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Petitioner: Muhammad Tariq VS Respondent: Mrs. Marrium Sial and another
Court Name: Islamabad High Court Judge(s): Babar Sattar Title: Muhammad Tariq vs Mrs. Marrium Sial and another Case No.: Civil Revision No.169 of 2015 Date of Judgment:2022-10-21 Reported As: 2023 CLC 1107 Result: Revision Petition allowed
JUDGMENT
JUDGMENT BABAR SATTAR, J. The petitioner is aggrieved by judgment and decree passed in appeal by the learned Additional District Court dated 11.04.2015 by which the petitioner's suit for specific performance was dismissed and the judgment and decree passed by the learned Senior Civil Judge dated 20.04.2011 ordering the specific performance of agreement dated 13.01.2003 was set aside. 2. The petitioner entered into a sale agreement ("Agreement") with respondent No.1 ("Seller") dated 13.01.2003 for purchase of Plot No.213, Sector 1-16/4, Islamabad for a total sale consideration of Rs.450,000/- (Rupees four hundred and fifty thousand). He claimed to have paid Rs.100,000/- in cash as earnest money at the time of execution of the Agreement. The balance consideration was payable within a period of four weeks. On 21.01.2003 the mother of the Seller called the petitioner to the MNA hostel where she was staying and asked him to bring along the original Agreement so that she could have her nephew take a look at it. The petitioner arrived at Family Suit No.05, MNA Hostel, Islamabad on 13.01.2003 and handed the original Agreement to the Seller's mother. The Seller and her mother retained the Agreement and refused to hand it back. The petitioner went straight to the police station and filed a complaint dated 21.01.2003. He subsequently issued a legal notice to the Seller as well. Upon failure of the Seller to abide by her obligations under the Agreement he filed a civil suit. The learned Civil Court framed the following Issues by order dated 20.12.2003: ISSUES: i. Whether the plaintiff is entitled to decree for specific performance of the sale agreement dated 13.01.2003 and permanent injunction as prayed for? OPP
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ii. Whether the suit is not maintainable? OPD iii. Whether the suit is barred by law? OPD iv. Whether the plaintiff has not come to the court with clean hands? OPD v. Whether the suit is frivolous and vexatious and defendants are entitled to special costs under Section 35-A, C.P.C? OPD vi. Relief. 3. The petitioner and Seller adduced evidence in support of their claims. Respondent No.2 (i.e. CDA) did not adduce evidence and its right to adduce evidence was closed on 25.02.2011. The petitioner attached with his plaint a copy of the Agreement the specific performance of which was sought. It was stated in the plaint that the original Agreement had been illegally retained by the Seller, in relation to which a police compliant had been registered, which was adduced as Exh.P2. A copy of the Agreement was included in the Court record as Mark-A. The petitioner also adduced a receipt on the letter head of PW-2 stating that the petitioner would pay Rs.50,000/- at the time of issuance of stamp paper and such acknowledgement receipt was signed by the Seller and also by Mr. Tanvir Ahmad Hashmi who appeared as PW-3. PW-2 as well as PW-3 deposed that the petitioner had paid the Seller Rs.100,000/- in cash at the time of execution of the Agreement. The Seller appeared as DW-1 and simply denied the execution of the Agreement. During cross-examination she was confronted with a copy of the Agreement (Mark-A) and asked if the signature affixed on it as a witness was that of her mother Mrs. Iqbal Sial. She denied such suggestion and claimed that she ever met with the petitioner at the MNA hostel. She however acknowledged having received a legal notice from the counsel for the petitioner placed on record as Mark-B. She adduced no evidence to counter the petitioner's claim. In view of such evidence the learned Civil Court found that the petitioner had succeeded in proving the execution of the Agreement and the transaction contemplated therein. It noted that the testimony by the three plaintiff's witnesses had not been rebutted by the Seller. In view of the acknowledgment receipt (Exh.P1) the Court found that the petitioner had proved payment of Rs.50,000/- by the petitioner to the Seller as earnest money. As the petitioner had already deposited Rs.3,50,000/- with the learned Civil Court, it found that the petitioner was liable to pay a further amount of Rs.50,000/- and decreed the suit. The petitioner deposited the said amount Rs.50,000/- with the Court. 4. The Seller impugned the judgment and decree of the learned Civil Court. The learned Additional District Court concluded that even though the Seller had not cross-examined the PWs produced by the petitioner, the petitioner remained under an obligation to prove the Agreement in accordance with law. It noted that the Agreement was a marked document and not an exhibit and that the petitioner had produced a photocopy of such document without permission of the Court under provision of the Qanun-e-Shahadat Order, 1984, ("QSO"). It was further held that the Agreement had not been proved in accordance with requirements of Article 79 of the QSO as the petitioner had only produced one witness to such Agreement. The learned Additional District Court thus concluded that the petitioner had failed to prove the execution of the Agreement and the transaction contemplated therein. On the question of whether the acknowledgment receipt (Exh.P1) supported the case of the petitioner, the learned Appellate Court found that the signature of the Seller on the acknowledgment receipt when compared to that on the written statement and vakalatnama appeared similar. But that the pleadings in the suit were silent in relation to the content of the acknowledgment receipt (Exh.P1). It held that an explicit reference ought to have been made to the acknowledgement receipt (Exh.P1) in the plaint if it was a document signed before the execution of the Agreement. It thus found that the transaction contemplated in the acknowledgment receipt had also not been proved and set aside the judgment and decree of the learned Civil Court.
