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Petitioner: Mst. Anayatan BIBI and another VS Respondent: Maqsood Ahmad and others
Court Name: Lahore High Court Judge(s): Abid Hussain Chattha Title: Mst. Anayatan BIBI and another vs Maqsood Ahmad and others Case No.: C.R. No. 1358 of 2017, W. P. No. 9055 of 2019 & 483 of 2020 Date of Judgment:2022-11-08 Reported As: PLJ 2023 Lahore 259 Result: Revision petition partially accepted
JUDGMENT
JUDGMENT This consolidated Judgment shall decide the titled Civil Revision and connected Writ Petitions No. 9055/2019 and 483/2020. The parties in all the Petitions are referred with reference to their description in the titled Civil Revision throughout this Judgment. 2. The Petitioners preferred this Revision against the Judgments and Decrees dated 31.05.2016 and 12.09.2017 passed by Civil Judge, Sahiwal and Additional District Judge, Sahiwal respectively, whereby, the suit for specific performance with permanent injunction instituted by Respondent No. 1 against the Petitioners was concurrently decreed. 3. Respondent No. 1 instituted the suit on 29.04.2006 based on an agreement to sell dated 06.07.2002 (the "Agreement") averring therein that the predecessor-in-interest of the Petitioners, namely, Ghulam Muhammad alias Goma was allotted land measuring 100 Kanals situated in Chak No. 156/9-L, Tehsil & District Sahiwal fully described in paragraph No. 1 of the plaint (the "Property") under five years cultivation scheme by the Provincial Government. After death of the allottee, the leasehold rights regarding the Property devolved upon the Petitioners by way of inheritance. The Petitioners executed the Agreement (Ex. P-1) regarding sale of proprietary rights with respect to the Property in favor of Respondent No. 1 for total consideration of Rs. 300,000/- out of which Rs. 50,000/- was paid as earnest money at the time of execution of the Agreement and remaining amount of Rs. 250,000/- was agreed to be paid at the time of transfer of the Property to Respondent No. 1 after the issuance of Conveyance Deed in favor of the Petitioners by the Government of the Punjab. The Agreement was duly registered and possession was handed over to Respondent No. 1. Sale Receipt (Ex. P-2) regarding payment of earnest money was separately recorded. Respondent No. 1 on behalf of the Petitioners was responsible to carry out the entire
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proceedings before the revenue hierarchy till the issuance and registration of Conveyance Deed including payment of all installments, dues and expenses. Such obligations were duly performed by Respondent No. 1. Eventually, the Conveyance Deed dated 31.03.2004 (Ex.P-6) was issued and duly registered in the name of the Petitioners on 09.04.2004, whereafter, Mutation No. 353 dated 09.08.2004 (Ex. P-4) was also attested and incorporated in revenue record. Respondent No. 1 invoked the terms of the Agreement and required the Petitioners to perform their remaining part of the Agreement after receiving the balance sale consideration. It was specifically proclaimed that Respondent No. 1 performed his part of the Agreement and was always ready and willing to completely perform the Agreement in terms of remaining sale price. However, the Petitioners first delayed and later refused the performance of the Agreement. Hence, Respondent No. 1 was constrained to institute the suit. 4. The Petitioners resisted the suit by filing written statement. It was alleged therein that the Petitioners did not execute the Agreement or sale receipt regarding the sale of ownership rights of the Property. No stamp paper was purchased for the purposes of the Agreement and they did not sign and thumb marked the Agreement. Setting up a counter story, it was asserted that the Petitioners actually installed a tube-well in Qila No. 8/2 of the Property in order to make it cultivable. However, as the underground water was unfit for agricultural purposes, they sold the tube-well and its related articles to Respondent No. 1 for consideration of Rs. 87,000/- out of which Rs. 50,000/- was paid to them and remaining Rs. 37,000/- was promised to be paid later which is still payable. Execution of Receipt of Rs. 50,000 in this behalf was admitted. Claiming that Respondent No. 1 is an Advocate and was their counsel, the transaction regarding sale of ownership rights of the Property was denied. It was stated that the Petitioners did not have any title over the Property at the relevant time and even rules of the Revenue Department prohibited the sale of ownership rights of the Property. The price of the Property was around Rs. 200,000/- per Acre and the Petitioners were not that naive to have sold it for Rs. 300,000/- (Rs. 24,000/- per Acre approximately). The Petitioners deposited all the public dues in the Government exchequer themselves. As such, the Agreement is fake and based on fraud. 