PLJ 2004 SC 703

[Appellate Jurisdiction]

Present: HAMID ALI MlRZA; ABDUL HAMEED dogar AND faqir muhammad khokhar, JJ.

REHMAT ALI ISMAILIA-Petitioner

versus

KHALID MEHMOOD-Respondent C.P. No. 3135 of. 2001, decided on 31.10.2003.

(On appeal from the'judgment dated 14:6.2001 in R.F.A. No. 81/96 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi).

(i) Constitution of Pakistan, 1973-

-—Art. 150-Judicial proceedings/order of Court-Denial of facts stated
therein orally-Effect-Full faith and credit must be given to judicial
proceedings/order of Court which cannot be discredited only on basis of
oral denial of a party. [P. 705] A

(ii) Constitution of Pakistan, 1973--

—Art. 185(3)-Specific Relief Act (I of 1877), S. 12-Decree in suit for specific
performance, assailed by seeking leave of Court-Agreement of sale has
been proved to satisfaction of Court as per evidence on record-Decree of
trial Court as maintained by High Court being based on proper
appreciation of evidence and law giving sound and cogent reasons for
arriving at correct conclusion do not warrant interference with impugned
judgment-Leave to appeal was refused in circumstances. [P. 707] D

(iii) Qanun-e-Shahadat, 1984 (10 of 1984)--

—Art. 84-Comparison of words or figures contained in disputed document to that of admitted writing/signature by Court-Provision of Art. 84 of Qanun-e-Shahadat, 1984 do empower Court to compare disputed signature/writing with admitted or proved writing-However, Court should not take upon itself task of comparing signature in order to find out whether signature/writing resembled to disputed document with that of admitted signature/writing with admitted or proved writing. [P. 707] C

(iv) Qanun-e-Shahadat, 1984 (10 of 1984)--

—Art. 46--Previous statement in earlier suit between the same parties relating to same subject matter—Such statement of—Defendant recited in judicial order of trial Court as also supplemented and corroborated by other reliable documentary evidence as well as oral testimony of plaintiff, could not be rebutted successfully by defendant who made only oral statement denying execution of agreement in question, and receipt of consideration-Courts below were justified in holding on basis of such evidence that agreement in question, was executed by defendant who had

also received consideration of specified amount as per evidence on record
and law. [P. 706] B

PLD 1971 SC 730; 1994 SCMR 65; PLD 1969 SC 136; 1997 SCMR 976; 1985 SCMR 214 and 1999 SCMR 85 re/1

Hafiz S.A. Rehman Sr. ASC with Zaheer Ahmad Qadri, ASC and Mr. Mehr Khan Malik, AOR for Petitioner.

Respondent in Person. Date of hearing: 31.10.2003.

judgment

Hamid AH Mirza, J.-This Civil petition for leave to appeal is directed against the judgment and decree dated 14.6.2001 in R.F.A. No. 81 of 1996 (Rehmat AH Ismailia vs. Khalid Mehmood) passed by learned Division Bench of the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby the said regular first appeal was dismissed maintaining the judgment and decree dated 25.6.1996 of learned Civil Judge, Rawalpindi.

2. Brief facts of the case are that the respondent/plaintiff filed suit
for specific performance of agreement for sale of a house against the
petitioner before the Civil Judge, Rawalpindi that agreement of sale dated
5.8.1989 was executed by the petitioner/defendant in favour of the
respondent/plaintiff, whereunder the former agreed to sell House No. P-987-
2-A/l situated in Mohallah Angatpura, Rawalpindi for consideration of
Rs. 5,04,000/-. The respondent/plaintiff in the plaint stated that whole
consideration amount was paid to the petitioner/defendant before the Court
of learned Civil Judge, Rawalpindi who in his order dated 5.10.1989
mentioned that the petitioner/defendant had stated before him that latter
would transfer the property in question in favour of the respondent/plaintiff
on the basis of agreement made and also mentioned the fact that
petitioner/defendant admitted to have received consideration of sum of
Rs. 5,04,000.00 on the basis of said agreement of sale and when the
petitioner/defendant refused to execute and register the deed of conveyance,
the respondent filed the suit for specific performance. The
petitioner/defendant filed written statement wherein he denied the
averments made in the plaint. The trial Court after settlement of issues and
recording of evidence and hearing the counsel for the parties decreed the suit
as per judgment/decree, dated 25.6.1996 in favour of the
respondent/plaintiff. The petitioner/defendant filed R.F.A. before the
Lahore High Court, Rawalpindi Bench which too was dismissed on 14.6.2001
by the learned Division Bench of the High Court maintaining the judgment
and decree of the learned civil Judge.

3. We have heard learned counsel for the petitioner and the
respondent in person and perused the record.

4. Contention of learned counsel for the petitioner is (1) that the
learned Division Bench of the High Court and the Civil Judge have erred in

law by placing reliance upon the statement of petitioner/defendant recorded in the earlier matter by the learned Civil Judge when the maker of the statement had denied. Reliance was placed upon (1) Sardar Hayat Khan & others v. Master Fazal Karirn (PLD 1971 SC 730), (ii) Syed Qamar Ahmad v. Anium Zafar (1994 SCMR 65); (ii) that learned Civil Judge was not competent to compare the signature; (iii) Exh. P-l though .not proved was considered and relied upon. He in the end submitted that the respondent/plaintiff could not prove his case in respect of the execution of agreement and also payment of consideration having been made to the petitioner/defendant for the property in question, therefore the judgments and decrees of both Courts are liable to be reversed. The respondent/plaintiff in person contended that the petitioner/defendant before the Civil Court in the previous suit supported the contents of plaint and he also produced sale agreement as Ex. P-l, copy of the plaint of the previous suit as Ex. P.2, copy of the statement of the petitioner/defendant in previous suit as Ex. P-3, copy of application under Order 21, Rule 32, C.P.C. as Ex. P-4, attested copy of written reply as Ex. P-5, original purchase deed of the disputed house as Ex. P-G, attested copy of written reply as Ex. P-7 and attested copy of order of Civil Court as Ex. P-8. He has supported the judgments of the learned Division Bench of the High Court and of Civil Judge, Rawalpindi. He in the end submitted that the possession of the house in question has been delivered to him on 19.10.2001 through the execution of decree of the Court.