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5. The learned counsel for the petitioner submitted that the learned Civil Court had correctly appreciated the evidence adduced before it. The petitioner together with two other witnesses to the execution of the Agreement had testified as such and had confirmed the handing over of Rs.100,000/- as earnest money by the petitioner to the Seller. That such testimony had not been rebutted by the Seller. And that one such witness (i.e. PW-2) was also a marginal witness to the Agreement. The second marginal witness was the mother of the Seller, who never appeared before the Court even in order to support the story of the Seller. The Appellate Court failed to take into account that the petitioner had proved both the execution of the Agreement as well as payment of earnest money on a balance of probabilities. The learned Appellate Court also failed to take into account the fact that the original Agreement could not be produced and exhibited as it had been snatched away by the Seller and her mother, which fact was specifically pleaded in the plaint and also supported by the complaint filed by the petitioner with police authorities on the date of such incident i.e. 21.01.2003. He submitted that requirements of QSO had been complied with and Article 76 of QSO contemplated that secondary evidence could be given in relation to a document which is not available with a claimant. The learned Appellate Court itself observed in the impugned judgment that the signature of the Seller on the acknowledgement receipt (Exh.P1) and on the vakalatnama and pleadings filed by her were similar. The Seller also acknowledged receipt of legal notice (Exh.P2) sent by the petitioner. The complaint filed by the petitioner against the Seller on the date on which the Agreement was snatched by mother of the Seller was on record. And the testimony of three plaintiff's witnesses supported the content of the plaint and the petitioner's claim that the Agreement had been executed and advance consideration in the amount of Rs.100,000/- had been paid to the Seller and the Agreement had subsequently been snatched away by the Seller and her mother. There was thus sufficient evidence to establish on a balance of probabilities that the petitioner had proved his case. In support of his submissions he relied on Arbab Tasleem v. The State (PLD 2010 SC 642), Mst. Zareena and 5 others v. Syeda Fatima Bibi (PLD 1995 Karachi 388), Khalid Hussain and others v. Nazir Ahmad and others (2021 SCMR 1986), Dawood Foundation through Chairman and another v. Ghulam Hasan and another (2016 CLC Note 25), Mst. Farida Bano v. Karachi Electric Supply Corporation through Managing Director (2008 MLD 62), Allah Dad v. S.M. Khan (1989 CLC 2287) and Mohammad Mohsin Malik v. Mst. Qamar Jehan and 2 others (2009 YLR 289). 6. Learned counsel for the respondent submitted that it was the petitioner's obligation to prove his claim in accordance with provisions of QSO, which he had failed to do. Under Article 79 of the QSO it was necessary to produce two attesting witnesses to prove a document, which the petitioner had failed to do as he had produced only one witness. The petitioner had also not produced the stamp vender who issued the stamp paper for purposes of the Agreement or the scribe who prepared the necessary documentation. He submitted that the police report (Exh.P2) regarding the snatching of the Agreement proved nothing. A copy of the Agreement had been included in the case record as Mark-A but there was no provision in the Civil Procedure Code (C.P.C.) for treating a marked document as part of evidence. The Appellate Court had correctly appreciated the fact that the acknowledgment receipt (Exh.P1) was not part of the pleadings and, the plaint. The Seller was not confronted with the copy of the Agreement during cross-examination. The requirements for producing secondary evidence in support of the Agreement under Article 76 and 77 of QSO had not been complied with. And as the Seller (DW-1) had denied the execution of the Agreement or having given her consent to the transaction contemplated in the Agreement, the onus to prove the same was on the petitioner, which he failed to discharge and the learned Appellate Court correctly set aside the judgment and decree passed by the learned Civil Court and dismissed the petitioner's suit. In support of his submissions he relied on Syed Shabbir Hussain Shah v. Asghar Hussain Shah and others (2007 SCMR 1884), Ghulam Ali Shah and others v. Mohammad Khalid and
