2007 PLP 2905 (YLR)

JAWWAD S. KHAWAJA, J.

The appellant plaintiff Syed Sadaqat Sultan impugns the concurrent decrees of the learned trial Court dated 14-9-2001 and of the learned Appellate Court dated 21-4-2006 whereby a .suit filed by him seeking specific performance of an agreement dated 30-6-1992 and for cancellation of a decree dated 16-12-1992 along with Mutation No.1116 based on the said decree has been dismissed.

2. The facts of the case are straightforward. The learned. Courts below have held that the aforesaid agreement to sell was, in fact, executed by Bahadur respondent-defendant. At this juncture it may be noted that respondent No.2, namely, Talib Hussain is the son of Bahadur who was the owner/vendor of the suit property. The father and son entered into air arbitration agreement dated 29-11-1992 in respect of the suit property. An arbitrator, namely, Muhammad Nawaz entered upon the reference and rendered an award dated 6-12-1992 whereby the suit property was to be conveyed to the respondent No.2 Talib Hussain. This award was made a rule of the Court vide judgment and decree dated 16-12-1992.: The appellant-plaintiff has been non-suited by the learned Courts below .simply on the ground that he had not sought the setting aside of the aforesaid decree dated 16-12-1992 through an application under section 12(2), C.P.C.

3. Learned counsel for the appellant has, firstly, argued that the premise on which the appellant was non-suited is not legally tenable because even the suit could have been treated as an application under section 12(2), C.P.C. To support this contention, learned counsel has referred to the case titled Noorul Amin. and another v. Muhammad Hashim and 27 others 1992 SCMR 1744. Secondly, it was contended that-the respondents-defendants had not raised any objection to the suit on the ground that it was not maintainable because of section 12(2), C.P.C.

4. Learned counsel for the appellant also argued that in any event the so-called arbitration agreement dated 29-11-1992, the award dated 6-12-1992 and the decree dated 16-12-1992 was collusive between the father and son and was meant solely for the purpose of frustrating the appellant's rights under the agreement to sell dated 30-6-1992. He also pointed out that after the aforesaid decree dated 16-12-1992. Bahadur (respondent No.1) had filed an application under section 12(2), C.P.C. to have the same set aside on the ground that he had previously entered into the agreement dated 30-6-1992 in favour of the appellant. The said application was also withdrawn on 27-2-1996.

5. The above contentions are well-founded and have remained uncontroverted as the respondents have chosen not to appear. They have, therefore, been proceeded against ex parte.

6. The reason prevailing with the learned Courts below for dismissing .the suit of the appellant viz., that the application under section 12(2), C.P.C. was the appropriate remedy for the appellant, is not legally tenable. Learned counsel for the appellant was justified in contending that he was seeking specific performance of au agreement and, therefore, his remedy was by way of tiling a suit. In the suit the transaction between the appellant and the respondent, who are son and father, was also challenged including the award 'dated 6-12-1992 and decree passed thereon dated 16-12-1992.

7. In addition to the above, learned counsel argued that a proper trial was conducted in which the appellant as well., as the respondent produced evidence and, therefore, there was no occasion- for proceedings on the, premise that the appellant could only have filed an application under section 12(2), C.P.C. , to assail ,the ,above ,referred ,decree of 16-12-1992.

8. In the above circumstances, this appeal is allowed and the concurrent decrees of the learned trial Court dated 14-9-2001 and of the learned appellate Court dated 21-4-2006 are set aside. The suit filed by the appellant seeking specific performance of agreement dated 30-6-1992 is decreed, subject to the condition that the appellant deposits the balance outstanding amount of Rs.1,25,000 in the trial Court within 30 days from today. Failing such deposit the appellant's suit shall stand dismissed forthwith without any further order. The appellant shall also be entitled to his .costs throughout. F.B./5-43/L Appeal allowed.