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Petitioner: MUHAMMAD LUQMAN VS Respondent: BASHIR AHMAD
Court Name: Sindh High Court Judge(s): Wajihuddin Ahmed Title: MUHAMMAD LUQMAN vs BASHIR AHMAD Case No.: Civil Revision Application No.40 of 1989 Date of Judgment:1993-05-18 Reported As: PLD 1994 Karachi 492 Result: Revision accepted
JUDGMENT
JUDGMENT Suit No. 602 of 1981, (renumbered 695 of 1985) was instituted by the plaintiff-respondent in the Court of the learned 1st Senior Civil Judge, Karachi In the background was a transaction, reduced to writing, dated 10-3-1979 styled as a "Declaration and undertaking" (Exh. P,2), signed by defendant applicant Muhammad Luqman alone, stipulating, that the said Muhammad Luqman had "sold" the double-storey building bearing No. J-15, "J" Market Knranoi Karachi. To respondent-plaintiff Bashir Ahmad in the sum of Rs.22,000 out of which total consideration the seller had received in cash RS.5000 by way of advance. Vacant possession was undertaken to be delivered within three months of the date upon payment of the balance amount of Rs.17,000. The Declaration was witnessed by Rasheed Ahmad and M. Rafiq the latter endorsing it on 11-3-1979. The document was attested by a Notar) Public on 23-4-1979. It was the case of plaintiff Bashir Ahmad in the suit instituted on 11-2-1981, that during the referred period of three months he had arranged for the balance consideration and contacted Muhammad Luqman who avoided to receive the same on one pretext or the other. However pursuant to repeated requests Muhammad Luqman, allegedly, on 10-1-1981 agreed to complete the transaction allowing plaintiff Bashir Ahmad ten days time for "completion of necessary relevant documents" and on such assurance Bashir Ahmad took out a public notice in the issue of daily "Huriyat" of the following day (Exh. P-3). This public notice, dated 11-1-1981, stipulated the Bashir Ahmad had contracted to purchase the referred property and by way o earnest money had also paid Rs. 5,000, which being so, if any member of the public was to conclude any transaction, pertaining to the property in question he would himself be responsible for the consequences. Bashir Ahmad nex pleaded that on 20-1-1981, when Muhammad Luqman was approached wit the balance amount for completion of- the sale he refused to receive the
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amount. This occasioned the legal notice dated 21-1-1981 (Exh. P-4). Such notice, however, did not disclose that any extension of time was agreed or that any further offer of payment was made on 10-2-1981. It narrated that the balance consideration having been offered, within the period of three month aforesaid, and avoided to be received, on one pretext or the other, in such way "sufficient time had passed" but neither the deed of sale was executed no vacant possession was handed over. Fifteen days' time from the date of receipt of the notice was allowed for completion of the sale. The plaint does no indicate whether or not the above notice was replied to but, in fact, reply date 10-2-1981 was addressed (Exh.D-2, duly supported by documentary material v proof of service). The non-disclosure may not be material because the suit for specific performance was instituted on 11-2-1981, probably before the receipt of the reply. In such reply to the notice, Muhammad Luqman did not deny the transaction but urged that, before the expiry of the stipulated period of three months, Bashir Ahmad approached the said Muhammad Luqmaa with ; request for refund of the amount of Rs. 5,000 since he, as the purchaser, was unable to pay the balance due to financial difficulties. The request was accede to and the amount of Rs. 5,000 was returned in the presence of witnesses. Muhammad Luqman, entering defence, repeated the same pleas as in the above reply, denied the claim of extension of time as baseless and fabricated and put the plaintiff to strict proof. As to the newspaper publication defendant Muhammad Luqman maintained that he came to know of the same only when he was served with the summons and notices in the suit. In evidence plaintiff Bashir Ahmad examined himself and a solitary witness, one Farooq Muhajar, though in the list of witnesses, submitted from his side, no less than six persons were named. In sharp contrast to what he had averred in the plaint regarding "repeated requests", the plaintiff stated that on 1-5-1979 he called Muhammad Luqman in the presence of witnesses and offered the balance amount of consideration seeking simultaneously delivery of possession of the property whereupon, since Muhammad Luqman promised to deliver up the property in the year 1981 as "his bungalow was under construction and his children were getting education", plaintiff Bashir Ahmad, acceded to the request. He allegedly, on 10-1-1981, again contacted Muhammad Luqman who "promised to execute the final deed on the 20th of that month". Public notice, dated 11-1-1981, according to plaintiff Bashir Ahmad,. Was got issued "on the advice of the defendant". On