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others (2017 SCMR 1849), Farid Bakhsh v. Jind Wadda and others (2015 SCMR 1044), Mst. Nagina Begum v. Mst. Tahzim Akhtar and others (2009 SCMR 623), Shah Mohammad through L.Rs. and 4 others v. Nawab Din (2006 MLD 823), Imam Din and 4 others v. Meraj Din and others (2003 MLD 329), Ghulam Nazak v. ZTBL through Manager and another (2007 CLD 667), Mohammad Rafique and 7 others v. Noor Ahmad (2007 MLD 1554), Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 SC 187), Province of Punjab through Secretary, Irrigation and Power Department, P.W.D., Secretariat Old Anarkali, Lahore and 3 others v. Ch. Mehraj Din & Co. through Proprietor (2003 CLC 504), Ghulam Nabi v. Mohammad Yusuf and 2 others (1993 CLC 314), State Life Insurance Corporation of Pakistan and another v. Javaid Iqbal (2011 SCMR 1013), Mst. Rasheeda Begum and others y. Mohammad Yousaf and others (2002 SCMR 1089), Mst. Sakina Bibi and another v. Mohammad Anwar alias Mujahid and others (PLD 2007 Lahore 254), Rafaqat Ali and. others v. Mst. Jamshed Bibi and others (2007 SCMR 1076) and Ashiq Hussain and 5 others v. Anjuman Islamia, Kamalia Regd. through Mohammad Amin and others (2007 CLC 71). 7. Let us first consider the pleadings and evidence of the petitioner. Para 03 of the plaint stated that out of the total sale consideration Rs.450,000/-, Rs.100,000/- was paid in cash at the time of execution of the Agreement and the balance consideration was to be paid at the time of transfer within four weeks of the execution of the Agreement. Para 05 provides details of how the mother of the Seller summoned the petitioner and procured the original Agreement that was fraudulently seized and not returned. Para 07 states that the incident was immediately reported to the police on 21.01.2003 and recorded in the Roznamcha of the police station. Para 09 states that a legal notice dated 24.01.2003 was served on the Seller. 8. In support of the claim in the plaint the petitioner (PW-1) reiterated his claim and produced a copy of the Agreement which was marked as Mark-A by the learned Civil Court. The petitioner testified that he had paid Rs.100,000f- as earnest money, Rs.50,000/- of which was paid through Ejaz Hussain Shah (property dealer), and stated that the receipt was acknowledged by the Seller in the form of Exh.P1. He also produced a copy of the legal notice referred to in the plaint which was marked as Mark-B. PW-2 supported the claim of the petitioner and confirmed that an amount of Rs.100,000/- was paid by the petitioner to the Seller at the time of execution of the Agreement and a receipt in the amount of Rs.50,000/- was a signed acknowledgment receipt (Exh.P1) issued by him. He acknowledged the execution of the Agreement in his presence and payment of initial consideration in the amount of Rs.100,000/-. PW-3 testified that he was the real estate agent who connected the petitioner to the Seller through PW-2, who was the real estate agent for the Seller. He testified that he witnessed the payment of Rs.100,000/- as earnest money by the petitioner to the Seller. The Seller called PW-2 on 21.01.2003 requesting that the petitioner bring the original Agreement so it can be shown to a relative of the Seller and that he communicated that message to the petitioner. He then went along with the petitioner to the MNA hostel where the Seller was residing. And after being handed the original Agreement, the mother of the Seller refused to hand it back to the petitioner, after which he accompanied the petitioner to the police station for filing of a complaint in this regard on 21.01.2003. Cross-examination of DW-1 reflects that she was confronted with the copy of the Agreement (Mark-A) and was asked whether the signature in the signature block for a witness (immediately above her own signature) was that of her mother, which she denied. She was also asked about the legal notice served by the petitioner (marked as Mark-B by the learned Civil Court), which she acknowledged as having received. 9. What emerges from the evidence adduced is that the petitioner included a copy of the Agreement in the documents appended to the plaint, in view of which the learned Civil Court issued an injunctive order while making a note in its order dated 20.12.2003 that the copy of the Agreement was presented before the Court. It was the petitioner's claim that the original
