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Petitioner: MUHAMMAD KABIRUDDIN VS Respondent: MUHAMMAD MUNIRUDDIN through his Legal JUDGMENT
Court Name: Sindh High Court Judge(s): Saleem Akhter, Syed Sajjad Ali Shah Title:MUHAMMAD KABIRUDDIN vs MUHAMMAD MUNIRUDDIN through his Legal
JUDGMENT
Reported As: 1993 CLC 747 Result: Appeals dismissed Judgment JUDGMENT ' SALEEM AKHTAR, J.---(1) These appeals relate to dispute in respect of Plot No,6, Sub-Block K. Block 1, Nazimabad, Karachi which was allotted by the Ministry of Works, Government of Pakistan to one Muniruddin. ' Two persons viz. Kabiruddin and Mst. Maqbool Begum claim to have purchased this property from Muniruddin under separate agreements. Mst. Maqbool Begum filed suit for specific performance of agreement, possession, mesne profits and accounts. Kabiruddin filed suit for declaration that agreement entered into between Muniruddin and Mst. Maqbool Begum is void. Munirudin died during the pendency of both the suits and his legal representatives were brought on record. The suit filed by Maqbool Begum was decreed and Kabiruddin's suit was dismissed. The facts as stated in plaint are as follows:- ' In Suit No,13/79 filed by Maqbool Begum which is subject-matter of High Court Appeal No,95/84, it has been alleged that Muniruddin wanted to develop the said plot by constructing shops and flats according to the approved plan of K.M.C. Muniruddin, his son and son-in-law entered into partnership with Kabiruddin. The partnership deed Exh.7/6 was executed on 2-5-1971 which was to carry on business in the name and style of Munir Co. On 23-7-1971 Munir Co. Entered into an agreement with M/s. Muhammad Abdullah & Co. Building Contractors which were engaged to carry out the construction work. This partnership was dissolved on 8-5-1972 under a deed of dissolution (Exh.9/14). It has been alleged by Maqbool Begum that under an agreement dated 17- 5-1972 she agreed to purchase from Muniruddin the aforestated plot with construction thereon for a consideration of Rs,80,000. Maqbool Begum also agreed to pay the dues of K.DA. And K.M.C.
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Amounting to Rs31,487.67. Maqbool Begum took over the liability of Rs,50,300 as specified in the agreement from which Munir was discharged. This liability included payment of Rs,40,000 to Abdullah Bhai Contractor. She paid Rs,45,000 at the time of agreement and Rs,35,000 was agreed to be paid at the time of registration of agreement. Maqbool Begum discharged the liability and paid Rs,12,500 to Abdullah Bhai. The possession of the plot and construction was delivered to Maqbool Begum and while she was raising construction on 29-5-1972 Kabiruddin fraudulently and maliciously filed Suit No,1006/72 in the Court of Civil Judge, Karachi for accounts and permanent injunction against Muhammad Bhai Abdullah proprietor of M/s. Abdullah & Co. Alleging that having purchased the disputed property from Muniruddin he (Kabiruddin) is the owner of the aforementioned plot with construction thereon. He obtained ex parte order of injunction against the said contractor and in the night between 2nd and 3rd of June, 1972 took forcible possession of the premises and the material lying thereon. Maqbool Begum and Muniruddin came to know about the suit and applied for being joined as party which was granted. Muniruddin filed his affidavit denying that he had entered into any agreement with Kabiruddin for sale of the plot and construction thereon. The learned Civil Judge by order dated 30-6-1972 vacated the order of injunction holding that Kabiruddin has failed to prima facie make out a case for purchase of the disputed property. Abdullah Bhai filed an application for appointment of Receiver in Suit No,1006 of 1972 which was granted and Nazir was appointed as a Receiver who prepared an inventory. The appeal filed by Kabiruddin against the order vacating the injunction was dismissed. Kabiruddin then filed Suit No,2156/74 in the Court of XVIII Civil Judge, Karachi against Muniruddin and Maqbool Begum seeking a declaration that the agreement of sale dated 17-5-1972 executed by Muniruddin in favour of Maqbool Begum is void. Kabiruddin issued notice to the occupants of shops and godown on the disputed plot claiming to be the owner. Maqbool Begum through her husband approached Muniruddin for execution of the registered sale-deed but it was put off. On 23-1-1976 Muniruddin entered into another agreement with Maqbool Begum extending the original agreement dated 17-5-1972. She paid Rs,5,000 to Muniruddin who promised to execute the sale- deed expeditiously. A pay order of Rs,30,000 sent to Muniruddin was refused. Maqbool Begum first filed application to sue in forma pauperis but it was withdrawn and suit No,13/79 was filed against Muniruddin and Kabiruddin for specific performance of agreements dated 17-5-1972 and 23-1-1976, possession and mesne profits. Muniruddin supported her case but Kabiruddin filed written statement denying the claim. His averments were the same as pleaded in the plaint filed by him against Maqbool Begum and Muniruddin. 