Pakistan Case LawMUHAMMAD SALIM and 6 others Versus MUHAMMAD ZUBAIR and 3 others
This matter arises from a petition for leave to appeal filed by the legal heirs of the deceased plaintiff against the judgment of the Peshawar High Court, which dismissed their civil revision and upheld the appellate court's judgment setting aside the trial court's decree for specific performance. The trial court had decreed the suit in favor of the plaintiff based on an agreement deed dated 2-10-1961, holding it to be an agreement to sell, whereas the appellate court and the High Court construed the document as an agreement of mortgage. The core legal question involves the proper construction and interpretation of the impugned agreement deed—specifically whether it constitutes an agreement for the specific performance of a sale or a mortgage transaction. The Supreme Court granted leave to consider the contentions raised by the petitioners regarding the un-rebutted evidence of the agreement to sell and the failure of the executant to depose on oath. The interim stay order was directed to continue.
- Whether the impugned agreement deed constitutes an agreement for specific performance of a sale or an agreement of mortgage?
- Does the failure of the executant of a deed to depose on oath render the opposing evidence unrebutted?
- Can an appellate court substitute its own interpretation of a document for that of the trial court without sufficient grounds?
ORDER
WALI MUHAMMAD KHAN, J.---Muhammad Salim and others, heirs of Abdul Majeed deceased/plaintiff, call in question the judgment dated 22-9-1993 passed by a learned Single Judge of the Peshawar High Court, whereby Civil Revision No, 286/90 filed by the petitioners against the judgment of the appellate Court dated 27-5-1990 accepting the appeal of the respondents and by setting aside the judgment of the trial Court dismissing their suit for specific performance of the agreement, was dismissed.
We have heard Qazi Muhammad Salim, Senior Advocate, for the petitioners, and have perused the record of the case.
The trial Court vide judgment dated 7-11-1989 while giving its finding on issues Nos. 6 and 7 came to the conclusion that through the impugned agreement deed dated 2-10-1961 Exh. P.W.1/1 the deceased defendant No, 1 had agreed to transfer the suit shop to the plaintiff for a consideration of Rs,3,542 and passed decree for specific performance of the agreement deed in favour of Abdul Majeed, predecessor-in-interest of the petitioners against Mst. Sadiqa Begum predecessor-in- interest of the respondents. However, the learned Appellate Court and the High Court termed it as an agreement of mortgage. The learned counsel for the petitioners read out the impugned agreement and stressed that the mortgage of the shop had taken effect orally but according to the terms of the deed it had been agreed that on the acquisition of the title deed she will execute registered deed regarding the transfer of title and will incur the expenses herself and further that if any defect occurred in the title of the executant she will refund the amount of Rs,3,542. The deed apparently is not scribed by a regular deed-writer. He further contended that evidence regarding its being an agreement to sell has been produced which stood unrebutted as neither the executant of the deed nor her husband volunteered to depose on oath that the deed was an agreement of mortgage and subject themselves to cross-examination.
Leave is granted to consider the contentions raised by the learned counsel for the petitioners. Stay order already granted shall continue.
Judges on this bench
- Abdul Qadeer Chaudhry1,248 judgments
- Wali Muhammad Khan585 judgments