CASE LAWS CIVIL

CIVIL PROCEDURE CODE 1908

SECTION 9

Mere averments in plaint would not confer jurisdiction on civil court where it inherently lacked jurisdiction.
PLD 1992 Pesh. 87 (D.B.)

SECTION 9

Final decision with  regards to civil rights ,duty, obligation and status of parties shall be that of civil court.
PLD 1995 SC 457

SECTION 9; O-7 R-11; BANKING ORDINANCE 1979 Sec 6(1) & (4)

Mere averments in plaint would not confer jurisdiction on civil court where it inherently lacked jurisdiction.Courts below correctly found that special banking court had exclusive jurisdiction –order unexceptionable .
PLD 1992 PESH 87(DB)

SECTION 10 & 151

In the absence of consolidation of suits and consolidation proceedings, evidence in one suit could not be read in the other suit.
Muzaffar Hussain  Vs.  Mst. Bivi
PLD 2012 Lah. 12

SECTION 12(2)

Forum of –venue-court where in to make application
1983 CLC 1948 Lah
1986 Law Notes (Lah) 431
1986 CLC 1211 Lah

SECTION 12(2)

Courts which passed the final decree means judgment against which no remedy is available  and all remedies, appeals, revisions, review has been exhausted and no remedy is left.

Adjudication means the decision on merits after proper appraisal.
PLD 1995 SC 564

ALSO SEE 1994 MLD 1441  for different view.

Mere mentioning of words “Fraud”, “misrepresentation” and “want of jurisdiction” in passing judgment and decree were not sufficient – specific instances must be given.
Abdul Hameed  vs.  Mehmood
2001 SCMR 1316.

SECTION 12(2) & 151 C.P.C.

Judgment and decree in question was assailed by respondent under S. 12(2), C.P.C. and the same was set aside by Lower Appellate court in exercise of revisional  jurisdiction ---Validity--- Court had jurisdiction to take cognizance of open fraud---No rule was required to correct/rectify a wrong---Court had always inherent powers to prevent abuse of process of law by moulding relief in appropriate cases---Provisions of S.151, C.P.C. were rightly invoked by Lower Appellate Court in aid of justice, as it was thought necessary in the circumstances of the case to prevent abuse of process of the court and to avoid a situation resulting in stalemate.
Muhammad Ismail     Versus    Rehmat Ali
2009 YLR 1265
Lahore-High-Court-Lahore

SECTION 12(2)

Forum: judgments and decrees of trial court were amended by High Court – Application under section 12(2) was filed before trial court – held – that as High Court passed final decrees in view of modification in its review jurisdiction, application u/s 12(2) shall lie in High Court.
Muhammad Aslam        Vs.    Molvi Muhammad Ishaq.
2012 SCMR 147

SECTION 20-----O-XLI, R-1
Sect. 115

Revision--- Term “case decided”---Scope---Power of revision is conferred upon High Court and the same is required to be exercised within the ambit of section 115, C.P.C.---Language used in section 115, C.P.C. empowers a court to exercise jurisdiction in “any case which has been decided”---Terms suit, judgment, order or decree have not been used in section 115, C.P.C., rather the term “case” has been used, thus the meaning cannot be restricted only to a final decision of a case---Term “case decided” is to be seen in broader concept and it can be extended to the orders made, while proceedings with the case by Trial Court, which only determined a part of the case and such determination had an effect on the rights of parties, while proceeding to ultimate decision of the case---Interlocutory order, which deals with a substantial question in controversy between parties and affect their right comes within the ambit of ‘case decided’---Powers conferred under section 115 C.P.C. cannot be restricted only to the extent of final decision of the case, rather it includes interlocutory orders also against which no appeal is provided.

Valuation given in plt.200- application for appointment of receiver from to be determined according to value given in the plaint.
1995 CLC 1874

SECTION 24

Transfer of appeals appellate court earlier as trial court recorded evidence of some witnesses-had not recorded his own observation-no material order passed- still appeals recalled from him.
PLD 1995 Lah 89

Sect. 27, O.V, R.6, O.IX, Rs. 6 & 13.

Setting aside exparte decree – Purpose of service is that the defendant should be heard, but he cannot be allowed to frustrate proceedings by staying away. Once “summons are duly served” exparte decree can follow and execution can be levied against defendant because then he becomes “judgment debtor”. Any irregularity can be disregarded in service, if the court is convinced that the defendant had the knowledge of proceedings.
Usman Punjwani    Vs.    Ayaz Ali
PLD 21012 Sindh 78.

SECTIONS 35 & 35-A C.P.C.

Ss.35 & 35-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Costs, awarding of ---Scope---In addition to actual costs and compensatory costs, High Court in its Constitutional jurisdiction can award compensatory costs even in excess of twenty five thousands Rupees as prescribed under S.35-A,C.P.C.---Special costs can also be awarded by High Court in exercise of its inherent powers---Costs including compensatory costs as well as exemplary costs can be imposed by High Court in its Constitutional jurisdiction.
Kawas B . Aga
Versus
City District Government, Karachi (CDGK) through Nazim-e-Ala
2010 PLD 182
Karachi-High-Court-Sindh

SECTION 47

All questions relating to execution discharge or satisfaction of decree arising between the parties to the suit in which the decree was passed would be determined in execution proceedings and not by a separate suit.
1995 MLD 1943
(entire case law discussed)

Ss. 48, 151, O.IX, Rs. 8 & 9.

O.IX Rule-9 is designed for restoration of suit whether in whole or in part dismissed under Rule-8 and it does not speak anything for restoration of application even about an execution petition. But the same principles will apply and applications/petitions can be restored even under inherent powers.
U.B.L.     VS.    Plastic Pack Pvt. Ltd.
2012 CLC 229 Sindh.

SECTIONS 96 & 115

S. 151---Subsequent events, taking notice of---inherent jurisdiction of Civil Court---Scope---Civil Judge had inherent powers to take notice of subsequent events and do justice to save parties from unnecessary litigation.
Mst. Parveen Akhtar V/S Muhammad Adnan
2010 C L C 380
Lahore High Court, Lahore

S. 115---Revisional jurisdiction---Suo motu action---Limitation---Jurisdiction of High Court under S.115, C.P.C. is a supervisory jurisdiction of superintendence and control---High Court in its revisional jurisdiction can take cognizance for correction of illegalities and irregularities in judgments and orders of subordinate court as suo motu and no bar of limitation can be placed against suo motu jurisdiction of revisional court---Maximum period allowed for filing revision petition under S. 115, C.P.C. by aggrieved person is 90 days.

S. 115, proviso I & II---Expression “copies of pleadings, documents and orders”--- Scope---Copies of such documents are to be provided to the party who applies for it and it is not necessary that applicant is aggrieved or not---If any party to litigation applies under the law, the court is bound to provide the copy of the order within three days---Court is not a substitute of copying agency but the copy issued by court serves the requirement of law and revision is entertainable on the basis of copy provided by the court---Court which passes the order only has to provide the copy of impugned order.
Allah Ditta    Versus    Lahore Development Authority and 5 others
2012 C L CL 271

SECTION 115

If the courts below overlooked material facts or reached at an erroneous conclusion, it will be deemed as material irregularity, High Court could reverse such findings.
Muhammad Suleman    V.    Rasheeda Bibi
2012 CLC 79 (Lah.)

