MUHAMMAD YAQOOB Versus NASEER HUSSAIN

IHSAN-UL-HAQ CHAUDHRY, J.-- The respondents filed a suit for specific performance of agreement to sell dated 9-5-198" against `the appellants. The relevant facts as embodied in the plaint are that the appellants took lease of agricultural land from the respondents-plaintiffs. They were to pay a sum of Rs.1,20,000 per annum. The appellants also purchased a tractor from the respondents the price of which was to be paid in instalments. It was alleged that the appellants failed to pay the lease money and on 9-5-1987 as amount of Rs.3,12,000 was outstanding against them. They in order to discharge their liability agreed to sell their house alongwith the machinery installed therein to the plaintiffs vide agreement dated 9-5-19R 7. But subsequently they failed to execute and register sale-deed, therefore, the plaintiffs were constrained to file the suit. The appellants contested the suit. The trial Court accordingly framed the following issues:--

(1) Whether the plaintiffs have cause of action and locus standi to file the present suit? OPP ....

(2) Whether defendants executed the agreement to sell dated 9-5-1987 in favour of the plaintiffs? OPP

(3) Whether the agreement mentioned above is result of fraud, collusion and mala fide? OPD

(4) Whether the plaintiffs are entitled to the specific performance of the above mentioned agreement? OPP

(5) Whether the suit is false, frivolous, mala fide and defendants are entitled to special costs worth Rs.20,000? OPD

(6) Relief.

The.respondents in order to prove their case examined Muhammad Hanif, Record Keeper, as P.W.1, Mushtaq Ahmad; Zilladar as P.W.2, Maula Bakhsh. Petition Writer as P.W.3, Akhtar Aziz; Assistant Record Keeper as P.WA Amir Mukhtar Stamp Vendor as P.W.5; Barkat Masih as P.W.6; Muhammad Amin Gondal as P.W.7; Sajid as P.W.8; Muhammad Amir. Naib Tehsildar as P.W.9; Muhammad Salim Draftsman as P.W.10; Aman Ullah as P.W.11; Tauqir Hussain, Stamp Vendor as P.W.12; Muhammad Hussain as P.W.13; and Naseer Hussain as P.W.14; The appellants in rebuttal examined Muhammad Ashraf Ahlmad as D.W.1; Abdul Rahman Baig YEN as D.W.2; Tariq Mahmood Eada as D.W.3; Shaukat Ali, Deputy Director Agriculture as

D.W.4.and Muhammad Yaqoob as D.W.5. The trial Court after hearing the arguments decided issues Nos. 1 to 4 in favour of the plaintiffs and against the defendants while issue No.5 was decided against the appellants and the suit was decreed vide judgment and decree dated 14-3-1993. Hence the present appeal, which was admitted to regular hearing and notices were issued to the respondents, who have appeared through Mr. Aamer Raza A. Klan, Advocate and contested the appeal.

2. The learned counsel for the appellants argued that it was proved that the agreement Exh.P6 was a forged and fabricated document. The signatures of the appellants were secured on the pretext that the application was to be made to the Canal Authorities for compensation. In this behalf it was explained that the land of the respondents was flooded on account of breach of Rajwaha. Respondent No.l requested the appellants to sign a blank paper. It is added that the telegram dated 4-4-1987 E,xh.Dl sent by the respondents in this behalf fully proves this plea. It is submitted that the agreement is patently a product of fraud. The next submission is that the respondents failed to prove the consideration, therefore, the alleged agreement is void for want of consideration. In this behalf, it is added that memorandum of lease Exh.PB was not admissible in evidence because two marginal witnesses were not produced to establish financial obligations as required under Article 17 read with Article 79 of the Qanun-e-Shahadat Order. It is added that Exh.P5 copy of the alleged lease deed was inadmissible in evidence because the copy was produced without proving the loss of the original and obtaining permission for leading secondary evidence. The learned counsel in this behalf has relied on the judgments reported as Niamatullah Shah v. Farmanullah and another (1980 SCMR 953), Muhammad Afzal v. Abdul Karim and others (1984 CLC 1406), and Rana Muzaffar Ali Khan v. Khalid Mahmood and others (1991 MLI) 1742). It is submitted that the agreement is without any consideration. therefore, in view of the provisions of section 2(d) read with section 25 of the Contract Act the same is void. The learned counsel in this behalf referred to Lal Hussain alias Lal v. Bagga (1983 CLC 657). The third argument is that admission of signatures on a document does not amount to execution of the document. The learned counsel in this behalf referred to the judgments reported as Abdul Karim Jaffarani v. United Bank Ltd. and 2 others (1984 SCMR 568) and Haji Abdullah Halepota v. Allied Bank of Pakistan Ltd (1990 MLD 532). The fourth submission is that Yaqoob was not confronted with Exhs.P2 and P10, therefore, under the provisions of section 145 (now Article 140) the document could not be used against him. In this behalf the learned counsel referred to the judgments reported as Syed Qamar Ahmad and another v. Anjum Zafar and others (1994 SCMR 65), The State v. Habibur Rehman and others (PLD 1983 SC 286) and Sikandar Hayat v. Fazal Karim