5. Respondent No. 1 was directed on 18.12.2006 to deposit the remaining sale consideration in the Court which was complied with on 09.01.2007 las depicted from Ex. P-7. Keeping in view the divergent pleadings of the parties, the trial Court framed the following issues:- 1. Whether the suit is not maintainable? OPD 2. Whether the Agreement is false and frivolous? OPD 3. Whether the plaintiff has not come to the Court with clean hands? OPD 4. Whether this Court lacks jurisdiction to try this suit? OPD 5. Whether the defendants entered into the Agreement with the plaintiff in consideration of Rs. 300,000/- and executed the Agreement on receipt of Rs. 50,000/- as earnest money? OPP 6. Whether the plaintiff is entitled to get the decree for specific performance of the Agreement along with permanent injunction as prayed for? OPP 7. Relief. 6. In order to prove the case, Respondent No. 1 himself appeared as PW-1. The scribe of the Agreement, Ch. Muhammad Yousaf Ferozpuri was produced as PW-2. Two marginal witnesses, namely, Rana Muhammad Ali Khan and Ch. Muhammad Aslam appeared as PW-4 and PW-7, respectively. PW-3, Ahsan Rasheed appeared as son of Ch. Rasheed Anwar, Advocate who was the third marginal witness. Stamp vendor, Syed Ashiq Hussain Gilani appeared as PW-5. Muhammad Zafar Iqbal, Record Keeper appeared as PW-6 and verified the stamp license of the stamp vendor. Muhammad Shakeel Ahmad appeared as PW-8 in his capacity as identifier of the parties before the registration of the Agreement. The official witnesses were also produced, namely, Shahzad Saeed, Sub Registrar as PW-9 and Maqbool Ahmad, Registry Moharrar as PW-10. In documentary
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evidence, Respondent No. 1 produced the Agreement (Ex. P-1, P-5); Receipt of Earnest Money (Ex. P- 2); Register of record of rights for the year 2002-2003 & 2006-2007 (Ex. P-3, P-4); Conveyance Deed (Ex. P-6); Receipt of payment of balance ,consideration (Ex. P-7); Khasra Girdawari from Kharif 2004 to Rabi 2007 (Ex. P-8); Application for entries of Khasra Girdawari and Rapt Roznamcha as Mark A; Application for correction of entries of Khasra Girdawari as Mark B; Applications to stop the proceedings regarding sanctioning of loan against the Property as Marks C, D & E). 7. In rebuttal, Petitioner No. 1 appeared as DW-1 and in documentary evidence, produced copy of Khasra Girdawari as Ex. D-1. 8. After hearing arguments of the parties, the Trial Court dismissed the suit of Respondent No. 1 on 17.03.2010. Feeling aggrieved, Respondent No. 1 preferred an Appeal on 02.04.2010 before the Appellate Court. During pendency of the Appeal, Respondent No. 1 filed two different applications for recording of additional evidence which were accepted and in consequence thereof, the Appellate Court vide Judgment dated 31.10.2013 set aside the Judgment and Decree dated 17.03.2010 and remanded the suit to the Trial Court for its decision afresh after recording additional evidence. The Petitioners preferred Civil Revision No. 81/2014 before this Court against the aforesaid remand order which was dismissed vide Judgment dated 25.01.2016. Accordingly, additional evidence was recorded by the Trial Court. 9. Respondent No. 1 produced Shaukat Ali, Teacher as PW-11, Altaf Hussain, Patwari as PW-12 and Muhammad Akhtar Sabir, Teacher, as PW-13. Jamabandi for the year 2010 & 2011 and documents regarding school record of Petitioner No. 2 were also tendered in documentary evidence as Ex. P-9 to P-14. However, despite having numerous opportunities, the Petitioners did not produce any evidence in rebuttal and their right to this effect was closed on 18.05.2016. As an abundant caution, Respondent No. 1 moved an application for summoning the Petitioners in person to record their evidence but they failed to avail the opportunity. Eventually, the suit was decreed by the Trial Court. The Petitioners instituted an Appeal and during its pendency, Petitioner No. 1 (Mst. Inayatan Bibi died and Petitioner No. 2 (Rasheed Ahmad) was allowed to continue sole legal heir of the former vide order dated 27.10.2016. The Appeal was dismissed on 12.09.2017. Hence, the instant Civil Revision. 10. Learned counsel for the Petitioners submitted that the impugned Judgments and Decrees are against the law and facts and are result of misreading and non-reading of evidence on record. He contended that strangely five witnesses including Respondent No. 1 and marginal witnesses were all Advocates. As such, Respondent No. 1 successfully but fraudulently got executed the Agreement within the precinct or vicinity of District Court and the Petitioners vis-a-vis lawyers could not bring the real evidence on record. Hence, this case ought to be decided on the basis of circumstantial evidence since Respondent No. 1 as lawyer of the Petitioners misused the privilege of professional advice by committing breach of fiduciary duty. He asserted that fraud is evident from the fact that the total sale consideration mentioned in the Agreement was grossly inadequate and disproportionate to prevailing market value in 2002. Petitioner No. 1 was a Parda Nashin lady and no independent advice was available to her since independent advice was