Saifullah etc. vs Muhammad Deen etc.

Stereo. H C J D A 38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR

JUDICIAL DEPARTMENT

R. S. A. No. 19 / 2014 Saifullah and others Versus Muhammad Din (deceased) through L.Rs.

R. S. A. No. 20 / 2014 Sher Muhammad Versus Muhammad Din (deceased) (deceased) through L.Rs. through L.Rs.

and others

JUDGMENT

Date of Hearing: 13.10.2025 Appellant(s) By: Mr. Muhammad Naveed Farhan, Advocate Respondent(s) By: Mr. Aejaz Ahmad Ansari, Advocate

ABID HUSSAIN CHATTHA, J: This Judgment shall decide the titled Appeals which are intrinsically connected with each other and are preferred against the separate impugned Judgments & Decrees dated 02.05.1998 and 02.06.2014 passed by Civil Judge and Additional District Judge, Chishtian, District Bahawalnagar, respectively.

2.Briefly, Muhammad Din who died during pendency of the lis and is now represented by his legal heirs (the “Respondent”) instituted two separate suits for specific performance against the Appellants. In the first suit, the Respondent averred that the Appellants, Saif Ullah, etc. as owners of the suit property measuring 02 Kanals & 1 Marla constituting 56 / 816 share in Cotton Ginning Factory and Oil Mills in Khata No. 1/1 situated at Chak No. 15/G, Tehsil Chishtian executed registered agreement to sell dated 12.01.1993 (the “First Agreement”) in his favour after receiving entire sale consideration of Rs. 1,000,000/- promising to transfer the suit property by the target date of 30.04.1994. However, the Appellants lingered the transfer of suit property on one or other pretext which compelled the Respondent to serve notice dated 11.12.1995 but the same was not responded. Hence, the Respondent is entitled for the transfer of the suit property in his name trough specific performance of the First Agreement.

R. S. A. No. 20 / 2014

3.The second suit is identical to the first suit except that the suit property is different i.e. measuring 48 Kanals in Khata No. 2/3 situated in Chak No. 15/G, Tehsil Chishtian and the claim is based on registered agreement to sell dated 12.01.1993 (the “Second Agreement”) with the target date of 30.06.1993 which was later substituted through an addendum as 30.06.1994 for transfer of suit property allegedly executed by the Appellants, Sher Muhammad, etc. in favour of the Respondent after payment of entire sale consideration of Rs. 1,000,000/-.

4.The Appellants in their respective written statements did not refute the execution of the First Agreement and the Second Agreement, hereinafter collectively referred to as (the “Agreements”) but submitted that the same were merely executed as guarantee to secure payments of Rs. 1,000,000/- each which were outstanding on the part of one Muhammad Aslam towards the Respondent. The said Muhammad Aslam is the son of Sher Muhammad and uncle of Saif-Ullah, etc. Written understandings dated 20.01.1994 & 04.08.1994 (the “Understandings”) with respect to the aforesaid arrangement executed by the said Muhammad Aslam and the Respondent, respectively were relied upon to assert that rendition of accounts is yet to take place regarding the business between the Respondent and the said Muhammad Aslam. Therefore, the Agreements were executed as surety for payment of the outstanding amounts on the part of said Muhammad Aslam which are without consideration, premature and unenforceable. As such, the Respondent has the right to institute separate suit for recovery against the said Muhammad Aslam and cannot claim specific performance of the suit properties.

5.The Trial Court framed the following issues on 21.10.1996 in both the suits:

(i)Whether the Agreements were executed between the parties? If so, whether the Respondent is entitled to the decree of specific performance of the Agreements? OPP

(ii)Relief.

6.After recording respective evidence of the parties, the Trial Court decreed both the suits in the manner that the Respondent is entitled to recover Rs. 1,000,000/- each from the Appellants along with interest @ 14% per annum on the said amounts since the respective dates of execution of the

R. S. A. No. 20 / 2014

Agreements till the satisfaction of the decretal amount. The Trial Court held that not only the execution of the Agreements was admitted but the same were duly proved by the Respondent. However, the Agreements were executed as guarantee for payment of outstanding amounts of the said Muhammad Aslam as depicted from the Understandings coupled with the testimony of witnesses of the Appellants. Nevertheless, as the outstanding amounts have admittedly not yet been paid, therefore, the Appellants as surety are liable to pay the same to the Respondent. Accordingly, relief of specific performance of the Agreements was denied and the suit was decreed in the manner stated above.

