Judgment Sheet
IN THE HIGH COURT OF SINDH KARACHI
Revision Application No. 121 of 2017
Appellant : Shahid Khan and Zahid Khan,
through Mr. Muhammad Arshad Mughal Advocate.
Respondent : Mst. Zubaida Begum (through her legal heirs)
through Mr. Fazal-ur-Rahman Advocate.
Dates of hearing : 31.01.2019 and 18.03.2019.
J U D G M E N T
NADEEM AKHTAR, J. – Suit No.744/2012 was filed by the applicants against the respondent for specific performance of agreement for sale, declaration and permanent injunction, in respect of House No. 548, Gulbahar Karachi, measuring 56.01 sq. yds., with construction thereon (‘suit property’) ; and, Suit No.875/2012 was filed by the respondent against the applicants for declaration, cancellation of agreement for sale, possession and permanent injunction. Since parties in both the above Suits as well as the subject matter thereof i.e. the suit property were the same, both the Suits were consolidated and were disposed of by the learned trial Court through common judgment and decree dated 30.04.2016 and 02.05.2016, respectively, whereby Suit of the applicants was dismissed and Suit of the respondent was decreed as prayed. Civil Appeal No.91/2016 filed by the applicants against dismissal of their Suit was dismissed by the learned appellate Court vide impugned judgment and decree dated 21.09.2017. Instead of filing second appeal against concurrent findings of both the learned Courts below, the applicants have filed this Revision Application under Section 115 CPC. As the present proceedings were filed by the applicants within the limitation prescribed for filing second appeal and requisite Court fee has also been paid by them, the proceedings were converted into second appeal vide order dated 18.03.2019 with the consent of learned counsel for the parties and are being disposed of as such through this judgment.
2. The case of the appellants, as pleaded by them in their plaint, was that the respondent executed a sale agreement dated 07.07.2010 (‘the agreement’) with them whereby she agreed to sell the suit property to them in consideration of Rs.1,352,000.00 ; and, several part payments were made by them to the respondent, however, they were still required to pay balance sale consideration of Rs.523,000.00 to the respondent at the time of filing of the Suit. In her Suit, it was alleged by the respondent that the agreement and receipts filed and relied upon by the appellants were forged and fabricated documents and they were prepared by the appellants, who were her real brothers, by taking undue advantage of their relationship with the respondent who was a widow. In the above background, the appellants had prayed in their Suit for a decree for specific performance of the agreement ; whereas, in her Suit the respondent had sought cancellation of the agreement. While dismissing the Suit of the appellants and decreeing the respondent’s Suit, it was held by the learned trial Court that the appellants had failed to prove execution of the agreement and receipts by the respondent ; they had also failed in proving that possession of the suit property was handed over to them by the respondent ; and, the agreement and receipts filed and relied upon by them were forged and fake documents. The above findings of the learned trial Court were maintained by the learned appellate Court by holding that the learned trial Court had discussed and examined every aspect of the case as well as entire evidence led by the parties.
3. The appellants did not come in the witness box and instead produced several witnesses in support of their alleged claim, including both the marginal / attesting witnesses of the agreement (exhibit P/5) viz. Muhammad Siddiq and Muhammad Habib Khan. In his cross-examination, Muhammad Siddiq had admitted that payment of sale consideration was not made in his presence ; and, Muhammad Habib Khan had admitted in his cross-examination that the agreement was not executed in his presence. In addition to the above, the appellants’ witness / attorney Mst. Asma Pervaiz had admitted in her cross-examination that it was not mentioned by the appellants in their pleadings that original title documents of the suit property were handed over to them by the respondent at the time of execution of the agreement ; no document was produced to show payment of sale consideration through cheque or pay order ; the receipt produced on behalf of the appellants was only in respect of payment in cash ; and, the receipts filed and relied upon by the appellants were not signed by the respondent in her (Mst. Asma Pervaiz’s) presence.
4. The burden to prove execution of the agreement and receipts by the respondent was squarely upon the appellants which could not be discharged by them at all in view of the above admissions made by their witnesses. In fact, the said admissions had completely demolished their case. It is well-settled that concurrent findings of fact cannot be disturbed in second appeal wherein jurisdiction of High Court is limited to the extent of interference on a question of law and not on facts. Learned counsel for the appellants has not been able to point out any misreading or non-reading of evidence by the learned Courts below, or any illegality or infirmity in the impugned judgments and decrees, nor has any question of law been agitated. After carefully examining the pleadings of the parties, the evidence led by them and the impugned judgments, I am of the considered view that the impugned judgments and decrees are based on proper appreciation of evidence and sound reasoning. In view of the above, concurrent findings of both the learned Courts below do not require any interference by this Court and as such the appeal is liable to be dismissed.
5. There is another important aspect of this case. It is and admitted position that the appellants had not paid the entire alleged sale consideration to the respondent and according to their own pleadings they were still liable to pay balance sale consideration of Rs.523,000.00 to her at the time of filing of the Suit. Despite the above position, the appellants did not pay the balance sale consideration nor did they take any step to deposit the same in Court. In this context, reference may be made to Hamood Mehmood V/S Mst. Shabana Ishaque and others, 2017 SCMR 2022, wherein it was held by the Hon’ble Supreme Court that it is mandatory for the person, whether plaintiff or defendant, who seeks enforcement of an agreement under the Specific Relief Act, 1877, that on the first appearance before the Court or on the date of institution of the Suit, he shall apply to the Court for permission to deposit the balance amount, and any contumacious omission in this regard would entail in dismissal of the Suit or decretal of the Suit, if it is filed by the other side.
6. Foregoing are the reasons of the short order announced by me on 18.03.2019 whereby this appeal and CMA No.9383/2017 pending therein were dismissed with no order as to costs.
J U D G E