FALAK SHER Versus MUHAMMAD RAFIQUE
MUDASSIR KHALID ABBASI, J.--- Through this civil revision, petitioner has challenged the legality of judgment and decree dated 30.10.2010 passed by learned Civil Judge, Khanewal, judgment and decree dated 13.12.2013 and order dated 21.11.2013 passed by learned Additional District Judge, Khanewal.
2. Brief facts of the case are that petitioner filed a suit for specific performance of contract against the respondent with regard to the suit land fully described in the head note of the plaint on the basis of agreement to sell dated 02.12.1991. Respondent resisted the suit by filing written statement. Vide impugned judgment and decree dated 30.10.2010, learned Civil Judge, Khanewal dismissed the suit of the petitioner. Feeling aggrieved, petitioner filed an appeal before learned Additional District Judge, Khanewal. During the pendency of said appeal, petitioner filed an application for the grant of permission to produce Rafi Mohammad son of Fajjar Ali before the Court as witness in additional evidence, which was dismissed vide impugned order dated 21.11.2013 and thereafter, the appeal of the petitioner was also dismissed vide impugned judgment and decree dated 13.12.2013.
3. Aggrieved by both the judgments and decrees, petitioners have filed the instant revision petition.
4. Learned counsel for the petitioner contends that impugned judgments and decrees and orders of the courts below are against the law and facts of the case. Further argued that findings of both the courts below are without application of mind and non-appreciation of real facts of the case as other marginal witness of the agreement to sell namely Rafi Muhammad son of Fajjar Ali was under pressure of respondent being his close relative and he refused to appear before the court. Contends that Article 17 of the Qanun-e-Shahadat Order, 1984 does not apply to each and every document but both the courts below did not consider this aspect of the case. Further contends that in written statement respondent did not utter a single word with regard to his thumb impressions over the agreement to sell Ex.P-1 and receipt Ex.P-2 and he has not moved any application for comparison of the same during the pendency of the suit. States that the possession of the petitioner, over the disputed land, since long shows that respondent agreed to sell the land to the petitioner. Further states that respondent has failed to rebut the evidence of the petitioner with respect to the execution of agreement to sell and receipt for payment of Rs.95,000/-. Further states that the impugned judgments and decrees and order are the result of misreading and non-reading of evidence, therefore, same are liable to be set aside.
5. On the other hand, learned counsel for the respondent has vehemently opposed the contentions of the learned counsel for the petitioner stating therein that impugned judgments and decree as well as impugned order have been passed strictly in accordance with law and there is no infirmity and illegality committed therein. Further argued that respondent has not marked his signatures as well as thumb impressions on the alleged agreement to sell and receipt. Contends that the civil revision filed by the petitioner has no merits, therefore, same is liable to be dismissed.
6. I have given conscious thought to the contentions of learned counsel for the parties and perused the record.
7. Legal as well as the factual aspect of the entire case revolves around the agreement Ex.P-1 dated 02.12.1991, on the basis of which suit for specific performance was filed by the plaintiff/present revision petitioner. In this regard an issue was framed that as to whether the parties entered into an agreement dated 20.12.1991 and defendant issued the receipt of Rs.95,000/-.
8. Admittedly, according to the plaintiff's version Munir Hussain PW-1 and Rafi Muhammad are marginal witnesses of the afore-cited agreement. Whereas, during the course of trial only one marginal witness (Munir Hussain) was produced as PW-1. Plaintiff/petitioner has advanced explanation regarding his non production that the said marginal witness Rafi Muhammad was under influence, being close relative of the respondent, therefore, petitioner did not produced him. This does not release the plaintiff/petitioner from non-compliance of a mandatory provision of law as envisaged in Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984 in following terms:-
"17. Competence and number of witnesses .---(1) The competence of a person to testify, and the number of witnesses required in any case shall be determined in accordance with the injunctions of Islam as laid down in the Holy Qur'an an and Sunnah.
(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; and
(b) in all other matters the Court may accept, or act on, the testimony of one man or one woman, or such other evidence as the circumstances of the case may warrant."
"79. Proof of execution of document required by law to be attested . If a document is required by-law to be attested, it shall not be used as evidence until two attesting witnesses of 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.
