Find a Lawyer

(a) Qanun-e-Shahadat Order (10 of 1984)--

---Arts. 74, 75 s 76--Evidence Act (I of 1872), Ss. 63, 64 & 65- Documentary evidence--Secondary evidence--Meaning--Photo copy of a document which is accurate and free from tampering. manoeuvring or changes falls within the category of secondary evidence--Documents must be proved by primary evidence but in certain cases they can be proved by secondary evidence as enumerated in Art. 76 of the Order--Fact that original has been lost or destroyed must be established in order to press Art. 78(c) in service--Plaintiff, held, was entitled to produce secondary evidence of document signature-part of which had been destroyed.

(b) Specific Relief Act (10 of 1877)--

---Ss 12 & 25--Suit for specific performance of contract- Jurisdiction to grant relief of specific performance was discretionary and a party could not claim it as a matter of right--Discretion of Court, however, to be exercised on sound and reasonable grounds governed by judiciac and equitable principles--Contract entered into by a person not competent to enter on behalf of the owner of property could not be treated as a valid and binding contract unless accepted by him- Defendant, a Director of Company, entering into agreement of contract of sale of property belonging to company without any authority in said behalf--Specific performance of such agreement, held, could not be granted in favour of plaintiff--Suit, however, decreed against defendant for Rs.6,000 (with interest) paid by plaintiff as advance.

Abdul Hamid v. Abbas Bhai Abdul Husain Sodawaterwalla PLD 1962 SC 1; Ali Muhammad Khan v. Riazuddin Khera PLD 1981 Kar. 170 and Hirji Baldeo v. Manbhum District Board AIR 1914 Cal. 687 ref.

Asghar Ali Siddiqui for Plaintiff. Usman Ghani Rashid for Defendants. Date of hearing: 29th January, 1987.

The plaintiff has filed this suit for specific performance of agreement to sell immovable property. According to the plaintiff Najma Siddiqui the predecessor in interest of the defendant No. 1 (i), (11) and (iii) entered into an agreement to sell to the plaintiff her property bearing No. WSA 4 Block No.18 Federal 'B' Area Karachi for consideration of Rs.65,000. A sum of Rs.6,000 was paid at the time of execution of the agreement and the balance was to be paid in two instalments within a year. A photo copy of the agreement was filed with the plaint and marked 'A'. In pursuance of the said agreement the defendant No. l handed over vacant possession of the said property. After taking over the possession of the property the plaintiff constructed three rooms on the said plot and obtained commercial electric meter, water line and water meter for running his industry. The defendant No.l also delivered title deeds, receipts and other documents relating to the said property. The plaintiff issued a public notice dated 14-1-1973 inviting claims and objections but no objections were filed. The plaintiff received a notice dated 1-8-1973 from the advocate of Mst. Najma Siddiqui a director of defendant No.2 corporation describing plaintiff as a tenant of the disputed property and rent was claimed from him. The plaintiff replied denying the contention and expressed his willingness to pay the sale consideration and called upon Mst. Najma Siddiqui to execute the sale deed. The advocate for the defendant No. I. replied that the notice was issued on behalf of the defendant No.2 and Mst. Najma Siddiqui and that the plaintiff should pay the rent as claimed The plaintiff then filed this suit for specific performance of the agreement. During the pendency of the suit Najma Siddiqui died and her legal heirs were brought on record who are described as defendant No.l. The written statement was filed by defendant No.2 in which paragraph No.l of the plaint was denied and it was pleaded that the plaintiff has never purchased the property in question nor paid any sum or sums to the defendant No.2. It was further pleaded that the plaintiff is a tenant of the defendant No.2 under an agreement of tenancy and therefore his claim over the property is frivolous. It was denied that the plaintiff has constructed any room and if at all electric motor, water line and meter have been installed by him as a tenant it does not make him the owner of the property. The allegations are an afterthought merely to defeat the defendants application for ejectment filed by them before the institution of the suit. It was further pleaded that the title deeds of the property had been obtained fraudulently by the plaintiff without any lawful authority. It was averred that the defendant No.2 has no knowledge of public notice issued by the plaintiff. Amended written statement was also filed by the defendant No.2 exactly on the same lines. On the basic of pleading the following issues were framed:

(1) Whether the defendant No.l entered into contract dated 11-1-1973 on behalf of defendant No.2 for sale of the property in suit

(2) Whether the suit is under valued

(3) Relief.

Issue No.l.