2. Kabiruddin filed Suit No,2156/74 which was transferred to High Court and tried as Suit No,986/79 with Suit No,13/79. High Court Appeal No,95 of 1984, arises from Suit No,986 of 1979. Briefly the facts as alleged by Kabiruddin are that Muniruddin was an allottee of the disputed plot and was unable to pay the dues of K.DA. Upto December, 1970 and no plan for construction of building was approved by any Authority and further that at least 70 to 75% of the plot was occupied by encroachers who had raised huts, hotels and Dhobi Ghat. It was a serious problem to get the plot vacated from these encroacheRs, Muniruddin was also served with notice by K.DA. For payment of dues and construction of building on the plot within the stipulated time. Muniruddin was not in a position to do anything due to financial difficulties when Kabiruddin/plaintiff came in his contact and agreed to help him. The agreement between the parties was reduced in terms of partnership deed dated 2-3-1971, in which Muniruddin, his son-in-law, son and Kabiruddin were partneRs, Each had 25 paisas share and were to carry on the business under the name and style of Munir Co. For construction of shops, godown and flats and sell and purchase plots. The main object of forming the firm was to construct multi-storeyed building on the plot in dispute and Kabiruddin became incharge of all the work. Through his own efforts plan was got approved on 12-2-1972 through Jaffar Ali Associates, Architects. Kabiruddin has alleged in his plaint that he got the plot cleared from the
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encroachers and spent Rs,15,000. When the scheme was launched only six flats could be booked and as finances were not available to commence construction, the firm was dissolved on 8-5-1972 (Exh.9/38). Muniruddin requested Kabiruddin to take all the liabilities and purchase the plot in dispute and consequently by an agreement dated 8-5-1975 (Exh.9/14) Kabiruddin agreed to purchase the plot with construction thereon. At the time the construction was being carried out by Muhammad Bhai Abdullah. Kabiruddin paid Rs,40,000 in cash to him and under a receipt signed by Muhammad Abdullah and countersigned by Muniruddin to discharge the liability of the contractor. The contractor was asked to carry out the construction work but having received money in excess he did not carry out the work satisfactorily and consequently Kabiruddin alleges to have resumed the work and also filed Suit No,1006 of 1972 against him. He alleges to have completed the front side shops of the building on the ground floor and invested upto Rs,90,000. On 17-6-1972 Muniruddin and Maqbool Begum filed objections alleging that by an agreement dated 17-5-1972 Muniruddin has sold the plot and construction to Maqbool Begum. Kabiruddin pleaded that he is the owner of the property having agreed to purchase the same and in possession from 8-5-1972 and that in re- selling the property Muniruddin has played fraud in collusion with Maqbool Begum. She initiated proceedings under section 145, Cr.P.C. Which at that time of filing the suit was pending. In these circumstances Kabiruddin had prayed for declaration that the agreement dated 17-5-1972 is illegal and void, the same be cancelled and for permanent injunction against Muniruddin and Maqbool Begum restraining them from claiming any title on the basis of that agreement. Maqbool Begum and Muniruddin, and after his death his legal heirs denied the claim. Their averments were the same as pleaded in Suit No, 13/79 and need not be repeated. 3. Both these suits were tried together and common evidence has been recorded. By a common judgment both the suits have been disposed of. The suit filed by Maqbool Begum has been decreed while the suit filed by Kabiruddin has ben dismissed. Kabiruddin has filed both these appeals and we propose to dispose them of by this judgment. In a nutshell Kabiruddin claims to have purchased the disputed property from Muniruddin on 8-5-1972 whereas Maqbool Begum claims to have purchased the same property from Muniruddin by an agreement dated 17-5-1972. Muniruddin has taken the plea that he has sold this property to Maqbool Begum and the agreement relied upon by Kabiruddin is false, fictitious and fraudulent. On the basis of the. Pleadings of the parties the following issues were framed:- (1) Whether the Suit No,13 of 1979 is barred by limitation? (2) Whether Suit No, 13/79 is bad for non-joinder of necessary parties? (3) Whether the two suits are not properly valued? (4) Whether Suit No, 986/79 as framed is maintainable? (5) Whether in Suit No,13/79 the defendant No,2 on the date of dissolution of partnership entered into an agreement of sale with the defendant No,1 and whether the possession of the plot in suit was handed over by the defendant No,2 to the defendant No,1? (6) Whether the plaintiff in Suit No,986/79 was never in possession of the property and occupied the same forcibly under cover of status quo order in Suit No, 1006/74. If so, what is his status? (7) Whether the documents relied upon by the plaintiff in Suit No,986/79 in support of his claim have been held by the District Judge to be forged and fabricated. If so, what is the effect? (8) Whether the plaintiff in Suit No,986 of 1979 has any legal right, title or interest in the disputed property? (9) Whether in Suit No,13 of 1979 the defendant No,1 got the plot vacated, plan approved, raised construction on the plot and saved the plot? (10)Whether in Suit No,13 of 1979 no agreement was executed between the plaintiff and the defendant No,2 on 17-5-1972 and the agreement dated 23-1-1976 between the plaintiff and the defendant No,2 is a forged document?
