GHULAM MUSTAFA through L.Rs,s vs ABDUL LATEEF and 4 otherss
This matter arises from a petition for leave to appeal against a Lahore High Court judgment that dismissed a civil revision, thereby upholding an appellate court decision which had dismissed the petitioners' suit for declaration and permanent injunction. The core legal questions concern whether the appellate and high courts erred in disregarding an agreement to sell due to the non-examination of marginal witnesses, and whether a suit for permanent injunction is maintainable when a suit for specific performance is not yet viable because proprietary rights have not been conferred on the vendor. The Supreme Court granted leave to appeal, noting that the contentions raised regarding the prospective application of the Qanun-e-Shahadat, 1984, and the maintainability of a suit for permanent injunction in the absence of a claim for specific performance, involve questions of law of public importance. The Court suspended the operation of the impugned judgment pending the final decision of the appeal, thereby establishing that these issues require a definitive determination by the apex court.
- Does the Qanun-e-Shahadat, 1984 apply retrospectively to agreements to sell executed prior to its promulgation?
- Is a suit for permanent injunction maintainable when a suit for specific performance cannot be filed because proprietary rights have not yet been conferred on the vendor?
- Can an agreement to sell be disregarded solely due to the non-examination of marginal witnesses if those witnesses are unavailable or deceased?
- Qanun-e-Shahadat, 1984
ORDER
' RANA BHAGWANDAS, J.--- Petitioners seek leave to appeal against Lahore High Court judgment, dated 27-8-2002 passed in Civil Revision No,6 of 1997 dismissing the same and upholding the Appellate Court judgment whereby the suit for declaration and permanent injunction filed by Muhammad Ramzan (predecessor-in-interest) was dismissed.
2. Muhammad Ramzan filed a suit for declaration challenging the validity of agreement to sell in respect of property in suit in favor of respondent Abdul Latif, by District Housing Officer, Faisalabad (respondent No,3 herein) and sought permanent injunction against respondents from interfering with his possession over the suit property in pursuance of agreement of sale dated 10-5-1972 executed by respondent No,1 agreeing to sell the property in suit in his favor.
3. Conversely Abdul Latif, respondent, filed a suit for declaration as owner in possession of the plot in suit on the basis of sale agreement dated 19-10-1987 executed by respondent No,4 i,e, Secretary, District Housing Committee, Faisalabad. He claimed that he had paid entire dues and raised construction on the plot. He also prayed for a permanent injunction against Muhammad Ramzan from dispossessing him from the plot in suit, in connivance with the staff of official respondents.
4. Both the suits were consolidated and as many as 12 issues were framed. Both the parties adduced evidence. Upon consideration of the evidence, the trial Court vide judgment and decree, dated 19-7-1995, decreed the suit filed by Muhammad Ramzan and dismissed the suit filed by Abdul Latif. Respondent Abdul Latif preferred two appeals assailing both the judgments and decrees which were heard by a learned Additional District Judge, Faisalabad and allowed with the consequence that the suit filed by Muhammad Ramzan was dismissed while the suit filed by Abdul Latif was decreed. The petitioner preferred Civil Revision No,6 of 1997 impugning the judgment of Additional District Judge dismissing the suit but without any success vide judgment, dated 27-8- 2002, impugned in this petition.
5. We have heard Sheikh Naveed Shehryar, learned Advocate Supreme Court for the petitioners and Mr. M. Aslam Riaz; Advocate Supreme Court for respondent No,1 whereas official respondents have not entered appearance despite notice.
6. It is inter alia contended that the appellate Court as well as High Court wrongly kept agreement to sell dated 10-5-1972 out of consideration for the reason that two marginal witnesses were not examined in order to prove the same. It is submitted that findings of both the Courts that the suit was not maintainable in the present form and that petitioners should have availed remedy by way of a suit for specific performance of agreement, suffer from misconception of law. It is pointed out that the petitioners could not file suit for specific performance as proprietary rights were not yet conferred on vendor Abdul Latif by the Government and thus, petitioners' suit for permanent injunction against respondent Nol. Seeking restraint against interference with his possession, would be competent and maintainable in law.
7. With regard to non-examination of two marginal witnesses, it is urged that agreement was executed long before the promulgation of Qanun-e-Shahadat, 1984 which would operate prospectively. It is argued that it is in the evidence of .D.W. Muhammad Ibrahim that marginal witnesses Noor Muhammad and Umer Din were dead whereas witness Babu had shifted to Karachi and was therefore, not available for recording evidence.
8. Contentions raised need serious consideration. Leave to appeal is accordingly, granted to consider inter alia the above questions of law of public importance.
9. Operation of the impugned judgment shall remain suspended till decision of the appeal.