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Petitioner: RIAZUR RAHMAN and others VS Respondent: MUHAMMAD URS
Court Name: Sindh High Court Judge(s): Muhammad Mujeebullah Siddiqui Title: RIAZUR RAHMAN and others vs MUHAMMAD URS Case No.: Revision Application No.68 of 1996 Date of Judgment:2005-05-10 Reported As: 2005 MLD 1954 Result: Appeal allowed
JUDGMENT
JUDGMENT ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---This Revision Application is directed against the judgment and decree dated 31-3-1996, and 4-4-1996 respectively, passed by the learned IIIrd Additional District Judge Nawabshah, whereby he allowed Civil Appeal No.45 of 1995, thereby setting aside judgment and decree dated 5-10-1995 and 16-10-1995 respectively, passed by the learned Ilnd Senior Civil Judge Nawabshah dismissing F.C. Suit No.77 of 1985. 2. The relevant facts are that respondent Muhammad Urs filed suit for specific performance of contract cancellation of documents and injunction seeking the following relief:-- "a. Decree for specific performance be passed in favour of the plaintiff, whereby the defendants Nos.1 to 8 to execute and get registered final sale-deed in respect of the suit property in favour of the plaintiff and in case of their failure, the contract be specifically performed by the Honourable Court through the Nazir. b. The sale-deed/transaction in respect of the suit property made by defendants Nos.1 to 8 in favour of defendants No.10 be ordered to be cancelled and such intimation be sent to the Sub- Registrar, Nawabshah, City Surveyor, Nawabshah and other concerned offices for carrying out necessary entries in their record. c. Injunction to issue whereby the defendants be restrained permanently from disturbing the possession of the plaintiff over suit property or alienate it by way of sale, gift, mortgage or in any other mode of transfer to any other person, directly or indirectly, by themselves or through their agents, associates or by any other means. d. The costs of the suit be awarded to the plaintiff against the defendants. e. Any other relief, which the Honourable Court deems fit and equitable in the circumstances of the case be also granted to the plaintiff."
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3. It was alleged in the plaint that property bearing Survey No.300/2 admcasuring 29-7 square yards was owned by late Dr. Chaudhry Azizur Rehman, the predecessor of applicants Nos.1 to 8. He entered into an agreement with the plaintiff/respondent Muhammad Urs to sell the suit property to him but a litigation was pending between him and Abdul Qayoom, predecessor-in-interest of respondents No.10(a) to 10(f) before the High Court, therefore, late Dr. Chaudhry Azizur Rehman got executed a rent agreement also from the respondent and presented the same in the High Court. Due to the execution of two different agreements legal complications arose therefore, in order to avoid the legal complications late Dr. Chaudhry Azizur Rehman executed another agreement to sell on 6-2-1978 in favour of the respondent, making reference to the previous agreements and containing the same terms and conditions. In pursuance of the agreement dated 6-2-1978 the total sale consideration of the suit property was fixed at Rs.12,000, out of which late Dr. Chaudhry Azizur Rehman acknowledged receipt of Rs.10500 from respondent. In pursuance of the sale agreement the possession of the respondent over the suit property was also acknowledged as purchaser. It was stipulated that late Dr. Chaudhry Azizur Rehman will execute and get registered the final sale-deed in respect of the suit property in favour of the respondent on final conclusion of the litigation between him and the predecessor of respondents Nos.l0(a) to 10(f). After taking over the possession of property as purchaser the respondent started running business in the suit property. Late Dr. Chaudhry Azizur Rehman kept the respondent on hopes for execution of the sale- deed but unfortunately he died and could not execute the sale-deed. After his death the respondent approached his successors who also kept him on hopes. The respondent came to know that applicants Nos.1 to 8 in collusion with applicant No.9 sold the suit property to applicant No.10. Whereafter the respondent filed the suit. The defendant/applicant No.10 Abdul Qayoom filed the written statement denying the execution of sale agreement between respondent and late Dr. Chaudhry Azizur Rehman. Rest of the applicants did not file written statement. It was alleged that the agreement dated 6-2-1978 purported to have been executed by late Dr. Chaudhry Azizur Rehman does not bear his signature and was a forged agreement. 