S. 115---Limitation Act (IX of 1908), S.3---Waiver of question of limitation by court not permissible---Wrong decision on question of limitation revisable sui motu by High Court under S.115, C.P.C.---Principles. The question of limitation can be considered by the court itself whether it is pleaded or not by the parties to the suit.
Zahir Hussain and 4 others    Versus      Bashir Muhammad and 5 others.
2012 C L C 377

Section 115

Revision “case decided” terms “Suit”, “judgment”, order or decree have not been used in Sect. 115 rather “case”  has been used, thus, meaning cannot be restricted only to a final decision of a case. The term “case decided” is to be seen in broader sense and may include orders passed which determined only a part of the case.
Muhammad Musa        Vs.        Hamid Ali.
2012 CLC 254 (Baluchistan)

CONVERSION OF WTITS, APPEALS REVISION

Appeal which was found to be incompetent could be treated as revision and vise versa.
1991 CLC 853

“conversion of revisional petition into a constitutional petition-petitioner’s request for treating revisional petition as a constitutional petition ,declined by high court in circumstances of the case and in view of the fact that court fee required to be paid for constitutional petition had not been paid. Revisional petition was dismissed as not maintainable.
1991 CLC 1768

“constitutional petition can be converted into a revision or vise versa if it does not prejudice the right of any party and advance cause of justice instead of frustrating the same.
1991 CLC NOTE 101 AT P.82

“No limit and bar on high court to convert a revision into a constitutional petition in exercise of its discretion.
1991 SCMR 1135

“Maintainability of appeal as RFA or RSA-held, proceedings originally instituted as  a writ petition  cannot be treated as a first or second appeal-proceedings of one kind can ordinarily be treated as proceedings of another kind provided period of limitation does not intervene subject to further qualification that such proceedings should otherwise be competent under provisions sought to be invoked.
1988 MLD 1445

SECOND APPEAL INTO REVISION

Second appeal brought before high court exhibiting  certain features which demonstrated that it fell within scope of interference under sec.115 CPC-high court should in such cases, exercise its jurisdiction under said provision of law-high court, held, should have allowed conversion of said second appeal into revision and then proceeded to see ……
PLD 1987 SC 139

“Recalling order of high court-application for-high court converting constitutional petition as rent appeal-application for recalling order of such conversion not bared or support by legal grounds, held, was not maintainable and dismissed in circumstances.
1986 MLD 95

“Second appeal-revision-objection regarding competence of civil revision not taken up before high court but taken first time in supreme court, held, objection was an afterthought –such objection if taken up in high court and found tenable high court could have treated revision as second appeal subject to the satisfaction of other requirements.
1985 SCMR 27

“Appeal filed under sec.100 not found to be competent prayer on behalf of the appellant for conversion pf appeal into revision upon plea of ignorance of amendment such application belated-held, cannot be accepted.
PLD 1984 QUETTA 52

“Second appeal against order of Majlis-e- shoora-conversion of appeal into revision –question of deficiency of court fee or limitation not involved and prayer bonafide –appeal treated as revision
PLD 1984 QUEETA 92

Constitution of Pakistan (1973)

Art.199 read wind military courts (validations of orders)ordinance(1 of 1980),s.2(2) martial law order MLA(Zone c) No.20 and Sindh rented premises ordinance(xvii 0f 1979)S.21 Writ petition-appeal-court, with a view to foster  justice, can take appropriate action or adopt prohibited by any provision of law –no prohibition in law against conversion of a writ petition into an appeal –impugned orders of military Court , during pendency of writ petitions , converted by validation ordinance into orders passed under Sindh rented premises Ordinance subject to right of appeal before High court-conversion of pending writ petitions into appeals-held, in furtherance of justice and to provide fair opportunity to parties before single judge of High Court under section 21 of Sindh Rented Premises Ordinance,1979.
PLD 1982 KARACHI 130

DUTY OF COURT

Courts are required to do substantial justice-one form of proceedings, in the interest of the justice may be treated as another Revisions, appeals and constitutional petitions have to be treated one or the other, interchangeably, to meet the end of the justice
1989 CLC 1949 (KARACHI)
1980 CLC 930

SECTION 73

Exertion defective not giving particular as under O-21 R-11 but good enough for -purposes of Sec.23.

SECTION 100

Concurrent finding of fact to be reversed when important points ignored and evidence misread.
PLD 1994 SC 326

SECTION 115

No period prescribed for filing – should be filed within 90 days failing which discretion might not be exercised in petitioner’s favour on grant of unreasonable delay.
1995 SCMR 69

Scope of revisional power is vest – corresponds to remedy of certiorari.
1995 SCMR 69

Revisional court cannot interfere with discretion of a competent court unless discretion was arbitrary, fanciful & whimsical, Sec.115 confers revisional jurisdiction not High Court where subordinate court exercised jurisdiction not vested in it or failed to exercise jurisdiction vested in ti or in exercise of jurisdiction acted illegally or with material irregularity.
1995 SCMR 105

High Court’s power of “Judicial Review” under Art.199 is assumable to its jurisdiction under Sect.115 CPC except in two aspects (i) abuse or (ii) excess of power which are well recognized grounds of intervention under Art.199
1995 SCMR 105.

SECTION 115:

Civil Laws (Reforms) Act XIV 1994; Civil Laws (Reforms) Act XDXIII 1993.

Revision can be filed either H.C. or Distt. Court – powers of H.C. not withdrawn by Act XIV of 1994.
PLD 1995 Lah. 31.

SECTION 144 C.P.C.

Court must remedy injury or wrong done to a party because of order of court---Procedure was provided under S. 144 C.P.C., while power to order restitution was inherent in court and should be exercised whenever justice demanded---Present was not a case of restoration of possession but of restitution of possession because order of revenue authority regarding dispossession was set aside by appellate authority declaring the same to be illegal and without jurisdiction.
Parvaiz             Versus        Muhammad Ramzan
2009 CLC 513
Lahore-High-Court-Lahore

SECTION 150 – O-39 R-2 (3).

Breach of injunction – Business of the Court granting the injunction transferred to another court – Latter Court can entertain petition.

Transfer – Includes transfer of business under Civil Courts Act. The word “transfer” in Sec.150 is not inapplicable to a case where the District Judge fixed the jurisdiction of the Court under the Civil Courts Act and transferred the whole of the business within a certain area to it.
AIR 1923 Madras 92.

SECTION 151.

Inherent powers – withdrawal of suit on bonafide mistake on account of similarity in the names of defendants in two suits – suit to be restored under inherent powers which can be exercised when the provisions of CPC are not in conflict.
PLD 1995 Kar. 282.

SECTION 151 & 115.

