IN THE HIGH COURT OF SINDH, CIRCUIT COURT,LARKANA

 

Civil Revision No.S-09 of 2014

[Abdul Ghaffar v. Ahmed Ala Shah & others]

 

Applicant:                                         Abdul Ghaffar through

Mr.Ghulam Dastagir Shahani, Advocate

 

Respondents 1 to 13:                       Ahmed Ala Shah & others, Nemo

 

Respondents 14 to 21:                     Mst. Saeeda & others through

Mr. Vinod Kummar Jessrani, Advocate.

 

Date of hearing:                                16-02-2023

 

Date of order:                                    16-03-2023

 

 

O R D E R

 

 

Adnan Iqbal Chaudhry, J.- This revision application is against concurrent judgments and decrees passed against the Applicant (Plaintiff) by the II-Senior Civil Judge Shikarpur on 05-06-2009 in F.C. Suit No. 14/1999, and then by the II-Additional District Judge Shikarpur on 28-10-2013 in Civil Appeal No. 31/2009, dismissing the Applicant’s suit for specific performance.

 

2.         By F.C.Suit No. 14/1999, the Applicant (Plaintiff) prayed for specific performance against the Respondents 1 to 7 (Defendants 1 to 7) of an agreement to sell, dated 09-01-1998, agricultural land measuring 44-32 acres in Deh Miani, Taluka Ghari Yasin, Shikarpur (suit land); with further prayers for cancelling the subsequent registered sale deeds executed by the Respondents/Defendants 1 to 7 to convey the suit land to the Respondents/Defendants 8 to 13, and then by the latter to convey the suit land to the Respondents/Defendants 14 to 21.

 

3.         The Plaintiff averred (as per the amended plaint) that of the agreed sale consideration of Rs. 445,000/- he had paid Rs. 150,000/- at the time of the sale agreement to the Defendant No.1 who was also the Attorney of the Defendants 2 to 7; that he was put in possession of the suit land; that the balance sale consideration was payable on execution of the sale deed; however, the Defendants 1 to 7 went ahead and sold/conveyed the suit land to the Defendants 8 to 13, and the latter then sold/conveyed the same to the Defendants 14 to 21. For cancellation of the sale deeds of the Defendants 8 to 21, it was averred that the sale agreement dated 09-01-1998 was prior in time and the said Defendants had knowledge thereof. The registered sale deeds between the Defendants 1 to 7 and the Defendants 8 to 13 were brought in evidence as Exhibits 87-B to 87-F dated 18-12-1998, 21-12-1998, and 28-12-1998.

 

4.         Per the written statement of the Defendant No.9, the Defendants 1 to 7 had never agreed to sell the suit land to the Plaintiff, nor had the Defendant No.1 executed the alleged sale agreement which was a forgery; that possession of the suit land was never with the Plaintiff, rather it was delivered to the Defendants 8 to 13 who delivered it to the Defendants 14 to 21 when they conveyed the suit land to the latter. For all the other Defendants, the same counsel filed statements in the suit stating that they adopt the written statement of the Defendant No.9. It is however disputed by the Plaintiff that the other Defendants had ever given any vakalatnama to said counsel.

 

5.         In the first round, the suit was decreed by the trial court by judgment dated 08-10-2005. But on Civil Appeal No. 07/2005 filed by the Defendants, that decree was set-aside on the ground that the Plaintiff had not examined the attesting witnesses to the sale agreement. The learned appellate court was however inclined to remand the suit with the direction to the trial court to examine the attesting witnesses and the stamp vendor as there was over-writing on the number and date of the stamp paper. Thereafter, in the second round, the suit was dismissed by the trial court and then by the appellate court as narrated first above, essentially holding that despite given the opportunity the Plaintiff had refused to examine the attesting witnesses to the sale agreement and consequently the sale agreement had not been proved.

 

6.         Heard the learned counsel and perused the record.

 

7.         Admittedly, out of the agreed sale consideration of Rs.445,000/- the Plaintiff had paid only Rs. 150,000/- and the balance of Rs.295,000/- was payable on or before 10-2-1999. The Plaintiff had led no evidence to demonstrate that he was ready, willing and able to pay the balance sale consideration from that time onwards. Assuming that the sale agreement was executed, no evidence was led to show that the Defendants had knowledge of the same when they purchased the suit land under the impugned sale deeds. Section 22 of the Specific Relief Act, 1877 categorically provides that: “The jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal.”

 

8.         The thrust if the Plaintiff’s case, as also the arguments of his counsel before this court, was that the evidence showed that the Power of Attorney given by the Defendants 2 to 7 to the Defendant No.1 for conveying the suit land had been revoked at least by the Defendants 3 and 5 prior to the impugned sale deeds, and therefore, the Defendant No.1 had no authority to execute said sale deeds in favor of the Defendants 8 to 13. But even assuming that to be so, and as rightly observed by the appellate court, that was at best a matter between the Defendants 1 to 7 inter se, one which was not in issue in the suit, and therefore nothing turned on that for the Plaintiff who had to first prove the execution of the sale agreement to advance his own case.