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
9. The afore-cited law has been elaborately and exhaustively discussed in case titled "Hafiz Tasaduq Hussain v. Muhammad Din" cited as (PLD 2011 SC 241) wherein it has been held as under:-
"From the clear and unambiguous language of the Article, in order to bring a case within its purview in the context of present case, two ingredients must co-exist, firstly there must be an instrument, secondly, it should pertain or relate to a matter either of a financial or future obligations. If the above two conditions are met, it is mandated that the instrument must be attested in terms of the Article. There can be no cudgel that an agreement of sale or to sell immovable property being a written document is an instrument within the meaning of law, however, to ascertain; its nature, the Black's Law Dictionary, Fifth Edition defines it as under:
"Agreement of sale; agreement to sell.---An agreement of sale may imply-not merely an obligation to sell, but an obligation on the part of the other party to purchase, while an agreement to sell is simply an obligation on the part of the vendor or promisor to complete his promise of sale. Treat v. White, 18.1 U.S. 264, 21 S.Ct. 611, 45 L. Ed 853. It is a contract to be performed in future, and if different, results in a sale; it is preliminary to sale and is not the sale."
"Article 17(2)(a) encompasses in its scope two fold objects (i) regarding the validity of the instruments, meaning thereby, that if it is not attested by the required number of witnesses the instrument shall be invalid and therefore if not admitted by the executant or otherwise contested by him, it shall not be enforceable in law (ii) it is relatable to the proof of such instruments in terms of mandatory spirit of Article 79 of The Order, 1984 when it is read with the later. Because the said Article in very clear terms prescribes "If a 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 command of the Article 79 is vividly discernible which elucidates that in order to prove an instrument which by law is required to be attested, it has to be proved by two attesting witnesses, if they are alive and otherwise are not incapacitated and are subject to the process of the Court and capable of giving evidence. The powerful expression "shall not be used as evidence" until the requisite number of attesting witnesses have been examined to prove its execution is couched in the negative, which depicts the clear and unquestionable intention of the legislature, barring and placing a complete prohibition for using in evidence any such document, which is either not attested as mandated by the law and/or if the required number of attesting witnesses are not produced to prove it. As the consequence of the failure in this behalf are provided by the Article itself, therefore, it is a mandatory provision of law and should be given due effect by the Courts in letter and spirit. The provisions of this Article are most uncompromising, so long as there is an attesting witness alive capable of giving evidence and subject to the process of the Court, no document which is required by law to be attested can be used in evidence until such witness has been called, the omission to call the requisite number of attesting witnesses is fatal to the admissibility of the document."
10. Much emphasis has been laid down by the counsel for the petitioner that an application under Order XLI, Rule 27, C.P.C. for production of the second marginal witness (Muhammad Rafi) was moved before the lower appellate Court which was dismissed vide order dated 21.11.2013. Learned counsel for the petitioner has cited case law wherein he has tried to establish that such denial of the appellate court was not permissible. In this regard reliance is placed on "Rana Abdul Aleem Khan v. Idara National Industrial Co operative Finance Corporation Defunct through Chairman Punjab Cooperative Board for Liquidation, Lahore and another" (2016 SCMR 2067) wherein it has been observed that power under the provision of Order XLI, Rule 27, C.P.C. for allowing additional evidence is not unfettered nor the appellate Court has discretion to allow additional evidence per its own caprice, rather such discretion was structured/limited by the factors enumerated with the said provision i.e. where the court from whose decree the appeal has been preferred had refused to admit any evidence which is ought to have admitted. Whereas, in this particular case it is an admitted fact that the above mentioned marginal witness was given up by the plaintiff/petitioner himself.
11. Keeping in view the law laid down by the Hon'ble Supreme Court in the above terms, secondary aspects of the case have become immaterial like statement of PW-5, who deposed that on 02.12.1991 agreement to sell was presented to him in presence of marginal witnesses and he had attested the same likewise one Shamshad PW-4 son of Abdul Hafeez (deceased) petition writer appeared and stated that his father had written the said agreement.
What has been narrated above, I am not persuaded to interfere in the judgments and decrees passed by the courts below, this petition does not succeed and is dismissed with no order as to cost.
ZC/F-11/L Petition dismissed.