Order passed u/s 151 CPC revision competent when court has failed to exercise its inherent jurisdiction or where order impugned was perverse or illegal.
1995 CLC 1939.

Appellate & Revisional Jurisdiction – Distinction
Revision is:  

  (i) Where Court has exercised jurisdiction not vested in it.
  (ii) Where Court has not exercised jurisdiction vested in it.
  (iii) or has acted in exercise of its jurisdiction “illegally”  or with “material irregularity”.

In the case (ii) above, jurisdiction can be exercise rightly or wrongly and be corrected in “appeal” only not in “revision”.
Appeal & Revision are different species, appeal is continuation of original suit and has wide scope while “Revision” is limited to some illegality, material irregularity or jurisdictional defect.
Abdul Razzak  v.  Lal Bux
2012 CLC 4 (Sindh) (DB).

Revision is not a matter of right and cannot be equated with right of appeal which is a substantive right.
PLD 1996 Kar. 68

ORDERS

O-1 R-10

Misdescription of parties not fatal – can be corrected by court at any time.
1986 CLC 2987
PLD 1985 SC 438
PLD 1988 Kar. 362
AIR 1933 B200
PLD 1976 Lah. 269
PLJ 1975 1016
O-1 R-10

Public at large already impleaded in application for grant of succession certificate – any body could assist trial court even without making application.
1995 CLC 1553

O-1 R-10

Necessary party not impleaded – technicalities cannot be allowed to unsuit a party on technical grounds case remanded for impleading.
1995 SCMR 1748
O-3 R-1 & 2; O-6 R-1; O-6 R-14 &15; O-7 R-10; O-29 R-1; O-33 R-3.

Defective signing or presentation or plaint by person not holding power of attorney – no violation – irregularity curable.
PLD 1973 Lah. Note 33 P-41.

O-3, R-2 & SEC.96.

Plea of minority not raised in written statement. It can be raised and decided at appellate stage – it is duty of the court to apply such law even through plea has not been raised.
1995 CLC 175 (Lah).

O-4, R-1.

Omission to comply with requirements of present action can be cured if in good faith.
AIR 1931 All. 507.
O-6, R-1.

Pleadings of parties would not control or govern applications of correct law to establish or prove facts.
1992 SCMR 417.

Deviation from pleadings – no application for amendment of plaint as to correct the facts – plaintiff could not take advantage of legal principle that admission contrary to record was not binding. No evidence could be lead contrary to pleadings.
PLD 1995 Lah. 113.

O-6, R-2.

Where a claim never made in pleadings no amount of evidence could be looked into in poof of such facts.
1995 CLC 1906

O-6, R-2 & 4.

Facts not stated in pleadings evidence lead to prove such facts will be simply ignored.
1995 MLD 1714.

O-6, R-14 & 15; O-4, R-1.

Absence of signature, verification or presentation does not affect jurisdiction of court.
AIR 1931 All. 507.

Want of verification – pleadings not void – irregularity – no affect on merits.
AIR 1932 Lah. 28.
AIR (36) 1949 All. 499.

Can be amended even after limitation.
AIR 1961 Bomb. 292.

Omission to sign by one of joint plaintiffs.
PLD 1978 Q.45.

O-6, R-17.

If the case is fixed for arguments on application under O-6 R-17 and the suit is dismissed for default, only such application can be dismissed for default and not the main suit.
PLD 1969 SC 270
CLC 1986 1441
CLC 1986 2153.

O-6, R-17.

Relief of possession being consequential to suit for declaration, amending plaint to include possession allowed.
1995 SCMR 69.

O.VI R.14 & O.XXIX R.1

Signing & Verification of pleadings of a company – Company Secretary Director or any principal officer can sign & verify pleadings – Board Resolution not necessary – just court has to be satisfied that an authorized person has signed/verified the pleadings.
  
Provisions of Or.VI Rules 14 & 15 and provisions of O.XXIX Rule 1 are neither contradictory nor exclusive of each other rather complimentary to each other.
Punjab Agri Development & Supplies Corp.    Vs.    U.B.L.
PLD 2012 Lah. 61.

O. VII R.1(e)

Plaint must disclose a cause of action i.e. contain statement of material facts necessary for plaintiff to allege and prove in order to succeed in his cause.
Ch. Muhammad Siddiq    vs.    Faiz Mai
PLD 2012 S.C. 211

O. VII R.11

The word “shall” means that it is mandatory and the court must reject plaint if court finds any of the four clauses applicable to the plaint. Only contents of plaint to be seen but court not bound to accept them – discretion to biased judiciously.
Haji Abdul Karim    Vs.    Florida Builders.
PLD 2012 S.C. 247

O. VII R.11, SECTIONS 2(2)(9)11.

Rejection of plaint and dismissal of suit – distinction enumerated.
Haji Abdul Karim      V.    M/S Florida Builders.
PLD 2012 S.C. 247
See also PLD 2008 S.C. 371

O-7, R-11 & S.149 – Art.185(3) of Constitution.

Trial Court on the ratio of Siddiq Khan’s case (PLD 1984 SC 289) determined the exact amount of court fee and deficiency made interference declined.
1995 SCMR 911.

O-7, R-10.

Court lacking jurisdiction over subject matter of suit bound to return plaint instead of sending to Distt. Court for transfer to competent court.

Power of transfer flows out of valid institution of suit – where court to which plaint presented had no jurisdiction, pecuniary or territorial, suit cannot be deemed to be validly instituted.
1989 CLC 1405 (Lah)
AIR 1938 Sindh 124
PLD 1973 Lah. 394.

Its scope wide to cover a case in which by legislation situation arises after filing of suit.
AIR 1938 Oudh 224
PLD 1973 Note 83 (D.B)

Appellate Civil Court reaching conclusion that revenue court had no jurisdiction, it was bound to return plaint.
PLD 1985 Quretta 54.
AIR 1934 Lah. 233.

O-7, R-11.

Duty of court to examine plaint at any time without application.
PLD 1977 Kar. 747.

O-7 R-11.

On basis of averments in plaint not on basis of defence.
PLD 1966 (W.P) lah. 1050.

O-7 R-11; BANKING ORD. 1979 SEC.7 & 13.

It is defect of presentation of plaint in first instance in a wrong court which attracts O-7 R-10.
1984 CLC 1401 Kar.

Rejection of plaint barred by any law – court to examine averments as in the plaint – not inquiry needed – assume averments to be correct.
1984 CLC Kar. 513.

Court can take into consideration material other than contents of plaint.
1992 MLD 225 (Lah).

O-7, R-11.

Rejection of plaint & dismissal of suit – distinction.

Plaint not disclosing cause of action – proper way is to allow amendment – order rejecting plaint was set aside & case remanded.
1995 CLC 1982.

While applying provisions of O.VII, R.11 C.P.C., Court was not entitled to look into the grounds of defence, other documents and written statement. Only the contents of the plaint are to be perused.
Ch. Nazir Ahmad  Vs.  Ali Ahmad
PLD 2012 Lahore 18 (D.B)

Suit for damages by a welfare society/association claim of damages for mental torture, agony and distress – Plaint was rejected.
PLD 2012 Sindh 29

O-9, R-4; SEC.151, 115.