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Agreement has been snatched away by the Seller, which claim was mentioned in the plaint and supported by a police complaint filed by the petitioner dated 21.03.2003 and produced as Exh.P2. The petitioner himself produced a copy of the Agreement during his own testimony. The Seller was also confronted with the copy of the Agreement when she appeared in the witness box as DW-1 and she was asked if she recognized the signature of her mother on the Agreement in the signature block as a witness. 10. In view of the above, it is obvious that the petitioner as an executant of the Agreement presented a copy of the same while stating that the Seller had illegally seized the original and the Seller as DW-1 was confronted with a copy of the Agreement during cross-examination. The second fact that emerges is that PW-2 was the real estate agent in touch with the Seller and PW-3 was the petitioner's real estate agent at the time of the transaction that formed the subject matter of the Agreement. PW-2 issued a receipt, as is customary on part of the agent of the seller, which documented the proposed transaction and noted that Rs.50,000/- was to be paid at the time of issuance of stamp paper for the Agreement. This receipt was issued on 10.01.2003 and was signed by the Seller as well as the petitioner's real estate agent (i.e. PW-3). The Agreement was then executed on 13.01.2003 and was signed by the petitioner and the Seller, and by PW-2 and the mother of the Seller as marginal witnesses. Perusal of the signature of Seller on the copy of the Agreement (Mark-A), acknowledgement receipt (Exh.P1), and written statement and vakalatnama filed on behalf of the Seller reflects that the signature of the Seller on all these documents are identical as also noted by the learned Appellate Court in the impugned judgment. The testimonies of PW-1, PW-2 and PW-3 were not contested by the Seller and remained un-rebutted. Consequently what we have is the testimony of the petitioner as the purchaser and executant of the Agreement, one marginal witness of the Agreement (PW-2), who is also witness to payment of Rs.100,000/- as earnest money to the Seller (including Rs.50,000/- through him in lieu of which he issued the acknowledgment receipt (Exh.P1)), and PW-3 who was the real estate agent for the petitioner and a witness to the execution of the Agreement (even though he was not a marginal witness), signatory to the acknowledgment receipt (Exh.P1), witness to payment of earnest money in the amount of Rs.100,000/- by the petitioner to the Seller, and witness to the sequence of events through which the original Agreement was wrestled away by the Seller and her mother from the petitioner, as well as a witness to the filing of police complaint by the petitioner against the Seller in relation to illegal seizing of the Agreement. 11. In view of the above evidence this Court is of the view that the learned Civil Court had correctly appreciated the evidence and concluded that the petitioner had succeeded in establishing, on a balance of probabilities, the execution and content of the Agreement, the payment of consideration in the amount of Rs.100,000/- as earnest money as well as the illegal procurement of the original Agreement by the Seller from the petitioner. The learned Appellate Court without appreciating all aspects of the evidence adduced and the standard of proof required in support of a civil claim (i.e. balance of probabilities), took' a very technical view of provisions of the QSO to conclude that the Agreement had not been proved by the petitioner. The only fact that the learned Civil Court appears not to have appreciated correctly was evidence supporting the petitioner's contention that he paid earnest money in lieu of sale consideration in the amount of Rs.100,000/- and not Rs.50,000/-. The pleadings in the plaint and the testimony of PW-1 was that he had paid the amount of Rs.100,000/- as earnest money. PW-3 also testified to the same effect. PW-2 further testified that the total amount paid at the time of execution of the Agreement was Rs.100,000/- and that acknowledgment receipt (Exh.P1) in the amount of Rs.50,000/- had been issued by him at the time of the transaction forming the subject matter of the Agreement had been agreed in principle. In view of the evidence in the form of deposition by PW-1, PW-2 and PW-3, the payment in the amount of Rs.100,000/- stood proved. While Rs.50,000/- out of a total payment of Rs.100,000/- was
