IN THE HIGH COURT OF SINDH AT KARACHI

 

 

H.C.A No. 73 of 2005

 

 

Present:

 

Mr. Justice  Muhammad Ather Saeed, and

Mr. Justice Irfan Saadat Khan.

      

 

For the Appellants:                            Mr. S. Afsar Ali Abidi, Advocate.

                                                            Mr. Abdul Sattar Pingar, Advocate

                                   

For the Respondent No. 01  :          Mrs. Haleema Khan

 

For the Respondent No. 02  :          None

 

Dates of hearing:                               31.03.2011 & 07.04.2011

 

JUDGMENT

 

IRFAN SAADAT KHAN, J: This High Court Appeal has been filed against the judgment and decree dated 26.01.2005 passed by the learned Single Judge in Suit No. 1191/1998 decreeing the suit in favour of the Respondent                     No. 01 (Respondent) of the present appeal for specific performance, declaration and permanent injunction.

2.         Briefly stated the facts of the case are that the appellant is a businessman and owns a number of plots/properties in Karachi. The Respondent was a good friend of Appellant and used to frequently visit his office. Under the orders of Defence Housing Authority (DHA) the office of appellant located at Sea View was closed and was shifted to some other place. It was claimed by the appellant that during the shifting of office he noted that a transfer order of Plot No. 40, Khayaban-e-Alamgir, Phase-VIII, measuring 2000 sq. yards in DHA was missing. The appellant made efforts to locate the said order but of no avail.

3.         It was averred that in the year 1986 a burglary took place at the office of appellant and not only cash but certain documents were also stolen from there. As per the appellant initially he was of the opinion that the missing order was among the documents which were stolen in 1986. Necessary FIR in this regard was also lodged by him. It was stated that the appellant could not even imagine that the Respondent being his very good friend, would have taken away the said order. However having failed to trace out the missing order the appellant approached the DHA to obtain a duplicate transfer order. However he was told by the DHA that first of all he had to get a notice published in a leading Urdu and English newspaper about the said missing order. The appellant then got the notice published in daily “News” and “Nawa-e-Waqat” in their respective issues of 1.1.1998. However no claim or objection was filed by any quarter. Again due to some preoccupations the appellant could not go to DHA office for quite sometime and then again approached the said office to obtain the duplicate transfer order. Again he was asked by the DHA office to go through the said procedure. Thereafter public notices were published in two newspapers namely daily “News” and “Jasarat” dated 14.09.1998. However this time the appellant received a legal notice on 16.09.1998 dated 12.09.1998 from the Respondent informing him that the said plot belongs to him. Alongwith the said legal notice the appellant also received a copy of the lost/stolen transfer order.

4.         The appellant thereafter came to the conclusion that the file of the said plot must have been stolen by the Respondent from his Sea View office and after steeling the same the Respondent must have prepared forged and fabricated documents concerning the said plot. Thereafter the appellant received another legal notice dated 14.09.98, sent to him on 15.09.1998 and received by him on 16.09.98, informing him that the said plot belongs to Respondent. Thereafter the appellant furnished a reply dated 22.09.1998 of the said legal notice through his advocate by refuting the claim of Respondent and mentioning that he had neither sold the property to the respondent nor to any other person and the said plot still belongs to him. The appellant dislodged the sale agreement dated 08.10.86 by stating that no such agreement took place between the him and the Respondent and that in fact he had lost the original transfer order dated 27.11.1980 from his Sea view office. The Respondent thereafter filed a suit against the appellant for specific performance, declaration and permanent injunction as according to him a sale agreement was executed between him and the appellant for the sale of said plot for         Rs.2 lac and full amount in this regard had already been paid by him to the appellant. It was also prayed in the suit filed by the Respondent, who was appellant in the Suit No. 1191/98, that the appellant be instructed to accompany him to go to DHA office for transfer of the said plot in his name, as according to the DHA rules until and unless both the seller and the purchaser sign certain documents in their office, no transfer could take place.

5.         The learned Single Judge after hearing the parties at length framed the following issues:-

i.        Whether suit as framed and filed is barred by Law of Limitation?

ii.                 Whether the Defendant No. 01 sold to the Plaintiff his plot No. 40, Khayaban-e-Alamgir, Phase VIII, measuring 2000 sq. yards or thereabout situated in Pakistan Defence Officers’ Housing Authority, Karachi and entered into an agreement of sale dated 8.10.1986 and if not what are the consequences of it?

iii.               Whether the Defendant No. 1 has received the sale consideration of Rs. 200,000/- from the plaintiff and if not what are the consequences of it?

iv.                Whether the suit even otherwise maintainable in law?

v.                  Whether the Defendant No. 01 completed the sale by signing all the documents required by Defendant No. 02 for mutation purposes at the relevant time?

vi.                Whether the documents of the Defendant No. 01 in respect of the suit plot were stolen?

vii.             What should the decree be?”

