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First Appeal No. 8 of 1979, decided on 10th March, 1986.

‑‑‑S. 42‑‑Civil Procedure Code (V of 1908), 0. XVI, R. 1(1)‑‑Suit for specific performance‑‑Contract of sale‑‑Name of person who allegedly attested agreement of sale as Notary Public and required by appellant/plaintiff to be treated as a witness not mentioned in plaint‑‑Sufficient cause not shown for not filing list of witnesses or summoning said witness‑‑Appellant/plaintiff himself absented without any cause and no attempt was made to justify his absence on date fixed for hearing No application for condoning delay in filing list of witnesses moved by him and his conduct leading to inference that after getting order of injunction against respondent he had adopted such tactics as to delay proceeding‑‑Nothing available on record to advance case of appellant‑‑Neither any error of law nor of fact pointed out in findings of Trial Court which came to conclusion that alleged agreement was a forged document and that respondent did not receive any amount whatsoever from plaintiff/appellant towards sale consideration of land in dispute‑‑Appeal against order of trial Court dismissed in circumstances.

Mst. Bashir Bibi v. Aminuddin 1972 S C M R 534 and Nasrullah Khan and another v. Additional District Judge, Gujranwala and others P L D 1980 Lah. 435 ref.

Shakir Naqshbandi for Appellant.

Nemo for Respondents.

Date of hearing: 2nd March, 1986.

This appeal has been preferred by the appellant against the judgment and decree passed on 12‑12‑1977 in First Class Suit No. 6 of 1977 by the learned Senior Civil Judge, Shahdadpur.

2. The facts briefly stated are that the appellant had filed a suit against the respondent No. 1 Syed Hamid Shah for Specific Performance of the Contract and Permanent Injunction. In the plaint the case of the plaintiff as pleaded was that the respondent No.l by written agreement of sale made on 27‑11‑1975 agreed to sell the suit land bearing Survey Nos. 163/1, 2, 159/2, 130/2 situated in Deh Dadi, Taluka Shahdadpur District Sanghar, total area measuring 15‑12 Acres at the rate of Rs.3, 000 per Acre. According to the appellant the total consideration agreed to be paid was Rs.45,900 out of which he paid Rs.5,900 to the respondent No. 1 and the remaining amount of the sale consideration was payable by him to the respondent No. 1 at the time of admission and registration of the sale‑deed before the Sub‑Registrar on 2‑2‑1976. I need not refer here to the other terms and conditions of the agreement mentioned in the plaint and the alleged agreement of sale as the same are not relevant for the purposes of disposal of this appeal.

3. According to the appellant he 'repeatedly approached the respondent No.l but he failed ‑to execute and register the sale‑deed though at the request of the respondent No.l the time was extended for completion of the sale transaction. The appellant then sent notice, dated 1‑4‑1977 to the respondent No.l giving him 1st opportunity but the latter failed to perform his part of the contract.

4. The respondents Nos. 2 and 3 were joined in the suit as defendants on the plea that the respondent No. 1 was contemplating to sell said suit land to the respondents Nos. 2 and 3 at a higher rate and that the respondent No. 3 was a lessee of the suit land. The defendants (now the respondents) filed their written statements separately.

5. The respondent No.l in his written statement pleaded that he neither agreed to sell the land in suit to the appellant nor he had taken Rs.5,900 or any other amount from him. He further pleaded that the alleged agreement of sale, dated 27‑11‑1975 was a forged document. Enmity between him and the respondent No.2 was also alleged and it was stated that the latter has also filed a civil suit against him in the Court of Civil Judge, Shahdadpur which is still pending.

The respondent No. 2 Nizamuddin who had also filed his written statement pleaded that the plaintiff /respondent No.l had in fact agreed to sell the land in suit to him at the rate of Rs.2,000 per Acre, which could‑ not be acted upon due to interference of respondent No.3/Ali Faqir who offered higher price for the suit land.

6. The respondent No.3 in his written statement pleaded that the land in suit is in possession of one Fida Hussain Dero and that he is in possession of the same through respondent No.3.

