PLJ 1998 Lahore 1000

(ii) Qanun-e-Shahadat Order, 1984 (P.O. of 1984)--

—Art. 78--Mode of proof of document-Bare reading of this Article indicates that it relates to execution of document produced in evidence-It clearly enacts that if document is alleged to be signed or to have been written by any person, signatures or writing must be proved to be in that person's hand writing—This does not postulate any particular mode of proving signatures/hand writing of person-It requires that hand-writing must be proved-Testimony of PWs. is of no use as they were not acquainted with executant. [Pp. 1008*; 1010] D & E

Mr. A.K. Dogar, Advocate for Petitioner.

Mr. Khurshid Ahmad Chaudhary, Advocate for Respondent Muhammad Zikria.

Dates of hearing : 4.12.1997 and 5.12.1997.

judgment

Dispute, in the above noted matters, pertains to a shop No. 2-S-40 situated in Block No. 3 within the area of Municipal Corporation, Sargodha. This property measures 12' x 12' and shall here-in-after be described as "property in dispute"/"property". The controversy is between Muhammad Zikria and 18 others/legal heirs of Muhammad Sarwar on one hand and Zulfiqar Ali son of Haji Ali Ahmad on the other side. All these causes were argued by learned counsel for parties together with one voice, stated that fate of all these causes hinged upon decision in Revision Petition No. 1448/91. The learned counsel, so, focused their energies in the above revision petition and did not address with regard Revision Petition No. 1447/91 and Constitution Petition No. 7900/91. These have arisen out of following circumstances.

FACT OF CIVIL REVISION No. 1448/91.

2. Facts, briefly stated, giving rise to this petition are; that the properly in dispute was transferred to Muhammad Sarwar/predecessor-in-interest of respondents No. 1 to 19 in this revision petition. Zulfiqar Ali/petitioner initiated an action for specific performance of agreement to sell dated 3-8-1971 (Ex. PI) alleging therein that he was in possession of shop before its transfer to Muhammad Sarwar; that on 3-8-1971, he agreed to sell it in lieu of 10,000/- rupees vide agreement to sell Ex. PI; received 5,000/- rupees as earnest money and executed receipt Ex. P-2 on the same date; that it was agreed therein that seller will obtain PTD from Settlement Department and then will convey him title of the demised land. This suit Was filed on 10-9-1987. This action was resisted. Respondents, in their written-statement, contended that Ex. PI and Ex. P-2 were not executed by Muhammad Sanvar; that suit was barred by time: that Muhammad Sarwar had actually rented out a portion of the shop/measuring 6%' x 4' to Zulfiqar Ali at the rent of Rs. ISO/- per month; that he suffered from an attack of paralysis; that Zulfiqar Ali took the benefit of the ailment of Muhammad Sanvar and framed agreement to sell Ex. P-l and receipt Ex. P2; that he filed a suit for grant of mandatory and perpetual injunction on 22-1-1984; that suit, after contest, was dismissed on 24-6-1987; that after the said event, Zxilfiqar Ali took possession of another portion of shop measuring 4' x 6' . lying behind the rented portion.

3. On the pleas of the parties, as many as six issues were framed which are not necessary to be recapitulated. Suffice it to say. that the learned counsel for parties concentrated their energies on issue Nos. 2 and 4. These issues are as follows :--

2. Whether the suit is barred by limitation?

4. Whether the plaintiff purchased the disputed shop in consideration of Rs. 10,000/- and Rs. 5000/- was paid as earnest money to Muhammad Sarwar deceased ? (OPP).

Zuifiqar Ali examined Abdul Ghafoor Ascribe) PW-2, Abdul Hameed PW-3 (m.w.), Aziz-ur-Rthman PW-1 and appeared himself and PW-4. The respondents relied upon Rashid .Ahmad DW-1, Muhammad Akram DW-2, Muhammad Zikria/respondent himself as DW-3. The respondents tendered into evidence the copy of the judgment and decree rendered in earlier suit No. 80/84 dated 24-6-1987. On the assessment of the evidence adduced by the parties, the learned trial Court decided issue No. 4 against Zulfiqar Ali and found that Ex. PI and Ex. P2 were sham instruments. On issue No. 2 it was found that the cause of action arose to Zulfiqar Ali on 22.1.1984 and so action for specific performance was barred by time under Article 113 in Schedule to Limitation Act. On appeal, the learned first Court of appeal saw eye to eye with the findings of learned trial Court. Feeling aggrieved, Zulfiqar Ali had preferred Civil Revision No. 1448/91.

