2000 PLP 1208 (MLD)

Date of hearing: 6th November, 1998. This judgment will decide Civil Revision No. 138 of 1998 and Civil Revision No. 85 of 1998 as the same arise out a common judgment and raise common question of law and facts.

2. The petitioner Muhammad Sadiq filed a suit for specific performance of an agreement of sale, dated 24‑3‑1985 purportedly executed by late Ghulam Hussain. It was claimed that late Ghulam Hussain father of the petitioner agreed to sell 1/2 share in a residential house and also in the shop as well as the land underneath and apartment thereto. It was further asserted that the property was later disposed of through a registered sale‑deed in favour of Abdul Ghafoor in violation of the commitments made to the petitioner. The petitioner applied for the enforcement of the agreement on the ground that he was ready and willing to perform his part under the sale agreement.

3. Respondent filed a suit for permanent injunction to restrain the petitioner from making interference into possession of the shop and also the house. It was claimed that the shop and also the house were allegedly in possession of Abdul Ghafoor, respondent, and that the petitioner had no right to make interference in his physical possession. The two suits were . consolidated and were decided by the learned Civil Judge vide the judgment, dated 31‑5‑1994. The suit for specific performance filed by the petitioner was decreed while the suit filed by the respondents for perpetual injunction was dismissed.

4. Feeling aggrieved, the respondent went in appeal. The two appeals were allowed by the learned Additional District Judge vide the judgment, dated 20‑10‑1997 and in consequence the suit for specific performance was dismissed while the suit for injunction was decreed. Civil Revision No. 138 of 1998 arises out of the suit for specific performance while Civil Revision No.85 of 1998 arises of the suit for permanent injunction.

5. Learned counsel for the petitioner argued that the learned Appellate Court dismissed the suit for specific performance on the ground that respondent No. l was bona fide purchaser for value and also as the relief of possession had not been claimed. It was added that neither any issue on these questions were framed nor the parties ever adduced evidence in this regard. Learned counsel submitted that the suit for specific performance was primarily a suit for possession which could not be dismissed on any hyper technical objection. Lastly, it was submitted that no findings were recorded in appeal on the question of grant of decree for permanent injunction, yet Ak suit was decreed.

6. Learned counsel for the respondent argued the case for some time but was unable to justify the impugned judgment rendered in appeal by the learned Additional District Judge.

7. From the perusal of the record, it is evident that the petitioner claimed existence of agreement of sale from his father regarding 1/2 share of the house and also 1/2 of the shop while respondent No.l claimed to have purchased the entire property of his father through registered sale‑deed. The suit for specific performance was resisted by the respondents on the ground that no agreement of sale was ever executed and that it was a fictitious document. It was also added that respondent No.l had no knowledge of the alleged agreement and that he was duly protected in law being a bona fide purchaser. The learned Trial Court did not frame any issue on the question of absence of notice or bona fide purchaser as required under section 27(b) of the Specific Relief Act nor the parties appeared to have attended this part of the controversy. In this view of the matter the learned Additional District Judge, for the first time, could not decide this question without asking the parties to produce evidence. As regards the 'objection to the maintainability of the suit, the same does not appear to be of any substance. The reason being that the suit was in itself for the performance of agreement which is primarily a' suit for possession grant of relief of possession is one of the consequences of enforcement of agreement of sale, and therefore, the Court is competent to grant this relief, rio matter the same has not been specifically asked for. Even otherwise, it is settled law that the, Court can grant relief to a party on the basis of admitted facts on record, no matter a particular part thereof has not been specifically asked for. Reference can be made to the case of Samar Gul v. Central Government and others PLD 1986 Supreme Court

35. It is also a rule that no suit can be dismissed if a particular part of the relief has not been prayed for. At best, the Court can direct the party to amend the plaint and then to decide the suit on merits. Dismissal of the suit on the ground that the relief for possession was not claimed without calling upon the parties to amend the pleadings is not permissible in law. Reference can be made to Ahmad Din v. Muhammad Shafi and others PLD 1971 Supreme Court 762.

8. Faced with this situation, learned counsel for the parties agreed that the cases be remanded to the learned Trial Court, with the direction to frame issues, receive amended pleadings and decide the suits afresh on merits after recording evidence. It is also observed that the learned Additional District Judge did not consider the evidence on the question of grant of relief for perpetual injunction, yet the suit was decreed in appeal. It is pointed out by learned counsel for the respondent that the shop was admittedly in possession of the respondent and the dispute was only in regard to possession of the house. The petitioner claimed to be in possession of the house having placed his articles therein while the respondent claim to be in physical possession of the house in dispute. Learned counsel for the petitioner submitted that the petitioner will not interfere into possession of the respondent qua the shop except in the due course of law but the issue pertaining to possession of the house be left open for determination in the suit.

9. For the reason above, these two revision petitions are allowed, the impugned judgments are set aside and the cases are remanded to the learned Trial Court. The learned Trial Court will decide the suit for specific performance afresh after framing additional issues, receiving amended pleadings and allowing the parties to lead evidence. In the suit for permanent injunction, the petitioner will remain bound by his statement and will not interfere in the possession of the respondent qua the shop in issue otherwise than in due course of law. However, the question as to which one of the party is in possession of the house and whether the respondent is entitled to the relief of perpetual injunction in regard thereto, shall be determined afresh by the learned Trial Court after considering the evidence on record. The parties shall be at liberty to produce additional evidence.

10. The two suits shall be finally decided by the learned trial Court within three months. H.B.T./M‑1)3/L Revision petitions allowed