ORDER SHEET LAHORE HIGH COURT, MULTAN BENCH

H.C.L. D/C-121
ORDER SHEET
LAHORE HIGH COURT, MULTAN BENCH, MULTAN
Civil Revision No.623-D of 2006
Meer Hassan, etc. Versus Hakeem Muhammad Sana Ullah, etc.
Sr. No of order/
proceeding
Date of order/
proceeding
Order with signature of Judge and that of
Parties or counsel, where necessary
27.03.2014 Mian
Muhammad
petitioners
Akram,
Advocate
for
the
Muhammad Saghir and others, successors of
Meer Hassan (deceased)/plaintiff through the instant
civil revision have called into question the legality and
sustainability of the impugned judgments and decrees
dated 22.11.1987 & 15.03.2005, by which learned
Civil Judge Ist Class, Mailsi & learned District Judge,
Vehari,
while
deciding
the
suit
titled
“Hakeem
Muhammad Sana Ullah Vs. Meer Hassan” for
Specific Performance of Contract, decreed the same
and appeal preferred by the petitioners was dismissed,
respectively.
2.
Briefly, the facts leading towards this civil
revision are as such that predecessor in interest of
present
respondents
namely
Hakeem
Muhammad
Sana Ullah (deceased) instituted a suit for specific
performance
of
contract
against
Meer
Hassan,
deceased predecessor in interest of the petitioners
pleading therein that Meer Hassan agreed to sell land
measuring 99 kanals 08 marlas bearing Khatooni Nos.
231, 222 to 226, falling in Khata No.5/6, 20 to 22,
24/1-2-19 to 23, situated in Chak No.166/WB, Tehsil
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Civil Revision no.623-D of 2006
Mailsi, in lieu of Rs.100,000/- accepting Rs.5000/- as
earnest money and later on by receiving Rs.20,000/- in
order to clear the arrears in respect of instalments of
money to be paid to acquire proprietary rights for the
said land and then handed over possession of the
same to the predecessor of the respondents (Hakeem
Muhammad Sana Ullah). It has further been asserted
that Rs.10,000/- were later on (10.05.1984) again paid
to Meer Hassan deceased predecessor of the present
petitioners, at the time of execution of conveyance deed
in his (Meer Hassan’s) favour as a part of payment of
total amount and he (Meer Hassan) executed another
agreement to sell as a renewal of the earlier agreement;
but later on despite receiving the aforesaid amounts,
he (Meer Hassan) refused to keep his words, inspite of
the fact that predecessor in interest of the respondents
(Hakeem
perform
Muhammad
his
part
of
Sana
Ullah)
agreement
was
i.e.
ready
to
payment
of
remaining amount of Rs.65,000/-, which culminated
in filing of the suit. The suit was contested by Meer
Hassan
(predecessor
in
interest
of
the
present
petitioners), who raised legal as well as factual
objections. The divergence in the pleadings was
summed up into following issues:1. Whether the plaintiff has no
cause of action as well as locus
standi to institute this suit? OPD
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Civil Revision no.623-D of 2006
2. Whether the alleged agreement
deed is fictitious and collusive
with one Muhammad Zafar s/o
Jan Muhammad, if so to what
effect? OPD
3. Whether the parties entered into
a valid agreement to sell on
28.03.1982 and that the plaintiff
is entitled to the decree for
specific performance in respect of
the suit land on the basis of the
same? OPP
4. Whether the suit is mala fide and
that the defendant is entitled to
receive special costs from the
plaintiff? OPD
5. Relief
Both the parties lead their evidence, pro and contra, in
support of their respective versions. Learned trial
Court vide its judgment dated 22.11.1987 decreed the
suit in favour of the respondents’ predecessor in
interest subject to payment of the remaining sale price
Rs.65,000/- to be deposited in the court on or before
22.12.1987. Meer Hassan, predecessor in interest of
the present petitioners challenged said judgment and
decree through an appeal before the learned Appellate
Court, which was ultimately dismissed vide judgment
dated 08.08.1988; resulting into filing of Regular
Second
Appeal
before
this
Court,
same
was
consequently allowed on 25.10.2003 and case was
remanded to the learned Appellate Court with direction
to decide application moved by the present petitioners
under Order VI Rule 17 of the CPC read with Order