           

6.         The learned Single Judge after recording the evidences of both the parties and going through the entire record and decisions relied upon by the parties came to the conclusion that the appellant, who was respondent in the suit, had failed to perform his part of the promise and from the documents and other records produced before him, it was established beyond any doubt that the said plot was sold by the appellant to the Respondent and all the related documents required for the transfer were also handed over by him to the Respondent. The learned Single Judge also observed that the appellant had not fulfilled his part of promise, which was against all norms of the law. Thereafter the learned Single Judge decided the case in favour of Respondent and allowed the suit in the following manner:-

It is hereby ordered that plaintiff’s suit is decreed against the defendants as prayed with costs as under:-

 

i)                   That the defendant No. 01 do Specifically Perform his part under the Agreement and get the plot No. 40 Khayaban-e-Alamgir, Phase VIII, measuring 2000 sq. Yds in PDOHA, Karachi mutated/transferred in the name of the plaintiff and the defendant No. 02 is hereby directed to mutate the plot in the name of plaintiff in its record as owner of the said plot.

 

ii)                 It is hereby declared that the acts of the defendant No. 01 is contrary to the terms of the agreement including issuance of public notice dated 14.09.98 are based on malafide and he has no right over the plot while the plaintiff being purchaser is the owner with all consequential reliefs.

 

iii)              That the defendants be and are permanently restrained from disturbing the ownership and enjoyment of the plot or taking any step towards negating the ownership of the plaintiff of the plot.

 

iv)               That the defendant No. 01 to bear costs of the suit as taxed and shown below”.  

 

            It is against this order that the present High Court Appeal has been filed.

7.         Mr. Afsar Ali Abidi learned Counsel appeared on behalf of the Appellant and submitted that the order passed by the learned Single Judge is contrary to the law and the facts of the case, as the same has been passed on mere conjectures and surmises only. The learned Counsel further submitted that the suit for specific performance was not maintainable in view of the fact that the execution of contract between the parties had been specifically denied by the appellant. He also submitted that the learned Judge had not considered the fact that burden of proof of sale was not discharged by the Respondent. He further submitted that the learned Single Judge has not considered that the documents on which the Respondent has relied do not bear the signatures of the appellant, as the appellant had changed his signatures in the year 1979 and on the documents produced by the Respondent old signature of the appellant were appearing. It is averred that all these documents were either fake/forged or fabricated. The learned Counsel went on to argue that to ascertain this fact a Commissioner was appointed who also had not appreciated this fact, hence there had been complete mis-reading of the evidence by the Commissioner as well as by the learned Single Judge.

8.         The learned Counsel further submitted that plausible explanation was given by the appellant that he was under the bonafide impression that he had lost the transfer order of the said plot but was taken by utter surprise when he was informed by the Respondent that he had entered into the sale agreement with him, which was not correct. He further submitted that no plausible explanation has been given by the Respondent as to why he kept mum for 12 years and made no attempt to transfer the said plot in his name, even if it is assumed that the appellant had entered into a sale agreement with him. He further submitted that forged signatures have been obtained on the documents and the learned Single Judge was not justified in discarding this issue. The learned Counsel has further submitted that the learned Single Judge was not justified in ignoring Article 17, 78 and 79 of the Qanoon-e-Shahadat Ordinance. He further submitted that the leaned Single Judge has not considered Section 35 of the Stamp Act and Order XLI Rule 27 CPC. In the end he submitted that the order passed by the learned Single Judge and the decree granted were the result of mis-reading and erroneous assumptions which may be set aside. In support of his above contentions the learned Counsel has relied upon the following decisions:-

            Muhammad Khan v/s Mst. Rasul Bibi [PLD 2003 SC 676]

Sanaullah and another v/s Muhammad Manzoor and another                [PLD 1996 SC 256]

Rasheeda Begum and others v/s Muhammad Yousuf and others          [2002 SCMR 1089]   

Shams-ud-din v/s Abid Hussain [2006 CLC 571]

Nazeer Ahmed v/s Muhammad Rafiq [1993 CLC 275]