5. We do not find merit in the contentions of the learned counsel for
the petitioner while there is force and substance in the submissions made by
the respondent/plaintiff.

6. Admittedly respondent/plaintiff examined himself on oath and
supported the contents of the plaint by stating that the petitioner/defendant
when appeared before the Court in the previous suit made a statement
before the learned civil Judge stating that he had received consideration of
the house in dispute amounting to Rs. 5,04,000/- and had also executed such
agreement, and in consequence of the said statement the learned civil Judge
in his order, dated 5.10.1989 incorporated the statement made by the
petitioner/defendant, so also of the respondent/plaintiff who having stated
before him that as his object had been achieved, therefore he would

. withdraw his suit. The said oral testimony of the respondent/plaintiff has been supplemented by certified copy of order, dated 5.10.1989 passed by the learned Civil Judge. We are bound to give full faith and credit to the judicial proceedings/order of the Court which cannot be discredited only on the basis of oral denial of the petitioner/defendant. Reference may be made to Article 150 of the Constitution of the Islamic Republic of Pakistan, 1973. It may be observed that it is not. the previous statement in the earlier suit or an admission having been made in the earlier suit, but the statement of the petitioner/defendant recited in the judicial order by learned Civil Judge, Rawalpindi in the previous suit being also inter-partes, which is also supplemented and corroborated by other reliable documentary evidence as

well as oral testimony of the respondent/plaintiff. Reference may be made to decision of this Court in the case of Malik Din and another v. Muhammad Aslam (PLD 1969 SC 136). The said evidence of the respondent/plaintiff could not be rebutted successfully by the petitioner/defendant who made only oral statement denying the execution of the sale agreement and receipt of sum of above said consideration. We find that the learned Division Bench of the High Court and the Civil Judge 1st Class rightly and correctly held that the agreement was executed by the petitioner/defendant who has also received consideration of Rs. 5,04,000/- as per evidence on record and law. In case the order dated 5.10.1989 of the Civil Judge contained incorrect receital, the petitioner/defendant should have got it expunged or struck off by making an application under Sections 151, 152 C.P.C. before the learned Civil Judge or could have approached next higher forum challenging that the order, dated 5.10.1989 contained incorrect recital of his statements, therefore the same be struck down but the petitioner/defendant did not challenge the said order. The facts of the cases cited by learned counsel for the petitioner are quite different and distinguishable to the facts of the instant case as in the cited case of Qamar Ahmad (Supra) there was no judicial order of the Court but there was question of contents of plaint filed in a suit which contained inconsistent statement to that of the ejectment application, therefore this Court held that the contents of the plaint should have been confronted. There is no cavil with the proposition laid down in the cited case. Facts of the case of Sikandar Hayat (Supra) are also different and distinguishable to the facts of instant case, wherein reply to the notice by vendees contained different'statement to that what was stated subsequently, therefore this Court observed that when a party had gone into the witness box on the point in issue then during cross-examination the earlier statement should have been confronted which was sought to be used as admission. Instant case is quite different which is not a case of confronting the statement of admission but the judgment/order of the Court, which contained as to what was said or stated by the petitioner/defendant before the Presiding Officer in the previous suit between the same parties.

7. The contention of learned counsel for the petitioner that Court was not competent to compare the signature of the petitioner on the agreement of sale has no merit. Article 84 of Qanun-e-Shahadat reads as follows:--

"84. Comparison of signature, writing or seal with others admitted or proved.--(l) In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.

(2) The Couu may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare

the words or figures so written with any words or figures alleged to have been written by such person.

(3) This Article applies also, with any necessary modifications, to finger impressions."

The above provision do empower the Courts to make the comparison of the words or figures so written over a disputed document to that of admitted writing/signature and the Court could exercise its judgments on resemblance of admitted writing on record. It is true that it is undesirable that a presiding of the Court should take upon himself the task of comparing signature in order to find out whether the signature/writing resembled to the disputed document with that of admitted signature/writing but the said provision do empower the Court to compare the disputed signature/writing with the admitted or proved writing. Reference may be made to (i) Ghulam Rasool and others u. Sardar-ul-Hassan and another (1997 SCMR 976), (ii) Mst. Ummatul Waheed and others v. Mst. Nasira Kausar & others (1985 SCMR 214) and (iii) Messrs Waqas Enterprises and others vs. Allied Bank of Pakistan & others (1999 SCMR 85). However, in the instant case agreement of sale has been proved to the satisfaction of the Court keeping in view the signature on the document and other oral testimony of the respondent, therefore it could not be said that the said document was not proved in accordance with law.

8. The judgments and decrees of the learned Division Bench and that of the Civil Judge 1st Class, Rawalpindi are based on proper appreciation of evidence and law, giving sound and cogent reasons for arriving at correct-conclusion v/hich did not warrant us to interfere with the impugned judgments in the Constitutional jurisdiction of this Court. It may also be stated that no substantial question of law of public importance is involved in this petition. In the circumstances, leave to appeal is declined and the petition is dismissed.

(A.A.) Petition dismissed.