Muhammad Nasir Ghouri vs Ch. Muhammad Nazir etc.

Stereo. H C J D A 38.

JUDGMENT SHEET

LAHORE HIGH COURT

RAWALPINDI BENCH, RAWALPINDI

JUDICIAL DEPARTMENT

Civil Revision No. 534-D/2014

Muhammad Nasir Ghouri Vs.

Ch. Muhammad Nazir (deceased) through L.Rs., etc.

JUDGMENT

DATE OF HEARING: 28.01.2026

PETITIONER BY: Mr. Taimoor Malik, Advocate.

RESPONDENTS BY: Raja Ehsan Saeed, Advocate.

TARIQ MAHMOOD BAJWA, J:- By means of the instant Civil Revision, the petitioner has assailed the vires of the judgment and decree dated 11.05.2010 passed by learned trial court whereby the suit for specific performance filed by the petitioner was dismissed and judgment and decree dated 25.08.2012 handed down by learned Additional District Judge, Rawalpindi whereby the appeal of the petitioner against the aforesaid judgment and decree was also dismissed.

2.Dispensing with needless details, the facts in brevity, to understand the controversy involved in this civil revision are that Muhammad Nasir Ghouri, plaintiff/petitioner, instituted a suit for specific performance on the basis of an oral agreement to sell on 13.05.2006 against defendants/respondents, concerning land measuring 18 marlas situated at Moza Chahat, Kahuta Town, asserting that in 1988 the defendants No. 1 & 2 entered into an oral agreement to sell the suit property for a consideration of Rs. 90,000/, which was fully received, and possession was delivered to the plaintiff. Registration of the sale deed was repeatedly deferred on various pretexts. In 2005, despite the plaintiff’s demand, the defendants again avoided execution of the sale deed, citing domestic issues. Subsequently, in violation of the oral agreement and without notice, the defendants transferred the property to defendant No. 3

through registered sale deeds dated 20.02.2006 and 01.03.2006 for Rs. 7,20,000/-. Defendant No. 3 had prior knowledge of the plaintiff’s rights. On 11.05.2006, defendant No. 2 executed a written agreement in favour of the plaintiff in the presence of witnesses. The plaintiff therefore sought decree for specific performance along with permanent injunction.

Defendants No. 1 & 2 contested the suit, denying any oral agreement to sell and asserting that the plaintiff has no cause of action or locus standi and that the suit is time-barred. They claimed that loan was received from time to time, total Rs.90,000/-, that claim was also stale one, which they were willing to repay. The written agreement dated 11.05.2006 is alleged to have been obtained under coercion, for which a complaint was lodged at Police Station Kahuta. The transfer of the property to defendant No. 3 is stated to be lawful.

3.Issues were framed and both the parties produced their oral as well documentary evidence. After hearing both parties and appreciating the material, the learned trial court vide judgment and decree dated 11.05.2010, dismissed the suit filed by the petitioner. Feeling aggrieved, the petitioner preferred civil appeal, which was dismissed by learned appellate court vide judgment and decree dated 25.08.2012. The petitioner being still disgruntled, filed titled Civil Revision and impugned both judgments and decrees.

4.Mr. Taimoor Malik, Advocate, learned counsel for the petitioner has inter alia contended that impugned judgments and decrees passed by both the courts below are not sustainable either in law or on facts; that no doubt earlier there was oral agreement between the petitioner and respondents/owners, however, later on the same was reduced into writing and the petitioner had tendered the same in evidence as Ex.P.2; that the owners/respondents were not legally competent to alienate the property vide registered sale deeds dated 20.02.2006 and 01.03.2006 (Ex.P3 and Ex.P4); that the said vendors were not bonafide purchasers and they had purchased the property in presence of a legal agreement of the petitioner with the owners/respondents; that the learned trial court had not framed any

specific issue on the said vial aspect. While advancing his contentions, learned counsel submits that DW.1/owner admitted in the witness box the receipt of the consideration; that both courts below while ignoring said vital admission had not decreed the suit even to the extent of return of admitted received amount. The evidence was recorded by the local commission and was not written by the learned Presiding Officer, in such eventuality, memorandum under Order XVIII Rule 8 CPC was mandatory requirement, the same has not been complied with.