7.Initially, the Appellate Court decided the Appeals against the decision of the Trial Court on 10.05.2006 but the said decisions were subsequently set aside by this Court vide Order dated 12.02.2014 by directing the Appellate Court to decide the Appeals afresh on merits. The Appellate Court vide impugned Judgment dated 02.06.2014 modified the decrees passed by the Trial Court by granting the relief of specific performance of the Agreements to the Respondent by holding that the same were not executed as a guarantee for repayment of the outstanding amount due against the said Muhammad Aslam for the reason that in such an eventuality, there was no need to execute the Agreements and the said intention could have been fulfilled by executing a promissory note or through any other manner. As such, when the Agreements were fully proved, there was no reason to deny the relief of specific performance to the Respondent.

8.Learned counsel for the Appellants submitted that the impugned Judgments are not sustainable for multiple reasons. The Agreements read with the Understandings unequivocally prove the stance of the Appellants. The marginal witnesses, scribe and stamp vendor of the Agreements (Ex. P-1) and the Understandings (Ex. D-1 and D-2) have proved the same since if the attesting witnesses deny or do not recollect the execution of the document, its execution can be proved by other evidence as mandated by Article 82 of the Qanun-e-Shahadat Order, 1984 (the “QSO”) and, as such, stance of the Appellants stood proved. He asserted that when the entire sale consideration was allegedly paid, there was no reason to execute the Agreements instead of registered sale deeds or postponing possession to a future target date which further fortifies the stance of the Appellants that the Agreements were

R. S. A. No. 20 / 2014

executed merely as a guarantee for repayment of the amount payable by said Muhammad Aslam towards the Respondent who could independently recover the same from him. In any event, the relief of specific performance could not be granted to the Respondent in view of the provisions of law contained in Sections 21(c) & (d) and 24(c) of the Specific Relief Act, 1877 (the “Act”) since terms of the Agreements were not ascertainable with reasonable certainty, the Agreements in their nature were revocable and could not be enforced in favour of the Respondent who had an available remedy against the said Muhammad Aslam to recover his outstanding amounts, if any, by filing a suit for recovery against him. Hence, the impugned Judgements and Decrees are liable to be set aside.

9.Conversely, learned counsel for the Respondent submitted that both the Courts below have rendered concurrent findings of fact to the effect that execution of the Agreements was proved by all means and in all respects. As such, the Appellate Court rightly granted the decree of specific performance in favour of the Respondent. Hence, the titled Appeals are liable to be dismissed.

10.Arguments heard. Record perused.

11.The Respondent sought specific performance regarding the suit properties on the basis of registered Agreements (Ex. P-1) which required the Appellants to transfer the suit properties by specific target dates by alleging payment of entire sale consideration. The Agreements were admitted by the Appellants with the caveat that the same were without consideration and were executed to guarantee payment of outstanding amounts purportedly due to the Respondent by the said Muhammad Aslam. The execution of the Agreements (Ex. P-1) was proved by both the marginal witnesses, the contents whereof reflect the intentions of the parties. The terms of the Agreements are regarding the sale of the suit properties for Rs. 1,000,000/- each by the Appellants in favour of the Respondent yet the titles of the Agreements are that of ‘agreements to sell’ stipulating future target dates for transfer of the suit properties without any reason. The stipulated sale consideration in the Agreements is the same although the suit properties in terms of the nature and measurement are drastically different. Conspicuously, the Agreements confer a right upon the parties to cancel the same with mutual consent or extend the