the 20th of January, 1981, when Bashir Ahmad contacted Muhammad Luqman, again in the presence of witnesses, he refused to execute the sale-deed and insisted that the plaintiff receive back the earnest money. Thereupon, the suit was filed preceded by a legal notice. In crone-examination, Bashir Ahmad plaintiff denied that he had approached Muhammad Luqman for refund of the amount of Rs.5,000 as, allegedly, he had needed the same or that such sum, in actuality, was returned. He was asked whether he was prepared to live the matter decided on oath but replied that he was not so prepared. He stated that he did not know that Muhammad Luqman had responded to the notice of his advocate, nor was he conversant with the signature of his advocate (relevance A.D. Receipt for the reply to notice). He denied it as incorrect that he got the public notice published without the consent of Muhammad Luqman. He also denied it as incorrect that he was paid back the amount taken from him or that the transaction was terminated by mutual consent. Plaintiff's only witness, Farooq Muhajar, who was not an attesting witness to the "Declaration" of sale, maintained that he was present when on 1-5-1979, Bashir Ahmad, the plaintiff, had "approached the defendant Muhammad Luqman to accept the remaining amount of consideration and deliver the possession to him but the defendant avoided on saying that still his house was not completed in Nazimabad, therefore, he should be given some time". It would be difficult to ignore here that while the plaintiff, travelling beyond the terms of the contract, the legal notice and the plaint, for the first time in his deposition, spoke of non --completion of the defendant's "bungalow" as the cause for the alleged first extension Farooq Muhajar termed the
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property as the defendant's "house". One is not a little intrigued, therefore, by the plaintiffs version that the defendant, who was, apparently selling a quarter was to move into a "bungalow". The witness does not say whether the time, as claimed by the plaintiff in his deposition, was extended on 1-5-1979 and, if so, to what extent. It will also be noticed that whereas the plaintiff stated that he had "called" the defendant on 1-5-1979 the witness deposed that the plaintiff had "approached" the defendant on the date. The witness does not even mention as to what, if anything, transpired on 10- 1-1981, the date of the second alleged demand, though he says that the balance was tendered again on 20-1-1981, occasioning the defendant's refusal. This was albeit the fact that the witness being the neighbour of the plaintiff was, allegedly, present on "each and every stage of the transaction". Thus, in spite of all that Farooq Muhajar stated, it remains a mystery as to how, where and in whose presence the second demand, as claimed by the plaintiff, was made on 10-1-1981 from the defendant. The testimony, therefore, is inconsistent with the version of the plaintiff, self-- effacing, sketchy and even of an interested person. Being uninspiring, it is surprising that the same was not rejected even though the depositions of defendant's two witnesses were promptly discarded for less significant faults, as will be seen shortly. In defence, Muhammad Luqman examined himself and witnesses Haji Muhammad Rafiq and Abdul Rasheed. Defendant Muhammad Luqman stated that after about two and a half months of the date of the contract Bashir Ahmad approached him and stated that he wanted to cancel the transaction and that the advance amount be refunded to him whereupon such amount was returned in the presence of witness Abdul Rasheed. Defendant also stated that he was prepared to take special oath in that context. He had made reply to the legal notice, copy of which he produced (Exh.D-2) with acknowledgement (Exh.D-3). In cross-examination, he denied that any house belonging to him was under construction when the agreement was executed. No evidence in rebuttal was led by the plaintiff. He denied that Bashir Ahmad had sent the balance consideration through Farooq Muhajar to him, which he had refused. It is another matter that neither in the averments of the plaintiff nor in the deposition of the said Farooq Muhajar was it brought out that the "balance" was sent through the latter to the defendant. The defendant, on his part, reiterated that he personally returned the advance money to Bashir Ahmad. He, however, could not give the details of the date, month or year when the money was returned and the contract was cancelled but that could be on account of a multiple question being asked from him in cross-examination and want of recollection of specifics though the period of two and a half months, from the date of the transaction, the plaintiff had already mentioned in his examination-in-chief, recorded on the same date. The amount, according to him, was returned at evening time outside his house on which occasion he himself, Abdul Rasheed and Bashir Ahmad plaintiff, were present. The amount was in the shape