MUHAMMAD RASHID vs NAZAR HUSSAIN And Other
This matter concerns a petition for leave to appeal against a judgment of the Lahore High Court, which upheld a trial court decree for specific performance of a sale agreement regarding a residential property. The petitioner contested the validity of the agreement, alleging fraud and misrepresentation regarding the earnest money receipt. The core legal questions were whether the agreement was validly executed and whether the petitioner had successfully discharged the burden of proving fraud. The Supreme Court affirmed the lower courts' findings, noting that the agreement and receipt were duly proven by marginal witnesses. The Court held that the petitioner failed to substantiate his allegations of fraud, and the testimony of his witnesses, who were not signatories to the documents, was correctly dismissed as hearsay. The Court emphasized that a party cannot avoid contractual liability through unsubstantiated claims of misrepresentation. Consequently, the Court found no misreading of evidence by the High Court, upheld the decree for specific performance, and dismissed the petition for leave to appeal.
- Can a party avoid contractual liability for specific performance by alleging fraud without substantiating the claim with credible evidence?
- Is the testimony of witnesses who were not signatories to a written agreement considered hearsay when offered to contradict the agreement's validity?
- Does a court's finding that a party failed to discharge the burden of proof regarding fraud justify the dismissal of an appeal against a decree for specific performance?
MUHAMMAD ARIF, J.-- Leave to appeal is claimed against the judgment dated 13.4.1998 passed by the Lahore High Court High Court, Lahore, in R.F.A. No. 52 of 1995.
2. Briefly stated the background of the case is that the respondents brought a suit for specific performance of agreement dated 28.10.1991 concerning purchase of petitioner's house No. P/129/A, Street No. 3, Mohallah Tariqabad, Faisalabad. The petitioner controverted the claim of the respondents/plaintiffs through his written statement before the Trial Court. The learned Civil Judge, 1st Class, Faisalabad, after striking issues, receiving whatever evidence the parties wanted to produce in support of their respective claims and after hearing them, proceeded with decreeing the suit of the respondents vide judgment and decree dated 31.1.1995.
3. Petitioner's R.F.A. No. 52 of 1995 was dismissed by a Division Bench of the Lahore High Court, Lahore with, among others, the following observations:-- "The agreement of sale had been duly proved by Mazhar- ul-Islam PW 1 and Muhammad Iqbal PW 2, both marginal witnesses thereof. The receipt Ex. P2 was also executed in their presence and the same was also attested by them. Both the witnesses have deposed in un-equivocal terms that sum of Rs. 50,000/- was paid to the appellant as earnest money in their presence. The evidence of the appellant withy regard to alleged fraud and part payment of earnest money is least convincing. The appellant failed to explain as to how and under what circumstances he was duped into signing the receipt regarding payment of Rs. 50,000/- to him, though he, allegedly received only a part thereof i.e. Rs. 20,000/-. The evidence of the witnesses produced by him namely Nazir Ahmad DW 1 and Abdul Hameed DW 2 who admittedly are not signatory to the agreement of sale and the receipt, is more in the nature of hearsay than anything else. No reliance can be placed on their evidence.
We are convinced that the appellant took up a false plea of fraud and misrepresentation solely with a view to wriggle out of his liability under the sale agreement Ex. P1 to transfer the house in question in the name of the respondent.
The appellant miserably failed to discharge the onus of Issue No. 6 and the finding recorded by the learned Civil Judge with regard thereto is affirmed. It was a lawful agreement between the parties and had to be given effect to. The learned Trial Court was therefore fully justified to decree the suit, as prayed for."
4. Ch. Mushtaq Ahmed Khan, learned Sr. ASC appearing in support of this petition has referred to document 'Mark D' photo copy available at page 69 of the Paper Book, as also to the case of Inam Naqshband versus Haji Shaikh Ijaz Ahmad (PLD 1 995 S.C. 314 at 319) and contends that neither the learned Members of the Division Bench of the High Court resolved the question, of respondents' willingness to abide by the contract nor the house in question was a fit subject for being attended to in this suit for specific performance for the reason that the same had been mortgaged and the mortgage had not been redeemed, admittedly. The precise plea was that it was Issue No. 8 to the effect that "Whether the plaintiff is entitled to a decree for possession through specific performance of contract as claimed for?" which was not correctly decided by the High Court while resolving the entire cause against his client.
5. We have considered the twin-argument of the learned counsel and are not inclined to the view that the well-reasoned judgment of the Court below the High Court holding that Exhs. P1 and P2 respectively being the agreement and the receipt of earnest money suffered from either misreading of the said Exhs. P1 and P2 or the same having not been brought to bear upon the facts and circumstances of this case. The judgment and decree passed by the Trial' Court was upheld by the High Court in petitioner's Regular First Appeal with the observations that he had himself failed to substantiate his plea that either agreement Ex. P1 was the result of any fraud or that he was duped into signing the receipt regarding payment of Rs. 50,000/-. It was also correctly observed that the evidence of Nazir Ahmad and Abdul Hameed DWs who, admittedly, are not signatories to the agreement of sale and the receipt, is more in the nature of hearsay than anything else.
6. Resultantly, the petition is dismissed and leave declined.