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-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-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-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-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-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-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-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.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.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.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.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. 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. 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-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-9, R-8.CPC

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)

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

 Decision should be on merits.

PLD 1965 SC 651 at P.655.

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

 Taking harsh view while dismissing in default.

PLD 1955 F.C. 178.

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

 While dismissing for non-appearance exigency of lawyers has to be seen.

PLD 1966 SC 461,467.

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

The case should not be dismissed for default in the early hours of the day.

PLD 1966 Lah. 356.

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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.

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