XIV Rule 5 of CPC, at the first instance and decide the
Civil Revision no.623-D of 2006
appeal afresh. After remand, on 20.01.2004, the said
application was accepted and on 20.07.2004, the
following additional issue was framed:ADDITIONAL ISSUE
Whether necessary permission of
the Collector has not been
obtained by the plaintiff under
Section 19 of the Colonization of
Government Lands Act? If so its
effect? OPD
On the above additional issue, no evidence was led on
behalf of both the parties. After hearing arguments of
the learned counsel for parties, the learned Appellate
Court vide impugned judgment and decree dated
15.03.2005, dismissed the appeal of the present
petitioners; hence, this civil revision assailing the
impugned judgments and decrees dated 22.11.1987
and 15.03.2005, respectively inter alia on the following
grounds: That the impugned judgments
and
decrees
suffer
from
misreading and non-reading of
evidence; hence, not sustainable
in the eyes of law;
 That the learned courts below
have not applied the relevant
provisions of law and have
decide the suit as well as appeal
on wrong premises of law;
 That the findings on issues No.1
to 5, recorded by learned lower
courts are against law and facts,
hence, call for interference;
 That the evidence brought on
record has been misread and
misinterpreted by learned courts
4
5
Civil Revision no.623-D of 2006
below; and evidence has not
been properly evaluated;
 That material illegalities and
irregularities
have
been
committed by the learned courts
below; hence, the impugned
judgments and decrees dated
15.03.2005 and 22.11.1987 are
liable to be set aside and suit of
the respondents is liable to be
dismissed.
3.
Learned
counsel
for
the
petitioners
while
reiterating the grounds urged in this revision petition
has further argued that the impugned judgments and
decrees are against facts and law; result of misreading
and non-reading of evidence and incorrect appreciation
of law; therefore, both the judgments and decrees
passed by learned Courts below are liable to be set
aside and resultantly the suit of the respondents/
plaintiff is liable to be dismissed. Relies on Hakim Ali
and another Vs. Atta Muhammad and others 1981 S C
M R 993, Alam Khan Vs. Ahla and 6 others PLJ 1989
Lahore 248, Bashir Ahmad Vs. Abdul Majid and 7
others 1992 CLC 1069-Karachi, Muhammad Yaqoob
and others Vs. Naseer Hussain and others PLD 1995
Lahore 395, Fazal Muhammad and others Vs. Mst.
Zainab Bibi and others 2001 MLD 2012-Lahore, Sher
Baz Khan Vs. Mir Adam Khan PLD 2002 Peshawar 1,
Mst. Sharman and 11 others Vs. Syed Ali Hussain and
18 others 2006 Y L R 130-Lahore, Ghulam Abbas
and another Vs. Murid Hussain 2006 Y L R 498-
6
Civil Revision no.623-D of 2006
Lahore,
Rais
Gul
Muhammad
and
others
Vs.
Muhammad Abdullah Khan 2012 C L C 1379-Lahore.
4.
Heard.
5.
It is the case of respondents’ predecessor that
Meer Hassan, the original owner of the suit land
(predecessor in interest of the petitioners) agreed to sell
99 kanals 08 marlas of land for consideration of
Rs.100,000/- out of which an amount of Rs.35,000/was received by him (Meer Hassan) as earnest money
and an agreement to sell was reduced into writing, the
suit land was to be transferred in favour of the
respondents’
predecessor,
but
said
Meer
Hassan
(deceased predecessor in interest of the petitioners)
refused to coupe with the demand of the respondents’
predecessor in interest and ultimately refused to fulfill
his part of agreement. This stance of the respondents’
predecessor in interest has specifically been denied by
Meer Hassan. When execution of agreement to sell
Meer Hassan (predecessor in interest of petitioners),
execution whereof has to be proved by the respondents
by producing two marginal witnesses before whom
such transaction has taken place. Mere taking of a
stance in the pleadings is not sufficient, but same has
to be proved by producing cogent, reliable, trustworthy
and confidence inspiring evidence. Article 117 of the
Qanoon-i-Shahadat Order, 1908 elaborates that such
person will be under burden to prove any stance which
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Civil Revision no.623-D of 2006
he asserts in the pleadings. The said provision of law is
reproduced in verbatim for ease of reference:“117.