(PLD 1971 SC 730). The next submission is that the trial Court failed to appreciate that relief of specific performance is in the discretion of the Court and the present case was not fit for grant of decree of specific performance. At the most it was a case for grant of compensation. .In this behalf the learned counsel referred to Raja Shri Prakash Singh v. The Allahabad Bank Ltd. (AIR 1929 PC 19), Khurshid Ali and others v. Abdur Rauf and others (PLD 1990 Lahore 211) and Mir Hashmat Ali v. Birendra Kumur Ghosh (PLD 1965 Dacca 56).

3. On the other hand, the learned counsel for the respondents argued that the appellants were lessees of the plaintiffs in respect of the agricultural land. They were to pay the lease money at the rate of Rs.1,20,000 and also price of the tractor. It is added that their liability is proved by Exhs. P8 and P6. It is argued that there was no need to prove Exh.P8 in view of the clauses of Exh.P6, which document was sufficient by itself to prove consideration. Besides this, the lease was proved by the agreement Exh.P6, receipt of payment, of Ushr Exh.P9, and copies of Khasra Girdawari Exhs.P12 and P13. It is argued that appellant Yousaf has not appeared. The appellants did not file suit for cancellation of agreement. The arguments are summed up with the submission that it was a fit case for decree in view of the provisions of section 12 of the Specific Relief Act, and the trial Court rightly allowed specific performance of the agreement. In this behalf the learned counsel has referred to Sakinabai v. Kurnool Muhammad Bashir (PLD 1967 Karachi 158), Ramalinga v. Jagadammal (AIR (33) 1951 Madras 612) and Kunju Muhammad v. Goverdhan (AIR 1956 Trav. Co. 93 (V.43, C.35 Feb.).

4. We have given our anxious consideration to the arguments of the learned counsel for the parties and gone through the record and precedent cases. Now we proceed to take up issues Nos.2 & 3. The agreement is dated 9-5-1987 while the stamp paper was purchased on 4-4-1987 as per endorsement Exh.P5/1. The first page, which is scribed on the stamp paper, has not been signed either by the executant or witnesses, All the terms and conditions are on page 1 while only the closing portion is written on the second page. The signatures of the appellants appear at the end of the document. There are also two thumb impressions but their identity has neither been mentioned nor established in evidence. The place of signatures shows that the same were obtained on a blank paper.

5. Now coming to the purchase of stamp paper. The same was purchased on 4-4-1987 while according to the telegram dated 4-4-1987, Exh.Dl there was breach of Rajwaha. Respondent No.l has complained through this telegram that his crops have been ruined on account of the negligence of the officials of Irrigation Department, Sargodha. This document lends supports to the plea of the appellants that the stamp paper was purchased for pursuing the case of damage to the crops before the Irrigation Authorities. This is not all. The purpose for which the stamp paper was purchased has not been mentioned. Therefore, there is merit in the argument of the learned counsel for the appellants that stamp paper and signatures on blank paper were obtained by the plaintiffs to prepare the case of damage by canal water.

It is clear from this that the respondents entertained doubt as to their success on the basis of the agreement Exh.P6, therefore, this document was prepared. This is not all. According to the plea of the respondents, the lease money was fixed as Rs.1,20,000 and the amount allegedly due on 2-4-1986 was Rs.1,35,000 whereas according to the agreement dated 9-5-1987 Exh.P6 the appellants owed a sum of Rs.3,12,000 on 9-5-1987. This discrepancy remained unexplained in the plaint as well as in the evidence. Moreover, the document creating financial liability as per Article 17 of the Qanun-c-Shahadat Order has to be attested by two witnesses.

"(2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law.--

(a) 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."

While according to Article 79 of the Oanun-e-Shahadat Order, to prove the execution, two attesting witnesses at least have to be called by the party relying on it. Article 79 reads as under:--

"Proof of execution of doccunrw required by law to be attested.--If 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, and subject to the process of the Court and capable of giving evidence:

... ......................................................................................................... .............................. ... ... ... .... ... ... ... ... ... ... .... ... .... ... .... ... ... .... ... ... ... .... ... .... ... .. ... ..... ... ....... . . ... ... ... .... ... . ... .

