JAVED LQBAL Versus NAZIRAN BEGUM

ASIF SAEED KHAN KHOSA, J. ‑‑‑The necessary facts giving rise to the present Regular First Appeal are that on 24‑3‑1997 Javed Iqbal appellant filed a suit for specific performance of an agreement to sell against Mst. Naziran Begum respondent before the Senior Civil Judge, Sahiwal. In his plaint the appellant had averred that on 15‑12‑1993 the respondent had entered into an agreement of sale with the appellant in respect of House No.37/C, Farid Town, Sahiwal for a consideration of Rs.10,00,000. According to the appellant a sum of Rs.4,00,000 was paid by the appellant to the respondent on the said date by way of earnest money and it was agreed between the parties that the remaining amount would be paid to the respondent at the time of registration of the sale. It was further averred by the appellant that the agreement between the parties had been reduced into writing on a stamp paper and the receipt of the earnest money had also been reduced into writing and both such documents had been thumb‑marked by the respondent. The respondent, however, contested all those allegations of fact through her written statement and maintained that neither any such agreement was entered into between her and the appellant nor any such receipt had been executed by her. On the basis of divergent pleadings of the parties the learned trial Court framed the following issues and required, the parties to lead evidence in support of their respective contentions:‑‑

(1) Whether the defendant Mst. Naziran Begum agreed to sell suit property to the plaintiff Javaid Iqbal against the consideration of Rs.10,00,000, received Rs.4,00,000 as earnest money, delivered the possession of disputed property to the plaintiff under impugned agreement to sell and validly executed the impugned agreement to sell, dated 15‑12‑1993 in favour of the plaintiff? OPP

(2) Whether the plaintiff was and is willing to perform his part of contract and the ‑defendant has denied to fulfil her legal obligations regarding impugned agreement to sell deed, dated 15‑12‑1993,? OPP

(3) Whether the relationship of landlord and tenant exists between the parties ?OPD.

(4) Relief.

2. In support of his claim the appellant produced Muhammad Alam Nasir, petition‑writer (P. W.1) who had allegedly scribed the agreement and the receipt in question, Mian Muhammad Aslam, Advocate (P.W.2) who, in his capacity as a Notary Public, had attested both the abovementioned documents, Abbas Ali, Junior Clerk of the Excise and Taxation Office, Sahiwal (P.W.3) who deposed about the factum of deposit of property tax of the house in question by the appellant, Abdus Sattar, Stamp‑vendor (P.W.5) who had allegedly sold the stamp paper for the agreement to sell, Ghulam Mustafa (P.W.6), a clerk of an Advocate, who had identified respondent before the Notary Public, Farooq (P.W.7) who had attested both the documents in question as a marginal witness and Baqir (P.W.8) who had also attested both the said documents as a marginal witness. Javaid Iqbal appellant had appeared as his own witness as P. W.4. The appellant had also tendered in evidence the agreement to sell (Exh.P.1), the receipt (Exh.P.2.). receipts regarding payment of property‑tax by the appellant (Exhs.P.3 to P.9) and an extract from the record of rights (Exh.P.10) showing an entry therein regarding existence of an agreement between the appellant and the respondent in respect of sale of the house in question.

3. As against that the respondent appeared as her own witness as D.W.1 and produced her husband namely Abdul Aziz as D.W.2 and her nephew and general attorney namely Abdul Razzaq as D.W.3 in support of her case.

4. After attending to all the relevant factual aspects of this case and appreciating the evidence available on the record the learned Civil Judge 1st Class, Sahiwal trying the said case came to the conclusion that issues Nos. l and 2 had not been proved by the appellant and on issue No. 3 it was held by him that the relationship of landlord and tenant existed and continued between the appellant and the respondent in respect of the house in question. With the said findings the learned Civil Judge 1st Class, Sahiwal dismissed the suit of the appellant leaving the parties to bear their own costs. Hence, the present appeal before this Court.