Burden
of
proof. (1)
Whoever desires any Court to
give judgment as to any legal
right or liability dependent on the
existence
of
facts
which
he
asserts, must prove that those
facts exist.
(2) When a person is bound to
prove the existence of any fact, it
is said that the burden of proof
lies on that person.”
According to article 17 of the Qanoon-i-Shahadat
Order, 1984, it is provided that for proving a document
two witnesses are required to be produced. For ease of
reference
the
said
provision
of
QSO,
reproduced infra:“17. Competence and number
of
witnesses.
—
(1)
…………………………………………
……………………
(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
1908
is
8
Civil Revision no.623-D of 2006
evidence
shall
be
led
accordingly; and
(b)……………………………………
…………………………………”
The respondents’ predecessor/plaintiff has produced
one marginal witness of Ex.P1, whereas other marginal
witness has admittedly died and marginal witnesses of
Ex.P2 have also been produced, the execution of
agreement to sell is proved in accordance with law,
because under Article 79 of the Qanoon-e-Shahadat
Order, 1984, it is mandatory to prove the contents of a
document by producing two truthful witnesses. For
ease of reference, said
Article is
reproduced as
under:“Article 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
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Civil Revision no.623-D of 2006
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.”
Furthermore, there is no denial to the fact that scribe
of document could be examined by concerned party for
corroboration of evidence of marginal witnesses or in
the eventuality those were conceived by Art.79 of
Qanun-i-Shahadat
Order,
1984,
itself
not
as
a
substitute. In this case, when the marginal witnesses
have
been produced by the
predecessor
of
the
respondents, the evidence of scribe is of no value. In
this regard safer reliance can be placed on Hafiz
Tassaduq Hussain Vs. Muhammad Din through
Legal Heirs and others (PLD 2011 Supreme Court
241) where it has been held that:“Transaction
of
sale
immovable property (if
conditional
sale)
conclusive
transfer
of
not a
was
the
of
an
absolute title and ownership of
property
unto
the
vendee
in
presentee, while agreement to
sell was meant for accomplishing
the object of sale in futurity and
for all intents and purposes it
pertained to future obligations of
the
parties
thereto----Sale
agreement/agreement
to
sell
was duly covered and fell within
10
Civil Revision no.623-D of 2006
the pale of Art.17 of Qanun-eShahadat, 1984---Purpose and
object of attestation of document
by certain number of witnesses
and its proof through them was
meant to eliminate the possibility
of fraud and purported attempt
to create and fabricate false
evidence for the proof thereof
and
thus
legislature
in
its
wisdom had established class of
documents which were specified
in Art.17 of Qanun-e-Shahadat,
1984---For
validity
of
instruments falling within Art.17
of Qanun-e-Shahadat, 1984, the
attestation as required therein
was absolute and imperative--For the purpose of proof of such a
document,
attesting
witnesses
had to be compulsorily examined
as per requirement of Art. 79 of
Qanun-e-Shahadat,
otherwise
it
was
1984,
not
to
be
considered and taken as proved
and
used
in
evidence—Such
principle of law was in line with
the principle that where law
required an act to be done in a
particular manner, it had to be
done
in
that
way
and
not
otherwise--- Scribe of document
could
only
be
a
competent
witness in terms of Art.17 and
79 of Qanun-e-Shahadat, 1984,
if he had fixed his signature as
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Civil Revision no.623-D of 2006
an
attesting
witness
of
the
document and not otherwise--Signing
of
document
in
the
capacity of a writer did not fulfill
and meet mandatory requirement
of attestation by him separately--Scribe of document could be
examined by concerned party for
corroboration
of
evidence
of
marginal witnesses or in the
eventuality those were conceived
by Ar.79 of Qanun-e-Shahadat,
1984, itself not as a substitute--Mandatory provisions of law had
to be complied and fulfilled and
only for
the
reasons
or
the
perception that such attesting
witness if examined would turn
hostile
did
not
absolve
the
