2001 PLP 1925 (MLD)

(1) AIR 1924 PC 162 (Subhadrayammav. Venkatapati Raju); (2) AIR 1926 Lahore 43 (Kesho as v. Tulsi Dass); (3) AIR 1931 PC 100 (Ramanamma v. Viranna); (4) AIR 1920 Lahore 123 (1) (Indar Singh v. Munshi); and (5) PLD 1968 Karachi 723 (Hoshing and others v. Dr. Eddie P. Bharucha and others).

9. On the other hand, learned counsel for the respondents vehemently supports the impugned judgments and decrees by submitting that the same have been passed strictly in accordance with law and facts and no illegality was committed by the learned Courts below declaring the agreement between the parties, if any, violative of section 23 of the Contract Act (IX of 1872). In support of the contentions, reliance has been placed on 1995 CLC 1906 Lahore (Inayat Ali Shah v. Anwar Hussain); PLD 1985 SC 86 (Muhammad Ismail and others v. Mst. Mussarat Zamani and others); PLD 1971 Dacca 112 (Hussain Ali Khan v. Firoza Begum) and PLD 1969 Karachi 221 (Sultan v. Nawab Mouladad).

10. To appreciate the arguments of the learned counsel for the parties, it would be appropriate to reproduce section 23 of the Contract Act:‑‑ "Section

23. What considerations and objects are lawful and what not.‑‑The consideration or object of an agreement is lawful, unless it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.

11. In the facts and circumstances of this case; it is to be ascertained as to how the agreement between the parties, was hit by this provision of the Contract Act.

12. As per the plaintiffs, they have financed the defendant No. l for bringing his suit to a success in order to defeat the suit of the rival pre emptor, so that their possession of the suit land under the sale made in their favour by the vendor/father of respondent No. 1, be protected. However, it is not convincingly established, that for what consideration the respondent No. l filed the pre‑emption suit when he was not to be benefited (allegedly) in case his suit is decreed, as the same was (allegedly) for the benefit of the plaintiffs. It is well‑settled that a lawful agreement i.e. contract' consists of three essentials: (a) Proposal, (b) acceptance, and (c) consideration. In this case, at least the element of consideration for respondent No. 1 is missing and any transaction without consideration cannot be lawfully enforced or on the basis thereof no declaration of any right can be awarded. Reference may safely be made to section 25 of the Contract Act, which, with certain exception lays down that agreement without consideration is void. To show that none of the exception is available here, section 25 is reproduced as under:‑‑ "Section

25. Agreement without consideration vide, unless it is in writing and registered or is a promise to compensate for something done, or is a promise to pay a debt barred by limitation law. An agreement made without consideration is void, unless‑‑‑ (1) It is expressed in writing and registered under the law for the time being in force for the registration of (documents) and is made on account of natural love and ~ affection between parties standing in a near relation to each other; or unless (2) it is a promise to compensate, wholly or in part, a person who has already voluntarily done something for the promisor, or something which the promisor was legally compilable to do, or unless (3) it is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits. In any of these cases, such an agreement is a contract. Explanation 1.‑‑‑Nothing in this section, shall affect the validity as between the donor and donee, of any gift actually made. Explanation 2.‑‑An agreement to which the consent of the promisor is freely given is not valid merely because the consideration is inadequate; but the inadequacy of the consideration may be taken into account by the Court in determining the question whether the consent of the promisor was freely given. "

13. Viewed from another angle, as per the plaintiffs the vendor Gul Muhammad and his son Abdul Razzaq (defendant No.1/respondent No.l) were having strained relations with Karim. Bakhsh and Mst. Nooran (rival pre‑emptors), so they wished that the suit land be not obtained by the (rival pre‑emptors). Reference is made to para. No.2 of the plaint and the statement of Malik Haji one of the plaintiffs. Relevant portion is reproduced:‑‑ It was further deposed by him that his proposal was accepted by them (plaintiffs). Meaning thereby they were mainly persuaded to satisfying the feelings of vengeance and vindication of Abdul Razzaq (defendant No. l/respondent No. l) and his father Gul Muhammad. If this is to be taken as consideration for respondent No. l/defendant No. 1, the alleged agreement is surely hit by section 23 of the Contract Act. There can be no lawful agreement for the purpose of satisfying the negative feelings/desires of one party and thus, to defeat the legitimate right of any other person, in this case, the rival pre‑emptors. It also means that main purpose was also not to enforce the right of pre‑emption of Abdul Razzaq but only to deprive the rival pre‑emptors of their rights available under the law and in this context plaintiffs and the said respondents joined hands with each other, so the element of collusiveness also comes into the picture and this being so the alleged agreement falls within the mischief of section 23 of the Contract Act.

14. Seen this case from another angle, apart from the above dimension, the question as to whether the prayers of the plaintiffs through their suit to the effect that pre‑emption decree dated 1‑7‑1960 passed by the learned Civil Judge in favour of defendant No.l/respondent No.1 Abdul Razzaq be declared unlawful and inoperative qua their rights, could be granted? To me, that answer is in negative. In the pre‑emption suit plaintiffs were also a party and decree was passed against them and the same is binding and cannot be declared unlawful through the instant suit filed by them. Even if the said decree is taken to be collusive one, the plaintiffs/petitioners being a party to the same (as they had given consenting statements in the trial Court) do not have any right legal as well as moral to go beyond the same.

15. Apart from the above reasoning, I am in agreement with the concurrent findings of the learned Courts below with reference to section 23 of the Contract Act and the same are immune from further scrutiny in this petition filed under section 115, C.P.C.

16. The judgments cited by the learned counsel for the respondent No. 1 are helpful to advance his case but the judgments cited by the learned counsel for the petitioners cannot be strictly made applicable to the facts and circumstances of the instant case.

17. Resultantly, the instant revision petition fails and the same is dismissed leaving the parties to bear their own costs. H.B.T./M‑620/L Revision dismissed.