MUHAMMAD YOUSAF Versus MUHAMMAD YOUNAS

The facts relevant for the decision of this second appeal are that Rashidur Rahman respondent No.3 owned agricultural land in village Gangor, Tehsil and District Narowal. He agreed to sell 1 square out of this land to respondent No.1 vide agreement dated 20‑9‑1969 Exh. P6. It seems that the deal could not mature and the parties entered into series of agreements and the agreement Exh. P6 was followed by agreement Exh. Pi dated 4‑1‑1971, Exh. P5 dated 3‑4‑1971, Exh. P2 dated 17‑6‑1971 and Exh. P3 dated 2‑8‑1973. Thereafter, the said respondent moved the Revenue Authorities for entering and attestation of mutation. Accordingly, report Exh. P7 dated 30‑9‑1974 was entered in the Roznamcha but the mutation was not sanctioned as in the meanwhile mutations on the basis of oral sales were banned. Respondents Nos.1 and 2 ultimately filed a suit for specific performance on 5‑3‑1976. In the meanwhile, respondent No.3 sold a part of the land to Hakam Ali, predecessor‑in‑interest of respondents Nos. 4 to 9, vide sale‑deed dated 4‑9‑1975. Therefore, he was impleaded as defendant No.2 in the suit. The defendants contested the suit. The trial Court accordingly framed the following issues:‑‑

(1) Whether the valuation of the suit is correct for the purposes of court fee and jurisdiction, if not what is the correct valuation? OPP

(2) Whether plaintiff No.2 is a necessary party in the suit, if not what is the effect of inclusion of plaintiff No.2? OPP

(3) Whether the suit is time‑barred? OPP

(4) Whether the suit is not maintainable in view of the preliminary objections Nos.5 and 8? OPD

(5) Whether the contract in dispute cannot be enforced in view of the preliminary objections Nos. 4 and 8? OPD

(6) Whether the plaintiffs actually made payment to the defendants as mentioned in paras. 3 and 4?' OPP

(7) Whether the plaintiffs failed to perform their part of the contract and as such the agreement in dispute came to end? OPP

(8) Whether the sale in favour of the defendant No.2 is void and illegal, inoperative and liable to be. cancelled? OPP

(8‑A) Whether defendant No.2 is bona fide purchaser for consideration without notice? OPD

(9) Relief.

The plaintiffs examined Ch. Zaka Ullah, Advocate as P.W.1, Ch. Nisar Ahmad as P.W.2, Abdul Ghani as P.W.3, Muhammad Sharif as P.W.4, Abdul Aziz as P.W.5, Muhammad Yousaf as P.W.6, Dost Muhammad as P.W.7, Muhammad Amin son of Ghulam Haider as P.W.8, Muhammad Amin son of Ibrahim as P.W.9, Muhammad Yousaf as P.W.10 and respondent No.1 appeared as P.W.11. The defendants examined Hakam Ali as D.W.1, Muhammad Din as D.W.2, Mairaj Din as D.W.3, Mushtaq Ahmad as D.W.4 and Rashidur Rahman himself appeared as D.W.5. The trial Court after hearing the arguments held that plaintiff No.2 respondent No.2 has been improperly impleaded as plaintiff therefore his name was struck off and the suit was decreed subject to respondent No.1 paying a sum of Rs.44,000 balance of the sale price. The plaintiffs assailed the judgment and decree of the trial Court on issue No.6 through an appeal (RFA No.104 of 1980) before this Court while respondent No.3 filed cross‑objections. Before the appeal could be decided pecuniary jurisdiction of the District Judges wag enhanced to Rs.2,00,000 therefore the appeal was sent to the District Judge who entrusted the same to the Additional District Judge; Narowal who dismissed the appeal of respondents Nos. 1 and 2 on merits while the cross‑objections filed by respondent No.3 were dismissed for non prosecution. The other facts relevant would be that during the pendency of the appeal in this Court respondent No.3 alienated the suit property to one Muhammad Sharif through sale‑deed dated 27‑10‑1980. The heirs of Muhammad Sharif filed an application (C.M. 210/C‑82) which was dismissed by a Division Bench of this Court on 24‑1‑1982. Thereafter the heirs of Muhammad Sharif sold the land to the present appellants through sale‑deed dated 24‑10‑1983. Thereafter, the appellants moved an application (C.M.410/C‑85) for impleading them as a party but the sane was dismissed by this Court vide order dated 15‑3‑1986. Thereafter, they moved another application which was dismissed on 24‑4‑1987. The third application to the same effect was moved by them when the appeal was pending. in the Court of the Additional District Judge: The application was dismissed vide order dated 18‑5‑1987 which was assailed through C.R. No.892/D‑87 which was dismissed on 9‑2‑1988.