that of her lawyer: who himself compromised tie cause by fraudulently entering into the Agreement. It was also claimed that the description of the Property listed in the Agreement and the plaint is not identical which demonstrates that not only Respondent No. 1 was unaware of exact location and description of the Property but also the Agreement could not be specifically enforced. Without prejudice to the same, he emphasized that specific performance of the Agreement is a discretionary relief under the Specific Relief Act, 1877 (the "SRA") and the facts, nature and circumstances of the case do not allow specific enforcement of the Agreement in view of the provisions of Sections 17, 21 and 22 of the SRA. Citing reasons, he stated that the Agreement was not enforceable in its entirety as the description of the Property in the plaint and the Agreement is inconsistent; the terms of the
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Agreement are not ascertainable with reasonable certainty; the Agreement in its nature is revocable; its performance involves performance of a duty extended over a longer period than three years; and the circumstances leading to its execution confer an unfair advantage to Respondent No. 1 over the Petitioners. To support his contentions, he placed reliance on cases titled, "Malik Tanveer Ali and another v. Sardar Ali Imam and 2 others" (2010 YLR 1799); "Mian Muhammad Saleem and others v. Mst. Hameeda Begum and others" (1987 SCMR 624); "Fida Hussain v. Jalal Khan" (NLR 2002 Civil 82); "Mat. Sajeda Mushtaq v. Federation of Pakistan through Secretary Ministry of Interior and 3 others" (2019 YLR 2364); "Rajasthan Breweries Ltd. v. The Stroh Brewery Company" (AIR 2000 Delhi 450); "Classic Motors Ltd. v. Maruti Udyog Ltd." (1997 IAD Delhi 190); "Jamahir Sao and another v. Satrughna Sonar and another" (AIR 1961 PATNA 482); and "Hameedullah and 9 others v. Headmistress, Government Girls School, Chokara, District Karak and 5 others" (1997 SCMR 855). 11. It was vehemently asserted that relationship of counsel and client was established in this case and this relationship being fiduciary in nature could not be allowed to betray the cause of the Petitioners as it gives rise to a special presumption that a person is deemed to be in a position to dominate the will of another where he holds the real or apparent authority over the other. The relationship of lawyer and client is unequal and the personal ascendancy of lawyer over client is a factor which cannot be ignored. Hence, the Agreement even if proved cannot be ordered to be performed. Reliance was placed on cases titled, "Director of Intelligence and Investigation v. Aslam Hashim Butt" (2016 CLC 1884); "Gouri Shankar Misra and Anr. v. Fakir Mohan Dash and Ors." (AIR 1989 Ori 201); "Ladli Parshad Jaiswal v. The Karnal Distillery Co., Ltd. Karnal and others" (AIR 1963 Supreme Court 1279); and "Amrit Lal C. Shah v. Ram Kumar, Advocate" (1962 AIR (Punjab) 325). 12. Learned counsel for the Petitioners while placing reliance on case titled, "Muhammad Bashir v. Gohar Naseem" (2016 YLR 565) contended that where a contract was not scribed by a licensed Deed Writer rather drafted by an Advocate, the latter could not be treated at par with the former and his deposition would have no evidentiary value for not having produced his register for examination of Court. This is specially so when the seller was illiterate person and in such an eventuality, the beneficiary of the said document was bound to establish through strong evidence that not only the document had been executed by the said person but also that such person had fully understood the contents of the document under execution. Reliance was also placed on case titled, "Syed Shabbir Hussain Shah and others v. Asghar Hussain Shah and others" (2007 SCMR 1884) to assert that in order to prove due execution of a document, mere signature or thumb impression on the document is not enough but more solid and cogent evidence must be brought on record to prove its due execution. Case titled, "Abdul Hameed v. Mst. Aisha Bibi and another" (2007 SCMR 1808) was also relied upon to assert that where a signature or thumb impression was not denied regarding a contract but its contents were denied on the basis that the signature and thumb impression were obtained on a blank paper, then mere admission of the seller regarding his thumb impression or signature on the contract is not sufficient to prove its execution and contents. Similarly, it was stated that in case titled, "Nazar Muhammad and 4 others v. Mst. Rabia Bibi and another" (2006 CLC 1444), a contract was declared to be result of fraud because it was not proved that the document was ever read over and explained to the lady prior to its execution. Learned counsel further contended that the maxim, Consensus ad idem, is squarely applicable to the facts and circumstances of the case as there was no meeting or consensus of minds between the Petitioners and Respondent No. 1 with respect to the Agreement. Reliance in this behalf was placed on cases titled, "Farzand Ali and another v. Khuda Bakhsh and others" (PLD 2015 Supreme Court 187); and "Syed Adnan Ashraf v. Syed Azhar-ud-Din through Attorney" (2014 MLD 342). He further relied upon case titled, "Nanjegowda and another v. Gangamma and others" (2012 SCMR 1246) to
