SANA ULLAH Versus RASHID AHMAD KHOKHAR

ABDUR REHMAN KHAN, J.--- This direct appeal has been filed under Article 185(2)(d)(e) of the Constitution to impugn the legality of the judgment delivered by a learned Judge of the High Court on 3-11-1996; whereby, while accepting the revision petition the order of the trial .Court was set aside and, consequently, the suit filed by the appellant/plaintiff, was dismissed. '

2. Appellant in his capacity as a plaintiff instituted a suit for specific performance in respect of the suit land on the basis of averment in the plaint that respondents Nos. l to 3, the original owners of the disputed land, executed an agreement to sell on 23-1-1993 in favour, of respondent No.4 on payment of Rs.29,40,000; out of which Rs.2,00,000 were paid in advance, Rs.4,00,000 were to be paid up to 23-3-1993 and the balance was to be paid at the time of execution of the sale-deed which was to be completed up to 31-8-1993. One of the stipulation in the sale agreement was In pursuance of this clause of the agreement respondent. No.4 executed an agreement, dated 28-3-1993 in favour of the plaintiff. It is alleged in the plaint that the balance amount was offered to respondent No.4 but he refused to receive it and also denied execution of the sale-deed in favour of the plaintiff. Respondents/defendants -Nos. 1 to 3 in their written statement although admitted execution of the agreement to sell, dated 23-1-1993 but held respondent No.4 responsible for non-compliance of its terms and also averred that respondent/defendant No.4 was not legally competent to enter into agreement with the plaintiff. Respondent/defendant No.4 in his separate written statement also admitted the execution of both the agreements to sell, but stated that those have become ineffective and unenforcible "because of the failure of the plaintiff to complete his commitment under it.

3. During the proceedings in the trail Court before, recording of the evidence respondents Nos.l' to 3 submitted an application under Order VII, rule 11, C. P. C. for rejection of the plaint alleging therein that neither defendant No.4 was competent to enter into agreement to sell with the plaintiff nor such an agreement would legally confer any right on the plaintiff. This application was contested by the plaintiff by filing his reply. The learned trial Judge by order, dated 20-7-1995 held that the suit could not be dismissed at the stage when the evidence of the parties had not been recorded and that summarily rejection of plaint under Order VII, rule 11, C.P.C. was not legally permissible till both sides were afforded opportunity to explain and support their stands by evidence and _as such the application was held not maintainable at that point of time. The learned High Court, however, in revision by the impugned order disagreed with the conclusion of the trail Court as it held that 'the suit could .not proceed because defendant No.4 could not be delegated power to enter into an agreement to sell with the plaintiff and -the plaint was, . therefore, liable to rejection on that count. Consequently, the order of the trial Court was set aside and the plaint was rejected.

4. We heard both the. learned Advocates in support of their view-point and went through the available record. The office report is that the appeal is time-barred by one day. The condonation of delay has been sought in the application submitted for this purpose on the following grounds:--

"That the petitioner 'under a bona fide legal mistake filed Civil . Petition for leave to appeal against the judgment of the Lahore High Court, Lahore, dated 3-11-1996 on 9-5-1997 at Lahore. The petitioner laboured under an impression that since application under Order VII, Rule 11, of the C.P.C. was dismissed by the learned trial Court and the judgment of the learned trial Court was reversed by the High Court and since merits of the case had not been adjudicated upon, therefore, petition for leave to appeal was competent. Petition for leave to appeal was filed well within time as prescribed by law i.e. 60 days."

As on merits of the case we are satisfied that the order impugned before us was not sustainable, the grounds of condonation of delay ,also appeared to be reasonable and the delay is only one day, therefore, we condone the delay and would decide the appeal on-merits.

5. As we intended to remand the case to the trial Court for decision of all the issues arising in the case after affording both the parties opportunity to adduce evidence as they wish in support of their claim, therefore, we would avoid to dilate on the merits of the respective contentions of the parties at this stage. It is also to be noted that there was an alternative prayer in the plaint for recovery of huge amount of Rs.28,35,000 but the High Court failed to take 'this aspect of this case into consideration before ordering rejection of the plaint. It is important to note that the execution of both the agreements to sell are admitted but each side blamed the other for violation of its terms. This point as to which side violated the agreement cannot be determined in abstract form at this stage but can only be resolved after both the parties bring evidence on record in respect of their view-point. It was observed by the trial. Court in his order:--

"Besides this according to 'agreement, dated 23-1-1993 there is one condition in which the owner party had authorised defendant No.4 for further agreement to sell in favour of any person. What is the legal position of aforesaid authorisation on behalf of defendants 1 to 3 in favour of defendant No.4, which can only be concluded after evidence on behalf of the parties. Besides this learned counsel for defendants 1 to 3 relied on NLR 1984 Civil p.786, 1985 CLC p.7, according to which it was held that (agreement) to sell did not confer any title on prospective purchaser. I bow my head on aforesaid citation decided by Honourable High Court, Lahore. But facts and circumstances of each case are different. Besides this even detail reading of aforesaid citations reveals that cases have been dismissed after framing of issues and evidence of the parties. Similarly, it is not just and proper that present suit be summarily rejected without framing of issues and without proper trial. Hence present application on behalf of defendants 1 to 3 is not maintainable ? at this stage which is hereby rejected. "

6. We feel that the trial Court would be in a better position to determine the points noted below after settling all the relevant issues arising from the pleadings of the parties and recording of evidence thereon.

(i) As to whether defendant No.4 was legally competent to transfer his right to the plaintiff under the agreement of sale in his favour by defendants Nos. 1 to 3?

(ii) Whether such transfer was recognised by law or, it violates any law?

(iii) Whether such a transfer does not amount to assignment to vest in the assignee the same rights the assignor had?

(iv) Who is to be blamed for violation of the agreements to sell and its effect?

(v) Whether the plaintiff is entitled to any relief, if so, to the main relief or the one claimed in the alternative?

7. We, therefore, allow this appeal reverse the order of the High Court and restore that of the trial Court with the direction to it to allow both the parties to lead evidence as they like and then to give decision on all, the legal and factual points arising in the case. Parties would bear their costs.

M.B.A/S-5/S ?????????????????????????????????????????????????? Appeal allowed.