ABDUL HAMEED Versus NASIM AKHTAR

The petitioner filed a suit against respondent No.1 for recovery of possession of the suit plot under section 9 of the Specific Relief Act, 1877. This suit was filed on 12‑11‑1980. On 22‑12‑1980, respondent No.1 filed a written statement inter alia, objecting that the value of the suit for the purposes of court‑fee and jurisdiction has not been correctly fixed and according to respondent No. l the market value of the plot was not less than Rs.2,50,000. On merits the case of the respondent No.1 was that one Shehbaz Khan was the transferee of the suit plot who had transferred the same to her pursuant to a Civil Court decree and she raised construction thereon. Issues in the suit were framed and Issue No.3 was framed to the following effect:

(3) Whether the suit has been wrongly valued for the purpose of Court- fee and jurisdiction? If so, its effect and what is the correct valuation? OPD. ,

On 29‑11‑1981 respondent No.2 who was apparently then general attorney of respondent No. l entered the witnesses box as P.W.8. In his examination, inter alia, he stated that the value of the plot is not more than Rs.24,000. He was subjected to cross‑examination. In the course of cross‑examination he stated that in case the respondent No. l admits the suit then the petitioner is willing to give the plot to her for Rs.24,000. At this juncture the cross -examination was stoppoed and the counsel for respondent No. l made a statement that the suit is admitted as correct and that respondent No. l is ready to pay Rs.24,000 and the petitioner should transfer the plot to him. On 7‑1‑1982 the petitioner filed an application complaining that respondent No.2 had colluded with the petitioner and has made the said statement and that the same is not acceptable to him. On 11‑1‑1982 the said amount of Rs.24,000 was deposited in Court. On 28‑1‑1982 the learned Civil Judge proceeded to hold that since there was no valid proposal and consequently, no compromise/agreement came into existence, the suit cannot be adjusted within the meaning of Order XXIII Rule 3, C.P.C. He proceeded to direct that now the statement of the petitioner would be recorded as his own witness. A revision petition was filed against this order which came up before Malik Lutaf Ali, District Judge, Sargodha who vide order, dated 21‑6‑1983 dismissed the same. An observation was made that the petitioner (i.e. respondent No. l) if so advised, may seek separate remedy. This order was challenged by filing Writ Petition No.4066 of 1983 in this Court which was dismissed in limine on 1-10‑1983.

2. On 23-7‑1983 the suit out of which the present Civil Revision has arisen was filed by respondent No.1. In the plaint it was alleged that respondent No.2 was the duly constituted attorney of the petitioner; that on 29‑11‑1981 respondent No.2 offered to sell the suit plot to the petitioner which offer was accepted and the sum of Rs.24,000 was deposited in Court on 11‑1‑1982. The order, dated 28‑1‑1982 of the learned Civil Judge and the order, dated 21‑6‑1983 of the learned District Judge (already referred to above) were sought to be attacked on the ground that the same were void. An argument was raised in the plaint that the judgment reported as Azizur Rahman and others v. Muhammad Afzal Khan and another (PLD 1956 (W.P.) Peshawar 55) was not applicable to the facts of the case and was wrongly followed by the learned Judges. With these averments a decree was sought for specific performance of the said agreement to sell the suit plot or in the alternative for recovery of Rs.25,000 as compensation for breach of contract. The suit was contested by respondent No. 1 with the contention that respondent No.2 was not competent to make an offer and the fact that an offer has in fact not been made to constitute a valid proposal, there was no contract and as such there was no question of any specific performance. Regarding the deposit of Rs.24,000 it was stated that the same were deposited by respondent No.1 on her own without any judicial order. The said argument raised in the plaint was also countered by supporting the said orders of the learned Civil Judge and the learned District Judge. Issues were framed, relevant being Issue No.9 which is reproduced here:‑‑

(9) Whether the statement of defendant No.2 made before the Court on 29‑i 1‑1981 amounts to an agreement with regard to the sale of the property in dispute? If so, whether the said agreement is liable to be enforced? OPP.

Evidence of the parties was recorded.. The learned trial Court dismissed the suit vide judgment and decree dated 27‑10‑1984. Respondent No. l filed an appeal which again came to be heard by the same learned District Judge, Sargodha (Mr. Lutaf Ali Malik) who proceeded to allow the same and to decree the suit of respondent No. l on 10‑12‑1984 granting her a decree for specific performance of the said agreement to sell.