Ch. Khalid Mehmood v/s Ch. Said Muhammad [PLD 2005 Lahore 732]

M/s Shama Soap Factory v/s Commissioner of Income-Tax                 [2006 PTD 178]

Muhammad Latif v/s Muhammad Azam [2003 CLC 1292]

Malik Muhammad Aslam v/s Sheikh Muhammad Amjad and others [2008 CLC 429]

Haji Abdul Ghafoor Akhtar v/s Malik Tahir Mukhtar Asghar                [2001 CLC 1721]

Hassan and another v/s Hussain [1996 CLC 650]

 

 

            Mr. Abdul Sattar Pingar, Advocate also appeared for the appellant and adopted the arguments of Mr. Abidi.

9.         Mrs. Haleema Khan appeared on behalf of the Respondent No. 01 and submitted that all the issues now raised by the learned Counsel have already been dealt with in detail by the learned Single Judge and the learned Judge had answered each and every objection now raised by the appellant. She submitted that the learned Single Judged has passed the order after going through the entire record and the material produced before him and his order was neither a result of mis-reading or non-reading of evidences nor that of ignoring vital aspects of the case. While elaborating her view point she submitted that all the applications moved by the applicant before the learned Single Judge were dismissed after finding them to be frivolous and without any merit. She submitted that the signatures appearing on the documents exhibited at the time of hearing of appeal were same as that appearing on the NIC of the appellant. In order to defraud the Respondent, the appellant had taken a plea that he had changed his signatures in 1979. As per the learned Counsel this argument is misconceived, though the appellant had stated that his signatures were forged but had not denied the veracity of the documents. She submitted that the appellant never made any request for making a reference to the handwriting expert regarding the forged signatures.

10.       She further submitted that the statement of the appellant that he had lost the file is also contrary to the record as in the FIR lodged by him there was no mention whatsoever about the loss of the said file. She stated that the appellant entered into a sale agreement with the Respondent and thereafter backed out of the same due to the reasons best known to him. She submitted that after signing the sale agreement the appellant became greedy and in order to either extort some more money or to usurp the plot played this drama. It was also submitted by the learned Counsel that after the sale agreement the appellant himself handed over all the relevant documents alongwith original file to the Respondent. She submitted that not only the original documents were handed over by the appellant but the entire property documents were given by the appellant to the Respondent, which proves that the appellant firstly entered into a sale agreement with the Respondent and thereafter acted malafidely. She submitted that the malafide on the part of the appellant was quite evident from the fact that in the first advertisement given in the newspaper only abbreviations were used so that no body could get a clear picture of the said advertisement. The learned Counsel further submitted that the claim of the appellant is belied from the fact that after entering into the sale agreement the appellant received a demand notice from the DHA, which he handed over for payment to the Respondent, which proves that the claim made by the appellant regarding the ownership was false, as how could the Respondent would have the said demand notice in his possession, if the appellant was the owner of the plot. According to the learned Counsel since the appellant was disinterested in the said plot that’s why he handed over the said demand notice to the Respondent for making the payment to DHA.

11.       The learned Counsel for the Respondent further submitted that all the original documents were and at present in his possession which amply proves that it was the Respondent who was the owner of the said plot and the claim of the appellant was misconceived and incorrect. She further submitted that appellant was in the habit of filing frivolous applications etc, which is evident from the fact that before the Commissioner also a number of applications were filed which were dismissed and even some of these were dismissed with cost. In the end the learned counsel submitted that this appeal being frivolous may be dismissed with exemplary cost.

12.       We have heard all the learned Counsel at length and have perused the record and the decisions relied upon by them.

13.       It is seen from the record that in the examination-in-chief of the Respondent he has categorically stated that he had made full payment of the sale consideration of the suit plot to the appellant, which document he produced as Exhibit 5/1 i.e. the sale agreement dated 8th day of 1986. The learned Counsel for the appellant though argued that the agreement is fake as no month has been mentioned on the said agreement but again submitted that may be due to typing error the month was not mentioned as Stamp paper clearly shows the date of purchase as that of 8th October 1986. It is seen that the agreement was for a sale consideration of Rs. 2 lac and the whole amount was paid to the appellant by the Respondent and no amount remained unpaid or payable. It is also seen that this agreement was signed in presence of common friends, who used to visit the office of the appellant. The Respondent has submitted that several times he requested the appellant to accompany him to the DHA office for the mutation and other transfer procedure but each time the appellant assured him not to worry and what is the hurry as when he had given all the documents of this plot to the Respondent the plot could be transferred at any time. As per the Respondent whenever he talked about the transfer of the plot with the appellant each time he used to state that if he transfers the plot then the Respondent will not only have pay the development charges but also have to become a member of DHA which he was not at that time. According to the Respondent as he and the appellant were good friends, he relied on his statement.