2. The appellants assailed the judgment and decree of the appellate Court through this appeal which was dismissed as incompetent by this Court vide judgment and decree dated 10‑5‑1992. The decision was assailed through Civil Appeal No. 446 of 1994 in the Hon'ble Supreme Court which with the concurrence of the parties remanded the appeal for a fresh decision on all issues.

3. The learned counsel for the appellants argued that there was no agreement between the parties in terms of section 13 of the Contract Act, therefore the suit was without basis. Conversely it is argued that the alleged agreement has not been proved as required under Article 78 of the Qanoon‑e Shahadat. In this behalf reliance is placed on Manzoor Hussain Khan v. Asia Begum (1990 CLC 1014), Muhammad Yousaf v. S.M. Ayub (PLD 1973 SC 160), Bengal Friends & Co. v. G our Benode Saha & Co. (PLD 1969 SC 477). ,The next submission is that the agreement was contingent inasmuch as the performance was subject to clearance of loan of the Agricultural Development Bank by the vendee which was not cleared, therefore the agreement was not specifically enforcible. In this behalf reliance is placed on Muhammad Ishaq and another v. Sufia Begum (1992 SCMR 1629), Ghulam Rasul v. Muhammad Anwar (1969 SCMR 254) and Safia Begum v. Muhammad Ishaq (1988 CLC 1915). The third submission is that there was no agreement whatsoever with Tajamal Iqbal plaintiff No.2 therefore, the vendor was under no obligation to execute a sale‑deed in his favour. Therefore the suit was not competent. The learned counsel in this behalf referred to the case reported as Muhammad Ishaq v. Sufia Begum (1992 SCMR 1629). The fourth argument is that the agreement Ex. P3 was substituted through an oral agreement on the basis of which Rapt P7 was recorded therefore the agreement Exh.P3 ceased to be specifically enforcible. It is explained that under section 62 of the Contract Act in case of novation the original agreement becomes unenforcible in law. It is added that the Courts below failed to appreciate that relief of specific performance is in the discretion of the Court and conduct of the vendee clearly disentitled him of this relief. In this behalf it was pointed out that the series of agreement proved that the vendee was not keen to perform his part of agreement. While Ch. Muzammal Khan, Advocate for the appellants added that the Hon'ble Supreme Court has remanded the appeal fog' fresh decision on all points and not only the issues framed. It is added that the lower appellate Court should have issued notice to the appellants and decided the appeal after hearing the parties in view of the judgment of this Court dated 9‑2‑1988 passed in C.R. 892/87. It is added that the principle of pendente lite is not applicable because the litigation at least at the appellate stage was collusive between the vendees and the vendors. The next submission is that in view of various orders passed by this Court on three applications moved by the subsequent vendees for impleading them as party the lower appellate Court should have satisfied itself as to the correctness and legality of the findings of the trial Court. In this behalf reference is made to Order XLI, rules 22 and 33, C.P.C.

4. On the other hand, the learned counsel for the respondent argued that the plaintiffs filed a suit for specific performance of agreements dated 2‑8‑1973, which is proved on record as Exh.P3. It is added that this document was admitted by the defendants as is clear from para. 3 of the written statement. Similarly, payment of Rs.46,000 was also, admitted. The learned counsel argued that the report Exh.P7 was only a step in pursuance of this agreement.