Restoration of revision dismissed for non prosecution petitioner has to explain the absence of all concerned including his own as well as his counsel.
PLD 1995 Lah. 31.

Case should not be dismissed for default in early hours of the day.
PLD 1966 Lah. 356.

While dismissing for non-appearance exigency of lawyers has to be seen.
PLD 1966 SC 461,467.

Taking harsh view while dismissing in default.
PLD 1955 F.C. 178.

Decision should be on merits.
PLD 1965 SC 651 at P.655.

O-9, R-8.

Dismissal of suit for non appearance of plaintiff – plea of misconception of actual date – plaintiff’s counsel did not appear as witness hence dairy or brief not produced – plaintiff did not stand to gain anything by being negligent – carelessness of a counsel in failing to appear in the absence of his client has often been condoned – immovable property of considerable value involved – case was remanded for decision on merits.
1993 CLC 1313 (Lah)

O. XII R.11.

Incompetent suit should be buried as soon as possible if incompetence is based on any express or implied embargo under any law – Sometimes, suit may not be specifically barred by law in express terms – Trial court should reject suit under “Inherent Powers”, The condition of only reading the averment of the plaint and nothing else is applicable when O.VII Rule-11 is to be applied and not under inherent powers.
Ilyas Ahmad        Vs.    Muhammad Munir etc.
PLD 2012 Sindh 92.

O. XII R.16.

Judgment on Admission – plaintiff upon application can move for judgment on admission whether relating to who suit or partially, likewise, defendant can also move for dismissal of suit wholly or partially – However, if admission is only by one of the defendants only it will have no bearing on the others’ case.
Tanvir Ahmad     Vs.    Malir Development Authority
PLD 2012 Sindh 66

O.XIII, R.1.

Plaintiffs after closing of oral evidence seeking permission to produce documents not appended due to inadvertence - documents sought to be produced were not even relied upon under O.XIII R.1. The situation does not fall under inadvertence – no good cause has been shown.
Nasrullah Khan     Vs.    Mst. Bashiran Bibi
2012 CLC 234 Lah.

O-14, R-2.

Issue of limitation being mixed question of law and fact, in case of suit for dissolution of partnership and rendition of accounts – suit cannot be dismissed on preliminary issue – case was rightly remanded by High Court.
PLD 1995 SC 629.

O.18 R.18 C.P.C.

Report of local inspector on the basis of which judgment and decree was reversed not challenged at any stage – Leave to appeal refused.
Islam Din  v. Sarfraz Hussain
2001 SCMR 1225

O-19, SECT.30, O-18 AFFIDAVITS.

Affidavit can only be considered when filed on direction of court.

In affidavit information obtained from others “I am informed” and add “and verily believe it to be true”.
PLD 1995 Lah. 98.

O-20 R-14 (i) & O-23 R-3.

Suit for preemption decreed by consent – in application for compromise no time fixed for payment of preemption money – trial court fixed for payment of preemption money – trial court fixed one month’s time – Held court while passing preemption decree under O-20, R-14 was required to specify date for deposit of money. Failure to deposit by preemptor suit was rightly dismissed.
1995 SCMR 1426.

O-21, R-1.

Mode of paying money in satisfaction of decree – decree holder would certify such payment upon legal notice from executing court.
PLD 1995 Lah. 107.

O-21, R-2(i)

Adjustment/satisfaction of decree in whole or in part outside court – judgment debtor is required to certify such adjustment to court within 90 days from time of adjustment.
PLD 1995 SC AJ&K 83

O-21, R-11

Defect or non verification of execution petition not fatal, application not void merely irregularity not affecting merits of case.
PLD 1984 AJ&K 57.

Date of previous execution petition not mentioned- defect not material
AIR 19924 CAI 398

O-21, R-58, 59 & 62

In case of objection petition to attachment, investigation to claims must be conducted by the court, No separate suit for same.
PLD 1990 LAH 4 (DB)

O-21, R- 94

No stamp duty on sale certificate issued by court under O-21 R- 94 CPC in favour successful auction purchaser –sale certificate only to be registered with the sub- registrar.
1995 CLC 1922 KAR

O-22, R-3, 4 & 12

Execution petition –failure of decree holder to implead legal heirs of judgment debtor. Rule 12 excludes application of RR 3 & 4.Execution will not abate.
PLD A.Z.J.&K. 57

O-37, R-2

Even if suit not based on negotiable instruments i.e. bill of exchange, hundi, promissory note, Special court obliged to follow summary procedure of O-37 CPC on all suits before it including suits based on mortgages of all kinds on statement of accounts.
PLD 1995 SC 362

O-37, R-3

Suit based on promissory notes for recovery of amount claimed against defendant in summary manner, dispute could not be referred to arbitrator in terms of the agreement.
1995 CLC 1024

O-37, R-3 – Art.185(3) 0f Constitution .

Defendant was allowed loan on furnishing Bank guarantee equal to suit amount – Revision to the extent of bank guarantor remained unsuccessful. Keeping in view defence raised in application for leave and law laid down in Fine Textile Mills VS Haji Umar (PLD 1963 SC 163) appeal was accepted-order of H.C and trials court as to bank guarantor set aside – defendant was prepared to offer any solvent security to satisfaction of court-leave defend granted on furnishing any solvent security to satisfaction of trial court . 1995 SCMR 925

ORDER 37

Object & spirit of O -37 – neither unislamic nor inequitable.
PLD 1993 LAH 224

Object to secure ends of justice-claim based on negotiable instruments –no need to prove consideration if execution of notice not denied.
PLD 1993 LAH 244 H.N (h)

ORDER 37 –RULE 1& 2

Suit shall be decreed where failure of appearance or omission to apply for leave However, where leave is refused plaintiff has to prove his case.
PLD 1987 LHO 101

ORDER 37 – RULE 1&2

Leave to defendant refused even when following pleas raised – on confirmation slips defendant’s signature forged –suit barred from last deposit beyond 3 years – mortgage deed relating to different loan from different branch – penal interest wrongly claimed- blank pronote fraud by bank.
PLD 1990 LAH 99

Leave refused even on following pleas: signatures obtained on blank documents, statement of A/C incorrect , letters of guarantee not properly stamped, promotes contain exorbitant interest against islam etc.
PLD 1989 KAR 371

ORDER 37- RULE 2

Suit in summary jurisdiction for refund of security from defendant leave not sought within 10 days –application dismissed-suit decreed –defendant’s claim that plaintiff had embezzled large sum of money and had filed suit for recovery of same of no avail to defendant because he has still to established that plaintiff  embezzled money refund of security till defendant’s suit is decided.
1995 SCMR 45

O. XXXVII R. 2 & 3
Limitation Act (IX of 1908) Sect. 5

Suit for recovery based on Promisory Note – delay in filing leave application on the ground that trial court was on leave for nine days due to Winter holidays – held – delay of every single day has to be explained sufficiently, otherwise, the object of summary proceedings will be defeated. Furthermore, only Presiding Officer happened to be on leave while office remained open for filing/institution during this period. Petition for leave is time barred as delay not sufficiently explained.
Muhammad Naeem    V.    Muhammad Javed Iqbal
2012 CLC 175 (Peshawar).

