Mst. ALLAH JAWAI Versus MAQBOOL SHAH

The petitioners, through the filing of the present revision petition, have called in question judgment and decree dated 25‑6‑1997, whereby the learned Addl. District Judge accepted respondents appeal and set aside the judgment and decree dated 21‑11‑1995, passed by the learned trial Court, through which it decreed petitioner's suit for specific performance of agreement to sell.

2. Ahmad Hassan, the predecessor‑in‑interest of the petitioners, on 11‑12‑1991, filed a suit for specific performance of an agreement to sell dated 7‑3‑1988, against the respondents, stating therein that predecessor in‑interest of, the respondents, namely, Ghulam Mohy‑ud‑Din agreed to sell land measuring 12 Marlas in his favour, under the aforestated agreement dated 7‑3‑1988; for a total consideration of Rs.24,000; Ghulam Mohy‑ud‑Din received the total consideration from Ahmad Hassan' and handed over the possession of questioned land to him; Ahmad Hassan constructed a house over the disputed land; after the death of Ghulam Mohy‑ud‑Din, his legal representatives, the respondents, denied the execution of sale agreement and refused to execute the sale‑deed, which necessitated the filing of the aforenoted suit by Ahmad Hassan. The suit was resisted by the respondents, inter alia, denying the execution of the agreement to sell by Ghulam Mohy‑ud‑Din and receipt of sale price by him. The learned Court framed the necessary issues and recorded the evidence of the parties. During the pendency of the suit, Ahmed, Hassan died and survived by the present petitioners, who were impleaded as party in place of Ahmad Hassan. The learned trial Court ultimately decreed the suit in favour of the petitioners vide judgment and decree dated 21‑11‑1995. The respondents assailed the said decision before the learned appellate forum, through ‑filing the appeal, which was allowed by the learned Addl. District Judge and consequently, petitioner's suit was dismissed, vide judgment and decree dated 25‑6‑1997; hence the present revision petition.

3. The respondents were proceeded ex parte vide order dated 18‑5‑2004 and uptil now, the said respondents are un‑represented.

4. The learned counsel for the petitioners has submitted that Muhammad Yousaf, scribe, appeared as P.W.2 and deposed about the execution of the agreement to sell and the payment of consideration by the vendee, therefore, he is a competent witness. He has further added that such statement of scribe can be considered to be a statement of second marginal witness.

5. In this case, the respondents, through filing the written statement, denied the execution of agreement to sell dated 7‑3-1988, statedly, executed by Ghulam Mohy‑ud‑Din, their predecessor‑in -interest, in favour of Ahmad Hassan and pleaded that the said agreement A is a forged document; that no consideration was received by Ghulam Mohy‑ud‑Din and that Ahmad Hassan is in illegal possession of the disputed land. The learned trial Court framed Issues Nos.1 and 2 about the execution of agreement to sell and the receipt of consideration, onus of which was rightly placed upon the plaintiffs.

I have examined the questioned agreement to sell and find that Muhammad Amin has put his thumb‑impression and Zafar Iqbal has signed the agreement, both as marginal witnesses, while Muhammad Yousaf has signed twice in the capacity of scribe and stamp vendor. In order to prove the said agreement Ahmad Hassan appeared as P.W.1, Muhammad Yousaf, scribe/stamp vendor was produced as P.W.2 and Muhammad Amin, one of the marginal witnesses, appeared as P.W.3. Zafar Iqbal, another marginal witness, was not produced by the plaintiffs. The learned Addl. District Judge has primarily dismissed petitioners suit on the ground that although the agreement was attested by Muhammad Amin and Zafar Iqbal as marginal witnesses, yet Zafar Iqbal was not produced in the witness‑box.

6. In view of the contentions raised by the learned counsel, I have perused the statement of aforestated Muhammad Yousaf, who stated that he knew the parties; Exh.P.1 was scribed by him and was read over to the parties; the same was executed in his presence and a sum of Rs.24,000 was received by Ghulam Mohy‑ud‑Din from Ahmad Hassan Shah and thumb‑impressions were put in his presence. It would be appropriate to reproduce the examination‑in‑chief of the said witness, which reads as follows:‑‑

7. It is true that the plaintiffs were obliged, per force of Article 791 of the Qanun‑e‑Shahadat Order, 1984, to prove the execution of the agreement to sell by producing two marginal witnesses. However, the question arises as to under what circumstances a scribe can be considered as a competent witness and replace the requirement of producing marginal witness.