 

9.         In the first round, though the Plaintiff had examined the scribe of the sale agreement, he did not produce or summon the two attesting witnesses to the sale agreement, namely Abdul Malik and Mehmood Ali Khan, even though on cross-examination he admitted that he was aware of their whereabouts. In the second round after remand of the suit, the Plaintiff filed a statement dated 15-04-2009 before the trial court to state that since execution of the sale agreement had not been specifically denied by the Defendants 1 to 7 by way of a written statement, Article 79 of the Qanoon-e-Shahadat Order, 1984 was not attracted and therefore he was not required to examine the attesting witnesses. Nonetheless, the trial court issued summons to cause the appearance of the attesting witnesses and the stamp vendor. Upon that, one of the attesting witnesses namely Abdul Malik, and the stamp vendor namely Umer Daraz appeared before the trial court. The Plaintiff declined to examine them and also opposed their examination as court witnesses. As a result of such objection, the trial court did not examine them as court witnesses and proceeded further.

 

10.       It is correct, as argued by learned counsel for the Applicant/Plaintiff, that the statement filed by a counsel, purportedly as counsel for the Defendants 1 to 7 (sellers of the sale agreement) to adopt the written statement of the Defendant No.9 was not to be taken as written statement of the Defendants 1 to 7. But even then, the Defendant No.9, who had filed the written statement, had stepped into the shoes of the Defendants 1 to 7 as one of the owners of the suit land under a registered sale deed. Therefore, once he disputed the sale agreement, it was incumbent upon the Plaintiffs to prove its execution as mandated by Article 79 of the Qanoon-e-Shahadat Order, 1984, especially where a specific issue had already been framed in that regard. In Farzand Ali v. Khuda Bakhsh (PLD 2015 SC 187) it was held that even where the vendor/defendant had acknowledged the sale agreement, that admission was not binding on the co-defendant.

 

11.       The uncompromising requirement of Article 79 and the effect of its non-compliance was discussed by the Supreme Court in Tassaduq Hussain v. Muhammad Din (PLD 2011 SC 241) as follows:

 

“8. The command of the Article 79 is vividly discernible which elucidates that in order to prove an instrument which by law is required to be attested, it has to be proved by two attesting witnesses, if they are alive and otherwise are not incapacitated and are subject to the process of the Court and capable of giving evidence. The powerful expression "shall not be used as evidence" until the requisite number of attesting witnesses have been examined to prove its execution is couched in the negative, which depicts the clear and unquestionable intention of the legislature, barring and placing a complete prohibition for using in evidence any such document, which is either not attested as mandated by the law and/or if the required number of attesting witnesses are not produced to prove it. As the consequence of the failure in this behalf are provided by the Article itself, therefore, it is a mandatory provision of law and should be given due effect by the Courts in letter and spirit. The provisions of this Article are most uncompromising, so long as there is an attesting witness alive capable of giving evidence and subject to the process of the Court, no document which is required by law to be attested can be used in evidence until such witness has been called, the omission to call the requisite number of attesting witnesses is fatal to the admissibility of the document. See Sheikh Karimullah v. Gudar Koeri and others (AIR 1925 Allahabad 56). The purpose and object of the attestation of a document by a certain number of witnesses and its proof through them is also meant to eliminate the possibility of fraud and purported attempt to create and fabricate false evidence for the proof thereof and for this the legislature in its wisdom has established a class of documents which are specified, inter alia, in Article 17 of the Order, 1984. (See Ram Samujh Singh v. Mst. Mainath Kuer and others (AIR 1925 Oudh 737). The resume of the above discussion leads us to an irresistible conclusion that for the validity of the instruments falling within Article 17 the attestation as required therein is absolute and imperative. And for the purpose of proof of such a document, the attesting witnesses have to be compulsorily examined as per the requirement of Article 79, otherwise, it shall not be considered and taken as proved and used in evidence. This is in line with the principle that where the law requires an act to be done in a particular manner, it has to be done in that way and not otherwise.”

 

12.       Therefore, when the requirement of Article 79 of the Qanoon-e-Shahadat Order, 1984 had not been met by the Plaintiff, the sale agreement could not have been used in evidence; its execution was never proved; and with that, the alleged part payment of Rs. 150,000/- for which there was no other evidence, was also not proved. Under the circumstances, there was no question of cancelling the sale deeds standing in favor of the Respondents/Defendants8 to 21.

 

13.       For the foregoing reasons, the impugned judgments/decrees do not suffer from any mis-reading or non-reading of evidence and do not call for any interference. Revision application is dismissed.

[                                                                                                           JUDGE