5. It is argued that the agreement Exh.P3 was proved by the statements of P.W.8, P.W.9 and P.W.10 while Rapt Exh.P7 was proved by P.W.8. The agreement Exh.P4 and Exh.P6 were not only proved but also admitted by Rashidur Rahman. The next submission is that the loan of Agricultural Development Bank was only a charge, therefore no hindrance in the transfer of the land from the vendor to the plaintiffs because same was to be subject to charge of the Agricultural Development Bank. It is further argued that misjoinder of Tajammul plaintiff No. 2 was not of legal consequence and especially when the trial Court ordered deletion of his name. It is submitted that enhancement of price by mutual consent of the parties to the contract would not be covered; the mischief of `novation of contract' under section 62 of the Contract Act rendering the agreement Exh.P3 specifically unenforcible because Exh.P7 was not an agreement. Secondly it was not a complete contract and only price was modified whereas according to section 62 a complete agreement should come into existence. The learned counsel in this behalf has referred to the cases reported as Mussarat Shaukat Ali v. Safia Khatoon (1994 SCMR 2189), Noor Ahmad v. Muhammad Shafi (PLD 1969 Baghdad‑ul‑Jadid 17), Hawabai v. Sharif (PLD. 1961 (W.P.) Karachi 412), Muhammad Amin v. Star Oil and Ice Mills Limited (PLD 1973 Karachi 409), Jahangir Khan v. Muhammad Hanif (1971 SCMR 195), Abdul Karim v. Muhammad Shafi (1973 SCMR 225), Kishen Lal v. Gohli (AIR 1938 Lahore 757), Khatoon Begum v. Barkatunnisa Begum (PLD 1987 Karachi 132), New Standard Bank v. Probodh Chandra (AIR 1942 Calcutta 87), Kedar Nath v. Kripal (AIR 1944 Oudh 63) and Prem Das v. Muhammad Hussain (AIR 1936 Lahore 51).

6. It is argued that the decree is binding on the appellants in view of the orders of this. Court passed in the C.Ms. moved by the appellants and Muhammad Sharif their predecessor‑in‑interest and particularly C.M.210/C‑82 decided on 24‑1‑1982 and C.M. 410 /C‑85, decided on 15‑3‑1986. It is added that the fourth application was moved when the appeal was pending before the learned Additional District Judge. The same was rejected vide order dated 18‑5‑1987 while the Civil Revision was dismissed by this Court on 9‑2‑1988. This way all the three orders passed by this Court on the C.Ms. and in the civil revision go a long way to show that the appellants were bound by the decree against their ‑predecessor. It is submitted that the appellants cannot maintain the appeal. In this behalf the learned counsel has referred to the cases reported as Muhammad Sharif v. Sughra Bano (1984SCMR 1139), Ikram Elahi v. The Settlement and Rehabilitation Commissioner (Lands) (1976 SCMR 143), Munawar Hussain etc. v. Nisar & Co. (1976 SCMR 385), Usman Haji Omer Haji Ayub (PLD 1966 SC 328), Ghulam Rasool v. Imdad Hussain (PLD 1968 Lahore 501), Jhandi v. Baqir Ali Rizvi (1987 CLC 459), Union Bank of the Middle East Ltd. v. Sa'ad Carpets Ltd. 1986 MLD 482 and Gouri Dutt Maharaj v. Sukur Muhammad (PLD 1984 PC 117).

7. The learned counsel for the appellants while summing up `the arguments submitted that the agreement Exh.P3 was substituted by the agreement incorporated in Exh.P7 because not only the land changed but the price was enhanced and plaintiff No.2 was also introduced. Therefore the agreement Exh.P3 could not be specifically enforced. It is argued that the agreement Exh.P3 was not proved by admission in the written‑statement and it was not substantial piece of evidence. Moreso the defendant was not confronted with this admission. The learned counsel in this behalf has referred to. the cases reported as Khair‑un‑Nisa v. Muhammad Ishaq (PLD 1972 SC 25), KA.H. Ghazi v. Khan War Masood (PLD 1988 Karachi 460), Allah Din v. Rehmat (PLD 1967 Lahore 1051), Qaseem Arsal Jafari v. Matloob Hussain (1988 CLC 2211) and National Bank of Pakistan v. Alam Industries Ltd. (PLD 1992 Karachi 295). It is added that the appellants can maintain in the appeal as they are aggrieved persons. In this behalf the learned counsel referred to the cases reported as Naz Bibi v. Khuda Bukhsh and another (1992 CLC 104), Subhan Shah v. Manzoor Hussain Shah (1986 CLC 2669), H.M. Saya v. Wazir Ali Industries Ltd. (PLD 1969 SC 65), and Muthiah Chettiar v., Krishana Doss Varu (AIR 1921 Madras 599).