FACTS OF CIVIL REVISION No. 1447/91.

4. On 3-2-1988, respondents filed a suit for possession with regard to property detailed -in the plaint against Zulfiqar Ali alleging therein that Muhammad Sarwar was the owner of property in dispute; that Zulfiqar Ali had obtained a portion of a shop measuring 6%' x 4' at the rent of Rs. 150/-per month; that Muhammd Sarwar was attacked by paralysis and meanwhile Zulfiqar Ali prepared Ex. P-l and Ex. P-2 and filed suit' No. 80/1984 on 24-6-1987 for grant of mandatory/perpetual injunction; that the aforesaid suit was dismissed on 24.6.1987 as incompetent; that thereafter Zulfiqar Ali illegally occupied another portion behind the rented premises. Zulfiqar Ali reiterated, what was pleaded in his plaint for action of specific performance; that the same evidence was led by both the parties in this suit also. Upon the consideration of the same, the learned trial Court came to similar conclusions and so the suit filed by respondent was decreed. On appeal, the first Court of appeal arrived at some conclusion and dismissed the appeal preferred by Zulfiqar Ali. This happened on 21.7.1991. This Civil Revision is directed against the aforesaid decisions.

FACTS OF WRIT PETITION No. 7900/91.

5. Muhammad Zikria and others/respondents herein filed an eviction petition under Section 13 of Punjab Rent Restriction Ordinance against Zulfiqar All/seeking his eviction from rented premises. It was complained therein that he was a tenant of portion of a shop at the rent of ISO/- per month; that Muhammad Sarwar had died on 10-8-1983; that Zulfiqar Ali had not paid rent from the month of July, 1983 to the institution of eviction petition; that the rented premises was required by respondents for their personal requirement. This rent application, too, was resisted on the basis of agreement to sell dated 3.8.1971/Ex. P-l and receipt Ex. P-2. The same evidence was produced before the Rent Controller. On the consideration of material on record, the learned Rent Controller found that there was relationship of landlord and tenant between parties; that Zulfiqar Ali was wilful defaulter. On this conclusion, the learned Rent Controller allowed eviction petition on 24.3.1991. The appeal filed by Zulfiqar Ali was dismissed on 21.7,1991. Feeling dissatisfied, Zulfiqar Ali preferred Writ Petition No. 7900/91. This is how all these causes come to this Court. As all these were heard together and learned counsel for parties agreed that these causes be adjudicated together, so all these matters are being dealt with by single judgment.

6. Mr. A.K. Dogar Advocate appeared on behalf of the petitioner. While assailing the decision of the Courts below he, inter alia, urged as under :--

Firstly : that the two Courts below have decided issue No. 2 (with regard to limitation) with patent illegality; that earlier suit was filed on 22-1-1984 and the same was dismissed on 24.6.1987. The said second suit was instituted on 28.6.1987 i.e. after expiry of only four days. According to the learned counsel, the petitioner had been prosecuting the first suit (on the same cause of action) diligently and good faith on the advice legal expert that the suit was competent; that the learned first Court dismissed the suit as being incompetent and did not decide the issues of merit. On the strength of the above circumstances, it was strongly suggested that benefit under Section 14 of the Limitation Act was available to the petitioner and the suit was, therefore, clearly within time.

Secondly: that Fazal-e-Hussain was marginal witness of Ex. Pi and P2, that he had appeared as PW. 2 in an earlier suit No. 1448/91, which was between the same parties; that he had been subjected to cross examination; that he had died before initiation of action for specific performance of agreement to sell (Ex. PI); that certified copy of that statement was per-se admissible under Article 34 of the Qanun-e-Shahadat Order, 1984. On the strength of the above circumstances, it was suggested that the order of learned Additional District Judge dated 16.7 1PQ1/ rejecting the application for permission to bring the aforesaid evidence on record was illegal, without jurisdiction and of no lawful consequence. On the above line of arguments it was argued that the certified copy of the p'«tement of Fazal Hussain be admitted into evidence while deciding these cases. Reliance was.placed onMangti vs. Noori (1995 CLC 210).