7. It would be relevant to mention here that alongwith the filing of the suit, the appellant had also moved an application under Order XXXIX, Rules 1 and 2, C.P.C. The learned trial Court while granting injunction against the respondent No.l from selling or disposing of the suit land to any body except the appellant till the final disposal of the suit further ordered that in the circumstances it was a fit case which should be disposed of expeditiously and accordingly put off the case to 4‑10‑1977 for framing issues with the direction that once the suit was ripe for final hearing it should proceed day to day.

8. On the pleadings of the parties the Court on 4‑10‑1977 framed the following issues:‑

"(1) Whether defendant No.1 executed agreement of sale of suit land on 27‑11‑1975 and received a sum of Rs.5,900 from the plaintiff as earnest money in part performance of the contract

(2) To what relief the plaintiff is entitled

(3) What should the decree be "

The suit thereafter was adjourned to 27‑10‑1977 for evidence of both the parties. The Advocate for the respondent No.l on 9‑10‑1977 filed the list of witnesses. It however, appears that no such list was filed either by the appellant /plaintiff or by any of the other two defendants.

On 27‑10‑1977 which was the date fixed for recording of evidence of the parties as earlier ordered, an application for adjournment was filed by the plaintiff which was granted and the case was adjourned to 16‑11‑1977. On that date also the case was adjourned on the ground that the appellant had to leave for his village due to the death of a relative. This suit was thus adjourned to 8‑12‑1977 for final hearing.

9. On 8‑12‑1977 the Advocate for the appellant/ plaintiff was present but the appellant/ plaintiff himself was called absent. An application was moved by the said Advocate for adjournment on the ground that he wanted to summon Mr. Khawind Dino Memon, Civil Judge, Mirpur Mathelo, who according to the counsel before his appointment as Civil Judge, in his capacity, then as a notary public and Advocate had attested the agreement of sale. This application, however, was rejected by the learned trial Court for reason that no list of witnesses had been filed by the plaintiff /appellant as required by the provisions of Order XVI, Rule 1(1), C.P.C. and as such the said witness could not be allowed to be summoned through the Court as requested. Further, finding that the appellant /plaintiff was also absent without any reason and that the suit was fixed for evidence of both the parties, the side of the plaintiff /appellant was closed and the defendants were called upon to adduce their evidence. The defendant No.l/respondent No. 1 examined himself and closed his side. Since the other respondents and their counsel were found to be absent without any intimation their evidence was also closed.

10. The suit then was adjourned to 10‑12‑1977 for arguments. On the last mentioned date the learned counsel for the appellant /plaintiff moved an application praying therein to postpone the hearing of the arguments in the suit on the plea that he had been instructed to file a revision petition in the Court of District Judge, Sanghar against the order passed by the trial Court on the application made under Order XVII, Rule 1, C.P.C., dated 8‑12‑1977 rejecting the prayer of the appellant /plaintiff for adjournment as he wanted to summon Mr. Khawind Dino Memon. This application was dismissed by the learned Judge by order passed on the same date on the ground that the suit was valued at Rs.45,900 and, therefore, the learned District Judge, Sanghar was not competent to entertain any revision petition.

The learned trial Court then heard the arguments. On the evidence _ on record and also on comparison of signatures on the alleged agreement of sale with admitted documents, the learned trial Court held that the said agreement was a forged document and that it was neither executed by respondent No.l nor he had received Rs.5,900 or any other amount from the appellant /plaintiff as was alleged.

In view of the findings reached under issue No.l as above, the issues Nos. 2 and 3 were answered against the appellant /plaintiff and the suit was dismissed with costs by judgment and decree passed on 12‑12‑1977.

11. Aggrieved by the judgment and decree passed as above dismissing his suit the appellant /plaintiff has preferred this appeal under section 96, C.P.C.

