MUHAMMAD RASHID Versus MUHAMMAD YASEEN
Parties have been heard on merits at length.
2. This F.A.0. arises from the order dated 13‑2‑1986 of the learned Civil Judge 1st Class, Faisalabad, whereby he refused to execute the impugned decree because in his estimation it was merely for a declaration.
3. The appellant‑plaintiff brought the suit for possession through specific performance of an agreement. Initially there was a decree passed in his favour, but the same was set aside later in pursuance of an application under section 12(2), C.P.C. Parties effected a compromise Exh‑C/1 whereby the appellant was held entitled to 1 Kanal 12 Marlas out of the entire land measuring 5 Kanals 9 Marlas and 8 Sarsahis mentioned in the head note of the plaint. He sought execution of the decree, but the lower Court took the view that the compromise deed changed the complexion of the suit so that the decree essentially remained for declaration alone. An other reason to refuse execution was that the decree was passed by a Duty Judge in the absence of the Presiding Officer who was initially seized of the case and he was not competent to do so under section 23 of the Civil Courts Ordinance, 1962.
4. I have perused the decree at page 59 of the file. The suit though not happily worded, was for three pronged reliefs, namely (1) confirmation of possession, (2) for possession itself and (3) specific performance of an agreement dated 5‑3‑1982. In the compromise Exh. C/1 the appellant/ plaintiff relinquished his claim and agreed to accept only a small fraction of the area in dispute. In fact he had already sold it away to Mst. Sharifan who was now to be regarded owner thereof, but the formality of a sale‑deed in his favour had to be observed in order to convey title to the lady. This was the reason why the appellant sought execution of the decree and is pursuing the matter even now before this Court. Mst. Sharifan herself is not among the parties. The reason was that she acquired title under the appellant after a decree in his favour was passed in the first instance.
5. Be that as it may, the head note of the plaint seems to contain a key to know what relief or reliefs the appellant /plaintiff was seeking. He asked for three reliefs and if any one of them was not practicable or was redundant, the remaining of course, could be allowed to him. His assertion was that he was already in possession in part performance of the contract and that is why he sought its confirmation. If the prayer to that extent was unusual or superfluous, he could still rely upon his own possession and ask for the remaining relief of specific performance of the agreement by getting a formal sale deed executed in his favour. The compromise obviously will have to be considered in the context of the suit. It did not show any intention to relinquish the relief of specific performance rather it was categorically asked for in the plaint, and could be granted even otherwise in terms of Order VII, Rule 7, C.P.C. to the same extent as if it was asked for. The view adopted by the learned executing Court that the compromise changed the complexion of the suit or for that matter the decree was too far fetched. It had authority even to mould it to help the plaintiff. In Mian Niaz Hussain and another v. Imdad Hussain (PLD 1965 (W . P .) Lah. 172) suit was allowed to remain declaratory in form yet the Court had moulded the decree in accordance with circumstances which intervened later. Here the supervisory factum of compromise did not justify change in the form of the suit, and, therefore, initial relief of specific performance could have been granted none the less. Learned counsel Lor the respondents did not have any serious objection to this proposition, nor could they support the order on the basis of section 23 of the Civil Courts Ordinance, 1962, which very much authorises a Duty Judge to discharge the functions of the absentee Officer. An erroneous view was adopted by the lower Court in this behalf and the same could not be sustained.
6. As a result, the appeal is accepted, the impugned order is set aside and the executing Court is directed to execute the decree under Order XXI, Rule 32, C.P.C. Parties are left to bear their own costs.
H.B.T./M‑612/L Appeal accepted.