MUHAMMAD AKHLAS Versus Syed MEHDI RAZA

MUNIR A. SHEIKH, J.‑‑ The plaintiff appeals against the judgment and decree dated 29‑2‑1984, passed by Ch. Nabi Ahmad, learned Civil Judge Ist Class, Lahore, dismissing his suit for specific performance of agreement of sale dated 2‑9‑1981.

2. The facts giving rise to this appeal briefly stated are that the appellant filed a suit for specific performance of agreement of sale regarding property in dispute allegedly executed in his favour on 2‑9‑1981 by which the respondent contracted to sell Property No. S‑64‑R‑115 commonly known as 98‑Anarkali Bazar, Lahore, for a consideration of Rs. 6,00,000. It was averred in the plaint that the appellant paid to the respondent an amount of Rs. 50,000 as earnest money. According to the alleged agreement it was stipulated that the dependant‑' respondent would supply the certified copies of the documents of title, etc. and would execute the sale‑deed within three months of the date of agreement and would receive the balance amount at the time of registration of the sale‑deed. It was further pleaded that in spite of repeated demands by the appellant the respondent put off the matter of performance of agreement on one pretext or the other. On the refusal of the respondent to perform the agreement in the last week of November, 1981, when he was approached for the said purpose by the appellant, the suit was filed. It was also pleaded that the appellant was ready and willing to perform his part of the agreement at the relevant time. The suit was contested. On the pleadings of the parties the learned trial Court framed the following issues:‑‑

(1) Whether the defendant executed agreement for sale dated 2‑9‑1981 in respect of the shop in dispute against consideration of Rs: six lass. and the defendant received consideration of Rs.50,000? OPP

(2) Whether the plaintiff is entitled for specific performance of the agreement dated 2‑9‑1981? If so, on what terms and conditions? OPP

(3) Whether no cause of action has accrued to the plaintiff? OPD

(4) Whether the alleged agreement dated 2‑9‑1981 has been forged and fraudulently procured by the plaintiff in order to avoid ejectment from the premises? OPD

(5) Relief.

3. During the pendency of the suit the respondent‑defendant made of application to the Hon'ble Chief Justice of this Court for an order for early disposal of the suit. The learned Chief Justice on his application. passed an order directing the learned trial Court to decide the suit within three months which was conveyed to the learned trial Court through letter dated 10‑9‑1983 issued by M.I.T. of this Court. The affirmative evidence of the plaintiff‑appellant which darted on 1‑10‑1983 was concluded on 9‑2‑1984. At the conclusion of affirmative evidence learned counsel for the plaintiff‑appellant made a statement reserving the appellant's right to produce evidence in rebuttal. It may be observed that during the period when the evidence of the appellant was being recorded the defendant‑respondent made another application to the learned Chief Justice of this court for extension of further time for production of evidence of the respondent as one of his witnesses had gone to United States who had already been granted general adjournment even by the High Court. The said witness was an Advocate. The learned Chief Justice allowed the said request and M.I.T. though its letter No. 42/MIT/HC/471/83 dated 31‑11‑1983 intimated the learned trial Court through District Judge that the Hon'ble Chief Justice was pleased to extend the time for producing evidence by the respondent for further three months and the learned District and Sessions Judge to whom the said letter was addressed was directed to convey the said direction to the learned trial Court and obtain acknowledgement receipt and send the same to this Court. In the acknowledgement which the learned trial Court sent in response to the said letter to M.I.T. it was stated that he was in receipt of the said letter whereby the Hon'ble Chief Justice had been pleased to extend the time for further three months for the disposal of the case. On 9‑2‑1984 the learned trial Court request of the learned counsel for the respondent an as according to him he was not available before the said date as he was himself contesting election to an office of the Bar. On 18‑2‑1982 an application was moved on behalf of the respondent for allowing Hand Writing Expert to inspect the record and to get photo‑copies of the documents so as to make his report which was intended to be produced in evidence. This application was allowed on 23‑2‑1984. The respondent started producing his evidence on 27‑2‑1984 on which date only the statement of Sh. Manzoor Ahmad, Advocate, as D.W. 1 could be completed. The case was adjourned to 28‑2‑1984 for recording further evidence of the respondent. The respondent produced Muhammad Ashraf Malik, Director Forensic Science Laboratory, Lahore, as D.W. 2, as Handwriting Expert who proved his report which was placed on record as Ex. D.W. 2/1 on the said date. Learned counsel for the appellant made a request for allowing him sufficient time to examine the report so that he may be able to cross‑examine the witness properly, after going through it. The learned trial Court adjourned the case for a short time and when it was again taken up learned counsel foe the appellant expressed his inability to cross‑examine the witness without allowing him sufficient time and also stated that he had applied for supply of certified copy of the. report of Handwriting Expert and the copying agency had given 6‑3‑1984 as the date on which the same was to be collected. The learned trial Court did not accept the request and closed appellant's right to cross‑examine the witness, as such, the statement of the said witness remained uncross‑examined. The case was adjourned to 29‑2‑1984 i.e. the next day for recording evidence in rebuttal of the appellant and arguments in the case. The appellant was directed to produce his evidence in rebuttal on his own responsibility. However, on 29‑2‑1984 an application under Order 16, Rules 1 and 2 and section 151, C.P.C. was made on behalf of the appellant. The respondent was directed to file reply to the said application on the same day and rafter hearing the arguments the said application was also rejected and then the case was taken up for arguments. Learned counsel for the appellant then made a statement that in view of what had earlier happened it was not possible for him to argue the case on the said date unless he was granted sufficient time to prepare the case. The learned trial Court again refused to adjourn the case on the ground that according to the direction of the High Court he was to decide the case till 29‑2‑1984 and as such after hearing the arguments of the learned counsel for the respondent the suit was dismissed through impugned judgment and decree dated 29‑2‑1984.