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acknowledged in the acknowledgment receipt (Exh.P1), the same had been explained in the testimony of PW-2. Consequently, the learned Civil Court erred when it concluded that only an amount of Rs.50,000/- had been paid by the petitioner to the Seller as earnest money as that was the amount in relation to which the acknowledgment receipt Exh.P1 was issued by PW-2. In reaching such conclusion the learned Civil Court did not appreciate the sequence of the transaction and the practice of handing over a certain sum to the real estate agent by a purchaser when he/she seeks to make a serious offer for purchase of immoveable property together with agreement to make further payment at various stages of the transaction. The learned Civil Court, while accepting the testimonies of PW-2 and PW-3 and holding that acknowledgment receipt (Exh.P1) stood proved, erred in directing the petitioner to deposit a further sum of Rs.50,000/- as a condition for ordering the specific performance of the agreement. 12. Let us take into account the relevant provisions of QSO. Article 2(4) of the QSO states the following: "A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists" This provision encapsulates the standard of proof in civil matters i.e. on a balance of probabilities. In view of the sum total of the evidence adduced, a Court is to determine the claim on a balance of probabilities. In other words, a Court is to take into account the pleadings of parties, the testimonies of witnesses, and the documentary evidence before it to determine whether a prudent man would conclude, on the balance of probability, that the claim is supported by facts. Article 59 of QSO entitles the Court to seek opinion of experts and contemplates therein seeking of expert opinion in relation to handwriting and thumb impression etc. The learned Civil Court as well as the learned Appellate Court could have sought an expert opinion in relation to the signature of the Seller as affixed on the copy of the Agreement (Mark-A), acknowledgement receipt (Exh.P1) and the pleadings of the Seller and her vakalatnama as filed before the Court. This was not done. However, the Court can also compare signatures itself to determine if they belong to the person they have been ascribed to under Article 84 of QSO. This was done by the learned Appellate Court which then noted in the impugned judgment that the signature of the Seller as affixed on the acknowledgment receipt was the same as that on the vakalatnama and the pleadings tiled before the Court. In this view of the matter the learned Appellate Court disbelieved the testimony of the Seller as DW-1 where she denied signing the acknowledgment receipt (Exh.Pl). 13. Learned counsel for the respondent made two basic legal arguments. One, in order for an agreement for the sale of immoveable property to be enforceable, such agreement must be executed by at least two attesting witnesses for it to be provable in view of Article 17(2)(a) of the QSO. And two, that without the production of two male witnesses an agreement cannot be proved in view of Article 79 of the QSO. The other legal submissions by the learned counsel for the respondent were that secondary evidence can only be produced with the permission of Court subject to satisfaction of the requirements under Article 77 of the QSO, and a document which is not exhibited and only marked cannot be read in evidence. Let us address the aforementioned arguments. 14. Even though the Court is a neutral arbiter of the law and facts, in a dispute between contesting parties it is not a disinterested bystander. The Court is under an obligation to play an active role to determine the truth of the matter brought before it while passing judgment on the validity of the claim before it. To dispense justice in accordance with law is ultimately the responsibility of a Court. And while the Court cannot fill any lacuna in the claim of the party or relax the obligation of a party to discharge its burden of proof, the Court is under an obligation to ascertain the truth of claims made before it by contesting parties. It is for such purpose that under the CPC as well as the QSO
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ample authority has been vested in the Court to require the contesting parties to clarify their positions, to summon essential witnesses as Court witnesses and to seek expert opinion where required. A Court sitting in judgment over rival claims ought to exercise such power proactively in order to determine the truth in the controversy before it and dispense justice in accordance with law. 15. A Court is required to decide a civil claim on the balance of probabilities. It is the Court that is the ultimate judge of sufficient evidence to determine whether or not a claim has been proved on a balance of probabilities. It is in this context that the Court is under an obligation to take a holistic view of the pleadings and the evidence adduced before it. This scheme does not change even in relation to a suit for specific performance in which grant of relief is discretionary. The discretion vested in the Court is to be exercised in accordance with requirement of fairness. The discretionary nature of the relief of specific performance does not change the fact that in…
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