18 October 2004	Monday	03 Ramazan 1425

KARACHI, Oct 17: A bench of the Supreme Court of Pakistan, comprising Justice Iftikhar Mohammad Chaudhry, Justice Rana Bhagwandas and Justice Sardar Muhammad Raza Khan, dismissed an appeal filed by Anwar Ahmed versus Ms Nafis Bano.

According to the judgement, Justice Iftikhar Mohammad Chaudhry allowed the appeal while Justice Rana Bhagwandas and Justice Sardar Mohammad Raza Khan dismissed the appeal having no merit.

The appellant Anwar Ahmed filed the civil appeal through Syed Sharifuddin Pirzada impugning a judgement by a division bench of High Court of Sindh whereby High Court Appeal (HCA 19/1985) was dismissed.

Anwar Ahmed filed a suit before SHC for specific performance of an agreement of sale in respect of sale/purchase of a bungalow bearing No 20, Delhi Cooperative Housing Society Limited, Shaheed-i-Millat Road, Karachi, for Rs90,000.

The appellant heavily relied on a receipt of Rs60,000 paid to the respondent/owner Ms Nafis Bano, such document was doubted by a single judge of the SHC earlier and consequently, the appellant was re-called and examined by the court. The appellant as per record of the case failed to satisfy the court about ink marks and apparent tampering of the said document. The appellant, however, admitted that such document was always in his custody till he produced it in the court.

The single judge dismissed the suit, which was impugned in HCA. A division bench dismissed the appeal against which instant civil appeal was filed.

Justice Iftikhar Chaudhry heading the bench allowed the appeal, ordered that case be remanded back for re-trial in view of observation made by Justice Iftikhar Muhammad Chaudhry.

Justice Rana Bhagwandas dissenting with the judgement in his judgement held that single judge and division bench of SHC dismissed the appeal after careful and well considered appreciation of oral as well as documentary evidence.

Referring to the findings of sub-ordinate courts and SHC, it was held that trial court found crucial documents to the case as being forged and fabricated and such findings were also affirmed by a division bench of SHC. "It is in-conceivable that the appellant being under threat of eviction (being tenant) from the suit premises on the ground of default in payment of rent, would part with huge amount of Rs60,000 in part performance of an agreement of sale of suit property". It is equally difficult to hold that during the pendency of the ejectment proceedings, the land lady would enter into an agreement of sale of the property with the tenant, receive sizable part consideration and at the same time pursue remedy before the Rent Controller for ejectment of appellant which was ultimately allowed, the dissenting judgement said, dismissing the appeal.

The third member of the bench, Justice Sardar Mohammad Raza concurring with Justice Rana Bhagwandas, SHC bench and sub-ordinate court said "it was rightly held with strict reference to the evidence on record, that the evidence, oral as well as documentary, was not confidence inspiring. Justice Sardar Muhammad Raza also held that receipt of Rs60,000 was first written by hand with ink and was subsequently removed through chemical process and re-written through type.

Regarding strong objection taken by the counsel for appellant over recalling of his client in his (counsel Sharifuddin Pirzada), the judge held that "was the counsel necessary for prompting the appellant in the matter".

A relief for specific performance of contract is purely a discretionary relief. It is denied at times even if the agreement is proved, when in circumstances, the court is of opinion that the grant of such specific relief would not meet the ends of justice". The judge held dismissing the appeal as devoid of merit.-APP