6. Now coming to consideration. The respondents relied on Exh.P8 to prove that the amount of Rs.1,35,000 was outstanding as on 2-4-1988. The stamp paper was allegedly purchased by Muhammad Yaqoob for agreement with respondent No.l. The signatures of the appellants again seem to have been obtained on a blank paper as they are just on the lower margin of the stamp paper. The last three lines were interpulated after closing the document. The same read as under:--

TRANSLATION

In case of any eventuality it is written that if the money is not deposited to the PATA owner than his plot 132feet, 8 Marlas, according to Khatoni Number 21, Khayot number 151 Had rakba Chak noumber 42 Sheen would be handed over by december 1822.

It is clear from this that the respondents entertained doubt as to their success on the basis of the agreement Exh.P6, therefore, this document was prepared. This is not all. According to the plea of the respondents, the lease money was fixed as Rs.1,20,000 and the amount allegedly due on 2-4-1986 was Rs.1,35,000 whereas according to the agreement dated 9-5-1987 Exh.P6 the appellants owed a sum of Rs.3,12,000 on 9-5-1987. This discrepancy remained unexplained in the plaint as well as in the evidence. Moreover, the document creating financial liability as per Article 17 of the Qartun-e-Shahadat Order has to be attested by two witnesses.

"(2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law.-

(a) 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."

While according to Article 79 of the Oanun-e-Shahadat Order, to prove the' execution, two attesting witnesses at least have to be called by the party relying on it. Article 79 reads as under:-

"Proof of execution of document required by law to be attested.--If 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, and subject to the process of the Court and capable of giving evidence: The cumulative effect of Article 17(2)(a) and Article 79 is that in order to prove Exh.P8 the plaintiff had to call two witnesses. But the document was not proved in accordance with law. Therefore, it is excluded from consideration.

7. Now coming to Exh.P5. this document was inadmissible in evidence because loss of the original was not proved and secondary evidence was led without obtaining permission. We are fortified in our view by the judgments of the Hon'ble Supreme Court in the cases of Niamatullah Shah (supra), Muhammad Afzal (supra) and Rana Muzaffar Ali Khan (supra). The learned counsel for the respondents thereafter referred to Khasra Girdawaris Exhs.P12 and P13 and particularly the portion mentioning that lease money as Rs.2,500 per Killa. This does not tally with the case set up by respondents themselves elsewhere because according to Exh.P8 the lease was in respect of about 50 Killas. In any case entries in Khasra Girdawari do not prove that appellants were in arrears. The learned counsel for appellants also rightly argued that the amount if due, was not to be paid to respondent No.l alone but to all the owners of the land whereas the agreement to sell was in favour of respondent No.l alone. All these facts prove failure of consideration, in this case. Therefore, we hold that issues Nos. 2 and 3 were wrongly decided by the trial Court and we hereby reverse-the findings.

8. There is no cavil with the legal proposition that the relief under section 12 is in the discretion of the Court. Now assuming that the findings of the trial Court on issues Nos.2 and 3 are correct then the question would arise whether on the facts proved on record by the parties this was a fit case to exercise discretion in favour of the plaintiffs and grant them decree for specific performance? The respondents at the best have shown that the appellants owed some amount to them who naturally were anxious to secure their financial interest. The amount was fixed but respondent No.l as P.W.14 stated that after accounting an amount of Rs.1,35,000 was found due from the appellants at the end of the first year. It passes one's comprehension if the amount, as claimed by the respondents, was determined then what does he mean by settlement of account at the end of the first year? Sajid P.W.8 in cross-examination stated that stamp paper for agreement Exh.P6 was supplied by Muhammad Yaqub appellant No.l and he is not aware who has put his signatures and thumb-impression first and that the signatures and thumb impression of the appellants were already affixed when he signed the documents while P.W.6, the alleged scribe has not signed the document. The agreement to sell was executed by the appellant$in favour of respondent No.1 alone while the suit has been filed by the respondents. This was done probably for the reason that in their absence it was not possible to prove alleged consideration. The appellants were under no obligation to perform agreement in favour of respondents Nos. 2 to 5. We are mindful of the fact that the suit cannot be dismissed for misjoinder of parties. It is interesting to note that although the tractor was returned to the respondents yet its price was included in the total of the amount allegedly found due from the appellants. It is clearly recorded in the agreement that the appellants have been compelled by the circumstances to sell their property and they have delivered possession of part of the property to respondent No.l while the plaint and P.Ws. are silent on this point. It means that this was incorrectly recorded. All these facts when taken together lead to the irrestible conclusion that this is a case of exploitation by the landlords. These facts were sufficient to exercise discretion against the plaintiffs and refused specific performance.

9. The upshot of the above discussion is that this appeal is allowed, the impugned judgment and decree is set aside by accepting this appeal with costs throughout. The result is that the suit of the respondents is dismissed.

M.B.A./M-2100/L Appeal allowed.