4. On the pleadings of the parties the following issues were framed:-- "(1) Whether the predecessor of defendants Nos.1 to 8 had entered into agreement of sale with the plaintiff and received Rs.10,500 from plaintiff towards sale price? (2) Whether the agreement dated 6-2-1978 is a forged one and does not bear signature of Dr. Azizur Rehman? (3) Whether the defendant No.9 is tenant of the premises in dispute? (4) Whether the plaintiff is in possession of the disputed premises? If so in what capacity. (5) Whether the plaintiff is entitled to the relief sought for? (6) What should the decree be? 5. The respondent/plaintiff examined himself at trial and produced the agreement dated 6-2-1978 Exh.82 and P.W. Ghulam Qadir Exh.86 and Karim Bux Exh.87. Applicant No.10 Abdul Qayoom examined himself Exh.106 and produced photostat copy of agreement of sale Exh.107, original sale- deed Exh.114 and other documents. He also examined D.W. Karamat Exh.121, D.W. Gul Muhammad alias Gullan Exh.122 (applicant No.9), D.W. Saifur Rehman (one of the legal heirs of late Dr. Chaudhry Azizur Rehman) Exh.125. The learned trial Court dismissed the suit. The respondent preferred appeal bearing No.31 of 1991, which was allowed and the judgment and decree passed by the trial Court were set aside and the suit was remanded to the trial Court with direction to recast the issues while adding the issue regarding limitation and non-maintainability of the suit. On remand the trial Court recasted the issues as follows:-- "(1) Whether the suit is maintainable under law? (2) Whether the suit is time-barred?
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(3) Whether the predecessor of defendants Nos.1 to 8 had entered into agreement of sale with the plaintiff and received Rs.10,500 from plaintiff towards sale price? (4) Whether the agreement dated 6-2-1978 is a forged one and does not bear signature of Dr. Azizur Rehman? (5) Whether the defendant No.9 is tenant of the premises in dispute? (6) Whether the plaintiff is in possession of the disputed premises? If so in what capacity? (7) Whether the plaintiff is entitled to the relief sought for? (8) What should the decree be?" 6. The parties did not lead any further evidence and the trial Court decided the above issues as follows:-- "FINDINGS. 1. Issue No.1. Negative. 2. Issue No.2. Affirmative. 3. Issue No.3. Negative 4. Issue No.4. Affirmative. 5. Issue No.5. Affirmative. 6. Issue No.6. Negative 7. Issue No.7. Negative 8. Issue No.S. Suit dismissed with no orders as to costs." 7. The learned trial Court while deciding Issues Nos.3 and 4 observed that the plaintiff/respondent examined himself and produced the sale agreement dated 6-2-1978. It was further observed that P. Ws. Ghulam Qadir and Karim Bux were examined as attesting witnesses. Ghulam Qadir Khaskheli was caste fellow of the' respondent who stated in cross-examination that attesting witnesses were Karim Bux and Ali Nawaz. The learned trial Court held that the respondent was not able to prove the execution of sale agreement by late Dr. Chaudhry Azizur Rehman and consequently held that late Dr. Chaudhry Azizur Rehman did not execute agreement of sale and the document produced was forged. 8. The respondent feeling aggrieved preferred 1st appeal. The learned 1st Appellate Court held that the judgment delivered by the trial Court was not sustainable in law for the reason that joint findings were given on several issues, which were violative of the directions given by the 1st Appellate Court in the first round of litigation. The learned Additional District Judge gave finding on Issues Nos.3 and 4 also, which is mainly the subject-matter of the present revision. The learned 1st Appellate Court decided the Issue No.3 in favour of the respondent/plaintiff for the reason that he examined himself and scribe of the sale agreement as well as attesting witness Karim Bux who have supported hint The issue No.4 was also decided in favour of the respondent/plaintiff on the basis of finding on Issue No.3 and for the reason that the applicant failed to prove that the sale agreement dated 6-2-1978 was forged. The 1st Appellate Court ultimately allowed the appeal, decreed the suit and set aside the judgment and decree passed by the trial Court. 9. Feeling aggrieved the applicants/defendant have filed this revision application. - 10. I have heard Mr. Jhamat Jethanand, learned counsel for the applicants and Mr. Aijaz Ali Hakro, learned counsel for the respondent. 11. Mr. Jhamat Jethanand has mainly argued that the burden of proving the agreement dated 6-2- 1978 lay squarely on the respondent. The depositions of the respondent and his witnesses were recorded on 18-4-1989, after promulgation of the Qanun-e-Shahadat Order, 1984. The law of evidence is adjective/procedural law and has retrospective effect. The sale agreement dated 6-2- 1978 was allegedly signed by two attesting witnesses in addition to the parties and the scribe Ghulam Qadir. Under Article 79 of the Qanun-e-Shahadat Order, 1984 the respondent was required to produce the two attesting witnesses. Both the attesting witnesses were alive but he only