14.       The Respondent also stated that he approached the DHA office for transfer of said plot in his name but the DHA authorities informed him that the owner of the property should accompany him if he wants to transfer the property in his name. He also submitted that he made a number of requests to the appellant for the transfer but each time some excuses were put by the appellant. He also stated that all the documents were prepared by the appellant himself and thereafter stated that these documents were forged which statement was incorrect as it was the appellant who had signed all the documents and thereafter became greedy and backed out from his promise. The agreement of sale is available in the Evidence file as Exhibit 5/1. The receipt of the payment of 2 lac is also available as Exhibit 5/2. The letter to the Administration DHA for transfer of above plot written by the appellant is available at page 29 as Exhibit 5/3. The transfer affidavit is available at page 31 as Exhibit 5/4. Undertaking from the appellant is available at page 35 as Exhibit 5/5. All these documents bear the signatures of the appellant which are same as that on his NIC, which is available on page 43 as Exhibit 5/9. The transfer letter is also available at page No. 45 in favour of the appellant as Exhibit 5/10, showing that the said plot was purchased by the appellant from some P/o Muhammad Javeed Akhtar on 6th November 1980 for Rs. 43,006/- and transfer order dated 27th November 1980 in the name of appellant and all these documents were produced by the Respondent at the time of the hearing of the case before the learned Single Judge.

15.       The examination-in-chief of Sohail Naseen, PW2 reveals that he had categorically stated that the sale agreement entered between the appellant and Respondent was neither bogus nor his signatures appearing on the said agreement were forged. The examination-in-chief of DW1 who is the appellant himself reveals that he had stated that he had changed his signatures in 1979. He also admitted that his present signatures were different from the signatures appearing in his NIC. He has stated that he had not lost the plot file rather he had lost the transfer order. He has also admitted that the advertisement given in the newspaper was for obtaining the duplicate/ transfer order from the DHA. He also admitted that in the said advertisement his address was not mentioned. He also admitted that he came to know about missing of the file in the year 1990 when he shifted his office. He also stated that in fact he used to have two different signatures; one is official signature and the other is the same as that on his NIC. In his cross examination he contradicted himself by stating that he came to know about missing of the plot file in 1998 after receiving a legal notice from the Respondent’s counsel. He also admitted that neither he lodged any FIR nor made any complaint in this regard to DHA regarding the missing of the plot file.

16.       The learned Counsel for the appellant has contended that the sale agreement could not be relied upon as it does not contain the month in which it was drawn. If for argument’s sake it is accepted that the said sale agreement does not show the month the same is of little significance in view of the fact that firstly the appellant had not denied the issuance of the receipt for Rs. 2 lac being full and final settlement of the plot of the same date. The stamp paper duly bears the date of 8th October 1986 which fortifies the view that mentioning of the month on the agreement has been left due to either oversight or inadvertence. We have also noted that apart from signing the said agreement the appellant has also signed a number of other documents pertaining to the sale of the said plot, which has not been denied by him.

17.       We have also noted that the documents regarding the sale of the plot filed before DHA were duly attested by Col.(R) Syed Tayyab Ahmed, which was not denied by the appellant. We have also noted that when the Respondent was having all the original documents in his possession this proves the factum that these must have been handed over to him by the appellant. There was also a contradiction that at one place the appellant stated that he had come to know about the missing of the original transfer order in 1990 and thereafter stated that he came to know about the missing of said order in the year 1998. From the pleadings of the appellant a question arise that if no sale agreement took place between the appellant and Respondent from where the Respondent came in possession of the following documents:-

            1.         Transfer affidavit

            2.         Undertaking

            3.         Latest specimen signatures

            4.         Authority letter

            5.         Loan Affidavit

            6.         Photo copy of the NIC of the Appellant.

 