of 100 and 50-rupee notes. He denied that he had resiled from the contract because value of the property had increased. No evidence of enhancement of value was, however, tendered from the side of the plaintiff. Defendant's witness Haji Rafiq, Mr. Muhammad Abdullah has conceded, is the same person who signed as an attesting witness to the deed confirming the transaction in the suit. The witness stated that, subsequently, he learnt from the defendant that the deed was cancelled. Bashir Ahmad plaintiff, also later told him that he had received back the amount of advance from defendant-Muhammad Luqman. In cross-examination, he stated that he was alone when Bashir Ahmad told him that he had received back the advance amount from defendant Muhammad Luqman. He knew Muhammad Luqman for the last 20 years. He had cordial relations with both the parties. He denied that he had deposed falsely. This evidence was discarded as hearsay. It is incomprehensible as to how admissions made by the parties to a witness, duly testifying, can be cancelled as mere hearsay (See Article 30, Qanun-e---Shahadat,1984), defendant's other witness, Abdul Rasheed, stated that he was a neighbour of the parties he knew about the transaction and that after two and a half months of the
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transaction Muhammad Luqman had given back the amount of Rs.5,000 in his presence to Bashir Ahmad, at the time it being stated by Muhammad Luqman that Bashir Ahmad "was not purchasing the property". Two more persons besides the parties and himself were present when the amount was returned. In cross-examination, he stated that it was 4-00 or 4-30 p.m. When the amount of Rs.5,000 was returned, which was in the shape of 100 and 50-rupee notes. Thus he corroborated the defendant, who had deposed that refund was made at evening time and in the shape of identical currency notes. He knew Muhammad Luqman for twelve or thirteen years. He used to supply vegetables to him and to the other Muhallah people. The amount was returned to Bashir Ahmad inside the house of Muhammad Luqman. Defendant in context had, however, stated that the amount was returned outside his house. He had no talk with Bashir Ahmad "for the last one month". On the basis the foregoing evidence but without duly recapitulating or and sing it. The two courts below have decreed the suit for specific performance. The appellate Court did nit even frame the points for determination, as required by Order XLI, rule 31, C.P.C. The easiest course such circumstances would here been to set aside the d eats and decrees assailed in this revision application and remanded the matter for redetermination but that will only prolong the agony of the parties. For that reason the entire, gamut of the controversy has been and will be examined here, with such results as are to follow. A great deal has been said by the trial Court about some inconsistencies in the defence evidence, which on that score has been disbelieved by it. Nothing whatever has, however, found mention about the shifting stands from the side of the plaintiff, his case being taken for granted because the defendant did not dispute the transaction. Both the Courts have relied heavily on the fact that no receipt for return of the amount of Rs.5,000 was executed, evidencing the cancellation of the agreement and the defendant's version rests totally on oral evidence. In the first place, it is settled law that a plaintiff must succeed on the strength of his own case. True that once the transaction was admitted in defence the burden to prove its rescission shifted on the defendant. The defence evidence, therefore, quite legitimately had to come up for scrutiny but that does not imply that such scrutiny was to be totally divested from the overall circumstances of the case. Those circumstances manifestly included due examination of the plaintiffs side of the story and particularly whether the plaintiff had succeeded in substantiating the various stages of the case put up in support of the claim and if not, to what extent the rule of pre-ponderance of evidence relative to rescission was satisfied. This was all the more so because specific performance is a discretionary relief and the discretion, being judicial, need not necessarily be exercised merely upon proof of an enforcible transaction. Thus there have been obvious inconsistencies in the legal notice and the averments in the plaint. The legal notice, which preceded the plaint and is the earliest version of the plaintiff, does not speak of any extension of time on 1-5-1979 or of the subsequent specific extension on 10-1-1981 or for a period of ten days ending on 20-1-1981, as brought out in Court. Out of these the alleged first extension on 1-5-1979 was not even disclosed in the plaint and for the first time surfaced in the evidence adduced from the plaintiff's side. Plaintiffs evidence itself is inconsistent on the point. While in the plaint it is said that on 10-1-1981 time was "given" to the plaintiff for a period of ten days for "completion of necessary relevant documents in respect of the disputed property", Bashir Ahmad plaintiff, contradicting, deposed in Court that it was he, who had acceded to the request of the defendant for time. Then it is stated that demands were made, from time to time, for seeking completion of sale and such were made in the presence of witnesses. Few of those witnesses, who were not named, except one, who is a neighbour of the plaintiff, have been examined. How strong the evidence of the examined witness turns out to be has already been seen in passing. It is a principle of the law of evidence that if evidence, which can be readily produced by a party, is