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examined himself, one attesting witness namely Karim Bux and the scribe Ghulam Qadir, the petition writer. He submitted that after the promulgation of Qanun-eShahadat Order, 1984 in matters pertaining to future obligations if reduced in writing the instrument is required to be attested by two men or one man and two women by virtue of provisions contained in Article 17 of the Qanun-e-Shahadat Order, 1984 and the sale agreement was attested by two witnesses, thus, by virtue of provisions contained in Article 79 of the Qanun-e-Shahadat Order, 1984 the sale agreement could not be used as evidence until two attesting witnesses at least were called for the purpose of proving its execution, if two attesting witnesses were alive and subject to the process of the Court and capable of giving evidence. He further contended that the sale agreement dated 6- 2,1978 is not admissible in evidence at all and, therefore, on the basis thereof the suit could not be decreed. 12. On the other hand Mr. Aijaz Ali Hakro, learned counsel for the respondent has contended that the sale agreement was executed on 6-2-1978 when Qanun-e-Shahadat Order, 1984 was not promulgated. The document was governed by section 68 of the Evidence Act 1872 under which only one attesting witness was required to be called for proving the execution of docunient. He has submitted that the respondent examined himself along with one attesting witness namely Karim Bux as well as scribe Ghulam Qadir. All the witnesses have fully supported the execution of sale agreement dated 6-2-1978 by late Dr. Chaudhry Azizur Rehman. In support of his contention he has placed reliance on various judgments. The first judgment is in the case of Abdul Wali Khan v. Muhammad Saleh 1998 SCM R 760. In this case a suit filed for specific performance of agreement was dismissed. However, the appeal was accepted by a learned Additional District Judge. A revision application submitted before Sindh High Court Circuit Bench Larkana was dismissed. In the petition for leave to appeal before Honourable Supreme Court, it was contended that there were three marginal witnesses of the disputed agreement of sale out of which one witness only was examined and the other two witnesses were not examined. Regarding the non-production of two marginal witnesses it was observed that the argument was not based on any provision of law. Any of the marginal witnesses, according to law at the relevant time, could prove the execution of a document, provided his evidence was inspiring-confidence. It was held that the Additional District Judge after examining one attesting witness and the plaintiff was satisfied that the same was sufficient to prove the execution of document to which legally no exception could be taken and the petitioners could not insist that unless the two other marginal witnesses were also produced for the evidence, the evidence of third marginal witness could not have been taken into consideration. The Honourable Supreme Court further observed that there was no misreading or non-reading of the evidence and reappraisal of the evidence for arriving at a different conclusion even if there was no concurrent finding, was not to be undertaken. The leave to appeal was refused. 13. The second judgment on which Mr. Aijaz Ali Hakro has placed reliance is in the case of Bashir Ahmed v. Akbar Ali 2005 M LD 283. In this case a suit for specific performance was filed. The learned trial Court allowed the suit for specific performance. In the High Court plea was taken that the sale agreement was not proved and there were two attesting witnesses but only one was examined and no reason was assigned for not examining the other witness. It was contended that according to provisions of Articles 17(2) and 79 of the Qanun-e-Shahadat Order, 1984, in order to prove the document the two witnesses must be examined in the Court;' it was not done and, therefore, the agreement was unenforceable. In rebuttal it was contended that the execution of the disputed document was admitted on record, therefore, the admissibility of the said document or the execution thereof cannot be challenged on the basis of provisions contained in Article 79 of the Qanun-e-Shahadat Order, 1984. It was further contended that in the circumstances of the said case when the agreement was affirmed by one attesting witness and also the scribe the status of scribe does not remain merely that of a deed writer but he becomes a witness to the transaction,