Thirty: that the learned two Courts below had erred in law in discardingthe evidence of Aziz-ur-Rehman PW-1, Abdul Ghafoor PW-2, Abdul Hameed PW-3 and Zuifiqar Ali PW-4. According to the learned counsel, the testimony of the aforesaid witnesses coupled with the statement of Fazal Hussain, proved the execution of Ex. PI and P2 and the learned two Courts below had no option but to decree the suit filed by Zuifiqar Ali.

Fourthly: that Ex. PI had been written on a stamp paper purchased by executant from a stamp-vendor; that the entry of the said purchase was incorporated in the register of stamp-vendor; that the said registrar was kept by the stamp-vendor in discharge of his official duty and the same was kept in official custody in the office of Deputy Commissioner/ Collector of the District. According to the learned counsel, the entry in the said register carried presumption of truth and so the learned two Courts below committed material illegality in not giving effect to the relevant entry.

Fifthly: that the learned Civil Judge as well as the learned Court did not permit the production of certified copy ' of the statement of Fazal-e-Hussain/marginal witness as additional evidence; yet both the Courts below took judicial notice of these documents and disbelieved it without realising that said document was not on the record of the suit. On this line of argument it was suggested that the decision, rendered by the two forums below, rested on unreceived evidence and so merited to be reversed. Reliance was placed on Ilahi Bakhsh vs. Noor Muhammad (PLD 1985 SC 41).

7. On the other hand, the learned counsel for the respondent Ch. Khurshid Ahmad Advocate supported the impugned decision by saying that the concurrent conclusions of the Courts below were premised on the ground that PW-2/Scribe PW-3/marginal witness did not know Muhammad Sarwar; that Aziz-ur-Rehman/PW.l was intimately related'to Zulfiqar Ali and so was rightly disbelieved as partisan/interested witness. As regards Fazal-e-Hussain, the learned counsel candidly conceded that the decision of the learned appellate Court was incorrect and he had no objection if his statement was brought on record and was read into evidence. He, however, strongly stated that his statement did not improve the case of Zulfiqar Ali who had miserably failed to prove the execution of Ex. PI and P2 within the terms of Section 67 of Evidence Act/Article 78 of Qanun-e-Shahadat Order. He furthermore, stressed that the property in dispute was situated in Municipal Limits of Sargodha Corporation^ that the executant and seller were the residents of Sargodha; that it was ridiculous that Ex. PI and P2 were scribed in Katchery of Faisalabad. According to the learned counsel, this was the product of manipulated genius of Aziz-ur-Rehman, who, though negotiated the entire transaction, arranged for writing of Ex. PI and P2; procured witnesses; yet did not land his signatures on Ex. PI and P2. He relied upon Mahtab Din vs. Kasar Singh (AIR 1928 Lah. 640) to contend that extract from .registers of stamp-vendor was not a public document within the terms of Section 35 of Evidence Act/Article 49 of Qanun-e-Shahadat Order. As regards point of limitation, the learned counsel for the respondent supported the impugned decision. It was submitted that earlier suit had been filed on 22.1.1984 wherein it was specifically alleged that Muhammad Sarwar had refused to perform agreement of sale dated 3.8.1971; that the limitation has started to run from that date; that the petitioner was not entitled to any benefit under Section 14 of the Limitation Act and so the two Courts below had rightly found the suit filed on 24.6.1987 as time barred.

8. The first question, to be examined, is as to whether action for specific performance initiated by Zulfiqar was within time. The parties agree that Article 113 in Schedule to Limitation Act applies to this action/suit. The period of limitation, prescribed in this regard, is three years(a) from the time fixed for performance of agreement or (b) if no such date is fixed from the date when the plaintiff has a notice that, performance is refused. There are two well-known principles with regard to laws of limitation. Firstly, that laws of limitation take away the right of the parties and so these laws mustbe liberally construed and without doing any offence to intents of legislature. Secondly; when there is doubt in the construction of relevant clause, benefit should be given to the plaintiff. See Makhanlal Roy Pramanick and others v. Pramathanath Basu and others (AIR 1953 Cal. 50). P.N. Films Ltd. and another v. Overseas Films Corporation Ltd. (AIR 1958 Bom. 10), Alopi Parshad and another v. Court of Wards and others, (AIR 1938 Lahore 23), Putchalapalli Venkata Subbareddi v. Duvvuru Papireddi and another (AIR 1957 Andh. Pard. 406), AIR 1960 Punjab 655, AIR 1951 All. 485, AIR 1939 Nag. 150 and Hoshang v. Eddi. P. Bharucha (PLD 1968 Karachi 723).

