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RFA. No.322 of 2008

Ghazi Muhammad Farooq Vs. Muhammad Yasir etc.

JUDGMENT SHEET
IN THE LAHORE HIGH COURT AT LAHORE
(JUDICIAL DEPARTMENT)
RFA.No.322 of 2008

Ghazi Muhammad Farooq

Versus
Muhammad Yasir & others

JUDGMENT

DATE OF HEARING: 06.11.2013.

APPELLANT BY: Syed Muhammad Kaleem
Ahmad Khurshid, Advocate.
RESPONDENTS BY: M/s. Kh. Saeed-uz-Zafar and
Ch. Naseer Ahmad, Advocates.

AMIN-UD-DIN KHAN, J:- Through this appeal

the appellant, who is plaintiff in a suit for specific performance,

has challenged the judgment & decree dated 26.5.2008 passed

by learned Civil Judge, Faisalabad whereby suit of the plaintiff-

appellant was dismissed.

2. This appeal was heard on 12.7.2011 by the

Division Bench of this Court and the matter was remanded back

to the learned trial court for decision afresh. The remand order

of this Court was assailed before the August Supreme Court of

Pakistan through C.P.No.1180 of 2011 which was converted

into an appeal and was numbered as Civil Appeal No. 738 of

2011 and was allowed on 16.8.2011 with the consent of learned

counsel for both the parties and the impugned remand order

was set aside and this Court was directed to decide the case on
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Ghazi Muhammad Farooq Vs. Muhammad Yasir etc.

merits after taking into consideration the evidence available on

record.

3. Brief facts of the case are that appellant-plaintiff

filed a suit on 24.4.1993 on the basis of an agreement to sell

dated 18.3.1990 allegedly by Muhammad Ahmad deceased

predecessor of the defendants. The learned trial court framed

the issues, invited the parties to produce their respective

evidence. The evidence of the parties was recorded and in this

round of litigation vide judgment & decree dated 26.5.2008 the

learned trial court dismissed the suit with costs. Hence, this

appeal, as noted above, case was earlier remanded by this Court

and then remand order was set aside by the August Supreme

Court of Pakistan and now it is before us for hearing.

4. Learned counsel for the appellant has submitted

that he has filed C.M.No.2 of 2008 along with the appeal,

which is for permission to produce additional evidence in the

shape of expert for comparison of admitted signatures of

Muhammad Ahmad deceased with the signatures on Exh.P.1

agreement to sell and Exh.P.2 the receipt of money under the

agreement as well as from the Passport of Muhammad Ahmad

deceased and further that he be permitted to further cross-

examine DW-1 Muhammad Hussain, the Stamp Vendor on the

grounds mentioned in Para 4 of the application.

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Ghazi Muhammad Farooq Vs. Muhammad Yasir etc.

5. We opted to hear learned counsel for the parties on

main appeal as well as on the application so that if after hearing

the arguments of the learned counsel for the parties on appeal as

well as C.M if this Court comes to the conclusion that

permission to produce additional evidence is necessary then

same be granted or if not then the appeal be decided.

6. Learned counsel for the appellant argues that

under the agreement Rs:35,00,000/- have been paid whereas

remaining amount was Rs:25,00,000/-, the remaining amount

was to be paid till 6.5.1991, the vendor Muhammad Ahmad

expired on 3.7.1990 and the plaintiff was out of Country, when

he came back in the year 1993, he filed the suit, therefore, states

that suit was promptly filed when the plaintiff came to Pakistan.

States that the learned trial court has mostly dilated upon the

previous identity card number of Muhammad Ahmad

mentioned in the agreement to sell, therefore, there is a wrong

inference against the plaintiff-appellant and further that the

mode of comparison of the signatures of Muhammad Ahmad on

the agreement (Exh.P.1) and receipt (Exh.P.2) with the

admitted signature, is not a safe way when it was conducted by

the learned trial court in the absence of learned counsel for the

parties. He has relied upon “Kessarbai versus Jethabhai Jivan”

(AIR 1928 Privy Council 277), “Rehmat Ali Ismailia versus

Khalid Mehmood” (2004 SCJ 461), “Ambika Charan Barua

versus Nareswari Dasi and another” (1925 Calcutta 145),

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RFA. No.322 of 2008
Ghazi Muhammad Farooq Vs. Muhammad Yasir etc.

