NAZIR AHMAD vs MUHAMMAD RAFIQ

' This revision petition arises out of a suit for possession through specific performance of the contract dated 12-8-1987, filed by the respondent on 9-12-1987 in the Court of Civil Judge, Gujrat.

The suit was resisted by the petitioner who filed his written statement in the Court. The pleadings of the parties gave rise to the following issues:-- ' ISSUES:

(1) Whether the suit is liable to be dismissed under Order 7, Rule 11? OPD

(2) Whether the suit is not maintainable in its present form? OPD

(3) Whether the suit is vague and bad for non-joinder of necessary parties? OPD

(4) Whether the plaintiff is entitled to the specific performance of contract as per plaint? OPP

(5) Whether the plaintiff is entitled to the decree prayed for? OPP

(6) Relief.

2. Issues Nos,1, 2 and 3 were decided against the present petitioner and issues Nos,4 and 5 in favour of the plaintiffs/respondents. The trial Court held vide the judgment and decree dated 28-6-1989 that the respondent was entitled to get an amount of Rs,18,166 from the present petitioner. The petitioner's appeal was dismissed by the learned Additional District Judge, Gujrat vide the judgment and decree dated 11-2-1990.

3. The petitioner's learned counsel contends that the agreement to sell dated 12-8-1987 (Exh.P1) was not proved in accordance with the law. He submits that out of the two marginal witnesses namely Zulfiqar Ali and Javaid Sultan, only Javaid Sultan was produced as P.W.2. Hence by virtue of the provisions of Article 79 read with Article 17 of the Qanun-e-Shahadat, the agreement could not be used as evidence. In this connection, he places reliance on the cases of Muhammad Anwar v.

Haji Muhammad Ismail etc. 1992 M LD 860 and Sristidhar Ghose v. Rakhyakali Dasti (AIR 1922 Cal.

168). He further submits that even otherwise only a phote copy of the agreement was placed on the record without seeking permission to produce secondary evidence, regarding the execution of the agreement which was allegedly destroyed. He further submits that the sale price was said to have been paid in the presence of one Muhammad Aslam and Muhammad Afzal but none of them was produced as witness. Hence there was no cogent evidence to prove the payment of the sale price to the respondents. On the other hand the learned counsel for the respondent submits that the Courts below have recorded concurrent findings of fact on issues Nos,4 and 5 which are not liable to be set aside in revision in the absence of any misreading or non-reading of the evidence.

He adds that the judgments of the Courts below did not suffer from any jurisdictional defect. He submits that the objections regarding the proof and admissibility of the agreement were not raised in the Courts below. He explains that the file containing the original agreement was burnt, and therefore, a photocopy was placed on the record which was duly proved and exhibited on the record. He submits that the agreement Exh.P1 was duly proved by the evidence of the scribe one marginal witness and the plaintiff/respondent himself.

4. 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.P1 was proved through the statement of Jailed 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 Tirathsing and another v. Mahomed Yacoob (AIR 1933 Sindh 257).

' In the case of Thakurdas the mortgage-deed was proved through the statement of one attesting witness and the scribe. The evidence of the scribe regarding proof of execution was accepted because he had deposed that after he had written the document the defendant admitted its contents and signed it. It was held that the requirement of the law was satisfied although the scribe had signed the document as a writer and not as a witness, he was in fact a witness of the execution. In Ghanshamsingh's case it was held that the writer of a deed who had not signed it as a witness but had, as a matter of fact, been a witness of execution was a competent attesting witness. The judgment in the case of Sristidhar Ghose v. Rakhyakali Dasi (AIR 1922 Calcutta 168) relied upon by the petitioner's learned counsel is distinguishable because in the said case the scribe, on the one hand, was shown to have executed the mortgage-deed on behalf of an illiterate person and on the other, attested the deed. It was held that the term "attested" signified the act of the witness who had seen the execution of the document and that the same person could not possess twofold capacities. In Muhammad Anwar's case it was held that the provisions of Articles 17 and 79 were applicable to documents executed after enforcement of the Qanun-e-Shahadat, 1984. However, the question whether the scribe of the document can be treated as an attesting witness, was neither involved nor considered in the said case. There is also no force in the contention of the petitioner's learned counsel that photo copy of the agreement to sell was illegally relied upon by the Courts below. Admittedly the original document was placed on the record of the trial Court. The record was burnt and the file was reconstructed in persuance of an order passed by this Court. No objection was raised at the time of reconstruction of the file regarding genuineness of the agreement to sell. Moreover, the petitioner did not object to the admissibility of the photo copy of the deed before the appellate Court. This point was neither embodied in the memo. Of appeal nor actually raised before the appellate Court and for that reason was not dealt with in the impugned judgment passed by the appellate Court. This point cannot be allowed to be raised for the first time at the revisional stage. The argument that the suit merited dismissal because some necessary parties were not impleaded as defendants has no force either. The suit can be decided in respect of the parties actually before the Court. If any other person claims to have any right or interest in the disputed land he may raise his objection before the executing Court at the proper stage in accordance with the law.

5. The petitioner's learned counsel has not been able to point out any jurisdictional defect in the impugned judgments and decrees of the Courts below or any misreading or non-reading of evidence to justify interference in the concurrent findings of fact recorded by the Courts below.

6. I find no merit in this petition which is dismissed leaving the parties to bear their own costs.