Secondly the refusal of the defendant to perform contract must be clear unequivocal and unconditional for the purpose of starting period of Limitation. Reference be made to Lai Singh vs. Hari Sing and another (AIR 1932 Lahore 36).

10. Apart from the above noted rules, I find that Section 14 of the Limitation Act is applicable to the facts of the case in hand. This provisions was examined by Full Bench of Allahabad High Court in Mathura Singh v. Bhawani Singh (22 ILR All. 248). Speaking for the Bench Strachey, C.J., held :

"....It is necessary to bear in mind the essential object of section 14 and the principle which underlies it. The principle is, broadly speaking, the protection against the bar of limitation of man honestly doing his best to get his case tried on the merits, but failing through the Court being unable to give him such a trial. That is the principle; and I think it is clearly applicable, not only a cases in which a man brings his suit in the wrong Court, that is, a Court having no jurisdiction to entertain it, but also where he brings his suit in the right Court but in nevertheless prevented from getting a trial on the merits by something, which, though not a defect of jurisdiction, is analogous to that defect.

Applying the above principle to the case before them/namely where the plaint had been returned because of misjoinder of plaintiffs and causes of actions, their lordships held that the case was covered by Section 14 of the Limitation Act. In Kanahiya Lai vs. Suraj Karam and others (108 1C 134) an execution application under Order XXI, Rule 50 CPC was dismissed on the ground that order removing the attachment of the property operated as a bar. The decree holder then brought a fresh suit under Order XXI Rule 63 CPC after the expiry of one year from the date of removal of attachment. In this case it was held :

"Section 14 is not confined to defect of jurisdiction, but it also mentions 'other causes of like nature', We have already pointed out that this Court refused to entertain the application of the 5th May 1919 and to consider the merits of it, on the ground that the order of the 6th September 1918 operated as a bar. If that bar could be removed there could be no difficulty in the"~application of the 5th May 1919, being maintained. Thus the reason why the application was thrown out was a reason contemplated by section 14, Limitation Act."

In Abdul Sattar Ckoudhry and others v. Abdul Rusan and others (40 C W N 914), the plaintiffs applied for execution of the decree with was rejected as incompetent in view of a previous order passed by the Court; that the plaintiff thereupon filed a suit to avoid bar of limitation and contended that, the plaintiff had been prosecuting the execution application diligently. The learned Judge upheld the.plea and found that the case fell within the ambit of Section 14 of the Limitation Act. After exhaustive Survey of case, a Division Bench of Erstwhile West Pakistan High Court in Kilachand Devachand & Co. us. Muhammad Allah Bakhsh (PLD 1962 Kar. 510), enunciated rules with regard to applicability of Section 14 of the Limitation Act. These rules are as follows :--

(a) That the plaintiff has been prosecuting another civil
proceeding against the defendant;

(b) that he has been prosecuting it with due diligence;

(d) that it is prosecuted in good faith; and

(e) that it does not bear fruit because the Court is unable to entertain it due to defect of jurisdiction or other cause of a like nature.

The phrase "other cause of a like nature" is not capable of being defined with any precision or exactitude and it is not easy to lay down a hard and fast rule or to enumerate all the causes which should be regarded as of a like nature to absence of jurisdiction; but any cause, unconnected with want of diligence or good faith on the part of the plaintiff, which precludes the Couit from hearing the former suit for proceedings of the plaintiff on merits, is a cause which comes within the purview of section 14 of the Limitation Act. It would generally be a cause arising out of a bonafide mistake of law, procedure or fact which precludes the Court from considering on merits the issues involved in the case."