“Muhammad Kabiruddin versus Muhammad Muniruddin

through his LRs and another” (1993 CLC 747) and “Hamid

Qayyum and 2 others versus Muhammad Azeem through LHs

and another” (PLD 1995 SC 381). Further while relying upon

“Zar Wali Shah versus Yousaf Ali Shah etc.” (1992 Law

Notes (S.C.) (718) argues that even at this stage document can

be sent to the Handwriting Expert for comparison of the

signatures. While relying upon “Syed Sharif ul Hassan

through LRs. Versus Hafiz Muhammad Amin and others”

(2012 SCMR 1258) argues that expert opinion should have

been procured. Further while relying upon “Fazle Ghafoor

versus Chairman, Tribunal Land Disputes, DIR, Sawat at

Chitral at Mardan and 6 others” (1993 SCMR 1073) argues

that the judgment of the learned trial court must be based upon

probabilities. It is further argued that as the application for

permission to produce additional evidence has not been

considered by this Court at the time of remand of the case,

neither the same has been considered by the August Supreme

Court of Pakistan, therefore, states that it must be decided now.

Further argues that the learned trial court has not properly

appreciated the evidence produced by the plaintiff-appellant;

that PW-1 who is scribe, as he has stated that Muhammad

Ahmad was personally known to him and all the transaction

struck in his presence, therefore, he can be termed as an

attesting witness; that the interpretation of the learned trial court

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Ghazi Muhammad Farooq Vs. Muhammad Yasir etc.

with regard to the statement of PW-2 and PW-3 that bargain

struck two days prior to writing of the agreement Exh.P.1 and

same is not pleaded, therefore, this statement cannot be

believed, is not sustainable under the law; that discarding the

statement of a witness on the basis of relationship with the

plaintiff by the learned trial court is not sustainable under the

law in the light of “Khan Mir Daud Khan and others versus

Mahrullah and others” (PLD 2001 SC 67). Further while

relying upon “Bashir Ahmed versus Mst. Taja Begum and

others” (PLD 2010 SC 906) states that as it is a first appeal, this

Court has to reappraise the evidence; that if the deceased

Muhammad Ahmad was having two Identity Cards, it shows

that if there is any fraud that was by Muhammad Ahmad when

he procured two Identity Cards and plaintiff-appellant cannot be

blamed. While attacking the findings of the learned trial court

wherein the learned trial court has noticed that allegedly more

than a half amount has been paid from the total consideration

amount of the agreement and even possession has not been

claimed. Learned counsel states that as the plaintiff is residing

outside the country, therefore, there was no need to take

possession at the time of agreement. While relying upon

“Saheb Khan through LRs versus Muhammad Pannah” (PLD

1994 SC 162) argues that minor discrepancies in the statement

of the witnesses are ignorable. States that the learned trial court
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Ghazi Muhammad Farooq Vs. Muhammad Yasir etc.

has used these discrepancies against the appellant, which is not

permissible under the law.

When confronted to the learned counsel that as the

alleged agreement to sell Exh.P.1 is not signed by the plaintiff

himself how it can be termed as an agreement and further how

it is enforceable under the law, learned counsel has relied upon

“Messrs Jamal Jute Baling & Co. Dacca versus Messrs M.

Sarkies & Sons, Dacca” (PLD 1971 SC 784) as well as NLR

2013 Civil 222 to state that when part of the contract has been

performed it is enforceable through the court of law even if not

signed by the plaintiff party.

7. On the other hand, learned counsel for the

respondents argues that as the matter has been remanded by the

August Supreme Court of Pakistan on the basis of consent of

learned counsel for the parties, therefore, this Court is bound by

the order of the August Supreme Court of Pakistan whereby

this Court has been directed to decide the appeal on the basis

of evidence available on the record; that even at the time

when the appeal was decided and matter was remanded, the

appellant has never pressed C.M.No.2 of 2008 and further that

it was the respondents-defendants who approached the August

Supreme Court of Pakistan and not the plaintiff-appellant; that

when with the consent of learned counsel for the parties matter

has been sent to this Court for decision of the same on the basis
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Ghazi Muhammad Farooq Vs. Muhammad Yasir etc.

of evidence available on the record, therefore, there is no

question of pressing the application for permission to produce

additional evidence at this stage; that the agreement to sell

Exh.P.1 does not contain the signatures of the plaintiff-

appellant, therefore, it is not an agreement enforceable by law.

Further states that the agreement is denied by the defendants as

it is forged and fictitious agreement, which is visible by the

scrutiny of evidence. States that even in the agreement there is

penal clause available for non-performance of the part of the

vendee-plaintiff on the expiry date i.e. 6.5.1991, therefore,

argues that it was an agreement where the time was an essence

of the contract. Relies on “Mst. Gulshan Hamid versus Kh.