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(11)Has the plaintiff in Suit No,13/79 fulfilled her part of the contractual obligations? (12)Whether in Suit No,13 of 1979 plaintiff and defendant No,2 are in collusion? (13)What should the decree be? 4. The learned counsel for the appellant has contended that the evidence on record has not been properly appreciated and it is a clear case of misappreciation and misreading of evidence. According to him if the evidence is properly read and appreciated, suit filed by Kabiruddin, the appellant, should be decreed and the suit filed by Maqbool Begum, the respondent, should be dismissed. To substantiate this contention the learned counsel has taken us through the entire record and the evidence produced before the learned Single Judge. There is no dispute between the parties that the plot in dispute belonged to Muniruddin who is now represented through his legal heirs who will be referred as respondent No,1. Mst. Hajiani Maqbool Begum hereinafter will be referred as respondent No,2. The agreement of partnership between the appellant and Muniruddin who was alive at that time has not been denied. The dispute arose from the date when partnership deed was dissolved by an agreement dated 8-5-1972. According to the appellant by an agreement of the same date Muniruddin had agreed to sell his property to the appellant. The burden is therefore, entirely upon the appellant to establish that Muniruddin had agreed to sell the property to him. Muniruddin during his lifetime in affidavit filed in Suit No,1006/72 and the written statement had denied the execution of agreement Exh.9/14. The question therefore arises whether agreement to sell Exh.9/14 was executed by Muniruddin. The signature on a document can be proved by the admission of the executant or from the oral evidence of the witness before whom it has been signed. It can also be proved by referring the admitted and disputed signatures of the executant to a handwriting expert, comparing them by Court or by other circumstantial evidence. 5. The appellant has stated that the deed of dissolution Exh.9/38, the agreement to sell (Exh.9/14) and two receipts namely Exhs.8/1 and 8/3 were executed on the same day. He has stated that all these documents were prepared by Mr. Mukarim Advocate in his office. Mr. Mukarim has been examined by the respondent and he has denied that he had prepared the sale agreement and receipts. He, however, stated that the deed of dissolution was prepared by him which was executed by the parties. Mr. Khalid M. Ishaque, the learned counsel for the appellant has contended that in view of Article 9 of Qanun-e-Shahadat which is equivalent to section 126 of the Evidence Act, the evidence of Mr. Mukarim could not have been recorded and cannot be relied upon. This provision of law prohibits an Advocate from disclosing any communication made to him in his professional capacity. The provision ensures secrecy of professional communication made to an advocate by his client. An Advocate is prohibited from disclosing any information, communication, instruction or advice made to him, received, obtained or tendered by him during the course of his professional engagement without the consent of his client. Such prohibition extends to disclosing the contents of the documents with which he has become acquainted in the course of his employment or any advice given by him for the purposes of such employment. Pendency of any proceeding is not a condition precedent for operation of this bar. An Advocate is obliged not to disclose any communication made to him by his client even if there is no legal proceeding pending or apprehended and his client is not concerned with a case. Reference can be made to In re: An Attorney AIR 1925 B 1. This bar continues even after the employment ceases. But there are exceptions to the aforestated prohibition and any communication made in furtherance of any illegal purpose is not protected nor can this privilege extend to any fact which shows commission of any fraud or crime committed since the commencement of the employment as advocate. In the present case except the statement of the appellant that Exhs.9/14, Exh.8/1 and 8/3 were prepared by Mukarim Advocate and he was engaged by him there is no other evidence to support this contention. In view of denial of Mr. Mukarim and other circumstances as discussed hereunder it has not been established that Mr. Mukarim was engaged by the appellant as an advocate for
