IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Revision Application No. S – 170 of 2010
[Raja Abdul Hameed deceased through legal heirs
v. Muhammad Ahsan Nawaz & another]
Applicant : Raja Abdul Hameed deceased
through legal heirs Khalida Hameed & others, through
Mr. Muhammad Naveed Farhan, Advocate.
Respondents : Nemo
Date of hearing : 17-08-2020
Date of order : 02-09-2020
O R D E R
Adnan Iqbal Chaudhry J. – F.C. Suit No. 37/2006 for specific performance of an agreement to sell filed by the predecessor of the Applicants (Plaintiff) was dismissed by the Senior Civil Judge, Mirpur Mathelo; Civil Appeal No. 46/2008 was also dismissed by III‑Additional District Judge, Mirpur Mathelo; hence this revision application.
2. The case set-up in the plaint was that out of 200 acres, the Defendant No.1 was owner of 16-25 acres, and the Defendant No.2 of 38-09 acres, (total 54-34 acres), in specific survey numbers in Deh Garkhano, Taluka Ubaro, District Ghotki; that by a sale agreement dated 29-12-2001 (Exhibit 68), the Defendants (Respondents) had agreed to sell the said land to the Plaintiff @ Rs.50,000/- per acre; that since the land was undivided property held by the Defendants jointly with other family members, the exact area of the land to be sold was to be determined after partition of the share of the Defendants; that the Plaintiff paid Rs.2,00,000/- as earnest money against a receipt dated 29-12-2001 (Exhibit 69); that the balance was payable by 31‑01‑2003, at which time possession of the land was to be delivered to the Plaintiff and the khata of the Defendants was to be transferred to the Plaintiff; that the Plaintiff made various payments to the Defendants from time to time but did not ask for receipts due to friendly relations; that a dispute arose between the parties which was resolved by executing a ‘panchayat-nama’ (dated 01-04-2005, Exhibit 71), where under the Defendants acknowledged receipt of a sum of Rs.33,40,000/- as sale consideration of the land; and that the suit was filed when the Plaintiff learnt that the Defendants were negotiating sale of the land with another person.
3. In contrast to the plaint, the sale agreement dated 29-12-2001 (Exhibit 68) did not specify the area of the land agreed to be sold or the survey numbers thereof. Additionally, the sale agreement recited that before transferring the land to the Plaintiff, the Defendants would settle the loan obtained from the bank against the land and that the amount of such loan amount would be deducted from the sale consideration.
4. Despite opportunities, the Defendants did not file written statement. The trial court ordered the suit to proceed ex-parte. The application of the Defendants for recalling that order was dismissed by the trial court and such dismissal was upheld in appeal.
5. By judgment and decree dated 30-09-2008, the trial court dismissed the suit. Civil Appeal No. 46/2008 filed by the Plaintiff was also dismissed by judgment and decree dated 25-05-2010. It was held that the sale agreement dated 29-12-2001 was void for uncertainty and thus could not be specifically enforced; that the record of rights showed that the land was joint and undivided property held by the Defendants with other co-owners, and the sale agreement did not specify the share of the Defendants in such land, nor did it mention the survey numbers thereof. More significantly, both the Courts below held that the sale agreement had not been proved in line with Article 79 of the Qanun-e-Shahadat Order, 1984 as only one of its attesting witnesses had been examined by the Plaintiff.
6. Heard the learned counsel and perused the record.
7. The requirement of Article 79 of the Qanun-e-Shahadat Order, 1984 is that 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. There is a proviso for a registered document, but that is not relevant for the present purposes. Pursuant to Article 17(2)(a) of the Qanun-e-Shahadat Order, the sale agreement dated 29-12-2001, being a document involving a financial and future obligation, was a document required by law to be attested. It was in fact duly attested by no less than four witnesses, namely Muhammad Akhtar Advocate, Malik Dost Muhammad Advocate, Ch. Muhammad Yaqoob and Mian Ghazi Mujahid. Admittedly, only Mian Ghazi Mujahid was examined as attesting witness (Exhibit 70). Learned counsel for the Applicant submitted that the other attesting witness, namely Ch. Muhammad Yaqoob, could not be called as he had passed away, and that such fact was mentioned by the Plaintiff and PW Muhammad Anwar Hussain, the scribe, in their depositions. While the bald statements of the Plaintiff and the scribe were not sufficient proof under Article 80 of the Qanun-e-Shahadat Order as to the death of Ch. Muhammad Yaqoob, but assuming that he had passed away, it was not explained why Muhammad Akhtar Advocate or Malik Dost Muhammad Advocate, both of whom had also signed the sale agreement as attesting witnesses, were not called as the second attesting witness.