12. I have heard Mr. M. Shakir Naqshbandi, learned counsel for the appellant /plaintiff who submitted that in the plaint it had been stated by the appellant that the agreement, dated 27‑11‑1975 was attested by Mr. Khawind Dino Memon, who at that time was a notary public but subsequently was appointed as Civil Judge in which capacity he was working at Mirpur Mathelo when the case came up for hearing. He accordingly argued that since the name of Mr. Khawind Dino Memon ‑had been mentioned in the plaint, it ought to have been treated as a witness cited in the list of witnesses within the meaning of Order XVI, Rule 1(1), C.P.C. and that the application to summon the said witness should not have been dismissed for not filing a separate list of witnesses. I have however. gone through the contents of the plaint filed in the trial Court and find that nowhere in it the name of the said gentleman (Mr. Khawind Dino Memon) has been disclosed as a person who had attested the alleged agreement, dated 27‑11‑1975. In fact in the plaint it is not even averred that the agreement was attested by any notary public or by any other witness. No cause having been shown and no permission having been sought from the Court or any sufficient cause ' for not filing the list of witnesses or summoning the witness (Mr. Khawind Dino Memon) the learned trial Court was fully justified to close the side of the plaintiff /appellant who himself was also absent without any cause whatsoever. No attempt was made by Mr. Shakir M. Naqshbandi to justify the absence of the plaintiff on the date fixed for hearing.

Learned counsel then referred to the case reported as Mst. Bashir Bibi v. Aminuddin 1972 S C M R 534. I have gone through the cited case and find that it has no application to the facts of the present case. In the said case the Hon'ble Supreme Court observed that there is no provision in the Code of Civil Procedure whereunder the responsibility can be put on a party to produce its evidence on pain of losing its right to produce that evidence. Even in a case where a party undertakes to produce its own evidence but then reports its inability to do so and applies for process of the Court for the attendance of its witnesses it was held, there is no sanction in law for refusing such a request.

13. The learned counsel then relied upon the case reported as Nasrullah Khan and another v. Additional District Judge Gujranwala and others P L D 1980 Lah. 435. This case is also not relevant to the question involved in the present appeal. In the said case an order of the trial Court condoning the delay in filing the list of documents within the time as required by Order XVI, Rule 1(1), C.P.C. and which order had been upheld in revision by the learned Additional District Judge, Gujranwala, was challenged by filing a constitutional petition before the High Court. The learned High Court dismissed the said petition observing that the trial Court has been vested with discretion under the relevant provision of law (Rule 1 of Order XVI sub‑Rule (2)) to condone any omission in respect of witnesses which includes also the omission in respect of filing list of witnesses. It was further observed that the only condition on which the discretion is to be exercised is that good cause would be shown by the party who invokes the discretion of the Court and that ordinarily the discretion has to be exercised for benefit of litigant party unless it is proved that party at fault is guilty of contumacious conduct or negligence that excusable reasonably.

In the appeal under consideration before me I find that no application for condoning the delay in filing of the list of witnesses was ever moved by or on behalf of the plaintiff /appellant. On the B other hand I find that even the plaintiff /appellant himself was absent without showing any cause. The conduct of the appellant leads to the inference that after getting an order of injunction against the respondent No.l the appellant was adopting such tactics as to delay the proceedings in spite of the direction by the trial Court that the suit after itI becomes ripe for final hearing shall proceed day to day.

14. In the arguments advanced as above, I find nothing which could advance the case of the appellant. Neither any error of law, nor of fact was pointed out by the learned counsel for the appellant in the impugned judgment.

15. It may be observed here that the learned counsel for the appellant apart from the contention raised as noted above, did not urge any other point. Neither any attempt was made to argue the appeal on merits nor any error of fact or law was shown to have been committed by the learned trial Court in coming to the conclusion that the alleged agreement, dated 27‑11‑1975 was a forged document and that the respondent No. 1 had not received any amount whatsoever from the appellant /plaintiff .

16. For the reasons discussed above I find that there is no merit in this appeal which is accordingly dismissed. As the respondents are absent no order as to costs has been made.

The above are the reasons for the short order passed in the appeal on 2‑3‑1986.

M. Y. H. Appeal dismissed.

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