4. Learned counsel for the appellant in support of this appeal mainly argued that the appellant was not granted adequate opportunity to cross‑examine D.W. 2, the expert witness produced by the respondent concerning his report which was placed on the record by the said witness on 28‑2‑1984 and also to produce evidence in rebuttal, therefore, the appellant's case has been materially prejudiced inasmuch as the findings of the learned trial Court that the execution of the agreement of sale was not proved have been based solely on this report. He maintained that till such time this report was allowed to be impeached through cross‑examination in order to establish that it had not evidentiary value the appellant cannot possibly assail the impugned judgment of the trial Court.

5. We have examined the record of the learned trial Court thoroughly. After examining the record we are satisfied that the appellant at no stage of the entire proceedings adopted any device to cause delay in the disposal of the suit. After the conclusion of the affirmative evidence of the appellant on 9‑2‑1984 the case was adjourned to 25‑2‑1984 on the request of the learned counsel for the respondent as he was personally busy in contesting election to an office of the Bar. The learned trial Court while acceding to the said request which in these circumstances was a long adjournment must have kept in mind the direction of the Hon'ble Chief Justice requiring him to dispose of the suit till 29‑2‑1984 on account of which the learned trial Court ultimately hurried through the proceedings refusing reasonable and adequate opportunity to the appellant and his learned counsel to cross‑examine DW. 2, and to produce evidence in rebuttal. We have also noticed that it is on the record and this fact was not denied even by the learned counsel for the respondent that on 28‑2‑1984 the proceedings of the Court continued till 7.00 p.m. The direction of this Court for disposal of the suit till 29‑2‑1984 was not such an impediment which could not be overcome. The learned trial Court could have made request to the Hon'ble Chief Justice to extend time for disposal of the suit. It is apart from the fact that even the direction of the learned Chief Justice conveyed to the learned trial Court through letter dated 21‑11‑1.983 has been grossly misconstrued. The said letter is present on the record according to which only time for producing evidence by the respondent was extended for further three months and this direction was erroneously interpreted, as fixing the time to dispose of the main suit till 29‑2‑1984 which has resulted in failure by the trial Court to exercise his judicial discretion and power to adjourn the case to provide adequate opportunity to cross‑examine D.W. 2, i.e. expert witness and to produce evidence m rebuttal. It need not be emphasised that cross‑examination of Handwriting Expert was a highly technical affair and learned counsel for the appellant could not be expected to go through his report within time of 1‑1/2 hours and prepare himself to conduct cross‑examination of the witness. Record shows that at 11‑45 a.m. examination‑in‑chief of this witness concluded and the learned counsel for the appellant was given time upto 2.00 p.m. within which he was expected to inspect the file to get copy of report as also to prepare himself to cross‑examine the witness. The appellant produced Mr. A.G. Pasha Handwriting Expert as P.W. 2, recording of whose statement started on 1‑10‑1983 and cross‑examination on him extends to 60 pages which continued upto 26‑10‑1983 from which it is clear that so far as learned counsel for the respondent was concerned he was given full opportunity to cross‑examine this expert witness of the: appellant. Keeping in view this fact the complaint of the appellant that he was discriminated by the learned trial Court in declining him fair opportunity to cross‑examine expert witness of the respondent and was not equally treated with the respondent in this respect has considerable force. After taking into consideration all the relevant facts and circumstances we have arrived at the conclusion that it was firmly established that justice was not done to the appellant as the appellant was not granted proper and adequate opportunity to cross‑examine D.W. 2, and also to produce evidence in rebuttal. The impugned judgment and decree is mainly resting on the report of this witness and without affording proper opportunity to the appellant to impeach his evidence through cross‑examination it was highly unfair to use the said piece of evidence for non‑suiting the appellant.

6. Learned counsel for the respondent argued that in his statement made on 1‑10‑1983 learned counsel for the appellant reserved only the right to produce the appellant and Handwriting Expert in rebuttal, therefore, the appellant was not entitled to agitate against the order of the trial Court refusing him to produce evidence in rebuttal. We have seen the statement referred to by the learned counsel for the respondent which was recorded at the conclusion of evidence of P.W.

1. Learned counsel for the appellant in the said statement merely stated that except Handwriting Expert Mr. A.G. Pasha and statement of the appellant or his attorney no other evidence was to be produced. This statement relates to production of remaining affirmative evidence of the appellant and is not relatable to production of evidence in rebuttal. As a matter of fact there was no occasion at that stage for the learned counsel for the appellant to .make any statement with regard to production of evidence in rebuttal as at that stage the affirmative evidence of the plaintiff had not yet been concluded. Proceedings of the appellant was completed which reveals that learned counsel for the appellant made a statement closing his affirmative evidence and he specifically reserved right of the appellant to produce evidence in rebuttal, therefore, the argument of the learned counsel for the respondent that the plaintiff was debarred from producing evidence in rebuttal has no force which is hereby repelled.

7. For the foregoing reasons the impugned judgment and decree dated 29‑2‑1984 being illegal cannot be sustained. The appeal succeeds which is hereby accepted with costs. The impugned judgment and decree dated 29‑2‑1984 passed by the learned trial Court are hereby set aside and the case is remanded to the learned trial Court for disposal of the suit afresh after affording adequate opportunity to the appellant to cross‑examine D.W. 2, and for production of evidence in rebuttal. The parties are directed to appear before the learned trial Court on 29‑5‑1988. The learned trial Court shall decide the suit finally before 30‑9‑1988 positively and report compliance.

M.Y.H./M‑923/L Appeal accepted/Case remanded.