18.       Moreover the Respondent was not only having the original documents of the property but was also having the documents which the appellant obtained at the time of purchase of said plot from P/Officer Javeed Akhtar which also has not been denied by the Appellant. It was stated by the learned Counsel for the Respondent that as the appellant and the Respondent were good friends and he could not imagine that the appellant would betray him and was confident that when he will ask the appellant about the transfer of the plot, he will not only help him but would also guide him in this regard, as most of the time he remained outside Pakistan. It is also evident from the record that the appellant handed over the challan amounting to Rs. 52,800/- to the Respondent for payment which also proves that he had admitted that he was not the owner of the plot. It is also seen from the record that for transferring of the said plot the Respondent applied to the DHA and the DHA accepted the application of Respondent and registered him in “B” category with registration No. AM 22083 vide letter dated 14th February 1991. Thereafter the Respondent made a number of requests to the appellant to accompany him for the said transfer of the plot but at each occasion the appellant put up lame excuses.  Hence when the Respondent came to the conclusion that appellant was not cooperating with him he sent him a legal notice dated 12.09.1998 with the directions that he should accompany him to the office of the DHA for the purpose of transfer. However he was surprised when he saw an advertisement in daily “News” on 14th September 1998 in lost and found column that the appellant had published in the newspaper that he had lost the original transfer letter. Thereafter the Respondent immediately sent another legal notice to the appellant that he should refrain from his illegal acts and that the original transfer letter was not lost rather the same was with him. Thereafter the Respondent filed a suit for specific performance and permanent injunction against the appellant.

19.       If the above factors are taken into the consideration and considered in juxtaposition it would become crystal clear that the role of the appellant has been dubious and that he had not acted in a legal and rationale manner. The learned Single Judge, in our considered view, while deciding the case had passed a legal and proper order, which does not require any interference on our part. The learned Single Judge after examining the entire record and material and the exhibits placed before him had reached to the correct conclusion that the appellant had acted in the malafide manner and his attitude all along had been improbable and questionable. We have noted that all the issues now raised by the counsel for the appellant were the same as raised before the learned Single Judge and the learned Single Judge in an unimpeachable manner had dilated upon each and every aspect of case in an erudite manner. The learned Single Judge has observed that the denial of the signatures was nothing but an improvement on the part of the appellant, which also goes against him as the appellant has only denied his signatures and not the documents. The learned Counsel for the appellant however could not point out any non-reading of the evidence in the decision of the learned Single Judge. So far as the issue is concerned that the signatures appearing on the sale agreement were forged, we have noted that the appellant in his written statement submitted before the learned Single Judge has not specifically denied the sale agreement or the other documents concerning the sale, produced by the Respondent No. 01, to be either fake or bogus or not signed by him.

20.       The learned Single Judge has observed that in the cross examination also it was not averred that these documents were either lost or stolen but had pleaded about the missing of the Original Allotment Order only and not that of a file or other original documents of the plot. It is also seen that when a report was made to the police about the said burglary in the office there was no mention about the missing of any file or the said original allotment order, which belies the statement of the appellant himself. We have further noted that as per the pleadings of the appellant he stated that he came to know about the missing of the file when he shifted his office, this also appears to be totally incorrect statement, in view of the fact that in the lost and found column the appellant only reported about the loss of the original allotment order and not that of any file of the plot. Moreover it is also interesting to note that no attempt whatsoever was made by the appellant to approach the office of the DHA regarding the lost of the original allotment order and he kept mum in this regard. It is also noted that though it is asserted that appellant had changed his signatures after 1979 but no documentary evidence in this regard was produced to substantiate this claim. Moreover it is further noted that signatures appearing on the documents were the same as that appearing on the NIC, which factum also was not denied by the appellant.

21.       The learned Counsel for the appellant has also invited our attention to Articles 17, 78 & 79 of the Qanoon-e-Shahdat Ordinance and to Section 35 of the Stamp Act and Order 41 Rule 27 CPC by stating that the learned Single Judge was not justified in not considering the above propositions of law and thus his order was erroneous. For the sake of brevity all the above provisions of law are reproduced as under:-

Article 17, 78 & 79 of the qanoon-e-shahdat ordinance:-

 

17.    Competence and number of witness.-(1) The competence of a person to testify, and the number of witnesses required in any case shall be determined in accordance with the injuctions of Islam as laid down in the Holy Quran and Sunnah.                                                      

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 evidence shall be led accordingly; and

 

b)                 in all other matters, the Court may accept, or an act on, the testimony of one man or one women or such other evidence as the circumstances of the case may warrant.

 

 

78.       Proof of signature and handwriting of person alleged to have signed or written document produced.- If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the documents as is alleged to be in that person’s handwriting must be proved to be in his handwriting.