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withheld without good cause such evidence, had it been led, it should be presumed, would have gone against the party, withholding it. (Article 129, Illus (g),' Qanun-e-Shahadat, 1984). Likewise, the plaintiff positively deposed in Court that the public notice was taken out on the "advice" of defendant Muhammad Luqman. Not a word to this effect was said either in the legal notice despatched by the plaintiff or in the plaint. On the contrary, Muhammad Luqman in the written statement denied any knowledge of the public notice. Muhammad Luqman was not even cross- examined on the point. As it is, it would have hardly been plausible for the defendant to render such advice, more so when probably it could not in routine be translated into action the very next day in the shape of a notice in the classified columns of a well-circulated newspaper. Then, could it stand to reason that a man who was promising to make compliance on 10-1-1981, occasioning a public notice the next day on his own purported advice, would unabashedly go back so soon on the agreed date fixed for satisfaction viz. 20-1-1981 ? These were serious matters but no note whatever thereof was taken at any level. A crucial aspect of the matter emerging in consequence, which also was totally ignored by the two Courts below, was the period from 9-6-1979 (end of three months) and at least up to 10-1-1981 during which time. As per plaint, requests were made and specific performance was avoided. According to the defendant's version, the matter had been sorted out and the contract was terminated within the stipulated period of three months commencing from 10-3-1979. If that was not so and if defendant Muhammad Luqman was indulging in persistent evasiveness before the date of the legal notice there would have been some correspondence and some evidence, if not written at least of an oral character. Indeed, in evidence, the version of the plaintiff underwent a radical change in comparison to what was alleged in the legal notice dated 21-1-981 and averred in the plaint, submitted on 11-2-1981. There, it was maintained that the time of performance was extended as early as on 1-5-1979 though for how long, the matter Was left to remain non--specific. Thereafter, when the next offer was made, after a year and a half, on 10-1-1981, prompt compliance (within 10 days) was promised by the defendant, yet somehow occasioning issuance of an immediate publication (on the defendant's own advice) by the plaintiff. The plaintiff finally encountered refusal on 20-1-1981, which gave rise to an immediate legal notice on 21-1-1981 and the suit itself within a matter of days. Can any one believe such a convenient story, even if it did not involve the various contradictions noted elsewhere? Reverting, while there is little trustworthy evidence from the side of the plaintiff there are at least two witnesses, who were examined in support of the defendant's version, one of them has been conceded to be an attesting witness at the bar before me. This was a witness, on such premise, not only of the transaction itself but also of what happened subsequent to the transaction. He referred to the admissions made to him by both the parties. This evidence could not be rejected on the basis of some small inconsistencies. After all witnesses are not parties to the proceedings and cannot be expected to remember each and every detail of acts, events or transactions with which they may not have been even remotely concerned. This should be more so when depositions come to be recorded after a good deal of time has gone by since the act, event or transaction took place regarding which the witnesses are deposing. In this case all the defence evidence was recorded on 14-2-1987 whereas the contract stood concluded on 10-3-1979. This applies equally to the other witness examined by the defendant. That witness namely, Abdul Rasheed has deposed about the refund having taken place in his presence. He has corroborated the defendant in material particulars as to the point of time namely, an evening two and a half months from the date of the transaction. He has also corroborated the evidence with regard to the specific currency notes, which passed hands at the time. One of the contradictions noted in his evidence is about the location. Muhammad Luqman said that such transpired outside his house when this witness stated that the event took place in the house of Muhammad Luqman. The deposition of the witnesses