5.Raja Ehsan Saeed, Advocate, while opposing the said contentions and supporting the concurrent judgments and decrees passed by both the courts below, contended that the same are the outcome of correct appreciation of pleadings, evidence and settled law; that it was incumbent upon the petitioner/plaintiff to plead the date, time, month and witnesses of the agreement in the plaint as he is claiming on alleged oral agreement to sell. While referring to the contents of the plaint, further submits that the plaint of the petitioner is deficit to the said necessary particulars, therefore, he could not produce evidence in support thereof, and even if such evidence was produced, the same was not considerable. While answering the contentions of the petitioner that lady owner admitted the receipt of the amount, submits that she had not admitted the amount under the oral agreement rather it was the help to them due to ailment of her husband/co-owner; that the lady owner while appearing in the witness box as DW seriously disputed the stated subsequent written agreement; that even otherwise that could not be termed as admission because before the said date of agreement, the owners had alienated the property; that both the courts below very rightly said at rest the suit of the petitioner.

6.Arguments heard, annexed record perused.

7.It is settled principle of law that a party has to first plead facts and pleas in pleadings and then to prove the same through evidence. A party cannot be allowed under the law to improve its case beyond what was originally set up on the pleadings. The principle of “secundum allegata et probate”, that a fact has to be alleged by a party

before it is allowed to be proved is fully attracted in this case, which has full backing of provisions of Order VI, Rule 2 and Order VIII, Rule 2, Code of Civil Procedure, 1908. Guidance in this respect is solicited from the precedent reported as Tufail Muhammad vs. Nazar Hussain and others (2022 MLD 1745). The Hon’ble apex Court in the case reported as Hafiz Qari Abdul Fateh through L.Rs. vs. Ms. Urooj Fatima and others (2024 SCMR 1709) observed as under the strict principles of pleading relating to the plaint on the basis of alleged oral agreement to sell:-

Quote “7. The issue in the present case is whether the petitioner proved the existence of oral agreement of sale in accordance with the law.

8.It is a settled principle of law that a contract is an agreement having a lawful object, entered into voluntarily by two or more parties each of whom intends to create one or more legal obligations between them. The basic requirements of a valid and enforceable contract are offer, acceptance, exchange of consideration and mutuality of obligations Further, a fundamentally important ingredient of a valid contract is that it should be between the parties who are competent to contract. An oral agreement by which the parties intended to be bound is valid and enforceable, however, it requires to be proved through clearest and most satisfactory evidence.

9.It is a well-established legal principle that when a party seeks a decree of specific performance for the sale of immovable property based solely on an oral agreement, the onus is on that party to demonstrate that there was a mutual agreement and consensus between both parties regarding the terms of the oral contract Reference may be made to the case reported as Maqbool Ahmad v Suleman Ali (PLD 2003 SC 31), wherein it was ruled that a person entering into an oral agreement has to prove the oral agreement according to the definition of agreement in Section 2(h) of the Contract Act, 1872.

10.A party claiming the existence of an oral agreement must clearly specify the date, time, place, and names of witnesses in their pleadings, such as the plaint or written statement. These requirements are sine qua non to prove an oral agreement to sell which have been settled by this Court in various decisions. Reference may also be made to the case of Muhammad Riaz and others v. Mst Badshah Begum and others (2021 SCMR 605) This is because suits involving sales based on oral agreements are more prone to dishonest improvements made by parties in the evidence and pleadings in order to succeed This has been so held in the case of Moiz Abbas v. Mrs. Latifa and others (2019 SCMR 74) as reproduced below:-

"8. We find that no date, time, place or names of witnesses of the alleged oral agreement have been mentioned in the reply to the legal notice, the written statement, or the suit filed by the respondent. The learned counsel attempted to argue that the said gaps had been filled by the witnesses of the