concerned party of its duty to
follow the law and allow the
provisions of Qanun-e-Shahadat,
1984, relating to hostile witness
take its own course---”
In view of above, the respondents’ predecessor/plaintiff
successfully proved his case of making payment of
earnest money, subsequent amounts at different times
i.e. Rs.35,000/- to Meer Hassan, predecessor in
interest of the petitioners, who admittedly signed the
agreement to sell Ex.P1 and renewed agreement to sell
Ex.P2; meaning thereby he had admitted the contents
of the said two documents and then put his signatures
thereon. Moreover, the point involved in additional
12
Civil Revision no.623-D of 2006
issue regarding necessary permission of the Collector
under section 19 of the Colonization of Government
Lands Act is concerned, same has rightly been
appraised and addressed by the learned Appellate
Court and does not call for any interference by this
Court. Even otherwise, in revisional jurisdiction the
Court has only to see, whether any irregularity,
illegality and wrong exercise of jurisdiction vested in a
Court has been committed. Section 115 of C.P.C. is
reproduced below for ease of reference:“115-Revision._ (1) The High
Court may call for the record of
any
case
decided
which
by
has
any
been
Court
subordinate to such High Court
and in which no appeal lies
thereto, and if such subordinate
Court appears:(a) to have exercised a jurisdiction
not vested in it by law, or
(b) to have failed to exercise a
jurisdiction so vested, or
(c)
to have acted in the exercise of
its jurisdiction illegally or with
material irregularity,
the High Court may make such
order in the case as it thinks fit.”
It is well settled by now that the High Court cannot
interfere in the findings on question of law or facts,
howsoever, erroneous in exercise of its revisional
jurisdiction. This view has been fortified by case of
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Civil Revision no.623-D of 2006
Hakim Ud Din through L.Rs. & others Vs. Faiz Bukhsh
& others 2007 S C M R 870, in which it has been held
that:
“It is established proposition of
law that finding on questions of
law
or
erroneous
fact,
the
howsoever,
same
may
be
regarded by a Court in exercise
of its revisional jurisdiction under
section 115, C.P.C., unless such
findings suffer from jurisdictional
defect,
illegality
or
material
irregularity.” Similar view has
been adopted in case of Abdul
Aziz
Vs.
Sheikh
Fateh
Muhammad 2007 S C M R 336
wherein it has been invariably
held
that,
concurrent
“Interference
findings
in
on
controversial question of facts or
mixed question of law and facts
in revisional jurisdiction for mere
reason
that
another
view
of
evidence was also possible, is
not proper.”
But in the present case, no such occasion has arisen
at the trial as well as appellate stage, so this Court
finds no illegality, irregularity or infirmity, wrong
exercise of jurisdiction vested upon the Courts below
while passing the impugned judgments and decrees,
respectively;
therefore, same do not call for any
14
Civil Revision no.623-D of 2006
interference by this Court while exercising revisional
jurisdiction.
6.
So far as the case law submitted by learned
counsel for the petitioners is concerned, with utmost
respect, same has no relevance to the facts and
circumstances of the instant case; therefore, does not
render any assistance to the petitioners’ cause; as each
and every case has its own peculiar facts and
circumstances and the courts have to evaluate the
same with independent mind so as to administer
justice in accordance with law.
7.
In view of the above said discussion, when the
petitioners/plaintiff
have
failed
to
establish
any
illegality, irregularity or infirmity in the findings of
learned Courts below rendered in the impugned
judgments, it can be safely observed that the same are
result of appraising the evidence in true perspective,
applying of judicial mind, rightly interpreting the law
and upto the dexterity, therefore, same do not call for
any interference by this Court. Resultantly, by placing
reliance on the judgments supra, this civil revision is
dismissed in limine.
(SHAHID BILAL HASSAN)
JUDGE
*M. A. Hassan*
Approved for reporting.
JUDGE

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