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payment and execution of the documents. It was held by a Division Bench of Lahore High Court that when the execution of sale, agreement was not denied, the contention that the execution of agreement to sell was not proved, on account of production of only one .Attesting witness instead of two as ordained by Article 79 of the Qanun-e-Shahadat Order,1984, is devoid of force. It was further observed that one attesting witness supported the execution of sale agreement and the scribe who has been examined stated that besides a deed writer, he was also a witness to the transaction, payment and execution of the documents. It was held that in such situation, the scribe can be regarded as an attesting witness. It was further observed that proposition would have been different if a deed writer except scribing the document had no further role to play in the completion of the document i.e., the payment of consideration, in part or in whole or the putting of signatures on the deed by the parties. In this regard support was taken from the view expressed in the judgment reported as Nazir Ahmed v. Muhammad Rafique 1993 CLC 257, Amanat Ali v. Riaz Hussain 1991 M LD 1037 and Zafarullah Khan v. Mst. Hakam Bibi 2000 YLR 2781. 14. Mr. Aijaz Ali Hakro has further placed reliance on a Single Bench judgment of Lahore High Court in the case of Shaukat Ali v. Muhammad Hanif 2004 M LD 1868. While dilating on the contention that under Article 79 of the Qanun-e-Shahadat Order, 1984 two attesting witnesses were required to be produced in Court, it was held that the execution of the sale agreement was admitted and, therefore, one marginal witness and scribe produced at trial proved the document. Reliance was placed in this behalf on the judgment of Honourable Supreme Court in the case of Abdul Wali Khan v. Muhammad Saleh 1998 SCM R 760. 15. Mr. Aijaz Ali Hakro has next placed reliance on another Single Bench judgment of Lahore High Court, in the case of Ghulam Hassan v. Sher Muhammad Khan 2003 M LD 428. It was observed in this judgment that "no doubt,. Under Article 79 of the Qanun-e-Shahadat Order, 1984 execution of document had to be proved by examining the scribe and attesting witness, which, according to the learned counsel, has been done in this case, but the execution of Exh.P.1 and P.2 seems to be doubtful as mentioned in the preceding paragraphs of the judgment". 16. The learned counsel has further referred to another Single Bench judgment of the Lahore High Court in the case of Muhammad Sharif v. Mst. Sardaran Bibi 2002 M LD 1002. In this case a suit was filed for cancellation of agreement to sell. The trial Court dismissed the suit while the Additional District Judge decreed the suit. A revision application was filed contending that the Additional District Judge did not consider the law properly as the Iqrarnama was proved through evidence of marginal witness and the petitioner. The finding of Additional District Judge to the effect that production of one attesting witness was insufficient to prove an agreement to sell/iqrarnama was set aside by placing reliance on the cases of Abdul Wali Khan (supra) and Manzoor Hussain v. Mst. Asia 1990 CLC 1014. It was contended that the production of attesting witness was not necessary. The learned Single Judge by placing reliance on the ratio of judgments in the above two cases held that the agreement to sell was not required to be attested by witnesses and that provisions of Article 79 of Qanun-e-Shahadat Order, 1984 cannot be applied to the agreement to .Sell. It was ultimately held that the production of two marginal witnesses or te scribe was not necessary. 17. Mr. Aijaz Ali Hakro has further placed reliance on another Single Bench judgment of Lahore High Court in the case of Amanat Ali v. Riaz Hussain 1991 M LD 1037, wherein the observation made, was, that the execution of a document can be proved by scribe of the document and also by a marginal witness. This is a short judgment in which the elaborate discussion of law is not made and merely an observation has been made as above. 18. The last judgment relied upon by Mr. Aijaz Ali Hakro is in the case of Manzoor Hussain Khan v. Mst. Asia Begum 1990 CLC 1014. In this case a learned Single Judge of Lahore High Court has considered the provisions contained in Articles 78 and 79 of the Qanun-e-Shahadat Order, 1984. In this case a civil suit for specific performance of an agreement to sell dated 18-11-1975 was filed. This
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suit was dismissed by the trial Court on 19-12-1983. In appeal the decision was reversed on 19-1- 1985 and the case was remanded 'to trial Court for deciding afresh. This suit was again dismissed by the trial Court for the reason that the agreement to sell was not proved. In appeal the Additional District Judge agreed with the finding and dismissed the appeal. A revision was filed before Lahore High Court. The, learned Single Judge of the Lahore High Court while hearing the revision, observed that thi main question for consideration was whether the agreement to sell was proved. It was observed that the plaintiff's own self-serving statement about sale agreement and payment of sale price was