5. We have heard the learned counsel for the parties and have perused .the record with their assistance. It has been argued by the learned counsel for the appellant that the appellant had produced overwhelming and convincing evidence before the learned trial Court so as to prove the factum of the agreement to sell and receipt of earnest money by the respondent and, therefore, the learned trial Court was not justified in dismissing the appellant's suit. According to the learned counsel for the appellant not only documentary evidence had been produced by the appellant regarding such an agreement and receipt of earnest money but the whole transaction had also been proved by the appellant through production of very reliable and independent evidence of various witnesses. It has been stressed by the learned counsel for the appellant that the petition‑writer who had scribed both the said documents, the Notary Public who had attested the said documents, the Stamp‑vendor who had sold the stamp paper for executing the agreement in question, the parson who had identified the respondent before the Notary Public as also both the marginal witnesses of the agreement to sell had been produced by the appellant as witnesses in support of his case. It has further been maintained that the circumstances of this case were also such that the claim of the appellant appeared to be quite genuine and acceptable. In this regard it had been pointed out that admittedly the house in question was in possession of the appellant, its property tax was being paid by the appellant, the respondent had admitted in the witness‑box while appearing as D.W.1 that she had in fact visited the appellant on 15‑12‑1993 and that during such a visit the matter of summoning a petition writer had been discussed. In this view of the matter, according to the learned counsel for the appellant, there was nothing more that could have been done by the appellant to prove his case. It has lastly been argued by the learned counsel for the appellant that the respondent had never applied for getting the thumb‑impressions available on the agreement and the receipt compared with her admitted thumb‑impressions and, thus, the said circumstance should also weigh against the case of the respondent rather than against the case of the appellant. A number of judgments have also been referred to by the learned counsel for the appellant in support of their various submissions. As against that the learned counsel for the respondent has supported the impugned judgment passed by the learned trial Court by maintaining that the said judgment reflected a fair assessment and appraisal of the evidence available on the record and no reasonable Court could have arrived at a different conclusion upon appreciation of the said evidence. He has, thus, prayed for dismissal of the present appeal while burdening the appellant with special costs.

6. After hearing the learned counsel for the parties and going through the record we have felt no hesitation in concluding that the present appeal must fail. In this context we have noticed that the setting in this case was perfect for perpetrating a fraud against the respondent. It is admitted at all hands that the respondent had been living out of Pakistan for great many years, she had no living close relative in Pakistan apart from her nephew Abdur Razzaq (D.W.3), she visited Pakistan very rarely and after long intervals and she had admittedly given the house in question to the appellant on rent in the year 1989 and he is living therein ever since without regularly paying rent to the respondent. Thus, in this situation it was quite possible for the appellant to develop an intention to gobble up the said property of his landlady who was living abroad as there was practically nobody available in Pakistan to look after her interests in her absence and there was nobody to pursue her claim before any forum if a dispute arose in that connection. In this kind of a setting the appellant could well have thought of grabbing the property in question by creating false evidence. Muhammad Alam Nasir (P.W.1) admittedly did not know the respondent or her husband personally prior to scribing the documents in question. Admittedly no payment of money was made in his presence. Mian Muhammad Aslam (P.W.2) had also admitted that he did not know the respondent or her husband previously and also that the relevant entry had been made in his register by his clerk and not by he himself. Abbas Ali (P.W.3) had maintained that in the property tax record the respondent was still shown as the owner of the property in question and the name of the appellant is recorded therein only as a tenant. He had gone on to state that in the absence of landlords sometime property- tax is paid by tenants. Abdus Sattar (P.W.5) had also conceded that he did not know the respondent previously and that identification of the respondent had not been recorded on the stamp paper sold by him nor the number of National Identity Card of the respondent had been recorded thereon. He had also not stated about the presence of the respondent's husband with the respondent at the relevant time. The claim of Ghulam Mustafa (P.W.6) to have known the respondent and her husband for some time as they used to visit him in connection with writing of some applications is difficult to believe. It has come on the record that the respondent and her husband used to visit Pakistan after long intervals and they had lived the better part of their lives out of this country. No particulars or specifics of any such application drafted or prepared by Ghulam Mustafa P.W.6 at the instance of the respondent or her husband have been brought on the record. In these circumstances the claim of Ghulam Mustafa (P.W.6) regarding his previous acquaintance with the respondent or her husband had appeared to as to be not only far‑fetched but also untrue. Both the marginal witnesses of the documents in question namely Farooq (P.W.7) and Baqir (P.W.8) produced by the appellant in support of his case admittedly lived far away from the place where the said documents were allegedly executed and they admitted of having a personal connection with the appellant for a long time. Both of them had also admitted in their statements made before the learned trial Court that they did not know the respondent or her husband personally and that the respondent had been introduced to them by the appellant himself and none else. In these circumstances we have found that the learned trial Court was amply justified in nor relying upon that kind of evidence of the appellant for divesting the respondent of her valuable property.