ORDER 37- RULE 3

Guarantors claimed that they had claimed denial of liabilities by several letters , and notice to bank –it was duty of bank to deny and controvet same – no such step taken by bank-silence of bank would seriously reflect adversely, leave granted.
1994 CLC 1404 KAR

ORDER 37- RULE 3

Leave was granted subject to depositing amount in question in court or bank-challenged this order in writ –validity in condition - no current valuation of mortgaged property available on record nor plaintiffs claimed its depreciation –petition converted into appeal and the same was allowed to the extent that defendant would deposit cash of specified amount for defending suit within 20 days.
1994 SCMR 512

ORDER 37- RULE 3

Leave- according to bank’s own record value of pledged stock Rs.800,000/- and mortgaged land about 400,000/- at the time pledge/mortgage-value of land must have arisen manifold-claim amount adequately secured- without additional security unconditional leave to be granted.
1989 MLD 1090 LAH

ORDER 37- RULE 3

Imposing condition on leave discretionary must be exercised in judicial and reasonable manner.
1983 CLC 2828 LAH

ORDER 37- RULE 3

Conditions for leave-depositing half money in cash or furnishing bank guarantee harsh-may furnish security instead.
1992 CLC 1705 LAH (Malik Qayyum)

ORDER 37 – RULE 3

Leave. Court must , prime facie, find from application and affidavit , that there is reasonable –material making incumbent on plaintiff, to prove consideration , or there exists a plausible defence , or some specific question of fact or lae requiring investigation.
PLD 1963 SC 168
1975 SCMR 398
1973 SCMR 100

ORDER 37- RULE 3

“Case decided- does not mean decision of the entire suit it may relate to the decision of interlocutory matter- old view has been abounded vide AIR 1943 LAH 65.
1992 SCMR 718 at page 725(E)

ORDER 37- RULE-3

Suit decreed against principal debater while unconditional leave granted to guarantor –suit to continue as bank had the legitimate right against the guarantor.
1992 SCMR 718 at page 724 para (9)
PLD 1978 KAR 263

ORDER 37 –RULE 3

Leave for guarantor –guarantor not issued any negotiable instrument to warrant summary proceedings-guarantee indemnity bonds not negotiable instruments Summary procedure not applicable.
1992 SCMR 718 HN (B) AT P 724 para 9

ORDER 37 –RULE 3

Court can grant or refuse leave but same must be sought within 10 days of services-in case of failure or refusal by court, court can summarily decree suit and averment in plaint to be deemed admitted by defendant where defendant failed to seek leave within 10 days court justified to pass decree – defendant estopped from subsequently saying he had not been properly served and no copy of plaint annexed with summons
PLD 1993 LAH 224 HN(C)

ORDER 37 –RULE 3&4

Leave granted on certain conditions –conditions not fulfilled leave not operative- defendant not applying for leave court ampowed to decree suit taking averments o plaint as admitted.
PLD 1984 KAR 127

EXPARTE SEETING ASIDE

O-37,R-4 &O-IX,R-13

Exparte decree under o-37 cannot be set aside under o-9 R-1. it has to be within four corners of O-37 R -4.
PLD 1984 KAR 127

ORDER 37- RULE 4

There is wide power of court to set aside exparte decree u/o 38 R-4-only embargo is special circumstances-circumstances beside being good cause or sufficient cause have to be of special nature.
PLD 1984 KAR 127
PLD 1993 LAH 244

ORDER 37-RULE 4

Order sought to be set aside consent order –no special circumstances made out –application dismissed.
PLD 1984 KAR 127
(SUIT FOR DAMEGES)

O-37 (scope)

Suit for damages outside the purview of order 37 CPC.
1992 CLC 1913 KAR at 1915-A

Directors hold fiduciary relationship qua the company.
PLD 1992 SC 276

O-38, R-5

Attachment before judgment, application as well as reply must be supported by affidavit-reply not supported by affidavit –contents application deemed not converted.
1995 MLD 1707 LAH

O-39, R-1

Plaintiff himself showing monetary compensation adequate relief-not entitled to discretionary relief of specific performance.
PLD 1977 KAR 191

No attempt made to show balance of convenience on side of the plaintiff- loss found to be assessable in money-injunction not granted.
PLD 1979 KAR 668

O-39, R-1 & 2, R-2(2)

Court while granting temporary injunction can impose conditions-these conditions are not to be either similar to security or the conditions may be imposed u/s 151 or sec. 94 CPC and reference of such provisions should be clearly made.
PLD 1995 LAH 117

O-39 R-1 &2 (3);O-41 R-5; Contempt of Court Act Sec 3

Stay order and injunction –distinction injunction is not effected unless it is communicated –stay is operative the moment it is issued.
PLD 1949 LAH 100 (F.B)
1974 SCMR 509
PLD 1978 KAR 152

O-39, R-1 & 2

Entitlement to grant interim injunction in the absence of any determination of amount due as distinguished from amount claimed –petitioner entitled to interim injunction.
1995 CLC 1877

O-39 R-2 (3)

Punishment for disobedience under O-39 R-2(3) can only be determined and awarded by the court which had ordered the issuance of the injunction and not by a court to which the suit has been transferred.
AIR 1914 Calcutta 815

O-39 R-2 –SEC.150 OF CPC

Breach of injunction –business of the court granting the injunction transferring to another court –later court can entertain petition.

Transfer-includes transfer of business under civil courts Act. The word transfer in Sec 150 is not applicable to a case where the District judge fixed the jurisdiction of court under the civil courts act and transferred the whole of the business within a certain area of it.
AIR 1923 Madras 92

O-39 R-2 (3)

Civil courts have no jurisdiction to take action against a person not party to suit. However, high court has such jurisdiction.
1988 CLC 1370 LAH
PLD 1964 Daaca 276
PLD 1975 LAH 126

O-39 R-2(3)

No person is bound to obey a direction which is unlawful nor can he be held liable for refusing to obey it
PLD 1975 LAH 126

O-39, R-2(3) read with

W.P Land Revenue act sec .81&
Constitution Art.204;187, contempt of court act 1976 sec.6.

Contempt against public servants who discharge their official duties and pass order adversely affecting the right of one party was disapproved and condemned by Supreme Court.

Stay/injunction must be clear leaving no room for ambiguity.

Govt. officials should not be summoned in contempt proceedings when they are not the main party in the suit.
PLD 1995 SC 572

O-39, R-4-A

No successive stay orders can be issued.
1984 CLC 2048 KAR

Payment of govt. dues - stay orders – stay granted by high court till disposal of petition-order to that extent would be read as contemplating disposal of the petition with six months.
1989 CLC 1160

O-41, R-27

Addl. Evidence cannot be to fill up lacuna in the case –can be read only when(i) requested by court (ii) for proper adjudication.
1995 CLC 1889

O.XIII, R.1 & 2.

