Pir Muhammad Shah Vs Habib ur Rehman

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH.

JUDICIAL DEPARTMENT

CR No.70-A of 2009

JUDGMENT

Date of hearing.....................27/09/2017...................................... Appellant...(Pir Munawar Shah) by Mr. Muhammad Naeem Anwar, Advocate.....................................

Respondent...(Habib-ur-Rehman etc) by M/S Muhammad Shafiq Awan and Sahar Gul, Advocates................

SYED MUHAMMAD ATTIQUE SHAH, J:-

This revision petition is directed against the judgment and decree dated 15.01.2009 passed by learned Additional District Judge-II, Mansehra, vide which the appeal of respondents No.l to 3 (hereinafter called as respondents) was accepted and judgment and decree dated 19.12.2006 of the learned Civil Judge-IV, Mansehra, was set aside.

2.Brief facts of the present revision petition are that the petitioner instituted a suit for specific performance of

contract against the respondents in the Court of learned Senior Civil Judge, Mansehra on 28.07.2003. The learned trial Court summoned the respondents, who contested the suit by submitting their written statement.

Learned trial Court after recording pro and contra evidence of the parties, decreed the suit in favour of the petitioner vide judgment and decree dated 19.12.2006.

Being aggrieved, the respondents impugned the said findings in appeal before the learned Appeal Court, which was allowed by the learned Additional District Judge-II, Mansehra, vide judgment and decree dated 15.01.2009. The petitioner has now impugned the findings of the learned Appeal Court before this Court in the instant revision petition.

3.Arguments of the learned counsel for the parties heard and record perused with their able assistance.

4.Perusal of record further reveals that contract to sell was entered between the parties on 07.11.1995 (Ex.PW 4/1) vide which Rs.25,000/- were shown paid to Fazal-ur-Rehman, the predecessor-in- interest of respondents and Rs.127,500/- were promised to be paid at the time of attestation of mutation. In

pursuance of Ex.PW 4/1, the predecessor in interest of respondents entered mutation No.6057 dated 01.10.1995 (EX PW 4/3) in the name of the petitioner, however, the same was cancelled on 14.03.1996 by the Revenue Officer due to non-appearance of the parties.

Subsequently, a receipt dated 21.02.2003 (Ex.PW 6/1) was written between present petitioner and respondents No.2 and 4 in jirga proceedings. Thereafter, the present suit was filed by the petitioner against the respondents on

5.Learned counsel for the petitioner vehemently urged that DW-1, while recording his statement has admitted contract to sell (Ex.PW 4/1) between the parties alongwith entering of mutation (Ex.PW4/3). No doubt, the factum of Ex.PW 4/1 was admitted by DW-1 however, he stated in clear words, that in pursuance to EX.PW 4/1 mutation No.6057 (Ex.PW4/3) was also entered, but due to non-payment of the remaining sale consideration, the said mutation was cancelled by the Revenue Officer and thereafter the suit property was exchanged with respondents No.4 and 5 vide mutation No.6129 attested on 21.11.1996.

6.Learned counsel for the petitioner also urged with vehemence, that vide Ex.PW 3/1, an amount of Rs.50,000/- was transferred into the account of said Fazal-ur-Rehman on 23.01.1995, however, when Ex.PW 3/1 was placed in juxta position with Ex.PW 4/1 (contract to sell), which was entered between the parties on 07.11.1995, the said amount of Rs.50,000/- does not find mention in Ex.PW 4/1 for the reasons best known to the petitioner despite the fact that the same was scribed after ten long months of the said deposit of Rs.50,000/-.

Apart from the above, the petitioner while recording his statement has also not produced the deposit receipt with respect to aforementioned amount deposited in the account of said Fazal ur Rehman. Thus, the petitioner has miserably failed to prove his case in accordance with settled principles of law. Moreover, it is also settled principle of law “that plaintiff is to prove his case on the strength of his own evidence and he cannot get any benefit from the shortcomings and weaknesses of the defendant’s case”. After the cancellation of the mutation on 14.03.1996, the petitioner brought the present suit on 28.01.2003, after long seven years of the said cancellation. Careful perusal of Ex.PW 4/1 would show,

that no date was fixed for payment of the remaining balance amount, however, it has clearly been stipulated therein that the balance amount will be paid at the time of attestation of the mutation. Therefore, period of limitation, provided by Article 113 of Limitation Act, 1908, had to start from the cancellation of mutation i.e.

14.03.1996. Article 113 of the Act ibid, provides period of limitation of three years for filing of suit for specific performance of contract. For the sake of convenience, Article 113 of the Act is reproduced below.

Description of Period of Time from which suit limitation period begins to run

113.For specific Three years The date fixed for the performance of performance, or, if no contract. such date is fixed, when the plaintiff has notice that performance is refused.

Thus, this Court also reached to the conclusion that the suit of the petitioner was badly time barred, as the same was not instituted within period of three years of the said cancellation of mutation. It is also noteworthy that original of Ex.PW 6/1 was not produced at the time of its exhibition, therefore, under the law the same cannot be taken into consideration, as by now it is very well settled

that even if a photocopy taken on record and exhibited without any objection, the same would not qualify the document as admissible piece of evidence. Reliance is placed on case law titled ‘Abdur Rehman Vs. Haji Muhammad Yousaf’ (2007 SCMR 6).

7.Thus, keeping in view, the above referred facts, circumstances and discussions made thereupon, it is concluded that the findings of the learned Appeal Court are based on proper appreciation of evidence and material available on record of the case and the law applicable thereto, hence, the same needs no interference by this Court in its revisional jurisdiction under section 115 CPC. Therefore, the instant revision petition being bereft of any merits, is dismissed.

Announced:

Dt.27.09.2017. JUDGE

*/M.Saleem/*