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submit that benefit of part performance is not available without conclusive prove of possession which was never proved accordingly in the instant case and even today; it is not with Respondent No. 1. Learned counsel added that testimonies of the witnesses of Respondent No. 1 were not consistent with regard to the venue where the transaction was settled and as such, evidence available on record was not sufficient to prove the due execution and contents of the Agreement. Reliance was placed on the case of Muhammad Bashir (supra). As such, the transaction was not proved and even if the same is found by this Court to be proved, the specific performance of the Agreement cannot be granted. 13. Finally, it was argued that even otherwise the suit was not maintainable without deposit of the remaining consideration on the date of first appearance before the Court. It is admitted on record that a mere amount of Rs. 50,000/- was paid against Rs. 300,000/- from the alleged total sale consideration of the Property. Even this inadequate and inconceivable sale price was not paid as ordained by law. The remaining amount was not paid to demonstrate the readiness and willingness of Respondent No. 1 to perform his part of the contract. Reliance was placed upon case titled, "Hamood Mehmood v. Mst. Shabana Ishaque and others" (2017 SCMR 2022) to add that where a party sought enforcement of a contract under the SRA, it was mandatory for such party that on first appearance before the. Court or on the date of institution of the suit, it must apply to deposit the balance amount and any omission in this regard would entail to dismissal or decree of the suit. Further, in case titled, "Mst. Rehmat and others v. Mst. Zubaida Begum and others" (2021 SCMR 1534), it was held that if balance consideration was not offered or paid earlier, best time to demonstrate such readiness and willingness to perform was offering balance sale consideration at the time of filing of the suit for specific performance. In this behalf, learned counsel also relied upon cases titled, "Mst. Murshida Khatoon v. Ch. Abdul Rehman Sahi and another" (2021 MLD 15); and "Muhammad Yousaf v. Allah Ditta and others" (2021 SCMR 1241). As such, the failure on the part of Respondent No. 1 to deposit the balance sale consideration in the Court on the date of first appearance shows his inability and lack of readiness to make payment., Hence, there was no justification for the Courts below to decree the suit. 14. In rebuttal, learned counsel for Respondent No. 1 argued that there are concurrent findings of facts recorded by the Courts below and there is no occasion to interfere in such findings by this Court in exercise of revisional jurisdiction unless the same are proved to be result of misreading and non-reading of evidence on record. The scope of Revision is limited and a revisional Court may not investigate the facts or exercise its jurisdiction on the basis of facts never disclosed or relied upon before the subordinate Courts to substitute the, concurrent decisions merely because another view is possible. Reliance was placed on cases titled, "Muhammad Fareed Khan v. Muhammad Ibrahim etc." (2017 SCMR 679); "Mst. Ghulam Sakina and 6 others v. Karim Bakhsh and 7 others" (PLD 1970 Lahore 412); and "Malik Muhammad Hussain v. Saadullah Khan" (2014 CLC 311). 15. He stated that the claim of Respondent No. 1 is simple and straightforward based on a registered Agreement regarding the Property. The Petitioners did not plead in the written statement that Respondent No. 1 as an Advocate procured their signatures on blank papers and used the same for execution of the Agreement. Rather, in paragraph No. 3 of the written statement, the Petitioners claimed that they sold a tube-well to Respondent No. 1 through the Agreement and executed a receipt of Rs. 50,000/- which means that the Agreement, the contractual relationship and engagement of the Petitioners with Respondent No. 1 was admitted along with the receipt of consideration. Respondent No. 1 specifically alleged in paragraph No. 3 of the plaint that possession has been transferred to him which fact was not denied by the Petitioners in their written statement. As per Article 103 of the Qanoon-e-Shahadat Order, 1984 (the "QSO"), Respondent No. 1 as plaintiff was under a legal obligation to prove execution of the Agreement only with respect to his suit for