It is mandatory for the parties to file all documents at the first date of hearing. Discretion in Rule 2 is subject to condition of “good cause”
Muhammad Musa        Vs.        Hamid Ali
2012 CLC 254 (Baluchistan)

IMPORTANT CIVIL CASE LAW SCMR ON SALE, AGREEMENT TO SELL, ONE MARGINAL WITNESS 2002 S C M R 1089, CONTRACT ACT 1872  TRANSFER OF PROPERTY ACT, 1882 S-12 OF SPECIFIC RELIEF ACT 1877, REGISTRATION ACT 1908, SART-17(2)(A),79 QANOON E SHAHADAT  1984.

                                                                     2002 S C M R 1089

 

[Supreme Court of Pakistan]

 

Present: Sh. Riaz Ahmed, CJ. and Qazi Muhammad Farooq, J Mst. RASHEEDA BEGUM and others---Petitioners versus

 

MUHAMMAD YOUSAF and others---Respondents

 

Civil Appeals Nos.327, 328, 1022 of 1995 and 1348 of 1996, decided on l lth April, 2002.

 

(On appeal from the judgment/order, dated 17-4-1993, 11-12-1993 and 14-11-1995 of the Lahore High Court, Lahore, passed in Civil Revision No. 186/88, Writ Petition No.3857/93, Civil Revisions Nos.1271/91 and 2274/95, respectively).

 

(a) Specific Relief Act (I of 1877)--

 

----S.12---Transfer of Property Act (IV of 1882), S.54---Registration Act (XVI of

 

1908), S.17---Agreement to sell---Whether requires registration---Agreement to sell itself does not create any interest in or charge on immovable property, rather same only creates a right to obtain another document conferring title in respect of immovable property mentioned therein, and for that very reason, the same does not require registration.

 

(b) Contract Act (IX of 1872)---

 

----S.10---Specific Relief Act (I of 1877), S.12---Agreement to sell---Form--No

 

legal provision existed to the effect that agreement to sell should only be in writing.

 

(c) Qanun-e-Shahadat (10 of 1984)---

 

----Arts. 17,(2)(a) & 79---Agreement to sell---Attestation by witnesses---Proof of

 

execution---Agreement to sell involving future obligations, if reduced to writing and executed after coming into force of Qanun-e-Shahadat, 1984, is required by Art.17(2)(a) of Qanun-e-Shahadat, 1984 to be attested by two male or one male and two female witnesses, as the case may be---Such agreement has to be proved in accordance with the provisions of Art.79 of Qanun-e-Shahadat, 1984.

 

(d) Qanun-e-Shahadat (10 of 1984)---

 

----Arts.  113   &   117---Specific  Relief   Act   (I   of   1877),   S.12---Burden   of

 

proof---Suit for specific performance of contract based on agreement to sell---Onus to prove such contract would lie on plaintiff unless its existence was admitted by defendant.

 

(e) Contract---

----   Form of proof---Must be in line with the format of document executed by parties to the contract.

 

(f) Evidence Act (I of 1872)---

----S.68---Qanun-e-Shahadat (10 of 1984), Arts. 17(2)(a) & 79---Specific Relief

 

Act (I of 1877), S.12---Agreement to sell---Attested and unattested by witnesses---Proof of execution---Agreement if executed prior to promulgation of Qanun-e-Shahadat, 1984 was not required by any law to be attested by witnesses---Form of proof must be in line with the format of document executed by parties to the contract---If agreement to sell had been reduced into writing and attested by witnesses, then its execution must be proved in accordance with provisions of S.68 of. Evidence Act, 1872, notwithstanding the fact that the same applied only to document required by law to be attested---Where-agreement to sell had been reduced to writing but 'not attested by witnesses, its execution and the contract embodied therein could be proved by other strong evidence and attending circumstances, which might vary from case to case---Such evidence could also be produced in first category of cases as supporting evidence.

 

(g) Specific Relief Act (I of 1877)---    

---S.12---Evidence     Act      (I         of  1872),        S          68---Suit         for       specific  performance---

Agreement to sell attested by two witnesses---Execution, proof of ---Non examination of attesting witnesses---Effect---Execution of agreement had not been proved within contemplation of S.68 of Evidence Act, 1872---Bald statement of petition writer, who had allegedly scribed the agreement to sell, was not enough to prove its execution.

 

(h) Specific Relief Act (I of 1877)---

            ----S.12---Evidence  Act   (I   of   1872),   S.68---Contract   Act   (IX   of   1872),

 

S.62--Constitution of Pakistan (1973), Art.185(3)---Suit for specific performance of agreement to sell---Plaintiff pleaded agreement to sell in respect of disputed land and payment of its sale price to defendants through different receipts---Agreement to sell attested by two witnesses was in the shape of an extract from the register of a petition-writer---Plaintiff did not examine marginal witnesses of agreement to sell, rather they appeared as witnesses of defendant and denied its execution by deposing that when they signed the agreement, neither defendant was present nor any amount was paid in their presence---Trial Court dismissed the suit---Appeal and revision petition filed by plaintiff were dismissed---Contention of plaintiff was that agreement was not required by law to be attested by witnesses, thus, nonexamination of attesting witnesses was not fatal; and agreement to sell had been proved by means of secondary evidence of petition-writer ---Validity--None of the attesting witnesses had been examined by plaintiff---Plaintiff had not placed on record and proved the document whereby receipt of sale price paid from time to time was acknowledged by defendant and contract was reiteraed--Plea of novation of contract was also more imaginary than real for want of positive and tangible proof---Supreme Court dismissed the appeal in circumstances.

 

Muhammad Saeed v. Mst. Sardar Begum 1990 SCMR 1176 ref.

 

(i) Specific Relief Act (I of 1877)---

----S-12---Qanun-e-Shahadat (10 of 1984), Arts. 17(2)(a) & 79---Suit for specific performance of agreement to sell---Plaintiff examined only one attesting witness---Trial Court dismissed the suit on the ground that agreement to sell had not been proved in accordance with Art.79 of Qanun-e-Shahadat, 1984---Validity---Agreement to sell having been attested by two witnesses and

 

executed after promulgation of Qanun-e-Shahadat, 1984 ought to have been proved in accordance with Art.79 thereof---Evidence on record consisted of only

one attesting witnesses---Payment of earnest money had not been proved-Evidence produced by plaintiff did not meet the requirement of Art.79 of Qanun-e-Shahadat, 1984.

Appellants in person (in CAs Nos.327 & 328 of 1995.

Respondents: Ex part (in CAs No-327 & 328 of 1995)

             Rai Muhammad Nawaz Kharal, A vocate Supreme Court with M.S. Khattak, Advocate-on-                    Record for Appellant (in C.A. No. 1022 of 1995)

             M.A. Qureshi, Advocate-on-Record (absent) for Respondents (in C.A. No. 1022 of 1995).

