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MUHAMMAD IQBAL KHAN versus MST. FARHAT NISA

125 12 - Law for evidence (10 of 1984), contract to sell arts 17 and 79 suit for specific performance of contract - Requirements of evidence - Dealing with woman, terms - The trial court dismissed the case The plaintiff's position was that the defendant did not appear and did not refuse to execute the sale agreement and that he was required to present the evidence of the sale agreement. Was not required - legal status - The claimant was required to prove its execution and obtain a decree for its specific performance At least two witnesses to review the agreement to sell - not just a document of the defendant and the plaintiff's evidence record without confirmation order can not be accepted. It can only be said that they can be admitted or denied when the defendants are present before the court and give such an impression. Q Can provide evidence, Article 79 of 1984, where ID is not applicable. There was no defendant's statement - the plaintiff did not appear before the trial court in the present case and it cannot be said that the sale agreement was not denied to prove the plaintiff - the absence of the defendant. Ali did not preempt the plaintiff to prove the execution of the sale agreement by calling two of her witnesses - the plaintiff did not sell. Ahdy had not been confirmed witnesses and the trial court was justified to refuse the order in the present case - the alleged sale contract and benefit claimant had to prove that the law

P L D 2017 Lahore 727 

Before Shahid Waheed and Ali Akbar Qureshi, JJ

MUHAMMAD IQBAL KHAN—Appellant

versus

Mst. FARHAT NISA—Respondent

R.F.A. No.214 of 2011, heard on 17th February, 2016.

(a) Specific Relief Act (I of 1877)—

—5. 12—Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79-Suit for specific perfÓrm;ance of contract—Agreement to sell—Proof-Requirements—Pardanashin lady, transaction with—Conditions—Trial Court dismissed the suit on the ground that plaintiff did not produce attesting witnesses of alleged agreement to sell—Contention of plaintiff was that defendant did not appear and there was no denial to the execution of agreement to sell and he was not required to produce attesting witnesses of agreement to sell—Validity—Plaintiff was required to examine at least two attesting witnesses of agreement to sell to prove its execution and to get a decree for its specific perfÓrm;ance— Decree could not be passed without recording evidence simply on defendant's non-appearance and upon verification of the plaint— Document could be said to be admitted or denied only when defendant appeared before the court and made statement to such effect—Proviso to Art. 79 of Qanun-e-Shahadat, 1984 did not apply where there was no defendant's statement at all—Defendant did not appear before the Trial Court in the present case and it could not be said that agreement to sell was not denied relieving the plaintiff to prove the same—Absence of defendant did not absolve the plaintiff to prove the execution of agreement to sell by calling its two attesting witnesses—Plaintiff had not produced attesting witnesses of agreement to sell and Trial Court was justified in declining to issue decree in the present case—Plaintiff was beneficiary of alleged agreement to sell and he was bound to prove the same as per law—Appeal was dismissed in circumstances, [pp. 729, 730, 731] A, B, D & E

Farzand Ali v. Khuda Bakhsh and others PLD 2015 SC 187 rel.

(b) Qanun-e-Shahadat (10 of 1984)—

—Arts. 17 & 79—Agreement to sell—Proof of—Requirements— Agreement to sell required compulsory attestation of two witnesses and such document should not be used as evidence until two attesting witnesses were called for the purpose of proving its execution. [p. 729] A

(c) Pardanashin lady—

—Transaction with pardanashin lady—Burden of proof—

Conditions—Burden of proof with regard to genuineness of transaction with an ignorant/illiterate/parda observing lady and document allegedly executed by such a lady would lie on the person who claimed the transaction or under the document—Beneficiary of such document was bound to prove and satisfy the court that document was executed by an ignorant/illiterate/parda observing lady; that she had complete knowledge and full understanding about the contents of such documents: that such document deed was read over to her and terms of the same were adequately explained to her and she had independent and disinterested advice in the matter before entering into such transaction and executing the document, [p. 731] C

Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642; Amirzada Khan and another v. Itbar Khan and others 2001 SCMR 609;

Khawas Khan through Legal Heirs v. Sabir Hussain Shah and others 2004 SCMR 1259 and Mian Allah Ditta through L.Rs. v. Mst. Sakina Bibi and others 2013 SCMR 868 rel.

(d) Administration of justice—

—- j o litigant could obtain his relief from a court unless he established his claim. /p. 730] E

Mian Muhammad Ilyas and Muhammad Nawaz for Appellant.

Nemo for Respondent.

Date of hearing: 17th February, 2016.

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