8. I have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the record, relevant provisions of law and precedents. The first and foremost point for consideration is whether plaintiff No.1 was entitled to decree for specific performance as granted by the trial Court or not? The plaintiffs sought specific performance of the agreement Exh.P3 dated 2‑8‑1973. The admitted position is that the vendor had received amount of Rs.46,000 against agreements entered into by him at different times starting Exh. Pl dated 4‑1‑1971. One thing is clear from the agreement Exh.Pl Exh.P2, Exh.P5 and Exh.P6 that time was not essence of the contract. The vendor every time by negotiating a new agreement accepted the previous payment and liability to transfer the land readily. It is not clear from the facts on record that why the finalisation of the deal was delayed. But one thing is proved beyond any shadow of doubt that the parties never treated the time as essence of the contract. It is clear from the Rapt Exh.P7 that ultimately vendor agreed to sell the land for Rs.90,000. It is also clear from the record and application Exh.P4 that the plaintiff was ready and willing to perform his part of the agreement but the vendor was not performing his part of the agreement and he did not allow the revenue authorities to sanction the mutation on the basis of Rapt Exh.P7. The payment of debt of Agricultural Development Bank was merely a charge. It was of no legal consequence or in .any way a hurdle in the way of finalisation of the deal. This controversy is however of no consequence because the vendor did not assail the judgment of the trial Court through appeal. I am conscious of the fact that he did file the cross‑objections but the same were not pursued. This is not all. The plaintiff after the dismissal of his appeal by the Additional District Judge proceeded to deposit Rs.44,000. The vendor not only did not challenge the judgment and decree further but proceeded to make an application on 4‑3‑1992 for withdrawal of the balance of the sale price. The same was granted by the Executing Court vide order dated 8‑3‑1992 and the amount was withdrawn by the vendor. Therefore, the appellants who were claiming through the vendor cannot claim a better right of pre‑emption than what could have been availed by the vendor.

9. Now coming to the main point that the suit is hit by section 62 of the Contract Act, 1872. The argument that the land, the subject‑matter of Exh. P7, is different from the land mentioned in the agreement Exh. P3, which was sought to be specifically enforced is against the record. It was explained in para. 2 of the plaint that Khasra Numbers of the land, subject‑matter of the agreement have been changed in consolidation of holding and this fact was neither specifically denied nor there is anything on the record to show that the land, the subject‑matter of the suit, was different from the one mentioned in Exh. P3. Moreover, Exh. P7 Rapt Roznamcha cannot be teated as an agreement because it was not signed by the vendee at all. Therefore; the element of mutality was lacking. This was precisely the argument advanced on behalf of the appellants while pressing argument that the plaintiff sought specific performance of Exh.P7, which cannot be termed as agreement by any stretch of imagination. This argument was left as it is when the learned counsel for the plaintiff interrupted and stated that his client sought specific performance of the agreement Exh.P.3. The main ingredient of `Novation' as defined in section 62 of the Act is substitution of agreement. The same is lacking‑in the present case. The mere enhancement of the price and addition of minor son as vendee did not amount to Novation of the contract. Moreso, when the agreement‑ Exh.P3 was admitted in the written statement.

10. The argument that the admission in the written statement cannot be read as substantial evidence while in statement on oath the execution of Exh. P3 was denied by the vendor. The plaintiff did not feel contented with the admission of the vendor but he proceeded to prove Exh.P3 through, the statements of P.W.1, P.W.9 and P.W.10, therefore, the objection is of no legal consequence.

11. The learned counsel for the appellants argued that this Court is to decide all the issues as per judgment of the Hon'ble Supreme Court. If the argument meant by issues, which have not arisen from the pleadings then it is utterly misconceived. This appeal is the outcome of civil suit and the parties are to remain tied to the pleadings. They cannot be allowed to prove or argue a case not pleaded. In spite of that, as abundant caution, I have considered all the points raised by them because they were one way or the other covered by the issues framed by the trial Court.