Mian Ghulam Hussain, Advocate Supreme Court for Appellant (in C.A. No. 1348 of 1996).

             Abdul Waheed Chaudhry, Advocate Supreme Court for Respondents in C.A. No.

 

1348 of 1996).

 Date of hearing: 21st February, 2002.

 

JUDGMENT

 

QAZI MUHAMMAD FAROOQ, J.---The abovementioned four civil appeals, by leave of the Court, are being disposed of by this common judgment on account of identity of the leave granting orders.

 

2.   Leave was granted in Civil Appeal No.327 of 1995 to consider whether an agreement to sell is required to be attested by witnesses and the provisions of Article 79 of the Qanun-e-Shahadat Order, 1984 were applicable in the case. Simultaneously, leave was granted in the connected Appeal No.328 of 1995 though it had arisen from an order of dismissal of an application under section. 12(2), C.P.C. passed in a writ petition. Leave was granted in Civil Appeal No.1022 of 1995 on the strength of a similar leave granting order passed in the case reported -as Muhammad Saeed v. Mst. Sardar Begum (1990 SCMR 1176) and also to consider the contention that even if the agreement to sell is excluded from consideration, case of the petitioner was sufficiently proved by documents Exh. P-2 to Exh. P-4 on which reliance was not placed by the Courts below. Leave was granted in Civil Appeal No. 1348 of 1996 on the basis of the leave granting order passed in Civil Appeal No. 327 of 1995.

 

3.   Before adverting to the points for determination it is necessary to give brief facts of each case. Civil Appeals Nos.327 and 328 of 1995 have arisen in the circumstances that a suit for specific performance of contract embodied in an agreement to sell dated 22-2-1977 in respect of land measuring 11 acres, 4 Kanals situated in Tehsil Shorkot was filed by Muhamniad Sharif, predecessor-in-interest of the appellants. It was alleged that one Muhammad Yousaf had agreed to sell the suit land to the plaintiff for a sum of Rs.30,000 out of which Rs.13,400 were paid as earnest money and the rest was promised to be paid at the time of execution of the sale dated. The vendee was put in possession of the subject-matter of the agreement to sell. The vendor instead of executing a registered sale-deed in favour of the vendee transferred the suit land to one Mst. Jamila Begum through a consent decree dated 16-9-1980 passed by Civil Judge, Shorkot. The suit was resisted by the vendor as well as Mst. Jamila Begum mainly

on the grounds that the agreement to sell pressed into service by the plaintiff was not executed at all and neither any earnest money was received by the vendor nor possession of the land in dispute was transferred to Muhammad Sharif. After a hot contest the suit was dismissed by the learned trial Court and the appeal filed by Muhammad Sharif also met the same fate on 29-6-1988. Thereafter, the vendee filed a revision petition which too was dismissed on 17-4-1993 by a learned Judge in Chambers of the Lahore High Court mainly on the ground that the execution of the agreement to sell had not been proved on account of failure of the vendee to examine the marginal witnesses. The vendee had also filed an application under section 12(2), C.P.C. whereby the transfer of the suit land in favour of Mst. Jamila Begum through a consent decree was challenged on the ground of fraud. That application was dismissed by the learned trial Court on 28-11-1987, the civil revision preferred by Muhammad Sharif was dismissed by the learned Additional District Judge, Jhang, on 16-1-1990 and the writ petition challenging the validity of both the orders was dismissed by a learned Judge in Chambers of the Lahore High Court on 17-4-1993. The validity of the judgment rendered by the High Court has been challenged in Civil Appeal No.328 of 1995.

4.    The suit culminating in Civil Appeal No. 1022 of 1995 was based on an agreement to sell dated 10-6-1974 whereby Amir Khan, father of the respondent herein, had allegedly agreed to sell land measuring 6-1/4 acres to the appellant for a sum of Rs.37,500 and had received earnest money to the tune of Rs.5,000. The remaining sale price was to be paid by 30-7-1974 on which date the sale was to be completed. The sale was not completed by the stipulated date. However, the vendor allegedly received a further sum of Rs.3,000 from the vendee on 2-8-1974 and another amount of Rs.1,700 on 21-9-1974 on which .date another agreement extending the date for completion of sale up to 30-10-1974 was executed. In the second agreement the receipt of the aforesaid amounts of Rs.3,000 and Rs.1,700 were duly acknowledged. The vendor executed yet another document on 16-10-1974 acknowledging receipt of an amount of Rs.1,400 and confirming earlier payments. It was also alleged in the suit that the vendor instead of completing the sale had gifted the land in dispute in favour of his sons, vide a registered gift deed dated 20-12-1976, which was followed by a mutation attested on 28-1-1977. The appellant was non-suited by the learned trial Court on the ground that the marginal witnesses of the agreement to sell were not examined by him and both of them had appeared as witnesses of ; the defendants and denied its execution by stating in clear words that when they had signed the document neither Amir Khan was present nor any amount was paid by the. appellant in their presence. The documents Exh. P-2 and Exh.P-4 were also not relied upon owing to discrepancies in the statements of the witnesses. The appeal preferred by the appellant was dismissed by the learned Additional District Judge, Faislabad on 8-4-1991 and the revision petition filed by him was dismissed by a learned Judge in Chambers of the Lahore High Court.

 

5.   In Civil Appeal No. 1348 of 1996 the revision petition filed by the appellant was dismissed by a learned Judge in Chambers of the Lahore High Court on 14-11-1995. The revision petition was directed against the judgment dated 18-9-1995 of the learned Additional District Judge, Okara whereby the judgment dated 16-10-1994 of the learned Civil Judge, Depalpur dismissing the appellant's suit for specific performance of contract was upheld. The suit was dismissed on the ground that execution of the agreement to sell dated 18-3-1991 had not been proved in accordance with Article 79 of the Qanun-e-Shahadat Order, 1984 as only one attesting witness was examined.

 

6.   When the appals came up for hearing one of the appellants in Civil Appeals Nos.327 and 328 of 1995, namely, Mst. Rasheeda Begum informed us that Mr. Abdul Shakoor, Advocate Supreme Court, learned counsel for the appellants in

both the appeals, had died and she was not possessed of means to engage another counsel. According to the grounds of appeal in Civil Appeal No. 327 of 1995 the execution of the agreement to sell dated 22-2-1977 was proved by the appellants by producing the original agreement, examining its scribe and other witnesses, establishing payment of the earnest money and delivery of possession of the suit land but the evidence was either misread or ignored by the High Court. It is also mentioned therein that the attesting witnesses were not examined as both of them were clerks of Mr. Nematullah Hissari, Advocate, husband of respondent No.2, who had masterminded the whole plan to deprive the appellants of their legal rights. The grounds of appeal in Civil Appeal No.328 of 1995 spell out that there was enough material on record to show that the consent decree dated 16-9-1980 obtained by Mst. Jamila Begum was the outcome of fraud but the same was ignored and the writ petition was dismissed merely on the ground that in the parallel proceedings arising out of a regular suit brought by the appellants against their opponents a civil revision had already been dismissed.

