NAZIR AHMAD and another vs M. MUZAFFAR HUSSAIN

' MUHAMMAD AKHTAR SHABBIR, J.--- This appeal is directed against the judgment dated 14-5-2004 passed by a learned Single Judge of the Lahore High Court, Lahore, in Civil Revision No,958 of 2002.

2. The facts giving rise to the present appeal are to the effect that plaintiff-respondent herein had instituted a suit for "specific performance" of a contract on the basis of an agreement to sell dated 11-1-1992 executed by the defendants-appellants qua, property in dispute measuring 11 Kanals, 18 Marlas situated in Khasra, Nos.880, 881 and 882, Khatoni Nos.45/141, 46/142, Mauza Landra, Tehsil Shakargarh The suit was contested by the defendants-appellants who filed their written statement raising some preliminary objections with specific plea that the agreement was executed by defendant No,1 only who sold his share of property and the name of defendant/appellant No,2 Rashid Ahmad was inserted in the agreement fraudulently. From factual controversies appearing on the pleading of the parties, the learned trial Court, framed various issues. After recording, appreciating evidence of the parties, pro and contra, the trial Court partly, decreed the suit in favour of plaintiff-respondent against Nazir Ahmad defendant-appellant only. Feeling aggrieved, an appeal had been filed which came up for hearing before the learned Additional District Judge, Shakargarh, District Narowal, who vide his judgment dated 7-2-2002, affirmed the judgment and decree of the trial Court. Muzaffar Hussain plaintiff-respondent preferred revision petition before the High Court which was accepted, vide impugned judgment dated 14-5-2004, and the judgment and decree passed by the two Courts below was reversed, the suit filed by the plaintiff-respondent for specific performance of agreement to sell was decreed in his favour against the appellants.

3. The learned counsel for the appellants contended that the High Court in `revisional' jurisdiction was not empowered to reverse the findings of the two Courts below while no error of law, jurisdictional defect, misreading or non-reading was pointed out; that the plaintiff-respondent had failed to establish, by producing two marginal witnesses, the agreement to sell executed by the appellants in his favour that the appellants had purchased the land from one Jamal Din for Rs,70,000 through registered sale-deed and there was no reason for the appellants to dispose of their property for a lesser consideration of Rs,50,000.

4. While on the other hand, the respondent (present in person) vehemently opposed the arguments of the learned counsel for the appellants and supported the impugned judgment of the High Court.

5. We have heard the arguments advanced by the learned counsel for the appellants and the respondent (present in person) and perused the available recoded with their assistance.

6. As to the objection of the learned counsel for the appellant that the High Court, cannot interfere with the "concurrent" findings of fact recorded by the Courts below, suffice it, to observe that the High Court in exercise of its revisional jurisdiction would be justified in interfering with the concurrent findings of fact, where on examination of the record the High Court finds that Courts below have arrived at erroneous conclusion based on error of jurisdiction, misreading or non- reading of documentary or oral evidence and misconstruction of law, can set at naught the concurrent findings by the Courts below. In this context, reference can be made to the cases of Jan Muhammad Khan v. Shah Mir Hussain 1985 SCM R 2029, Jam Pari v. Muhammad Abdullah 1992 SCM R 786 and Muhammad Sain v. Muhammad Din 1996 SCM R 1918.

7. In the instant case, the defendants-appellants have taken the stance that the agreement was executed by Nazir Ahmad appellant No,1 only and not by both of them i.e, Nazir Ahmed and Rashid Ahmed, appellants, meaning thereby that the execution of the document by both the appellants has been denied and in case of denial of execution of document, the party relying on such document must prove its execution in accordance with the modes of proof as laid down in Qanun- e-Shahadat Order, 1984 and the party is required to observe rule of production of best evidence.

Article 17(2)(a) of the Qanun-e-Shahadat Order, 1984, provides that "in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary and evidence shall be led accordingly". To prove the execution of the agreement, the plaintiff produced the "Scribe" of the document P.W.1Allah Ditta, Petition-Writer who while appearing in Court admitted the execution of the agreement Exh.P.1 and categorically stated that it carried the thumb impressions and was signed by the executant and the marginal witnesses. His statement was supported by P.W.3 Abdul Majeed attesting witness of the document (Exh.P.1) who also verified his signatures on the same.

The attesting witness is one who not only sees the document being the executant but also signs it as a witnesses. Reliance in this behalf is laid down to the cases of Shamu Patter v. Abdul Kadir Rowthan and others 1912 IC 250 (PC), Burdett v. Spilsbury (1842) 10 CI and F 340 and Ram Samujh Singh v. Mainath Quer AIR 1925 Oudh 737 and a person who writers or is scribe of a document is as good a witness as anybody else, if he has signed the document as a witness. No legal inherent incompetence exists in the writer of a document to be an attesting witness to it. Where in addition to one of the marginal witnesses, "Scribe" of the document appeared in the trial Court and deposed that the agreement was scribed by him and thumb impressions and signatures were put by the defendants such statement of the scribe can be considered to be a statement of marginal witness in the circumstances as laid down by the superior Courts in Raja Ram v. Jagannath and others AIR 1926 Oudh 209, Yakubkhan Daimkhan Serguro and others v. Guljarkhan Abdulkhan and others AIR 1928 Bom. 267, Thakurdas and another v. Topandas and others AIR 1929 Sindh 217, Ghanzhamsingh Triathsing and another v. Mohmed Yacoob AIR 1933 Sindh 257, Muhammad Zaman Khan v. Sher Afzal Khan and 8 others PLD 1984 SC (AJ&K) 138 and Mst, Noor Bibi and 9 others v. Ghulam Rasool 1991 SCM R 1281.

8. So far as the execution of agreement is concerned, the appellant Nazir Ahmad who appeared as D.W.1 admitted the execution of the agreement for sale of the property in dispute for consideration of Rs,50,000 and the execution of the agreement was further testified by Allah Ditta Scribe of the document who appeared as D.W.4. The said witness appeared twice in the Court; firstly as P.W.1 and secondly as D.W.4 and admitted the thumb impression of Nazir Ahmad and signatures of Rashid Ahmad appellants on the agreement to sell (Exh.P.1). It means that the execution of agreement is admitted not disputed and it is well settled proposition of law that the admitted facts need not to be proved. The admission has been defined in Article 30 of the Qanun-e-Shahadat Order, 1984 which reads as under:-- "30. Admission defined. An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned."

9. The objection of learned counsel for the appellants that the sale consideration of property in dispute is inadequate has also no force. Mere inadequacy is no ground for refusing specific performance of agreement. Where the price is so inadequate as to shock Court's conscience, either by itself or in conjunction with any other circumstance such as illiteracy, oppression, etc., it evidences fraud or that undue advantage was taken by the other side, the Court will refuse the specific performance. Reference is made to the case of Manak Chand v. Puran and another AIR 1960 Madhya Paradesh 235. But in the instant case, no such evidence is available and the appellants have failed to establish this assertion of inadequacy of price and the learned High Court has rightly granted "specific performance" ignoring the plea of inadequacy of price by the appellants. The above discussed aspects of the case had not been adverted to by the Trial Court as well as by the First Appellant Court. In such circumstances, the High Court rightly interfered with the findings of the Courts below by setting aside the same. No infirmity or error of law has been pointed out in the impugned judgment which is unexceptionable.

10. For the foregoing reasons, we do not find any substance in this appeal which is dismissed.