 

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 providing 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 provision 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”.

 

Section 35 of the stamps act:-

 

“35. Instruments not duly stamped inadmissible in evidence, etc. No instruments chargeable with  duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to received evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instruments is duly stamped”.

 

            order 40 rule 27 cpc:-

27.     Production of additional evidence in Appellate Court.—(1) the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if –

 

a)                 the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

b)                 The Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,

The Appellate court may allow such evidence or document to be produced, or witness to be examined.

 

2)         Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission”. 

 

22.       We have considered the submissions made by the learned Counsel for the appellant and regret that we can not agree with him as the learned Single Judge while passing the order has not only considered the above issues but have also categorically observed that the appellant has not disputed the documents on the ground that these do not bear the signatures of the appellant. The learned Single Judge while dealing with the above propositions of law has categorically observed as under:-

In order to prove the contents of a document the examination of two attesting witnesses in terms of Article 17(a) of the Qanoon-e-Shahadat are necessary if such document relates to financial obligations. Basically the documents referred to under Article 17(a) are instruments as defined under the Negotiable Instrument Act and would not apply to cover an agreement of sale, which is covered under Article 17(b) of the Qanoon-e-Shahadat. Moreover, the case of the Defendant No. 01 as pleaded in his written statement was confined to the admissibility of the documents. The argument of the learned Counsel for the Defendant No. 01 that the contents of exhibit 5/1 do not disclose it as an agreement but in fact was to be construed as a sale deed, inter alia, on the ground that the said agreement states that the entire sale consideration has been paid and, therefore, it should have been properly stamped and registered under the Registration Act. Even this contention of the learned Counsel is misconceived in view of the language of Section 17 of the Registration Act. Mere mention of the fact of payment of entire sale consideration in an agreement would not make it a sale deed. The agreement of the nature cannot confer a title on the party as has been held by the Hon’ble Supreme Court in the case of Muhammad Yousuf V. Munawar Hussain reported in 2000 SCMR 204”.  

 

23.       The learned Single Judge has specifically observed that the agreement could not confer a title and in this regard has placed reliance on a decision given by the Hon’ble Supreme Court of Pakistan in the case of Muhammad Yousuf v/s Munawar Hussain reported as 2000 SCMR 204. Moreover it is also seen from the record that affidavit in evidence of other marginal witness of the sale agreement was recorded by the Commissioner but was subsequently dropped on the request of the Respondent and his affidavit in evidence was not taken on the record hence it could not be said that the other marginal witness was not recorded. He was recorded by the Commissioner but was dropped by the Respondent himself as his witness and thus his affidavit in evidence was not taken on the record.

24.       Perusal of the Section 35 of the Stamps Act reveals that this section is not at all applicable to the facts of the present case and hence the decisions relied upon by the learned Counsel on this point also are quite distinguishable to the facts of the present case as this is a case of sale agreement only and not that of Sale Deed hence the requirement of payment of proper Stamp Duty etc would not arise. Moreover it is also seen from the record that an application CMA 6561/2001 on the same issue of non payment of Stamp duty was moved by the appellant before the learned Single Judge, which was dismissed and no appeal thereafter was filed by the appellant in this regard.

25.       Perusal of the Order 41 Rule 27 CPC also reveals that the same has no bearing whatsoever with the present case and this issue taken by the learned Counsel appears to be misconceived and is hereby rejected. 

26.       On perusal of the record and on going through the order passed by the learned Single Judge, we have come to the irresistible conclusion that the appellant had approached the court with unclean hands and has miserably failed to adduce a single evidence in his favour either before the learned Single Judge or before us to prove that he had neither signed the sale agreement nor had issued the receipt of the said amount to the Respondent. The appellant had also miserably failed to produce a single evidence in his favour to substantiate the averments made by him. Hence it is established beyond any doubt that the appellant had sold the plot and provided all the requisite documents to the Respondent in this regard. It is also noted that the appellant had not given a single cogent reason to prove that the documents produced by the Respondent were either fake or forged and were not having his real signatures. We have further noted that the appellant had infact sold the said plot to the Respondent in pursuance of sale agreement entered by him and no case of interference has been made out by the appellant in this regard. We have also noted that the appellant had moved a number of applications either before the Commissioner or before the learned Single Judge and all of them were dismissed and some were even dismissed with cost.

27.       This High Court Appeal thus devoid of any merit is hereby dismissed.

 

                                     Judge

 

 

 

Judge

Karachi

Dated ____ April 2011.