 

7.    Rai Muhammad Nawaz Kharal, Advocate Supreme Court learned counsel representing the appellant in Civil Appeal No. 1022 of 1995, contended that an agreement to sell was not required by law to be attested by witnesses, therefore, non-examination of the attesting witnesses was not fatal. He further contended that in any case execution of the agreement to sell in question had been proved by means of secondary evidence consisting of the statement of the petition-writer who had recorded the same in his register and the extract from the relevant register. It was also contended that execution of the remaining documents marked Exh. P-2 to Exh P-4 had also been duly proved. It was lastly contended that the civil appeal in the case of Muhammad Saeed (supra) was allowed on 25-8-1991 and the case was remanded to the High Court for deciding the appeal afresh after determining as to whether the vendor had agreed to sell the house in dispute.

 

8.    Mian Ghulam Hussain, Advocate Supreme Court, learned counsel for the appellant in Civil Appeal No.1348 of 1996, also contended that an agreement to sell was not required by law to be attested by two witnesses, therefore, the execution of the agreement to sell in question (Exh. P-1) stood roved in the light of the statement of one of the attesting witnesses.

 

9.  Mr. Abdul Wahid Chaudhry, Advocate Supreme Court, learned counsel for the respondents in C.A. No.1348 of 1996, on the other hand, maintained that an agreement to sell was required to be attested by two witnesses and the agreement to sell involved in the appeal was neither proved by examining the marginal witnesses nor through any other mode.

 

10.   It will be pertinent to mention at this stage that in the case of Muhammad Saeed (supra) leave was granted to consider the question as to whether the agreement to sell involved in the case was required by law to be attested by witnesses. The appeal was allowed on 25-8-1991 and the case was remanded to the High Court for re-decision of the appeal to determine as to whether the vendor had agreed to sell the house. The appellants herein cannot draw any premium from the judgment rendered in the case as the question alluded to in the leave granting order was not determined and the case was remanded on finding force in the contention that even if the agreement of sale is excluded for the reason that the attesting witnesses had signed the same before it was signed by the execution, still there was evidence on the record to show that the executant had executed the said agreement.

 

11.   An agreement to sell immovable property is a contract enforceable I by law. Section 54 of the Transfer of Property Act expressly provides that a p contract of sale does not, of itself, create any interest in or charge on the immovable property

which constitutes its subject-matter. As a matter of fact an agreement to sell only creates a right to obtain another document conferring title in respect of the immovable property mentioned therein and for that very reason it does not require registration. There is also no legal provision to the effect that an agreement to sell should only be in writing. Be that as it may, while determining the question whether an agreement to sell is required by law to be attested by witnesses a line of demarcation must be drawn between the agreements of sell executed before and after promulgation of Qanun-e-Shahadat Order, 1984. Unquestionably, an agreement to sell involves future obligations, therefore, if reduced to writing and executed after coming into force of Qanun-e-Shahdat Order, 1984, it is required by sub-Article (2)(a) of Article 17 thereof to be attested by two male or one male and two female witnesses, as the case may be. The said sub-Article is worded thus:--

 

"(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;"

 

The execution of such an agreement to sell is to be proved in accordance with the provisions of Article 79 of Qanun-e-Shahdat Order, 1984 which read as under:--

 

"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:

 

Provided that it shall not be necessary to call an attesting witness in proof of the executant of any document, not being a will, which has been registered in accordance with the provisions 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."

 

12.    It is true that before promulgation of Qanun-e-Shahadat Order, 1984 an agreement to sell was not required by any law to be attested by witnesses. It is, however, a matter of common knowledge that during that period also the agreements to sell were by and large reduced to writing and attested by witnesses in spite of absence of a legislative provision and the mode attained the status of an established practice by efflux of time. This mode, in all probability, was adopted by way of abundant caution and to procure documentary evidence inasmuch as in a suit for specific performance of contract based on an agreement to sell the onus is on the plaintiff to prove the contract unless its existence is admitted by the defendant. The interest of justice, therefore, demands that the form of proof should be in line with the format of the document executed by the parties to the contract. It would thus follow that where an agreement to sell executed prior to promulgation of Qanun-e-Shahadat Order, 1984 has been reduced into writing and attested by witnesses its execution must be proved in accordance with the provisions of section 68 of the erstwhile Evidence Act notwithstanding the fact that the ` tame apply only to that document which is required by law to be attested.

 

Prop of the aforementioned legal vacuum cannot be taken to offset the effect of failure to prove the execution of an agreement to sell in accordance with the said mode. However, where an agreement to sell has been reduced to writing but not

attested by witnesses its execution and the contract embodied therein can be proved by other strong evidence and attending circumstances which may vary from case to case. Needless to mention that such evidence can also be produced in the first category of cases as supporting evidence.

 

13.   Having determined the main questions involved in these appeals we would now turn to the merits of each appeal. In Civil Appeal No.327 of 1995 the agreement to sell was executed on 22-2-1977. It was attested by two witnesses Muhammad Tufail and Muhammad Yar and also bears their signatures. None of them was examined by the appellants, therefore, it goes without saying that execution of the agreement to sell. has not been proved within the contemplation of section 68 of the erstwhile Evidence Act. The explanation for their non-examination lacks plausibility. The bald statement of the petition-writer Nazar Mohyuddin (P.W.4) who had allegedly scribed the agreement to sell is not enough to prove execution of the document in question. The appeal is, therefore, without substance.

 

14.    Civil Appeal No.328 of 1995 is also devoid of substance because the appellants have not only failed to prove that the consent decree in favour of Mst. Jamila Begum was the outcome of fraud and misrepresentation but they also have no cause of action to assail the same having been non-suited in the main case.

 

15.   In Civil Appeal No. 1022 of 1995 the agreement to sell pressed into service was in the shape of an extract from the register of a Petition Writer. According to the said extract the agreement to sell was executed on 10-6-1974 and was attested by Mahurram and Muhammad Ali. None of them was examined by the appellants. The appellants have also not cared to place on record and prove the documents whereby the receipt of sale consideration paid from time to time was acknowledged and the contract was reiterated. The plea of novation of contract is also more imaginary than real for want of positive and tangible proof. This appeal is also devoid of force.

 

16.   The agreement to sell in Civil Appeal No. 1348 of 1996 was executed on 18-3-1991 and attested by Muhammad Rafiq and Muhammad Sarwar. Having been executed after promulgation of the Qanun-e-Shahadat Order, 1984 its execution ought to have been proved in accordance with Article 79 (ibid) but the evidence - on record consists of only one attesting witness. Payment of earnest money has also not been proved on record. The evidence produced by the appellant does not meet the requirements of Article 79 of the Qanun-e-Shahadat Order, 1984. The appeal is, therefore, liable to be dismissed.

 

For the reasons aforesaid, we find no substance in these appeals which are accordingly dismissed. No orders as to costs.

 

S..A.K./R-41/S

dismissed.

Appeals