It has been held in Nazir Ahmad v. Muhammad Rafiq (1993 CLC 257) that a scribe can be treated as a marginal witness, if the parties had executed and signed the document in his presence; they along with the attesting witnesses, have signed the agreement before him and that can be treated as sufficient compliance of Article 79 read with Article 17 of Qanun‑e‑Shahadat Order, 1984. It would be appropriate to reproduce para. 4 of the aforenoted judgment, which reads as follows:‑‑

"I am not persuaded to agree with the contentions raised by the petitioner's learned counsel. In the present case the agreement to sell Exh:P.1 was proved through the statement of Javed Sultan, Advocate, who appeared as P.W.2 and Bashir Ahmad P.W.1, the .scribe of the document. Ordinarily, a scribe who merely writes a deed and hands it over to the parties for their signatures and those of the attesting witnesses, does not become a competent attesting witness if the document/deed is executed elsewhere in his absence. The position is different if after writing the deed is actually executed in the presence of the, scribe. In the present case, the parties had executed the document in the presence of the scribe and signed it. Even the two attesting witnesses had signed the document in the presence of the scribe. Under these circumstances, the scribe can be treated to be an attesting witness although he has not signed it in that capacity. The requirements of the provisions of Article 79 read with Article 17 of Qanun‑e‑Shahadat have been substantially complied with. The view that a scribe, in suitable cases, can be treated as an attesting witness, finds support from judgments in the cases of Thakurdas and another v. Topandas and others (AIR 1929 Sindh 217), Ghanshamsingh Tirathsingh and another v. Mahmoed Yacoob (AIR 1933 Sindh 257). "

The said view was approved by the leaned Division Bench of this Court in a case reported as Zafar Ullah Khan v. Mst. Hakim Bibi and another (2000 YLR 2789), wherein this Court in para. 10 of the judgment has held as under:‑‑

"This contention of the learned counsel has not impressed us. In addition to P.W.2, Muhammad Amin, who was one of the marginal witnesses, the scribe of the document, Malik Shaukat Ali, Advocate appeared as P.W.1 and deposed that the agreement was scribed by him and thumb‑impressions were put by respondent No.1 on Exh.P.1 and Exh.P.1/1 in his presence. In this view of the matter, the statement of the scribe can be considered to be a statement of a marginal witness. In this behalf, we may refer to the judgment of this Court in Nazir Muhammad v. Muhammad Rafiq 1993 CLC 257. We have not been persuaded to take a different view."

8. Placing the para‑meters, for treating a scribe as marginal witness, as laid down in the aforenoted judgments, in juxta‑position with the facts of the present case, I find that the principles, laid therein, are completely applicable in the present case. As is evident from the reproduction of the statement of scribe, the agreement was executed and signed in his presence, he scribed the said document and contents were read over to the parties, inasmuch as the‑consideration was paid in his presence. He has further stated that signature and thumb‑impressions were put in his presence. In view whereof, non‑production of the second marginal witness would not in any way adversely affect the case of the plaintiffs and they could not be non‑suited on the said plea. In the present case, the statement of the scribe could be treated as a statement of marginal witness and findings to the contrary are against the law declared by this Court. Suffice it to add that the learned Addl. District Judge did not take into consideration the said aspect of the case.

9. In the above perspective, I have examined the impugned judgment and find that the learned Addl. District Judge has definitely committed illegality and material irregularity in rendering the judgment, inasmuch as the law declared by this Court in the aforenoted judgments, which as per Article 201 of the Constitution of Islamic Republic of Pakistan, 1973 is binding upon all the Courts, has completely been ignored. In view whereof, I am inclined to invoke the revision jurisdiction of this Court and set aside the impugned judgment.

10. Upshot of the above discussion is that the present petition is allowed and the impugned judgment and decree dated 25‑6‑1997, passed by the learned Addl. District Judge is set aside. Resultantly, the judgment and decree dated 21‑11‑1995, passed by the learned trial Court H stands restored and petitioners' suit for specific. performance is decreed.

No order as to costs.

M.I./A‑283/L Revision accepted.