1. Brief facts of the case are that the petitioner filed a suit for declaration and specific performance of agreement to sell dated 26.11.1992 (Exh.P1) with the assertions that respondents No.1 to 3 entered into agreement to sell the property detailed in the plaint with the plaintiff through respondent No.1 for consideration of Rs.428,000/-; that earnest money of Rs.400,000/- was paid to the respondents; that under the agreement, respondent No.1 was required to execute sale deed in favour of the petitioner after receipt of remaining consideration amount of Rs.28,000/- but despite many requests, he did not do so rather the suit property was transferred in favour of respondent No.4 through impugned mutation of exchange No.849 dated 18.11.1996 with mala fide intention and to usurp the valuable amount of Rs.400,000/- paid by the petitioner; that the plaintiff earlier filed suit for permanent injunction which was withdrawn on assurance by the respondents to execute sale deed in his favour. Hence, this suit was filed.
2. The respondents contested the suit by filing written statement. Out of divergent pleadings of the parties, issues were framed. Both sides adduced their evidence. Learned trial court after recording evidence and hearing arguments of learned counsel for the parties dismissed the suit vide judgment and decree dated 30.06.2006. Feeling dissatisfied, the petitioner preferred appeal which also could not muster any result in favour of the petitioner and was dismissed vide judgment and decree dated 18.06.2009 passed by learned lower appellate court. Hence the petitioner-plaintiff has instituted this civil revision challenging both the judgments and decrees of learned courts below.
3. Learned counsel for the petitioner inter alia submits that the petitioner has proved his case through cogent evidence but learned courts below have not appreciated the evidence of the parties in its true perspective; that one marginal witness of agreement to sell was produced whereas an application was filed for production of scribe which was allowed by learned lower appellate court but in the meantime, the scribe had died, as such, he could not be produced; that affidavit of the scribe was also produced before the court which is the evidence/statement of the scribe; that afterwards, application moved by the petitioner for production of son of the scribe, as a witness, was not acceded to by learned lower appellate court; that in view of Article 82 of Qanun-e-Shahadat Order, 1984 (hereinafter called “the Order, 1984”), production of two attesting witnesses before the court was not mandatory and the case could be proved through production of one attesting witness and other evidence but this aspect of the case was altogether ignored by learned courts below. He argues that the agreement to sell was admitted by the respondents in the earlier suit. In this regard, he has referred Exh.D1, written statement, filed in a suit titled “Muhammad Abbas vs. Muhammad Ismail etc.”. He has emphasized that since agreement was admitted, the provisions of Articles 17 and 79 of the Order, 1984 were not attracted. He has further argued that the time was not essence of the contract, therefore, findings of learned courts below qua the time limitation are incorrect. Learned counsel for the petitioner asserts that the impugned judgments and decrees are against law and fact, therefore, the same be set aside, the instant civil revision be allowed and the suit of the petitioner be decreed as prayed for.
4. On the other hand, learned counsel for the respondents has vehemently opposed this civil revision and fully supported the impugned judgments and decrees.
5. Arguments advanced by learned counsel for the parties have been heard and record with their able assistance also perused.
6. The execution of the alleged agreement to sell (Exh.P1) has been denied by the respondents who have termed it as a fake and forged document. Respondent No.1 has also denied his signature on Exh.P1. In the circumstances, the heavy onus to prove the agreement was upon the petitioner-plaintiff being its beneficiary. Since respondent No.1/alleged vendor denied the execution of Exh.P1, it was incumbent upon the plaintiff to produce cogent evidence including two marginal witnesses of the agreement before the court as enshrined in Articles 17 and 79 of the Order, 1984 in order to prove their assertion.
7. Under Article 17 of the Order, 1984, any matter pertaining to financial or future obligations should be witnessed and attested, in case it is reduced to writing, by two men or one man and two women. Perusal of Exh.P1 unequivocally shows that it only contains signature of the petitioner, respondent No.1 (who has denied his signature) and one attesting witness namely Zulfiqar Ali. There is no other attesting witness of this document. Article 79 of the Order, 1984 provides that if a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses, at least, have been called for the purpose of proving its execution, if there be two attesting witnesses alive. In the present case, there is only one marginal witness of Exh.P1, therefore, it can safely be concluded that the very document is hit by the provisions of Article 17 of the Order, 1984. In the circumstances, the document Exh.P1 was neither executed as required under Article 17 nor it could be proved as per requirement of Article 79 of the Order, 1984. Reliance is placed on the ratio laid down by the Hon’ble Supreme Court of Pakistan in case reported as Hafiz Tassaduq Hussain Vs. Muhammad Din through LRs and others (PLD 2011 SC 241).
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