The main controversy in the suit is about the genuineness of the agreement dated 11-1-1973 Ex. 5/1. This document is alleged to have been executed by Najma Siddiqui entitled as a receipt but it contains all the terms and conditions of the sale. The plaintiff therefore treating this document as an agreement has paid the deficit stamp duty. This agreement has been signed by Najma Siddiqui, the plaintiff and three more persons namely Haji Saiduddin Siddiqui, Aminuddin Siddiqui and Qutabuddin. The plaintiff claims that this agreement was signed by Najma Siddiqui whereas it is denied by the defendant No.2 in its written statement. The plaintiff has specifically pleaded that agreement for sale was executed by Najma Siddiqui and its photo copy was also filed, as Annexure A/1. The defendant No.2 merely denied paragraph 1 of the plaint and pleaded that the plaintiff has never agreed to purchase the property from defendant No.2. He is a tenant of defendant No.2 and his claim is frivolous. In the written statement it was not specifically stated that Annexure A/1 does not bear the signature of Najma Siddiqui. The matter proceeded in Court when this agreement was exhibited through the plaintiff who filed it as 5/1. At that stage the defendants did not raise objection that it did not bear the signature of Najma Siddiqui and should be taken on record subject to proof. After some time a Commissioner was appointed for examination of the defendant's witness. When the documents were produced before the Commissioner and signature of Najma Siddiqui was denied on Ex. 5/1 Mr. Obaidur Rahman Advocate who was at that time appearing for the plaintiff noticed that there was tampering with this document. He therefore made an application before the Commissioner that the matter may be referred to the Court. It was alleged that the document has been tampered after the evidence of the plaintiff had been recorded. According to the plaintiff the modus operandi was that the revenue stamp affixed on Ex.5/1 was removed and another revenue stamp bearing the words Najma Siddiqui was affixed on Ex.5/1 in its place- Therefore the signature now appearing is not the signature of Najma' Siddiqui The dispute is whether at the time when suit was filed and Ex.5/1 was exhibited, the original receipt with genuine signature of Najma Siddiqui as filed by the plaintiff was available and was it tampered thereafter. It is therefore first to be considered whether Ex. 5/1 is the same document which bears the signature of Najma Siddiqui which was filed in court and produced at the time of evidence of the plaintiff. It may be mentioned that in view of this controversy Mr. Obaidur Rahman, Advocate withdrew from the case and has appeared as a witness on behalf of the plaintiff.

The defendants have suggested that the plaintiff had filed the plaint without filing Annexures 'A' i.e. the photocopy of the agreement. This contention does not seem to be correct because if the Annexure would not have been filed which was the basis of claim the office would have raised objection. But no such objection was raised. If copy of Annexure A would not have been supplied to the defendant No.2 it would have raised objection and either obtained it from the plaintiff's advocate or called upon him to supply the same. No such steps were taken and written statement was filed. In the written statement the defendant No.2 has not pleaded that copy of the agreement which is annexure to the plaint was not supplied. Lastly the original (Ex.5/1) bears the endorsement of the Additional Registrar that 'original seen and returned.' Therefore it seems clear that the photo copy was available on record and the Additional Registrar after comparing with the original made the endorsement on the original. It is therefore clearly established that when the suit was filed the plaintiff had filed with the plaint a copy of the agreement as Annexure 'A' and the defendant No.2 would have come to know about the agreement which is alleged to have been executed by defendant No.l in favour of the plaintiff.

Now the question to be considered is whether the document was tempered in the manner alleged by the plaintiff. In this regard the evidence of Mr. Obaidur Rehman Advocate is of great importance. The learned counsel for the plaintiff has contended that in the facts and circumstances of the case plaintiff is entitled to lead secondary evidence to establish the agreement. The evidence is a photo copy of the agreement retained by V1r.Obaidur Rehman in his file which has been produced by him. An ejectment case had been filed against the plaintiff before the Controller and to meet it, the plaintiff had filed a copy of this agreement to show that he is the owner of premises. This document has also disappeared from the file of the Controller therefore all traces of genuine signature of Najma Siddiqui seem to have been removed. The learned counsel for the plaintiff has pointed out that Ex.5/1 clearly bears the traces of removal of stamps. The contention is correct. I have no reason to disbelieve the statement of Mr. Obaidur Rehman who has stepped in the box to testify the facts that he had appeared as an advocate for the plaintiff and retained photo copy of the agreement which has been produced by him. He is a senior and respectable member of the bar and I have no hesitation in accepting his words.

As it has been established that the agreement Ex.5/1 was tampered, the plaintiff is entitled to prove it by secondary evidence. The copy made from original by mechanical process which inherently ensures accuracy of the copy is a secondary evidence. The photo copy of a document which is accurate and free from tampering A manoeuvring or changes falls within the category of secondary evidence. Article 74 of the Qanun-e-Shahadat Order 1984 which is identical to section 63 of the Evidence Act enumerates the documents which are treated as secondary evidence. According to illustration (a) to Art. 74 a photograph of an original is secondary evidence though the two have not been compared provided it is proved that the thing photographed was original. The mechanical reproduction from the original is its secondary evidence. In the present case Ex.14 is the secondary evidence of the agreement. As stated earlier Ex.5/1 is the original except that after its production it has been tampered so far signature of Najma Siddiqui is concerned. There is no dispute about the contents of this document. It is therefore to be examined whether secondary evidence is admissible. Art. 75 (equivalent to section 64 of the Evidence Act) provides that documents must be proved by primary evidence, however in certain cases it can be proved by secondary evidence. This exception has been provided in Art. 76. It enumerates nine exceptional cases in which secondary evidence is admissible. Art. 76 (c) provides that where original has been destroyed or lost or for any other reason not arising from the neglect or default of the party producing it, the original cannot be produced within a reasonable time, secondary evidence will be admissible. It may also be noted that before admitting the secondary evidence it is to be seen that ground for its reception has been firmly laid. In order to press Art. 76 (c) in service it should be established that original has been lost or destroyed. Another ground available is that for reason which may vary according to the circumstances, a party is unable to produce the original within a reasonable time provided such cause has not arisen due to neglect and default of the party producing the secondary evidence. If such party is unable to produce the original due to his negligence or default he can not take advantage of this provision of law.