Respondents in their affidavits in evidence. We are not impressed by this argument These improvements are clearly beyond the pleadings and constitute and attempt to improve the case of the Respondents as an afterthought. Such course of action is not permitted by law These requirements are sine qua non to prove an oral agreement to sell which have been settled by this Court in numerous judgments time and again. These are clearly missing in this case. Suits involving sales based on oral agreements are more susceptible to improvements made by parties in the evidence and pleadings in order to succeed. It is imperative that all of these requirements spelt out by Courts with a view that only bona fide oral agreements lead to grant of decrees, need to be strictly enforced and Courts must insist that these be fulfilled at the earliest so as to ensure that an oral agreement is fully proved and the device of oral agreement is not abused by unscrupulous and devious litigants to get decrees by fraud, deceit, skillfully made improvements at different stages the trial"

Thus, the law relating to oral agreement is quite clear, the terms and conditions which were orally agreed have to be stated in detail in the pleadings and have to be established through independent evidence which is neither the case of the petitioner nor was it so set up before the lower fora.

11.In the present case, the petitioner did not set out particulars of such oral agreement in terms of Order VI Rule 2 of the Civil Procedure Code, 1908. Perusal of the plaint of the petitioner reveals that he failed to mention the date, time, place, names of witnesses and specific conditions of the oral agreement. The petitioner claimed that oral agreement was entered into by the father of respondent No.1 on her behalf with all the haries (farmers) of their lands. However, the petitioner failed to justify that under what authority the father of respondent No.1 was entitled to enter into oral agreement on her behalf? Thus, no authority letter or power of attorney was adduced in evidence to substantiate the claim of the petitioner.”

Unquote

8.The petitioner instituted the suit for specific performance on the basis of an alleged oral agreement to sell. While an oral agreement to sell is legally permissible, it must be proved through clear, cogent, and convincing evidence. The law on oral agreements is well settled: the precise terms and conditions allegedly agreed upon must be specifically pleaded and substantiated through independent and reliable evidence. Where a party seeks a decree for specific performance of an immovable property solely on the basis of an oral agreement, the burden squarely lies upon that party to establish the existence of a concluded and mutual contract. Such a party must

clearly disclose in the pleadings the exact date, time, place of the agreement, and the names of witnesses to support the alleged transaction.

9.Now, I proceed to examine the plaint in light of the aforementioned legal requirements. A careful scrutiny reveals that the petitioner/plaintiff failed to mention the date, time, place, or the names of the witnesses in the plaint, despite basing the suit on an alleged oral agreement to sell of the year 1988 with defendants No. 1 and 2. The suit was instituted on 13.05.2006, whereas the property had already been transferred to respondent No. 3 prior thereto. The petitioner produced the registered sale deeds dated 20.02.2006 and 01.03.2006, which are available on record as Ex.P3 and Ex.P4, clearly demonstrating that the alienation took place before the institution of the suit. Although the petitioner claimed that the oral agreement was subsequently reduced into writing and placed on record as Ex.P2, the said document was categorically denied by Mst. Sabri Begum alias Sabra Bi, one of the owners, who appeared as DW-1. She not only disowned the alleged written agreement but also deposed that the amount received was merely a loan. With regard to the execution of the subsequent written agreement, she asserted that it was prepared under compulsion. Viewed from another perspective, owner/Mst. Sabri Begam alias Sabra Bi had already alienated the property prior to the alleged subsequent agreement. Firstly, the said agreement cannot be treated as an admission, as it was expressly denied by her (DW) in the witness box. Moreover, once the property had already been lawfully transferred, such a stance cannot be construed as an admission in the light of Article 31 of the Qanune-Shahadat Order, 1984. Reliance can be placed on the case reported as Muhammad Ilyas and others vs. Muhammad Sharif and others (2001 CLC 1194). The owner (DW.1) had not conceded the receipt of amount under the oral agreement to sell, to that extent the claim of the petitioner is stale, at the cost of repetition alleged oral agreement was of the year 1988, suit was lodged in the year 2006, after eighteen years.