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preparation of agreement to sell. Therefore, the question of applying the bar under Article 9 of the Qanun-e-Shahadat will not be applicable. The bar will apply if the engagement of the Advocate has been proved. 6. Mr. Khalid M. Ishaq the learned counsel has contended that considering the fact that Mr. Mukarim was acting for and advising Muniruddin it would not be proper to rely upon his evidence. We are not impressed by this argument as Mr. Mukarim is an advocate of standing and repute and we are convinced that although he was appearing for Maqbool Begum in the suits he would not make a false statement merely to protect his client. His testimony cannot be discarded nor he can be termed as an interested witness. He is a respectable senior advocate, and we have no hesitation in believing his words. 7. Besides the fact that Mr. Mukarim has completely belied the statement of the appellant as stated above, the attending circumstances also do not support the appellant's contention. According to the appellant both Exhs.9/14 and 9/38 were prepared on the same day in the office of Mr. Mukarim but they seem to have been typed on the stamp papers purchased on different dates. The typewriters used for typing both the documents are different. The Notaries Public who have attested these documents are also different persons. It is difficult to reconcile to normal reasoning and human conduct that transactions relating to the same property between the same parties which were recorded on the same day, in the same office will bear attestation by different notary public, typed on different type-writers and on stamp paper purchased by different persons on different dates. All these glaring discrepancies in the appellant's evidence have neither been explained nor clarified. The sale agreement Exh.9/14 and receipts Exhs.8/1 and 8/3 were executed in respect of the same transaction, at the same time. Rauf Baig has signed Exhs.8/1 and 8/3 as one of the attesting witnesses but he has not witnessed Exh.9/14. Zahir Yar Khan is a witness in all these documents but he has not been examined. The other attesting witness of Exh.9/14 has also not been examined. Therefore, both the attesting witnesses of Exh.9/14 were not produced in Court. Syed Muhammad Shahid is the Oath Commissioner and Notary Public who has attested this document. He has clearly stated that the document was produced duly signed and nobody was identified to him. Therefore, he cannot be a witness to the execution of the agreement by Muniruddin. 8. The other documents relied upon by the appellants are Exh.8/1 and 8/3 which reflect upon the execution of the agreement. Exh.8/1 is a receipt by Muhammad Bux known as Muhammad Bhai Abdullah the contractor who has acknowledged receipt of Rs,40,000 from Kabiruddin, the appellant who paid on behalf of Muniruddin towards the proposed construction on the disputed plot. It is also stated that a post-dated cheque of Rs,5,000 dated 25-3-1973 was issued in his favour but in view of the payment it is cancelled. From this document the appellant wishes to establish that in terms of the agreement Exh.9/14 as well as the deed of dissolution Muniruddin had to pay Rs,40,000 to Muhammad Abdullah Bhai the contractor for the work already done and under the arrangement between the parties this amount of Rs,40,000 was paid by the appellant in discharge of the liability of Muniruddin and this part of sale consideration under the agreement stands paid up. It has also been contended that these receipts have been countersigned by Muniruddin. Mr. Wajihuddin the learned counsel for the respondent has vehemently attacked the genuineness of these receipts and contended that they have neither been signed by Muhammad Abdullah Bhai nor Muniruddin. At the outset it may be stated that Muhammad Abdullah Bhai was examined on behalf of the respondent and he has denied having signed Exhs.8/1 and has also denied that Rs,40,000 was paid to him by Kabiruddin as stated in this receipt. Shamsuddin the son of Muniruddin at the first instance admitted the signature of Muniruddin on Exhs.8/1 and 8/3 but later he has resiled from this statement. It may be noted that in examination-in-chief Exhs.8/1 and 8/3 were shown to Shamsuddin and he was asked whether they were signed by his father. He replied in the
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affirmative, but in cross-examination by the advocate for Maqbool Begum when he was asked to read the contents of these documents, he replied that these receipts do not bear the signature of his father. In support of his later statement he stated that the signature on Exhs.8/1 and 8/3 appeared to be of his father but they could not be of his father as these documents show payments made by Kabiruddin to his father which were never paid. This explanation appears to be reasonable and correct as he seems to have been led" away by the similarity which Muniruddin's signatures on Exhs.8/1 and 8/3 bear with his admitted signatures. Taking into consideration the evidence produced to prove the signature of Muniruddin as discussed above and hereunder the discrepancy in the statement