Mst. ZUBAIDA BIBI vs Mst. HASHMAT BIBI and 2 others

' SAAD SAOOD JAN, J---This appeal by special leave has arisen out of a suit filed by the appellant for a declaration, inter alia, to the effect that she was the owner of the land in dispute. The land in dispute is situated in village Pial Khurd of Tehsil Kasur and measured 96 kanals and 16 marlas. It was owned by respondent No.1 who had appointed respondent No.2 as her attorney by a registered deed. On 22-5-1978 respondent No.2 entered into an agreement for the sale of the land in dispute with the appellant for Rs.95,000 and received Rs.85,000 by way of consideration. The remaining amount of consideration, that is, Rs.10,000 was to be paid before the Sub-Registrar at the time of the registration of the sale-deed. According to the agreement the sale was to be completed by 1- 9-1978. Subsequently, respondent Not gifted the land in dispute to her husband by a registered deed dated 7-8-1978 and cancelled the power of attorney given to respondent No.2. When the appellant approached her for the completion of the sale respondent No.1 disowned the agreement of 22-5-1978. The appellant discovered that the area of the land actually owned by respondent No.1 was less than that she had undertaken to sell under the agreement of 22-5-1978 and thus the amount of consideration already paid to her more than covered the price of the land that she could validly transfer. Consequently, as the whole of the consideration had already been paid to respondent No.1, the appellant had become owner of the land in dispute.

2. The suit was resisted by the respondents and one of the pleas taken by them was with regard to the form of the suit. The trial Court rejected the pleas of the respondents and decreed the suit on payment of Rs.10,000 on account of the unpaid consideration.

3. From the judgment of the learned trial Court respondents Nos.1 and 3 filed an appeal before the Additional District Judge. The learned Additional District Judge held that no sale had yet taken place and that the only relief available to the appellant was that she should have filed a suit for specific performance of the agreement of 22-5-1978; since this had not been done, the form of the suit was defective; accordingly, he accepted the appeal, set aside the judgment and decree of the trial Court and dismissed the suit. From the judgment of the learned Additional District Judge the appellant filed a second appeal in the High Court. A learned Single Judge affirmed the view taken by the First Appellate Court with regard to the form of the suit and accordingly dismissed the appeal.

4. On behalf of the appellant an application has been moved before us that she should be permitted to amend the plaint so as to seek the relief of specific performance of the agreement of 22-5-1978. In support of her application reliance has been placed on the judgment of this Court in the case of Ghulam Bibi v. Sarsa Khan (PLD 1985 SC 345). After hearing the learned counsel we find that the appellant is seeking this new relief entirely on the basis of the assertions already made in the plaint and thus the amendment will not change the nature of the suit. In the circumstances we allow the prayer for amendment. Accordingly, we accept the appeal, set aside the judgments of the courts below and remand the suit to the trial Court for a fresh decision. The costs in this appeal will abide by the final event.