10.Another point urged by the learned counsel for the petitioner is that the evidence was not recorded by the Presiding Officer of the Trial Court rather by the local Commission, and that such recording is invalid for want of a proper memorandum. This contention is devoid of merit. The evidence was recorded in the courtroom, in the presence of the parties, and the witness was duly cross-examined by the learned counsel for the petitioner. At no stage was any objection raised at the time of recording of evidence, nor was any subsequent objection taken alleging that the evidence was not properly or correctly recorded. Having fully participated in the proceedings and availed the benefit of cross-examination, the petitioner is estopped from questioning the procedure at a later stage. The conduct of the petitioner clearly attracts the principle of approbate and reprobate, as a party cannot be permitted to accept a procedure when it suits him and reject the same when it does not. The petitioner had impugned the judgment and decree of the learned trial court vide appeal, the watchful scanning of the memorandum of appeal of the petitioner does not indicate that he questioned in it that there was no memorandum of the Presiding Officer on the evidence recorded by the Local Commission, rather it was agitated that the learned trial court misread/non-read oral as well as documentary evidence. Only inference, the oral evidence was considered legal. Order XLI Rule 1(2) CPC requires:- “Contents of memorandum. The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively.”

Such an objection, raised for the first time at a belated stage, is clearly an afterthought. The Hon’ble Supreme Court of Pakistan attended the question and distinction between the order XVIII Rules 8, 13 and 14 CPC as well as Order XXVI CPC, was pleased to observe in the case of Hassan Nawaz vs. Atta Muhmmad (Deceased) through L.Rs. (2021 SCMR 857) in paras 5 to 12 as under:-

“5. ......A Court, under the Court2, subject to such terms and conditions, as may be prescribed3, may appoint a Commission to examine a person, make local investigation, take accounts, and/or make partition. The elaborate manner and procedure to record

evidence by a Court is provided for under the Code In normal circumstances, the evidence of a witness is to be recorded by a Judge in open Court, under his own hand, superintendence, and/or under his personal direction The evidence of a witness is 'taken orally in open Court in the presence and under the personal direction and superintendence of the Judge The Court ordinarily records the deposition of a witness in writing in question and answer form, but in that of a narrative generally in the vernacular language of the Court or in English, read over to the witness after which any discrepancies or error(s) are corrected before signing it.

6.There are two situations that are contemplated under the Code, where it is not necessary to take the evidence of a witness verbatim in writing but the Judge is required to make 'memorandum of the substance of what each witness deposes as the examination of each witness proceeds. One such situation that is provided for is, where 'the evidence is not taken down in writing by the Judge, and secondly in unappealable cases10 Every memorandum so made forms part of the record. In cases where a Judge is unable to prepare such memorandum, he is required to record reasons for the same. 12 On examining the scheme of Order XVIII, C.PC. and other enabling provisions of the Code, it is clear that where the verbatim evidence is being recorded in writing, there is no necessity of making any memorandum of the substance of what each witness deposes. The recording of a memorandum of the substance of evidence means the essence, substance, or crux of the evidence that may be necessary for the just determination of the controversy in issue.

7.The manner and procedure for recording evidence through Commission is elaborately provided for under Order XXVI, C.P.C. Once the Commission, under the orders of the Court, is executed and the evidence is recorded, the Commissioner shall return the Commission together with his signed report, and the evidence recorded as per the direction and order of the Court. The evidence so recorded and taken by the Commission, subject to objections and decision of the court, forms part of the record, and is to be treated and considered as if the evidence has been reordered by the Court itself13 It appears that the learned Bench did not appreciate the scheme of the provisions of the Code. 14 The learned bench of the High Court erred to rely on rule 8 of Order XVIII, CPC to discard the evidence recorded through the Commission appointed by consent of the parties. Rule 8 of Order XVIII is not applicable in cases where the evidence is recorded, under the orders of the Court, through Commission. Under the given facts and circumstances of the case, there was no justification to remand the case to the learned Trial Court for de novo trial or proceeding afresh. The trial Court/Judge may take into consideration the evidence or memorandum of evidence, as the case may be, either recorded by the court itself, the predecessor Judge 15, or through Commission. Once such report of the Commissioner, along with the evidence so recorded is taken on record, it forms part of the judicial record and is to be read at any hearing of the suit and for making any order or pronouncement of judgment. The provisions noted herein are mere enabling provision, relating to a matter of procedure and not affecting the jurisdiction of the Court.