of Shamimuddin does not conclusively prove the plaintiff's contention and allegation. In the face of denial by Muhammad Abdullah Bhai the counter signature even if made by Muniruddin is of no consequence. ' This receipt Exh.8/1 has been signed by two witnesses one of which is Mirza Rauf Baig who has been examined. The other witness has not been examined. Mirza Rauf Baig has stated in cross- examination that he had signed this document as well as Exh.8/3 at the request of Kabiruddin the appellant and nobody has signed these documents in his presence. He admitted that he was residing at the disputed plot at the time of signing the document, but stated that he cannot identify Kabiruddin and whether he was sitting in the Court although he has admitted that he knew Kabiruddin and was called by him for signing these documents. In these circumstances by stating that he can not recognise Kabiruddin he attempted to give a touch of impartiality to his statement. Be that as it may, the fact remains that Muhammad Abdullah Bhai and Muniruddin have not signed in his presence and the other attesting witness not having been examined no reliance can be placed on the statement of Kabiruddin alone. ' Mr. Wajihuddin the learned counsel has pointed out that even the contents of Exh.8/1 do not prove the contention of the learned counsel for the appellant. If this receipt was purported to discharge the liability of the construction work carried out by Abdullah Bhai which was in terms of the deed of dissolution the liability of Muniruddin, then there was no need to state that Rs,40,000 was paid towards the proposed construction of the plot in dispute. Proposed construction means the construction which was sought to be made in future. The contention of the learned counsel seems to be reasonable and sufficiently discredits the evidence produced to support the appellant's plea. 9. The appellant has also relied on Exh.8/3 which is a receipt alleged to have been signed by Muniruddin acknowledging receipt of Rs,33,639.33 being the expenditure incurred from time to time by the appellant in the name of Muniruddin at his request on the plot in dispute on account of principal and interest due to him (Muniruddin) under the sale agreement duly executed by him (Muniruddin) on 8th May, 1972 at Karachi. Therefore, by this document the appellant also wanted to prove that the execution of the agreement to sell has been admitted. 10. Mr. Wajihuddin has pointed out that the agreement to sell, receipt and deed of dissolution bear the same date i,e, 8-5-1972 and if Muniruddin were to bear any additional liability of Rs,33,936.33 then it must fmd place in the deed of dissolution where liabilities of the partners were specifically mentioned. The deed of dissolution Exh.9/38 specifically mentions the liabilities and losses assessed and admitted by the parties amounting to Rs,78,200. This total amount has been specifically mentioned with full particulars and was agreed to be the exclusive responsibility of Muniruddin. The other partners including the appellant were discharged from all liabilities and they relinquished all their claims in favour of Muniruddin having no interest or share in the property in dispute. According to the appellant this amount of Rs,33,936.33 was an additional liability which was not specified in the deed of dissolution on the advice of Mr. Mukarim Advocate and for that purpose it was mentioned in the receipt separately. This has been denied by Mr. Mukarim. He has also denied having advised or even being consulted on the preparation of the agreement Exh.9/14. This is a very strong ground for discarding the authenticity of receipt Exh.8/3. The attesting witness
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Mirza A. Rauf Baig is not a witness to the execution by Muniruddin nor is Syed Shahid Hussain the Oath Commissioner. Shamimuddin first admitted the signatures shown on Exhs.8/1 and 8/3 but later on as discussed above he expressed his doubts and denied it. Mr. Khalid M. Ishaq the learned counsel for the appellant has referred to the statement of Abdul Wahid Ahmed P.W. 2 (Exh.7) who is a banker and has produced the account opening form and specimen signature card of Munk Co. In which Muniruddin had affixed his signature. According to the learned counsel for the appellant the signature of Muniruddin in this document and on Exhs.8/1 and 8/3 resemble each other which are in abbreviated form. They differ from the signature of Muniruddin In deed of dissolution Exh.9/38 in which full name has been written. In this regard the statement of the appellant has also been referred where he has stated that when he inquired from Muniruddin about the change of signature he stated that he had done so because his son was copying his signature. This…
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