R. S. A. No. 20 / 2014

target date. In the second suit, in fact the target date was extended as stated before. Under the aforesaid facts and circumstances, it was incumbent upon the Respondent to independently prove the payment of sale consideration to demonstrate that the Agreements were not executed by the Appellants as surety for the payments due towards the said Muhammad Aslam or the said due payments did not constitute sale consideration. PW-1 in his testimony stated that he paid the sale consideration at his shop ‘Haji Gulab Din & Company’ at 4 PM on 08.01.1993 but did not disclose or mention to whom the payment was made. PW-2, a marginal witness admitted his signatures on Exh-P.1 & Exh-D.1 and stated that payment was made at the shop but he also did not disclose specific particulars of payment, particularly, to whom the payment was made. PW-3 only stated that payment was made in his presence but he did not mention to whom the sale consideration was paid and who paid the same.

12.The surrounding facts and circumstances also fortify the stance of the Appellants. The Respondent in paragraph No. 4 of the plaints admitted that notices to perform the Agreements were given to the Appellants on 11.12.1995 after about 17 to 19 months from the respective target dates set in the Agreements. The suits were filed on 11.01.1996 i.e. a day before the expiry of limitation regarding one suit prescribed for filing a suit for specific performance as per Article 113 of the First Schedule of the Limitation Act, 1908. There is no explanation in the plaint as to why the Respondent served the notices way beyond the target dates or did not file the suits promptly although, it was alleged that entire sale consideration had been paid pursuant to the Agreements. There is also no explanation on the part of the Respondent as to why the Agreements were executed when allegedly the entire sale consideration was paid instead of executing the sale deeds and why the target dates were set months after the date of execution of the Agreements for the transfer of the suit properties. There is also no reason to justify postposing of possession of the suit properties as the Respondent admitted in his cross- examination that he has not obtained possession till date. The above analysis leads to an irresistible conclusion that separate sale considerations against the stated sale transactions in the Agreements were not paid but the amounts

R. S. A. No. 20 / 2014

payable by the said Muhammad Aslam to the Respondent constituted respective sale considerations.

13.The arrangement to this effect was incorporated in the subsequently drawn Understandings (Exh-D.1 & Exh-D.2). The marginal witness, namely, Shahid Anwar, PW-2 admitted his signatures on Ex. D-2, while the other showed his ignorance in the shape of evasive denial regarding the execution of the Understandings. Nevertheless, the scribers and stamp vendors of Ex- P.1, Ex. D.1 and D.2 were produced who proved their due execution coupled with the testimonies of private witnesses of the Appellants including that of the said Muhammad Aslam who explained that the Agreements were got executed by the Appellants in favor of the Respondent since his own properties were mortgaged with financial institutions at the relevant time. It is pertinent to mention that Article 82 of the QSO specifically stipulates that if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence. When attesting witnesses are under the influence of one party and become hostile, Article 82 of the QSO can be invoked to prove the execution of a document as an exception to Article 79 of the QSO which requires that as a normal rule, a document required by law to be attested shall be proved by producing at least two attesting witnesses. Reliance is placed on case titled “Muhammad Baksh v. additional District Judge, Jhang” (PLJ 2021 Lahore (Note) 54).

14.In the peculiar facts and circumstances of the case, it is established that the Agreements were duly executed, however, the same were executed to guarantee the payment of amount due to the Respondent by the said Muhammad Aslam. Hence, specific performance of the Agreements which is even otherwise, a discretionary relief could not have been extended to the Respondent by the Appellate Court by reversing the well-reasoned Judgment of the Trial Court. The latter aptly and rightly held that as the Agreements stood proved, the Appellants were liable as surety to pay the amounts equal to sale considerations stipulated therein as amounts due against the said Muhammad Aslam to the Respondent with interest from the respective dates of execution of the Agreements which admittedly had not been paid regarding which the Appellants willingly and freely executed the Agreements.

R. S. A. No. 20 / 2014

15.In view of the above, the titled Appeals are partially allowed; both the impugned Judgments & Decrees dated 02.06.2014 passed by the Appellate Court are set aside and in consequence thereof, the impugned Judgments & Decrees dated 02.05.1998 passed by the Trial Court are upheld. Order, accordingly.

(Abid Hussain Chattha) Judge Approved for Reporting.

Judge *Abu Bakker*