8.Where a court, for any reasons, is dissatisfied with the proceedings of Commissioner, there is nothing in the Code, which prevents it from directing a further enquiry as it may deem fit,

substituting the commissioner and/or recalling and examining a witness already examined by the commissioner, whose deposition is found to be illegible, ambiguous or unclear, on any material particular affecting the merits of the case. A party cannot claim, nor appeal the decision of a revisional Court for de nove trial as a matter of right 18

9.It appears that the learned bench of the High Court fell into error while considering the implication of Rule 8 of Order XVIII, C.PC. and misapplied the same on the evidence recorded through the commission, acting under section 75 read with Order XXVI, C P.C appointed by the Court

10.It is not always necessary that the Court may record evidence itself For a variety of reasons, it may be recorded through a Commission 1 The Court as a principal may exercise powers and delegate authority, under section 75 or Order XXVIII, for personal appearance of a witness in front of the Commission either out of its own accord or on application of either party 20 However, it does not bar the Court itself of the authority to examine the witness where it is not satisfied 21 Under Rule 13 of Order XVIII, it is provided that in cases where no appeal lies, the Judge may merely make a memorandum of substance of the evidence. Rule 15 of Order XVIII contains a general provision that a succeeding Judge can deal with any evidence or memorandum taken by his predecessor and proceed with the trial

11.The provisions of C.PC relating to summoning, attendance, examination of witnesses, and producing of documents, the penalties imposed on the witness could be exercised by the Commissioner executing the order of the Court is deemed to be a Civil Court

12.As noted above, the learned counsel for the Respondent was not able to show that any prejudice has been caused to the Respondent, rather the commission was constituted by consent of the parties. Under the given facts and circumstances in cases, where evidence is recorded through Commission, Rule 8 of Order XVIII of CPC is not attracted. As regard evidentiary value of documents exhibited and produced before the Local Commissioner, it is for the learned trial Court and the Appellate Court that has to examine and appreciate its evidentiary value and admissibility, or otherwise, and the revisional court may see exercise of jurisdiction in accordance with set parameters. The evidentiary value and admissibility can also be examined further by the Appellate Court in case it is wrongly admitted or appreciated within the set parameters of law. In this view of the matter, the impugned judgment cannot be sustained.

13.We inquired from both the counsel as to when the matter was remained by the High Court to the learned trial court to which it was replied that the matter was remanded on 05. 12.2018. Almost two years have elapsed, the fresh evidence could still have been recorded and case could have been decided. It is stated at bar that the case is still pending on account of transfer of jurisdiction/Court from Pindi Bhatian to Lahore, therefore, the matter could not be proceeded.

14.Accordingly, if the case has not been proceeded and decided by the learned trial court, the record and proceedings of the trial court may be remitted back to the learned High Court. The

impugned judgment is set aside, Civil Revision No. 2144/2013 titled Atta Mohammad (deceased) through LRs and others v. Hassan Nawaz shall be deemed to be pending before the learned High Court. The subject Civil Revision shall be heard and decided on merits strictly in accordance with law after due notice to the parties

15.The instant Leave petition is converted into appeal and is allowed in the terms noted above.”

11.While discussing the scope of revision, the Hon’ble Supreme Court of Pakistan in case law reported as “Shah Fakhr-E-Alam and others Vs. Mst. Shaukat Ara and others” (2023 SCMR 2103) was pleased to observe as under:

“----S. 115---Revisional jurisdiction of the High Court---Scope---When a Trial Court and the first appellate court, which are responsible for considering both factual and legal aspects, have already taken a specific viewpoint, the High Court under the jurisdiction granted by section 115 of the C.P.C. should generally refrain from offering an alternative interpretation of the evidence, unless the lower courts' interpretation is clearly unreasonable or contradicts well established legal principles.”

12.For the foregoing reasons, the learned courts below have rightly passed the impugned judgments and decrees while disbelieving the claim of oral agreement to sell of the petitioner. Learned counsel for the petitioner has failed to point out any illegality, irregularity, or jurisdictional defect in the impugned judgments. Consequently, no interference by this Court is warranted. Accordingly, this civil revision stands dismissed.

(Tariq Mahmood Bajwa) Judge *M.S.Aleem* Approved for reporting

Judge