BASHIR AHMAD Versus SHAH MUHAMMAD

ABDUL SATTAR GORAYA, J.--- This petition under section 115, C.P.C. calls in question the judgment and decree dated 3-6-2004 passed by the learned Additional District Judge, Ferozewala District Sheikhupura.

2. Facts in brief are that the petitioner filed a suit for Specific Performance of an agreement. It is stated in the plaint that the plaintiff entered into agreement of sale with the petitioners-defendants 16 years ago in respect of land, the details whereof has been given in para 1 of the plaint for a consideration of Rs.20,000 and all the money was paid to the defendants and possession was delivered to the suitor and since then he was cultivating the suit-land. It was averred that the suitor-respondent has always been willing and ready to perform a part of contract but the respondent refused. In the written statement filed by the petitioner, the petitioner took a specific stance that the suitor was tenant at will and execution of an agreement was denied. Certain preliminary objections were also taken. Divergent pleadings of the parties gave rise as many as four issues including one of relief.

3. Issues Nos.1 and 2, in fact, are the core issues which were decided together by the learned trial Judge and those were answered against the respondent-plaintiff. On issue No.3 the onus of which was proposed upon the defendant, it was decided against the plaintiff. In nutshell vide judgment and decree dated 14-10-2003 the suit was dismissed and appeal was taken against the said judgment and decree passed by the learned trial Judge and the same was accepted vide judgment and decree dated 3-6-2004 of the learned Additional District Judge, Ferozewala.

4. Learned counsel for the petitioners states that this was an oral agreement of sale, in respect whereof a suit was instituted but in the plaint the time was not mentioned as to when an oral agreement of sale was entered between the parties. It is further argued the learned Additional District Judge misread and misinterpreted the evidence brought on the record and based his decision on the basis of an oral evidence to the advantage of the respondent-suitor, which was totally misread and the decree resulted in grave miscarriage of justice.

5. Conversely, the learned counsel for the respondent-plaintiff supported the impugned judgment and decree dated 3-6-2004 passed by the learned District Judge almost for the same reasons, which weighed with the learned Appellate Court in passing the impugned judgment and decree.

6. I have given conscious thought to the arguments addressed by both the learned counsel for the parties. Available record perused. Barkat Ali P.W. entered in the witness box and he stated that the agreement of sale was entered between the parties 20/22 years ago and since then the land is in his possession. He stated that the said agreement was entered for an amount of Rs.20,000 in his presence. Bashir Ahmad P.W.2 when entered in the witness box he stated that an amount of Rs.20,000 was paid to the petitioners in his presence. P.W.3 also deposed in the same terms. In the evidence Jamabandi pertaining to the years, 1980-1981 was tendered as Exh.P. 1 and for the years, 1992-1993 and Khasra Girdawari was tendered as Exh.P.3. This is not a case of documentary evidence and the case of the respondent hinges on oral evidence. Perusal of the plaint would discernibly show that the agreement was entered for an amount of Rs.20,000, but when it was entered, the date has not been shown. In para 3 of the plaint it has been stated that at the time, 16 years ago, the parties entered into an agreement. The land was in barren condition and he improved the status of the same by putting hard labour and expenses. In para 5 it was stated that the cause of action occurred, 16 years ago and it continued and lastly when there was a final refusal, suit has been instituted. It is nowhere stated that when there was a final refusal the suitor confined his plea in saying that 10 days ago, there was a refusal it remained continued. The exact date of agreement has not been specified. The plea of the suitor on its face value apparently is couched in vague generalization. In the Revenue Record, (Exh.P.B.), the respondent has been shown to be tenant at will. There are certain conditions of valid agreement, which ought to have been pleaded in the plaint to enforce the desired contract. If in the oral agreement, the terms and conditions are not satisfied it cannot be considered to be valid in law. I am fortified in my view by Mst. Rashida Abdul Rehman v. Zahoor Hussain and 5 others 2007 CLC 1372. The relevant portion contained in para 13 of the judgment reads as follows:---

"In a suit for specific performance the plaintiff has to assert that a contract exists between him and the defendant. The plaintiff has to plead the facts regarding the contract which he desires to be specifically performed where pre-requisites of a contract are missing the plaintiff is not entitled for decree of specific performance. Reliance in this context can be placed to the case of Miss Gul-e-Rana v. Muhammad Mansoor Khan and 4 others 2000 CLC 1673 in the case of Abdul Aziz and another v. Abdul Rehman and others 1994 SCMR 111 it has been observed that grant of specific performance of an agreement being discretionary relief, can be refused even if execution of agreement was proved."

7. Qazi Muhammad Saqib Khan v. Ghulam Abbas and 2 others 2003 MLD 131 can also be quoted with advantage. In the plaint the date of agreement and the remaining necessary ingredients have not been disclosed and the matter has been confined only to the extent in saying that 16 years earlier the parties entered into agreement of sale and the amount of Rs.20,000 has been paid. If ingredients necessary to be mentioned in the plaint are not mentioned, no evidence can be led on this point. Reference may be made to Binyameen and 3 others v. Ch. Hakim and another 1996 SCMR 336. It was held as under:---

"It is also a well-settled principle that no evidence can be led or looked into in support of a plea which has not been taken in the pleading. A party is required to plead facts necessary to seek relief claimed and he would be entitled to produce evidence to prove those pleas. Variation in pleading and proof is not permissible in law."

8. Mere agreement of sale does not confer any ownership right. It has been specifically mentioned that 16 years earlier the amount of Rs.20,000 was paid and no part of the amount, was left to be paid to the petitioner. It is not understandable that the issue of sale was postponed for considerable period of 16 years but the suitor never made him available to file suit. It appears that he has been enjoying profound slumber and the suit became barred by time under section 113 of the Limitation Act. The learned Additional District Judge in the impugned judgment and decree framed summary of facts and by picking a portion of the evidence of the witness box based his decision to the benefit of the suitor and in fact new case has been built up to the advantage of the respondent which otherwise is not spelt out from the record. The learned lower Appellate Court committed serious illegalities and irregularities ad-infinitum in reaching at the impugned conclusion.

9. For whatever it has been stated above, the revision petition is accepted and the impugned judgment and decree dated 3-6-2004 of the learned lower Appellate Court is set aside. The suit brought by the respondent stands dismissed. Parties however left to bear their own costs.

S.A.K./B-42/L Revision accepted.