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specific performance. As such, Respondent No. 1 duly discharged his onus to prove the Agreement and receipt of sale consideration. According to Articles 117, 118 and 103 of the QSO, the onus to prove fraud, intimidation, undue influence, illegality, want of due execution, want of capacity, mistake or any separate oral agreement is on the person alleging the same but the Petitioners did not discharge such onus. 16. Respondent No. 1 took possession of the Property in terms of Section 53-A of the Transfer of Property Act, 1882. The Agreement was attested by marginal witnesses as required under Article 79 of the QSO. Respondent No. 1, scribe, three marginal witnesses, stamp vendor and official witnesses consistently deposed regarding various aspects of the transaction including the execution of the Agreement, the date, time and place of its execution, payment of part consideration in their presence to the Petitioners and transfer of possession of the Property to Respondent No. 1. These facts were not controverted even in cross-examination since no suggestion was put to the witnesses in this regard. A registered contract also carries a presumption of payment of consideration under Section 25 of the Contract Act, 1872. Reliance was placed on case titled, "Munawar Hussain etc. v. Amanat Ali etc." (NLR 2007 Civil 395). It was submitted that Respondent No. 1 firstly claimed possession through the Agreement and secondly, through the contents of the plaint, whereafter, the fact of possession in his favour was proved through witnesses, Khasra Girdawari and Jamabandi. The fact of possession was finally proved when Patwari (PW-12) appeared along with record and confirmed the possession of Respondent No. 1 over the Property, thereby, disproving the sole document, that is Khasra Girdawari (Ex. D-1) produced by the Petitioners. 17. Learned counsel for Respondent No. 1 added that there is no bar in the law for an Advocate to be a witness to the transaction or the Agreement. The terms, "related witness" and "interested witness" are two different concepts. A witness may be related but should not be an interested witness. In the instant case, there is no evidence on record to show that witnesses of Respondent No. 1 were interested witnesses. There is no suggestion to the effect that the Advocates were interested witnesses or they acted fraudulently or with any mala fide intention or were otherwise not trustworthy. Reliance was placed on case titled, "Abdul Rahim v. Mukhtar Ahmad and 6 others" (2001 SCMR 1488). Learned counsel also submitted that Petitioner No. 1 was not a Parda Nashin lady. He stated that Petitioners No. 1 & 2.-were related to each other as mother and son, respectively. The mother had 1/8th share and son had 7/8th share in the Property. The mother was accompanied by her educated son who was matriculate which fact was proved through production of additional evidence regarding school record and teachers of Petitioner No. 2. As such, Petitioner No. 1 had advice of her son and even brother of her husband was present when the Agreement was attested by Notary Public. Hence, the plea of Parda Nashi lady was not relevant in view of law enunciated in cases titled, "Mst. Zeeshan Zehra v. Muhammad Abdul Salam and 5 others." (2012 CLC 612); "Mst. Rahat Begum v. Syed Hashmat Ali Shah through Legal Representatives and others" (2004 CLC 1459); and "Sughran Bibi v. Mst. Aziz Begum and 4 others" (1996 SCMR 137). 18. Repelling the argument of wrong or misdescription of the Property as stated in the Agreement vis--vis the plaint, learned, counsel for Respondent No. 1 stated that the plea is belated and frivolous. In the instant case, the description of the Property is in line with that of the plaint, the Agreement, the revenue record and oral evidence on record in terms of Khewat number, Khatooni number, Lot number, Square number and Chak number. The minor discrepancies pointed out by the Petitioners are on account of the fact that due to Regulations of the Colony Department, the access land was slashed from the allotment and retained up to the subsistence holding, i.e. 100 Kanals and Conveyance Deed was executed, accordingly. Respondent No. 1 had purchased the total allotted land measuring 100 Kanals and there was never any ambiguity regarding the identity
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of the Property. Responding to the allegation of inadequacy of sale consideration, he submitted that the consideration of the Property as agreed between the parties was not inadequate and consent to the Agreement was freely given. The Property at the time of the Agreement was banjar and underground water was unfit for agricultural use. The Petitioners did not produce any proof of inadequacy of sale consideration and failed to discharge the onus of proof in this regard. He provided certified copies of mutation No. 459 dated 06.01.1999 and mutations No. 326 & 328 for the year 2002 & 2003 to demonstrate that land in the concerned revenue estate was sold for Rs. 24,860/- per Acre at the relevant time. As such, he pleaded that the impugned Judgments and Decrees are well reasoned and based on correct and true appreciation of evidence and law. 19. Arguments were heard and evidence on record was duly scrutinized with the able assistance…
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