v. Sikandar Ali and others (PLD 1990 SC 642), Amirzada Khan and another v Itbar Khan and others (2001 SCMR 609), Khawas Khan through Legal Heirs v Sabir Hussain Shah and others (2004 SCMR 1259) and Mian Allah Ditta through L.Rs v Mst. Sakina Bibi and others (2013 SCMR 868).

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