Applying these principles to the facts and circumstances of the case in hand, it is quite clear that the petitioner had earlier filed a suit for grant of mandatory and perpetual injunction on the basis of agreement to sell dated 3.8.1971 (Ex. PI); that the aforesaid suit was found incompetent and dismissed; that the learned trial Court, while doing so, did not render its findings on issues relating to merits of claims of parties; that the plaintiff petitioner initiated action for specific performance after expiry of four days of that date; that the suit was brought on the same case of action and was between the same parties I am, therefore, of firm view that the instant suit/action fell within the ambit of Section 14 of the Limitation Act and so was well within time. The findings of the learned two Courts below on this issue is, therefore, clearly in defiance of law and cannot be sustained. The said issue, accordingly, is decided in favour of the petitioner plaintiff.

9. This brings me now to the principal issue i.e. Issue No. 4. No doubt, the fate of Revision Petition No. 1448/91 by Zulfiqar Ali hinges upon the question as to whether the petitioner/plaintiff had succeeded in proving Ex. PI and P2 within the terms of Section 67 of the Evidence Act/Article 78 of the Qanun-e-Shahadat Order. Article 78 ibid, reads as under :

"If a document is alleged to be signed or to have been written wholly or in part by any person, the signature of the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting."

The bare reading of this Article indicates that it relates to execution of document produced in evidence. It clearly enacts that if a document is alleged to be signed or to have been written by any person, the signatures or writing must be proved to be in that person's hand writing. This does not postulate any particular mode of proving the signatures/hand writing of a person. It requires that hand-writing must be proved. Following are the modes of proving the signatures/handwritings (i) by calling the person who signed or wrote the document, (ii) by calling a person in whose presence document was written (3) by calling a handwriting expert, (4) by calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written, (5) comparing in Court the disputed signatures'or writing with some admitted signature of writing, (6) by proof of an admission by the person who is alleged to have signed or written the document that he signed or wrote it. Necessarily, for the proof of handwriting, the proof of identity of executant is to be proved. In order to prove Ex. PI and P2, Zulfiqar All's case rests on testimony of Aziz-ur-Rehman (PW. 1), Abdul Ghafoor (PW-2), Abdul Hameed (PW-3) and Zulfiqar Ali (PW-4) and certified copy of statement of Fazal-e-Hussain given in the earlier suit. It is strange to note that Abdul Ghafoor and Abdul Hameed, who were/are scribe and marginal witnesses of Ex. PI and P2, candidly conceded that they did not know executant; that they had been summoned by Aziz-ur-Rehman (PW. 1) and had lent their signatures on the questioned documents on his saving. Abdul Ghafoor (PW. 2)/scribe even went on to say that Aziz-ur-Rehmari used to get documents written by him for a pretty long time and he was known to him and that he wrote the document on his saying. This being the position, the evidence of PW-2/scribe