insufficient to advance his case. There were two marginal witnesses and none of them came forward to support the execution. No reason was disclosed for withholding them from the Court. It was further observed that their non-appearance in Court to give evidence, in default of plausible explanation, not given in the case attracted adverse comments. The deed writer was examined but he stated that the parties were not personally known to him. It was held that the solitary statement of the plaintiff in absence of something more was clearly insufficient to prove genuine execution of the agreement to sell. An observation was made in this judgment that the agreement to sell was not required to be attested by the attesting witnesses and in this view, provisions in Article 79 of the Qanun-e-Shahadat Order, 1984 was not applicable. The revision was ultimately dismissed. 19. I have carefully considered the contentions raised by the learned Advocate for the parties and the judgments on which Mr. Aijaz Ali Hakro has placed reliance. Before dwelling on the contentions and the points raised, it would be appropriate to reproduce Articles 17 and 79 of the Qanun-e- Shahadat Order, 1984, which reads as under:- "17. Competence and number of witnesses.----(1) The competence of a person to testify, and the number of witnesses required in any case shall be determined in accordance with the Injunctions of Islam as laid down in the Holy Quran and Sunnah. (2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law---- (a) in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly; and (b) in all other matters, theCourt may accept, or act on, the testimony of one man or one woman, or such other evidence as the circumstances of the case may warrant. 79. Proof of execution of document required by law to be attested.---If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied." 20. Now, I proceed to examine the ratio of judgments on which Mr. Aijaz Ali Hakro has placed reliance. In the case of Manzoor Hussain v. Mst. Asia Begum 1990 CLC 1014 a learned Single Judge of the Lahore High Court after holding that non-examination of the marginal witnesses provided justification for holding that the sale agreement was not proved, made an observation that the agreement to sell was not required to be attested and, therefore, provisions in Article 79 of the Qanun-e-Shahadat Order, 1984 were not attracted. No reasons have been assigned for this observation and with due deference to the learned Single Judge of the Lahore High Court, I am of the opinion that the observation was uncalled for because the sale-deed was executed in the year 1975 and trial was concluded in the year 1983 when the suit was dismissed. Qanun-e-Shahadat
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Order was promulgated in the year 1984 and, therefore, the case was governed in accordance with the law contained in the Evidence Act 1872. 21. In the next judgment, Amanat Ali. v. Riaz Hussain 1991 M LD 1037, the agreement was executed on 7-6-1984, i.e. Before the promulgation of Qanun-e-Shahadat Order, 1984, which came into force with effect from 28-10-1984, and the evidence was recorded after the promulgation of Qanun-e- Shahadat Order, 1984 as the suit was filed on 22-2-1985. The learned Single Judge though did not specifically deal with the point whether Article 79 of Qanun-e-Shahadat Order, 1984 was attracted or not but from the tenor of the short judgment it appears that provisions contained in Articles 61 and 79 of the Qanun-e-Shahadat Order, 1984 were held to be applicable. However, without any discussion an observation was made that "The document can be proved by the scribe of the document and also by a marginal witness." As observed, the observation is short of any discussion and the provisions of law, therefore, in my humble opinion the observation does not lay down any principle of law of general application and is confined to the particular case, which was decided by the learned Single Judge. 22. In the case of Muhammad Sharif v. Mst. Sardaran Bibi 2002 M LD 1002 a learned Single Judge of Lahore High Court referred to the law laid down by the Honourable Supreme Court in the case of Abdul Wali Khan v. Muhammad Saleh 1998 SCM R 760 and Manzoor Hussain Khan v. Mst. Asia Begum 1990 CLC 1014 and thereafter observed that agreement to sell was not required to be attested by the witnesses and the provision of Article 79 of the Qanun-e-Shahadat Order, 1984 was. Not applicable to agreement to sell. It was finally held that in view of the above judgments, production of two marginal witnesses or the scribe in the said case was not necessary. In this case the Iqrarnama was reduced to writing on 5-6-1988. As already observed by adverting to the observation made in the case of Manzoor Hussain (Supra) the observation made by the learned Single Judge was…
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