8. It is settled law that the mandatory requirement of Article 79 of the Qanun-e-Shahadat Order is not met by examining only one of the attesting witnesses<![if !supportFootnotes]><![endif]>, and the Court may well draw an adverse presumption under Illustration (g) of Article 129 that had the second witness been called, he would not have supported the case of the plaintiff.
9. Learned counsel for the Applicant drew attention of the Court to the deposition of Muhammad Anwar Hussain Soomro Advocate, who was produced by the Plaintiff as the scribe of the sale agreement, and who also deposed that the parties had signed the sale agreement in his presence. However, it has been held by the Supreme Court in Farid Bakhsh v. Jind Wadda (2015 SCMR 1044) and Hafiz Tassaduq Hussain v. Muhammad Din (PLD 2011 SC 241) that the scribe of the document cannot be a substitute for the attesting witness and his testimony cannot be equated with that of the attesting witness.
10. Learned counsel for the Applicant then submitted that in any case the sale agreement dated 29-12-2001 had been novated by the panchayat-nama dated 01-04-2005 by virtue of section 62 of the Contract Act, 1872; that under the panchayat-nama, the Defendants had acknowledged receipt of Rs.33,40,000/- from the Plaintiff as sale consideration; that two attesting witnesses of that panchayat-nama, namely Mian Ghazi Mujahid (also attesting witness to the sale agreement) and Muhammad Jameel, had been examined who had supported the Plaintiff’s case; and therefore, the Plaintiff’s failure to examine the second attesting witnesses of the sale agreement was of no consequence as the execution thereof was proved by proof of the panchayat-nama.
11. The signatures of the Defendants, so also of the Plaintiff, on the panchayat-nama dated 01-04-2005 (Exhibit 71) are clearly different from their stated signatures on the sale agreement dated 29-12-2001. Regards the receipt of Rs.33,40,000/- purportedly acknowledged by the Defendants as sale consideration in the panchayat-nama, it is not plausible that the Plaintiff paid such a substantial amount, that too from time to time, without taking a single receipt from the Defendants. Therefore, even if the panchayat-nama had passed the test of Article 79 of the Qanun-e-Shahadat Order, in the circumstances of the case it was still not conclusive, much less convincing evidence of its execution by the Defendants. The other aspect of the matter was that, from its contents, the alleged panchayat-nama was made to condone the delay in the performance of the earlier sale agreement and to set out further terms for its performance. It is settled law that novation of contract under section 62 of the Contract Act, 1872 is not arrived at by a mere variation in the terms of the original contract, and that novation is in fact substitution of the original contract.<![if !supportFootnotes]><![endif]> Furthermore, the Plaintiff had never even pleaded novation before the trial court. It has been held in Haji Abdul Karim v. Florida Builders (PLD 2012 SC 247) and Fazal-ur-Rehman v. Sughra Haq (2007 SCMR 564) that the failure to categorically plead novation in terms of Order VII Rule 6 CPC is fatal to such plea.
12. To sum up, the Plaintiff had not been able to prove that the Defendants had executed the panchayat-nama dated 01-04-2005. Since the two attesting witnesses to the sale agreement dated 29‑12‑2001 had not been examined by the Plaintiff as required by Article 79 of the Qanun-e-Shahadat Order, 1984, the execution of the sale agreement was also not proved. Having concluded so, I need not examine the finding that the sale agreement was also void for uncertainty, or whether it was vague and incapable of specific performance by reason of section 21(c) of the Specific Relief Act. Therefore, the concurrent findings of the Courts below do not call for interference. Resultantly, this revision application is dismissed.
J U D G E
<![if !supportFootnotes]><![endif]> Farid Bakhsh v. Jind Wadda (2015 SCMR 1044), and Hafiz Tassaduq Hussain v. Muhammad Din (PLD 2011 SC 241).
<![if !supportFootnotes]><![endif]> Haji Baz Muhammad Khan v. Noor Ali (2018 SCMR 1586), and Banque Indosuez v. Banking Tribunal for Sindh & Baluchistan (1994 CLC 2272).