Abdul Rehman and others” (2010 SCMR 334). States that this

agreement was never acted upon, the alleged payment of money

under the agreement is denied which has not been proved, no

other action under the agreement has taken place, therefore,

while relying upon “Qari Muhammad Hanif versus Ihsan

Ullah Khan” (2010 CLC 706), “Muhammad Sharif and others

versus Nabi Bakhsh and others” (2012 SCMR 900) and

“Abdul Ghani versus Muhammad Shafi and 4 others” (2007

SCMR 1186) argues that it was not an agreement enforceable

through the court. Further while referring Exh.D1, a plaint of

suit for recovery, filed by the present plaintiff-appellant against

the predecessor of the defendants namely Muhammad Ahmad

and the respondents for recovery of 5,04,303/- Dirham

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(Rs:85,00,000/-) in Pakistani Currency filed on 7.12.2001 in the

court of learned Senior Civil Judge, Lahore. Refers Para 4 of

the plaint wherein it is mentioned that plaintiff was to receive

the amount claimed in the suit and the other amount, therefore,

a suit for recovery was filed in Abu Dhabi which was decided

in his favour on 16.1.1991 and some money was recovered and

for the remaining money this suit has been filed. Learned

counsel states that when the relations of the parties were so

strained that a suit was filed in Abu Dhabi and the further claim

of Rs:85,00,000/- was against Muhammad Ahmad deceased

predecessor of the defendants how plaintiff can pay

Rs:35,00,000/- as consideration money for the agreement and

how the parties can enter into an agreement. Further while

referring a portion of cross-examination upon plaintiff who

appeared as PW-4, argues that the story narrated with regard to

the payment of Rs:35,00,000/- is unbelievable. Argues that the

plaintiff further admitted in cross-examination that this suit has

nothing to do with the amount of the loan which is advanced to

Muhammad Ahmad deceased and which is still recoverable.

With regard to application for permission to produce additional

evidence, learned counsel firstly refers the order of the August

Supreme Court of Pakistan and further that the permission can

only be granted when the plaintiff applied for producing some

evidence in the trial court and the learned trial court had

wrongly refused the same or if it is required by the appellate

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court to come at a just conclusion of the case, states that both

these eventualities do not exist in this case. Further while

relying upon “Haji Abdul Karim and others versus Messrs

Florida Builders (Pvt) Limited” (PLD 2012 SC 247) and

”Muhammad Saeed Ahsan versus Mst. Raj Begum and

others” (2012 SCMR 1217) argues that as it is a suit for

specific performance of the agreement and alleged agreement

pertains to the year 1990 and after 23 years it cannot be

enforced.

8. We have heard learned counsel for the parties at

full length and have gone through the record with their able

assistance.

9. So far as point taken by the learned counsel for the

appellant that the learned trial court was not required to

compare the disputed signatures of the predecessor of the

defendants with the admitted signatures is concerned, we have

gone through the case law of the Privy Council as well as

August Supreme Court of Pakistan, it is not denied that the

same practice is undesirable but simultaneously the August

Supreme Court of Pakistan has not prohibited the powers of the

court under Article 84 of the Qanoon-e-Shahadat Order, 1984.

In the circumstances of this case when the alleged vendor died

even before filing of the suit along with the other evidence

available on the file produced by the parties the procedure

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adopted by the learned trial court is not against the law. Even

the report of the Handwriting Expert is an opinion which is not

binding upon the court. With regard to the prayer made by the

learned counsel through application for permission to go

through the process of comparison of signatures through an

Expert, as the report of the Expert is an opinion which is not

binding upon this Court, therefore, in the circumstances of this

case it will not serve any purpose. The argument that the

findings of the court must be on the basis of probabilities, we

have noticed that the findings of the learned trial court are on

the basis of probabilities. We have further observed that case of

the plaintiff-appellant that there was a dispute of payment of

money between the plaintiff and the deceased predecessor of

the respondents-defendants namely Muhammad Ahmad for

which he filed a suit bearing Suit No. 2496 of 1990 for the

recovery of six lac dirham in the court of Justice at Dubai, as

the plaintiff appeared in the witness box when he admitted in

the cross-examination it is his case that he has given loan to

said Muhammad Ahmad in December 1989 whereas four lac

dirham were decreed by the Dubai Court and for remaining

amount according to the plaintiff he filed a suit for the recovery

of Rs:85,00,000/- in the court of learned Senior Civil Judge,

Lahore, copy of which is Exh.D.1. The facts mentioned in Para

No. 4 of the said suit clearly show that the claim made by the

plaintiff in the instant suit is baseless. Now the picture is clear

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that according to the plaintiff’s claim Muhammad Ahmad