12. Now I take up the issue regarding competency of the appeal. The learned counsel has referred to the case of Naz Bibi (supra), Subhan Khan (supra), H.M. Saya (supra), Muthian Chettiar (supra). The judgment in the case of Naz Bibi is not relevant because it has arisen from a writ petition and the appeal by the aggrieved person was held competent. But the present appeal is against the judgment and decree dated 12‑2‑1992 in a civil suit whereas the land was sold by the judgment‑debtor to Muhammad Sharif on 27‑10‑1980. The heirs of Muhammad Sharif sold the same to the present appellants on 23‑10‑1983. Both these transactions took place during the pendency of the first appeal, which was originally filed in this Court but when the jurisdiction of the District Judge was enhanced to Rs.2,00,000 the same was transferred to the District Judge, Sialkot. The appeal was ultimately dismissed by the first appellate Court on 12‑2‑1992. The basic case is of H.M. Saya & Company, Karachi wherein the Hon'ble Supreme Court after examining the law on the point held that it is consistent practice of the English Courts that a person not a party to a suit or proceedings may prefer an appeal with the leave of the Court. The leave is granted if the party seeking relief was found a proper party to the suit or proceedings. The Hon'ble Supreme Court on this point concluded as under:‑‑‑

" ..The test applied in granting leave to appeal, in such cases, is that if the person who wants to prefer the appeal might properly have been a party in the suit or proceeding then he may obtain leave to appeal. The case of In re: B. An Infant (1958) 1 Q.B. 12 on which Mr. Diagoomal has relied lends support to the above proposition. In our view this is an equitable rule which should be followed in the absence of any provision to the contrary in the Code of Civil Procedure."

The suit was filed on 5‑3‑1976. Neither the appellants nor Muhammad Sharif, their predecessor‑in‑interest, were either proper or necessary to the suit. In fact, they were not even in picture till the decision of the suit on 12‑2‑1980. The appellants and Muhammad Sharif repeatedly attempted to become party to the appeal against the judgment and decree of the trial Court but remained unsuccessful. The review of those orders is not warranted. Moreso, when the appellants felt contented with the rejection of their applications for impleading as party.

13. There is much emphasis on the point that the appellants are bona fide purchasers for consideration. This rule of equity is not available during the pendency of the litigation: On the other hand, the doctrine of lis pendens as contained in section 52 of the Transfer of Property Act would be unsurmountable hurdle in the way of the appellants. This is applicable with full force to this part of the country. Besides this, in face of Rapt Exh. P7 dated 30‑9‑1974 and litigation in the civil and revenue Courts, it is not possible to accept this plea.

14. The learned counsel for the appellants argued that in view of the order dated 9‑2‑1988 in Civil Revision the appellants should have been heard by the lower appellate Court. I am afraid that this would have been against the plain words of the order of this Court. It was only in case of compromise between the 6riginal parties that the appellate Court was to hear the appellants as well. It was not visualised at the time of getting that order that what would be result if the judgment‑debtor decides not to appear in Court. Therefore, the lower appellate Court has not violated the observation of this, Court in the civil revision.

15. This brings us to the argument that the principle of lis pendens is not applicable to the proceedings which are collusive. The argument is clearly misconceived. The suit was contested with full force. The defendant‑vendor examined as many as four witnesses and appeared himself as D.W.5. Earlier to this he did not let the Revenue Authorities sanction the mutation on the basis of Rapt Exh.P7. Above all he filed cross‑objections against the decree of the trial Court. It is not possible to dub the proceedings as collusive simply because the defendant did not appear before the Additional District Judge.

16. The law is to be interpreted in the background of social set‑up. The rule is to be known as `legal autochatoni'. Now if the alienation of property pending the litigation is accepted then it would amount to permitting endless multiple litigation. It would completely destroy the doctrine of lis pendens which is applicable to this part .of the country. Reference in this behalf can be made to the case reported as Abdus Saeed Khan v. Basharat Ali (PLD 1995 Lahore 255). Therefore, in my opinion, the appellants cannot maintain the appeal. Moreso, when the defendant has not only failed to agitate the matter but accepted the decree by withdrawing the amount. The appellants can only prosecute and sue him for damages .but cannot assail decree in appeal.

17. The upshot of the above discussion is that this appeal is dismissed as incompetent as well as on merits. There is no order as to costs.

A.A./M‑2173/L Appeal dismissed.