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Regular First Appeal No. 279 of 1985, decided on 20th January, 1986.

---S. 92--Written agreement--Terms of contract admitted--Question of oral evidence--Where written agreement of sale of land, which in its terms clearly included acknowledgment on part of vendor to have received alleged amount as part payment, was not denied by such vendor--Held, there was no occasion to prove receipt of such part payment by calling marginal witnesses of agreement or even those before whom alleged part payment was made as only evidence in its proof was document itself.

Muhammad Akbar Khan v. Sultan Ghani etc. 1970 S C M R 696; Mst. Fateh Textile Mills Ltd. Hyderabad v. The West Pakistan Industrial Development Corporation, Karachi P L D 1976 Kar. 149; Muhammad Taqi Khan v. Jang Singh A I R 1935 All. 529 and Lal Hussain alias Lal v. Bagga 1983 C L C Pesh. 657 ref.

Dr. A. Basit for Appellant.

Syed Zainul Abiddin for Respondent.

Date of hearing: 20th January, 1986.

AKHTAR HASAN, J.--This Regular First Appeal has been preferred against the judgment /decree, dated 12-10-1985 of the learned Civil Judge Ist Class, Gujranwala, whereby the appellant-plaintiff's suit for specific performance was decreed directing him to deposit Rs.4,13, 000 in favour of the respondent /defendant upto 10-12-1985, whereupon the latter was to execute the sale-deed of the impugned property within seven days. It was further provided in the decree that if the respondent /defendant failed to execute the sale-deed within the aforementioned period, it would be open to the decree-holder to move for compulsory registration of the deed.

2. Considering the points advanced by the appellant, we formally admit this appeal and proceed to decide it on merits after hearing full-dress arguments.

3. The appellant's case was that under the foot of an agreement to sell, dated 2-5-1983, the respondent /defendant agreed to sell the land in dispute in his favour in all for a sum of Rs.4,53,000 out of which he had acknowledged therein to have already received respectively Rs.40,000 and Rs.1,00,000 on two different occasions and had further agreed to execute the formal sale-deed latest by 16-8-1983. He alleged to have asked the defendant/ respondent on 2-8-1983 to purchase the necessary stamp-paper for execution of the sale-deed on receipt of the remaining consideration to the tune of Rs.3,13,000 but he avoided and hence the suit.

4. The respondent/defendant did not straightaway deny the transaction or the execution of the agreement forming basis of the suit. He admitted even the receipt of Rs.40,000 but denied to have received Rs.1,00,000 which according to him had been only promised to be paid in future but in fact till then were not cleared. He pleaded perhaps for this reason that the appellant did not come with clean hands and hence was not entitled to the equitable relief of specific performance. He assailed the form of the suit presumably for want of a prayer for possession.

5. The following issues were framed by the trial Court:-

"(1) Whether the plaintiff has paid Rs.1,40,000 to the defendant and as such 'he is entitled to the specific performance of the agreement of sale.

(2) Whether the suit is not maintainable in its present form

(3) Relief "

The finding on issue No.1 was that the appellant had failed to prove payment of Rs.1,00,000. The other issue was held inconsequential as the suit even without a prayer for possession as found maintainable. Eventually the suit was decreed directing the appellant to pay Rs.4,13,000 as aforesaid.

6. Dr. A. Basit for the appellant seriously assailed the view of the learned trial Court in having excluded altogether from its consideration the admitted agreement Exh.P.l which in its terms clearly included an acknowledgement on the part of the respondent to have received a sum of Rs.1, 00, 000. He placed reliance upon section 92 of the Evidence Act for the view that the trial Court was not justified in calling for the statements of Gulzar Ahmed and Ahmad Khan, before whom allegedly this sum was paid, as the only evidence in its proof was the document itself. He submitted that perhaps the learned trial Court lost sight of this peremptory provision and was plainly wrong in accepting extraneous evidence which in law was indeed inadmissible. He further found support from Muhammad Akbar Khan v. Sultan Ghani etc. 1970 S C M R 696 and Mst. Fateh Textile Mills Ltd. Hyderabad v. The West Pakistan Industrial Development Corporation, Karachi P L D 1976 Kar. 149, firstly for the fact that such an acknowledgement constitutes a "term" of the agreement and secondly that once it is used into writing, no other evidence is permissible.

7. In reply, Mr. Zainul Abiddin supporting the trial Courts findings, argued that mere recital in the document of having made a part-payment, was not enough as it had to be proved through overt evidence by examining those before whom it had been tendered. He insisted, therefore, that the testimony of the foresaid two persons mentioned in the evidence to have seen it passing, was essential and since they were not examined, the inference would be justifiable against the appellant, on whom the onus lay. He referred to Muhammad Taqi Khan v. Jang Singh A I R 1935 All. 529, suggesting that payment or non-payment of consideration amount was not styled as a "term", of the agreement and, therefore, it had to be poved by overt evidence rather than relying upon a mere recital in a document. He justified applying by the trial Court the dictum laid down in Lal Hussain alias Lal v. Bagga 1983 C L C 657, especially when the amrginal witnesses were not examined.

8. Having considered the respective contentions of the parties, we are unable to agree with the view of the trial Court on the point. The agreement was not denied and hence there was no occasion to call for its marginal witnesses or even those before whom allegedly the part-payment had been made. It was clearly a case to which section 92 ibid would apply stricto sensu inasmuch as acknowledging part-payment was one of "terms" of the contract and since it was reduced into writing, all other evidence had to be rejected out of hand. There is no discussion by the learned trial Judge as to the application of this provision of law presumably because it was not urged before him. Had his attention been drawn to it, we feel sure his conclusion would have been different. The rule laid down in Muhammad Akbar Khan's case is on all fours with the one in hand as there too a similar acknowledgement made in the sale-deed was accepted as sufficient evidence of the payment. Conversely, the decision in Muhammad Taqi's case is based upon its own facts. Assuming it applied, it permitted oral evidence to show that the amount acknowledged was in fact not received. The evidence examined by the respondent to disprove the acknowledgement was no more than the singular testimony of Nazar Muhammad (D.W.1) who though claimed to be present at the time of execution of the agreement P.1 yet admittedly did not sign it as a marginal witness and 'had no knowledge to say if the respondent had already been paid a sum of rupees one lac. His non-committal on the point speaks for itself. The document instead was marginally witnessed by Ahmed Khan, Gulzar Ahmed, Rehmat and Karamat, but none of them was examined by the respondent to show that the acknowledgment made by him in the document was in fact unreal or that there was simply a promise to pay the same back at the village. Thus, the precedent case does not help the respondent for lack of evidence which he could produce -as against the document. In any event, it could not prevail in face of the rule laid down by our own Supreme Court. Likewise, the aforesaid case of Lal Hussain was clearly distinguishable as the document there was compulsorily registered on resistance of the vendor.

9. As a result, the finding of the trial Court on issue No.1 is not sustainable. The appeal is accordingly accepted with costs holding that the appellant has already paid up Rs. 1,40,000. Consequently, the impugned decree shall stand modified to the extent that he will now pay Rs.3,13,000 more.

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