3. Learned counsel for the petitioner argues that the said statement of respondent No.2(as P. W.8) was a sporting offer in reply to a question and cannot be regarded as an offer or proposal to sell the plot. Relies on the case of Azizur Rehman and others v. Muhammad Afzal Khan and another (PLD 1956 (W.P.) Peshawar 55). Further contends that the matter was challenged there and then by the petitioner and a decision was recorded that a valid compromise/agreement has not come into existence and as such the suit was proceeded further. The learned District Judge affirmed the order while deciding the Civil Revision filed by respondent No. l and the learned District Judge has acted with material irregularity in the exercise of his jurisdiction while upsetting the said order which he himself affirmed. Learned counsel for respondent No. 1, on the other hand, argues with equal vehemence that the said statement made by the witness (P.W.8) constituted a valid proposal and upon its being acceptance on behalf of respondent No. l by her learned counsel a valid contract came into existence and the learned District Judge rightly ordered its specific performance.

4. I have gone through the copies of the record appended with this Civil Revision, with the assistance of the learned counsel for the parties. Before I proceed further in the matter I may note here that the said suit for restoration of possession under section 9 of the Specific Relief Act, 1877 was decreed by the learned trial Court on 27‑10‑1984. Respondent No. l filed a revision petition which was heard by the learned District Judge, Sargodha who allowed the same and dismissed the suit on 10‑12‑1984. Against the said judgment Writ Petition No.612 of 1985 has been filed which was also argued today and is being decided separately.

5. As stated by me earlier the question of court‑fee was being contested seriously in the suit. I have also noted above that the case of respondent No. l was that she had purchased the plot from one Shehbaz. Muhammad Shafi D.W.2 was produced who stated that the value of the plot is about 2‑l1Z sacs rupees. D.W.3 Muhammad Yasin sated that the property is worth 4/5 lacs of rupees. D.W.5 Muhammad Rafiq also stated that the property is worth Rs.2,50,000. This witness is the husband and attorney of respondent No. 1. It was to rebut this evidence that respondent No.2 attorney of the petitioner entered the witness‑box as P.W.8. Copy of his statement is available in the record of the Civil Revision as Exh.P.2. He pleaded the history and acquisition of the property by the petitioner and that the possession was delivered to the petitioner. On the said issue of court‑fee, he made the following statement:‑‑

He was cross‑examined with respect to the entire examination‑in‑chief. Apparently the first question put to him pertaining to his statement regarding the value of the property was the one in response to which he stated:‑‑

Before the statement could be finally closed and a certificate in terms of Order XVIII Rule 5, C.P.C. would be appended, learned counsel for respondent No. l got his statement recorded to the effect that the suit of the petitioner is admitted; that respondent No. l is prepared to pay Rs.24,000 and that the petitioner should 'transfer the plot to respondent No. i . On 7‑1‑1982 the said application was filed by the petitioner which was decided on 28‑1‑1982 vide Order (Exh.D.3) by the learned Civil Judge.;.

6. A reading of the said Exh.D.3 would show that the learned Civil Judge recorded the following findings in the same:‑‑

(i) It would be deemed that the attorney made disputed offer without the instructions of the plaintiff.

(ii) It is also evident that the property in suit is valuable, about 2 Kanals, 10 Marlas in area, situated in Sargodha Town. The plaintiff i.e. attorney mad the offer to alienate the disputed plot for a consideration of Rs.24,000 while counsel for the plaintiff contends that at present the value of the property was very high, so that the offer was disadvantageous to the interests of the plaintiff. Plaintiff is at liberty to repudiate that transaction under section 215 of the Contract Act.

(iii) The plaintiff's attorney had made an offer in cross‑examination replying to a question of defendant's counsel. The plaintiff's attorney did not offer on his own accord. That statement is a sporting offer. The authority reported as PLD 1956 (W.P.) Peshawar 55 is applicable on all fours of the present case. In the present suit the issue as to correct valuation of the suit for the purposes of court‑fee and jurisdiction is there. Just to substantiate his contention as to valuation of the property described in the plaint he made that statement. That statement does not fall within preview of proposal defined in section 2(a) of Contract Act. Therefore no valid compromise came into existence after the acceptance of that offer by the defendant. For the foregoing reasons I hold that the offer made by. the attorney of the plaintiff on 29‑11‑1981 is ineffective against the rights of the plaintiff and the plaintiff is not bound by that statement/neither the case can be adjusted within the meaning of Order XXIII rule 3 C.P.C."

7. As would be evident from the tenor of the said order, dated 28‑1‑1982 (Exh.D.3) it tends to be an order refusing to record the compromise and to adjust the suit in accordance therewith and was appealable by virtue of Order XLIII Rule 1(m) C.P.C. However, no appeal was filed.

8. While deciding the revision petition filed by respondent No. l against the said order of learned Civil Judge, the learned District Judge proceeded to hold as follows in his order, dated 21‑6‑1983 available on record as Exh.D.4.