and PW. 3/marginal witness becomes valueless. These are the witnesses who were procured by Aziz-ur-Rehman (PW. 1) and they lent their signatures on his initiative. Now I come to testimony of PW-1/Aziz-ur-Rehman/PW. 1. From the record, it seems that he is the star witness. He stated that Zulfiqar AM was husband of his sister; that his daughter had been married to Zulfiqar's sons; that Muhammad Sarwar was also related to him; that the agreement of sale embodied in Ex. Pi was negotiated in his house; that the aforesaid document was written by Abdul Ghafoor/petition-writer in his presence; that Muhammad Sarwar had been paid Rs. 5,000/- by Zulfiqar Ali in his presence; that Fazal-e-Hussain and Abdul Hameed were present at the time of execution of Ex. PI and P2. In cross examination, he stated that actually the property in dispute had been sold in 1952 to Zulfiqar Ali for a sum of Rs. 700/- and in 1971 again Muhammad Sarwar agreed to sell it for Rs. 10,000/-; that on the relevant date, Muhammad Sarwar had come to him and stated that he needed money and he should get the sale of property in dispute negotiated with Zulfiqar; that on the relevant date both Muhammad Sarwar and Zulfiqar had come to him; that at the time of negotiation of agreement marginal witnesses were not present; that Fazal-e= Hussain was his employee in 1947 and Abdul Hameed was known tojhim since 1948. Abdul Hameed PW-3 deposed that he was summoned by PW-1 through his son Ashfaq Ahmad and that Fazal-e-Hussain was also with him; that his father, according to him, was calling him in the compound of District Courts of Faisalabad. Fazal-e-Hussain in his earlier statement, now admitted in evidence, stated that Muhammad Sarwar and Zulfiqar Ali where known to him. That Ex. PI and P2 were executed in his presence and earnest money in the sum of Rs. 5,000/- was paid to Muhammad Sarwar; that he had signed it in his presence and that he had also signed both documents. In his cross examination he stated that he did not know whether Muhammad Sarwar was a displaced person and had come from India; that he did not know where he was settled; that he used to meet him in Faisalabad; that he had come to District Courts on the message of Aziz-ur-Rehman; that Zulfiqar Ali had been known to him for a pretty long time; that he had not signed the register of petition-writer; that he had only affixed his signatures on the two documents. The statement of Zulfiqar Ali is a very interesting one. In cross examination, he stated that Muhammad Sarwar had died in 1983 due to paralysis. He reiterated what was stated by Aziz-ur-Rehman that he had purchased the property in dispute in 1952 and had been in its possession since then; that price of the property was Rs. 70G/~; that instead of sale-deed, partnership deed had been written; that he had been living in Sargodha since 1950; that Muhammad Sarwar stated to him that he had obtained property in dispute in lien of some property and if he wanted to purchase it he should enter into a fresh negotiations; that relations between the two were strained before 1971; that he was summoned by Aziz-ur-Rehmaii: that, he and Muhammad Sarwar had gone separately to the house of Aziz-ur-Rehman who was known to him; that neither the scribe nor the marginal witnesses were known to him.

11. As against this Rashid Ahmad (DW. 1), Muhammad Akram (DW. 2) and Muhammad Zikria (DW. 3) had appeared. The aforesaid witnesses firmly deposed that Ex. PI and P2 were not executed; that Zulfiqar Ali had entered into shop as tenant on its portion and thereafter occupied another portion; that he had manufactured Ex. PI and P2 to grab the property.

This is all evidence of the parties. A comparative assessment of the evidence, noted above, clearly demonstrates that testimony of PW. 2 and PW. 3 is of no use as they were not acquainted with executant. Interestingly, Aziz-ur-Rehman (PW. 1), who played the principal role from inception to finish, did not affix his signatures on Ex. PI and P2. He is a close relative of Zulfiqar Ali as the latter is his brother in law/his son is married to plaintiffs daughter. He managed petition-writer and marginal witnesses. Despite all this, he did not put his signature on questioned documents. This circumstances speaks loudly about his credibility and so. the two Courts below, in my view, were eminently correct and just in holding that the testimony of PW. 1. PW. 2 and PW. 3 did not inspire confidence. Zulfiqar Ali did not fair better than his witnesses. He conceded before the Court that relations between him and Sarwar were estranged. This being the state of affairs, it is patently incredible to believe that Muhammad Sarwar had proceeded to Faisalabad, met Aziz-ur-Rehman to get the sale negotiated with Zulfiqar Ali his enemy. Undeniably, the property in dispute fell within the urban limits of Sargodha Corporation; that Sargodha, at the relevant time was a District Headquarter- that facilities of stamps vi^ petitipn-writers were-available and so it is not believable that he had travelled to Faisalabad to sell property to his enemy through the agency of his closest relative Aziz-ur-Rehman. The statement of Fazal-e-Hussain does not slightly improve the case of Zulfiqar Ali petitioner. As already noted, he was a person who was an employee of Aziz ur-Rehman in 1947. This being the state of affairs, the two Courts below were eminently just in holding that Ex. Pi and P2 were framed by the joint effort: of Aziz-ur-Rehman 'PW I) and Zuifiqa--Ali/petitioner. The concurrent conclusions ot the two Courts below are perfectly correct and do not suffer /rom any misreading/non-reading of evidence and are not in defiance ot any provisions of law calling for interference in revisional jurisdiction of this Court.

12. For the reasons stated above, all the three petitions i.e. (C.R. No. 1447/91, 1448/91 and W.P. 7900/91), are found without any merits and accordingly dismissed. The petitioner will bear the costs of the proceedings throughout.

(K.K.F.) Petitions dismissed