7. On circumstance which could remotely suggest possible involvement of the respondent in the alleged transaction was the respondent's own admission that she had visited the appellant on 15‑12‑1993 and had discussed summoning of a deed writer. However, the purpose of the said visit and the discussion about a deed writer were adequately explained by Abdul Aziz (D.W.2) and Abdur Razzaq (D.W.3) in their statements made before the learned trial Court. In the backdrop of alleged persistent default of the appellant to pay rent of the house in question to the respondent the said explanation tendered by D.W.2 and D.W.3 was quite acceptable. Thus, the appellant had remained unable to draw any capital out of the said statement of the respondent.

8. As regards the extract of the record of rights (Exh.P.10) produced by the appellant it has been conceded by the learned counsel for the appellant that the entry made therein regarding the impugned transaction of agreement to sell had been struck off subsequently by an order of the District Magistrate/District Collector, Sahiwal.

9. Adverting now to the thumb‑impressions attributed to the respondent on the agreement to sell (Exh.P.1) and the receipt (Exh.P.2) we have noticed that affixing her thumb‑impressions on the said documents had been categorically denied by the respondent at all stages of this case. However, unfortunately it had neither occurred to the parties nor to the learned trial Court to get the said thumb‑impressions on Exh.P.1 and Exh.P.2 compared by a Finger Print Expert with admitted thumb impressions of the respondent. In this context we are mindful of the legal position that by virtue of the provisions of Article 84 of the Qanun‑e- Shahadat, 1984 this Court is quite competent to compare the thumb‑impressions in question with the admitted thumb‑impressions of the respondent. While scanning the record of the learned trial Court we have come across a photo copy of a registered general power of attorney given by the respondent in favour of Abdur Razzaq (D.W.3) on 26‑6‑1994. The execution of such a general power of attorney by the respondent in favour of D.W.3 had not been challenged by the appellant when the said Abdur Razzaq had appeared before the learned trial Court as D.W.3. Even before this Court no such challenge was thrown by the learned counsel for the appellant questioning the execution of the said general power of attorney by the respondent in favour of D.W.3. The said registered general power of attorney bears thumb‑impressions of the respondent at many places. The original of the said general power of attorney has been produced before us during the hearing of this appeal by the learned counsel for the respondent and the same has been placed on the present record. Another thumb impression of the respondent is also available on the record of the learned trial Court which is on a letter which was written by the respondent to the Hon'ble Chief Justice of this Court from England on 8‑8‑1999 requesting for an accelerated hearing of the civil suit in question. The said letter containing the thumb‑impression of the respondent had been duly attested by a responsible official of the High Commission for Pakistan. Consular Division, London. During the course of hearing of this appeal we asked the learned counsel for the parties as to whether they have any objection if we compare the said thumb‑impressions of the respondent with the thumb‑impressions attributed to the respondent in documents Exh.P.1 and Exh.P.2. The learned counsel for the parties, without any objection whatsoever, readily agreed to the said proposal and stated in unison that this Court was quite competent to undertake such a comparison for its own satisfaction. We have, thus, compared the said admitted thumb‑impressions of the respondent with the thumb‑impressions attributed to the respondent on documents Exh.P.1 and Exh.P.2 and have found that it was apparent to a naked eye that the admitted thumb‑impressions of the respondent on her general power of attorney executed in favour of Abdur Razzaq (D.W.3) and on her letter written to the Hon'ble Chief Justice of this Court from England are quite different from those found on documents produced by the appellant in evidence as Exh.P.1 and Exh.P.2. This comparison has fortified the impression already created in our minds upon appreciation of the evidence available on the record that some person other than the respondent had been used and employed by the appellant for impersonating the respondent for the purpose of creating evidence regarding the alleged execution of an agreement to sell the house in question and regarding receipt of the earnest money in that respect.

10. For what has been discussed above we have not been able to take any exception to the findings recorded by the learned trial Court and to the conclusions arrived at by it. This appeal is, therefore, dismissed with costs.

11. We have been dismayed to notice in this case that a lady of Pakistani origin who had been living abroad for a long time had been put to great inconvenience and distress by the suit filed by the appellant against her in respect of her property. She had to engage the services of learned counsel to represent her not only before the learned trial Court but also before this Court and had to travel to Pakistan during this period not only to appear in this case as a witness but also to pursue the legal proceedings. Such unjustified harassment of the respondent, who is an old lady, surely calls for exemplary and special costs of to be ordered against the appellant. The appellant is, therefore, ordered to pay special costs of Rs.1,00,000 (rupees one hundred thousand only) to the respondent so as to compensate her for the unjustified harassment and inconvenience caused to her in this . regard.

Q.M.H./M.A.K.J‑19/L Appeal dismissed.