MUHAMMAD TUFAIL vs GHULAM HUSSAIN and others
The petitioner sought leave to appeal against the judgment of the Lahore High Court, which dismissed the petitioner's Regular Second Appeal and affirmed the concurrent judgments and decrees of the lower courts decreeing the respondent's suit for specific performance of an agreement to sell. The core legal question was whether the petitioner had executed the agreement to sell the disputed property and received the advance payment, and whether the concurrent findings of the lower courts suffered from any misreading or non-reading of evidence. The Supreme Court held that the concurrent findings regarding the execution of the agreement and the receipt of the advance payment were well-founded on the testimony of marginal witnesses, which remained unrebutted, and that no substantial question of law was raised. The petition was dismissed and leave to appeal was declined. The key principle laid down is that concurrent findings of fact by lower courts based on properly appreciated evidence will not be interfered with by the Supreme Court under leave to appeal jurisdiction in the absence of misreading, non-reading, or any legal infirmity.
- Whether concurrent findings of fact by lower courts regarding the execution of an agreement to sell can be interfered with by the Supreme Court without proof of misreading or non-reading of evidence?
- Is leave to appeal maintainable when no substantial question of law is raised against the dismissal of a Regular Second Appeal?
' TASSADUQ HUSSAIN JILLANI, J.--- Petitioner seeks leave to appeal against the judgment dated 6- 6-2003 passed by Lahore High Court, Lahore vide which petitioner's Regular Second Appeal against the judgment and decree, dated 19-1-2000 passed by learned First Appellate Court was dismissed and the judgment and decree of learned trial Court dated 7-3-1996 was affirmed.
2. Facts in brief are that respondent filed a suit for specific performance claiming that the petitioner through an agreement, dated 22-11-1990 had agreed to sell the property, the subject-matter of this petition (Quarter No,P.859 situated in D-Type Colony, Faisalabad) for a total consideration of Rs,1,66,000 out of which Rs,35,000 was received by the petitioner as advance and it was agreed between the parties that the sale was to be completed and remaining payment to be made and possession delivered by 25-2-1991. Since the afore-referred agreement was not honoured, therefore, the suit was filed. In the written statement filed by petitioner/defendant the averments made in the plaint were controverted. The agreement was denied.
3. The learned trial Court decreed the suit. The first appeal and Regular Second Appeal were dismissed. Hence this petition for leave to appeal.
4. Learned counsel for petitioner submitted that petitioner was not signatory to the agreement; that learned trial Court has not correctly appreciated the evidence on record and there has been miscarriage of justice.
5. Having gone through the impugned judgment and the evidence on record we are not inclined to grant leave firstly because it has been concurrently held by the Courts below that the petitioner did enter into an agreement with the respondent/plaintiff; that he received the first installment of the sale price; that he was to complete this sale and deliver possession by 25-2-1991 which he did not; secondly to prove the agreement the respondent produced two marginal witnesses to prove the agreement to sell and of the receipt and no tenable evidence was produced by the petitioner to rebut the evidence led by the respondent/plaintiff; thirdly we do not find any misreading or non- reading of evidence or any infirmity in the concurrent judgments; fourthly no substantial question of law has been raised either.
6. Resultantly this petition having no merit is dismissed and leave to appeal declined.