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must have been translated in English before being transcribed. Thus if one were to say: " the translated version in English could well be that the amount was paid "in" or "at" the house of Muhammad Luqman. The translated versions of "inside" or "outside" the house having the same or similar connotations may not thus have been of any particular significance unless the two apparently conflicting versions were expressly brought to the notice of each witness testifying before the Court. This was not done. The witness has been branded also as a chance witness because he was merely supplying' vegetables to the defendant and the Muhallah people. What was ignored was that the witness in addition, claimed also to be a neighbour of the parties. His presence, therefore, could be duly accounted for. It was emphasised in the trial Court that the witness stated that at the time refund of Rs.5,000 was made, in his presence, there were apart from the parties, two other persons present. The defendant himself, however, maintained that there were only the two parties and witness Abdul Rasheed. This was no doubt a serious contradiction and made the testimony suspect. Still, could all the evidence, circumstantial and oral, supportive of the defence, be given the go-by on the account ? Perhaps not. In civil matters the rule of preponderance of evidence prevails. Thus, on the one hand, there were shifting stands of the plaintiff, as highlighted above, and then the plaintiff demonstrably failed to explain the lapse of the period between 9-6-1979 (end of the stipulated three months) and 10-1- 1981, the crucial date according to plaintiff's own averments. On top of it all, he declined to take or suffer an oath as to the alleged refund, though repeatedly challenged. An attesting witness to the deed affirmed that refund was admitted by the plaintiff to him. Another witness said that the refund came about in his presence. If no refund was made and if the plaintiff failed to explain the time lag between 9-6-1979 and the date of suit, which on evidence, including circumstantial, he failed to do, what was he doing during all that period ? If remaining unaccounted for would not all such period be corroborative of the defendant's stand that the deal stood rescinded shortly after its being struck, upon refund being made? It may be added here that law does not require that a written contract can only be rescinded in writing, as the Courts below seem to think. A written contract, subject to some exceptions, which are not attracted here, can with equal efficacy be terminated orally: proviso (4) to Article 103 of Qanun-e- V Shahadat, 1984. All that, in such situations, has' to assure is whether the evidence, oral and circumstantial, proves the rescission. Now we may turn to the transaction itself. It is a Declaration of Sale, inscribed on a Rs. 25 stamp paper (+ Rs. 5 adhesive)', where the seller expressly stipulates that he has "sold" the property in question. He undertakes to 'deliver possession in three months' time. No further documentation is contemplated in the deed. Value of the property is manifestly more than Rs.100, making the relative disposition compulsorily registrable. The document thus neither bears the requisite stamps nor is it registered, as mandated by section 17 of the Registration Act and section 54 of the Transfer of Property Act, 1882. The instrument should, therefore, have been impounded for insufficiency of stamps and could not be admitted in evidence. This was the effect of sections 33 and 35 of the Stamp Act. However, in view of section 36 in the, same Act, nothing can be done at this stage. Such section, once an under stamped or unstamped instrument is admitted in evidence, precludes any controversy on the point except to the extent permitted by section 61. As to non-registration, the consequence is in contemplation of section 49 of the Registration Act, 1908, and such is that a document required to be registered under the Act, but falling short of the requirement, shall not "operate to create, declare, assign, limit or extinguish, in present or in future, any right, title or interest, whether vested or contingent, to or in immovable property". The section is a comparatively recent induction on the statute book in virtue of the Registration (Amendment) Ordinance, 1962, which replaces its erstwhile precursor in the principal Act of 1908. For comparison and analysis the two versions are reproduced below:--
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SECTION 49 OF THE REGISTRATION ACT AS IT STOOD BEFORE THE AMENDMENT OF 1962 Effect of non-registration49. No document required by of documents required tosection 17 or by any provision of the be registered Transfer of Property Act. 1882 to be registered shall -- (a)affect any immovable property comprised therein,…
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