borrowed money from the plaintiff in December, 1989 and the

claim of the said money was not satisfied till the time of alleged

agreement as well as filing of the suit, how the plaintiff can pay

Rs:35,00,000/- to Muhammad Ahmad when Muhammad

Ahmad has already borrowed more than Rs:85,00,000/- and

further there was litigation between the parties in the court of

Dubai also. In these circumstances we are of the considered

view that the learned trial court has rightly taken the view on

the basis of probabilities of the facts and evidence available on

the file. As the learned trial court is a court of fact and law and

the basic interpretation of the evidence is by the learned trial

court, when learned trial court came to the conclusion that the

statements of PW-2 and PW-3 are not in accordance with the

pleadings of the plaintiff with regard to striking of bargain and

further an observation of the court that the witnesses are related

to the plaintiff. No-doubt, ordinarily in a civil case relationship

of a witness with the plaintiff is not very material but it is also

important that the same cannot be straightaway or fully ignored.

The court evaluating the evidence has a right to evaluate the

statement of each witness keeping in view the relationship of

the witness and party in whose favour the witness has deposed.

We are unable to disagree with these findings recorded by the

learned trial court.

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10. The important factor which has been noted by the

court that when more than half of the alleged sale consideration

according to the plaintiff was paid why the possession of the

suit property was not taken by him, this aspect is also very

important. For proving an agreement to sell which is otherwise

denied by the other side, the main factors are proving the

purchase of the stamp paper on a specific date, the writing of

the instrument on the stamp paper on the said date while

producing the Deed Writer and delivery of possession under the

agreement or the reason for not taking the possession are the

important factors in a suit for specific performance. In this case

allegedly more than half of the consideration amount was paid,

the possession was not taken over by the alleged vendee-

plaintiff on the ground that he was living outside the Country.

This reason is neither logical nor believable. If he was not

interested and residing in Pakistan why he entered into an

agreement of purchase of suit property. Admittedly, the alleged

agreement is not signed by the plaintiff. Argument of the

learned counsel that in the circumstances of this case without

signatures of the plaintiff on the agreement, the agreement is

enforceable and suit is competent. We are afraid that the

argument has absolutely no force as learned counsel argued on

the basis of “Sikandar Hayat and 4 others versus Master

Fazal Karim” (PLD 1971 Supreme Court 730). We are afraid

that this judgment is absolutely not helpful for the plaintiff-

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appellant as in case in hand the agreement is denied by the

defendant side and further the plaintiff failed to show that the

agreement was partially acted upon. The argument that the

money was paid under the agreement is equal to part

performance of the agreement. There are findings that the

plaintiff failed to prove the payment of money also. The learned

trial court has not accepted his this plea and we are also of the

same view that plaintiff-appellant failed to prove the payment

of money through receipt Exh.P.2. In this view of the matter,

judgment of the August Supreme Court of Pakistan reported as

2010 SCMR 334 (Mst. Gulshan Hamid versus Kh. Abdul

Rehman and others) is fully applicable to the facts of this case

and when the alleged agreement to sell is not signed by the

plaintiff-appellant on the basis of said agreement no decree for

specific performance can be passed in favour of the plaintiff-

appellant.

11. In the light of above discussion as well as the

plaintiff-appellant never filed application for permission to

produce additional evidence in the learned trial court and

further that this Court is of the view that the alleged additional

evidence will not serve any useful purpose and will not be

helpful for the decision of this appeal. In this view of the

matter, the application is not maintainable and further that when

it was not pressed by the appellant at the time when the case

was remanded by this Court vide order dated 12.7.2011 and

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RFA. No.322 of 2008
Ghazi Muhammad Farooq Vs. Muhammad Yasir etc.

also even before the August Supreme Court of Pakistan when

the other party filed a petition and the August Supreme Court of

Pakistan has set aside the remand order passed by this Court

and sent the matter for decision to this Court on the basis of

available evidence.

12. For what has been discussed above, no ground for

interference has been made out, therefore, this appeal stands

dismissed with costs throughout.

(ABID AZIZ SHEIKH) (AMIN-UD-DIN KHAN)

JUDGE JUDGE

APPROVED FOR REPORTING.

JUDGE
Mazhar*