"There is nothing on record to show that the respondent No.2 (the attorney) had made that offer after having the specific instruction of the respondent No.1 (the petitioner) or after having consulted him, while the respondent had stated in his application that the disputed offer was made by the attorney without consulting him and without his instruction. The petitioner had attached an affidavit in support of his contention while the respondent had not fled any counter affidavit. This shows that the attorney had made the disputed offer without having consultation with the respondent. In this way the respondent was at liberty to repudiate the offer under section 215 of the Contract Act. The manner in which the offer was made did not amount to an offer within the meaning of section 2 of the Contract Act. The trial Court had not committed any illegality or material illegality in passing the impugned order."

9. After having observed this he dismissed the revision petition. The learned District Judge after directing the parties to appear before the Trial Court made the following observations:‑‑

"The petitioner should seek separate remedy for this offer, if advised."

10. Thus in inter parties proceedings where the question arose it was decided by a Court of competent jurisdiction that there was no valid offer and consequently no contract and this finding was affirmed by the learned District Judge while dismissing the revision petition vide order, dated 1‑10‑1983 (Exh.D.5). This Court dismissed the writ petition filed by respondent No.1 with observation that the same is not competent as the matter can be reagitated `in an appeal filed against the decree in the suit.

11. The learned Trial Court stuck to the decision made by its predecessor on f8‑1‑1982 while dismissing the suit on 27‑10‑1984. However, the learned District Judge opted to change his mind while recording the impugned judgment, dated 10‑12‑1984. This time he has observed that the attorney had made a valid offer and the same was accepted and as such the contract so made is to be specifically enforced.

12. I am conscious of the fact that there is a marked distinction when a Court is hearing a first appeal and while a revision petition is being heard by the same Court. However, in the present case the question involved precisely at the two occasions was the same i.e. as to whether the statement made by a witness albeit an attorney of a petitioner can be treated as a valid offer within the meaning of Contract Act for sale of property. It was a pure question of law that was decided vide order, dated 21‑6‑1983 (Exh.D.4) by the learned District Judge while affirming the order (Exh.D.3) of the learned Civil Judge already reproduced by me above. The learned District Judge allowed the parties, particularly respondent No. l to raise the same point which were raised before him in the course of the present appeal and proceeded to decide the same against respondent No. 1. It cannot be said that the earlier decision was a result of the limitation contained in section 115, C.P.C. The ultimate relief being claimed by respondent No.1 on both the occasions was the same i.e. a diction to the petitioner to transfer the plot to her for consideration of Rs.24,000. Besides I do not find any fresh circumstances as such coming into existence in course of present suit which were not present when the earlier lis was being decided by the learned District Judge.

13. The learned District Judge has not bothered to give any reason to depart from his earlier decision.

14. No law was cited other than the said case of Azizur Rehman at the Lime present first appeal was being heard. I may further state here that although the judgment in the said case of Azizur Rehman was passed at Peshawar but it was passed by the High Court of West Pakistan and consequently is for all purposes to be treated as a precedent of this Court i.e. Lahore High Court because to my mind the said High Court of West Pakistan was in a manner of speaking the successor of this Court, till such time that it remained established. Even otherwise I do not find any reason not to agree with the proposition laid down therein which is not only legal but is equitable. For all purposes the said statement made by respondent No.2 as P.W.8 was, to use the words of his Lordship was a sporting offer made casually and not genuinely by a plaintiff in the course of his. cross‑examination in reply to a question put by a counsel of the opposite party, primarily intended to discharge the burden of proving placed upon him under an issue and it cannot be interpreted by any stretch o1 imagination as a proposal within the meaning of section 7(a) of the Contract Act.

15. There is yet another aspect of the case. Learned counsel for the respondents insists that the offer made by respondent No.2 was not a casual offer but rather a well‑considered offer. The reason forwarded is that respondent No. 2 first stated that respondent No. l should admit the suit of the petitioner and then the plot will be transferred for the said consideration. In other words according to the learned counsel for respondent No.2 the consideration for the said offer was an admission of the suit and payment o1 Rs.24,000. F called upon the learned counsel to demonstrate as to whether the suit was admitted and got decreed in performance of the agreement, the answer is no. On the other hand, I am informed that the suit was contested. It was decreed by the learned trial Court. Respondent No. l then filed a Civil Revision praying for dismissal of the suit and the suit was dismissed by the learned District Judge and present respondent No. l is contesting the writ petition filed to question the said judgment and decree of the learned District Judge. Nothing, therefore, turns on the said arguments of the learned counsel for the respondents.

16. For whatever has been discussed above I find myself in agreement with the learned counsel for the petitioner that the learned District Judge has acted with material irregularity in the exercise of his jurisdiction while passing the impugned judgment and decree. Consequently, this Civil Revision is allowed. The judgment and decree dated 10‑12‑1984 of learned District Judge, Sargodha is set aside while that passed by the learned trial Court on 27‑10‑1984, dismissing the suit of respondent No. l is restored with costs throughout.

Q.M.H./M.A.K./A‑152/L Revision allowed.