1984 PLP 439 (CLC)

‑‑ O. VII, r. 11 and O. 11, r. 2‑Plaint, rejection of‑Respondent producing certified copy of order passed on his application under O. VII, r. 11 rejecting plaint and same order also mentioning that alleged agreement of sale of property in question was not proved by appellant and other issues also decided against him Trial Court holding that suit was otherwise barred under O. II, r. 2, C. P. C. in view of rejection of plaint‑Appellant failing to explain as to how he got away from effect of order rejecting plaint and finding given in order that agreement of sale was not proved and appellant also failing to satisfy as to correctness of finding of lower Court that case was barred under O. II, r. 2, C. P. C. Appeal dismissed.‑[Plaint]. JUDGMENT S. A. NUSRAT, J.‑This first appeal is directed against the judgment and decree dated 23rd December, 1978 passed in a First Class suit by the learned Senior Judge, Mirpurkhas.

2. The appellant filed Suit No. 150 of 1975 against the respondents for declaration and Specific performance of an alleged Contract of Sale dated 16th March, 1975 in respect of a Shop on plot bearing C. S. No. 403/1, M. A. Jinnah Road, Mirpurkhas. It was alleged that the appellant was already in occupation of the suit premises as a tenant and the respondent No. 1, who is a Lawyer, had negotiated and prepared an agreement, dated 15th March, 1979 incorporating all the terms of contract of sale and was paid Rs. 5,000 as advance against the agreed sale con sideration of Rs. 70,

000. The agreement was drawn up on a Stamp Paper by the respondent No. 1 which was purchased in his own name. The respondent No. 1 was about to sign the agreement when he was called away by the respondent No. 2 as the latter was interested in the purchase of the property. The respondent No. 1' latter sold the suit property to the respondent No. 2 by a Registered Deed, dated 2nd' April, 1975. On the facts as stated above, the burden of proving the alleged agreement of sale lay heavily on the appellant which he attempted to prove by producing the Agreement drawn up on Stamp Paper and by his own oral evidence and also through a witness. The appellant had earlier filed a T. C. Suit No. 40 of 1975 against the respondent No. 1 seeking refund of the amount of Rs. 5,000 paid under the alleged agreement and fore compensation. In cross‑examination the appellant feigned ignorance about the outcome of the suit. The respondent No. 1, however, produced certified copy of the order dated 21st May, 1975 passed on his applica tion under Order VII, rule 11, C.P.C. rejecting the plaint. The said order also mentioned that the alleged agreement of sale was not proved. On such facts the learned Court below held that the agreement of sale was not proved by the. appellant and the other material issues were also decided against the appellant. The learned Senior Civil Judge further held that the suit was otherwise also barred under Order II, rule 2, C. P. C. in view of the rejection of the plaint of T. C. Suit No. 40 of 1975.

3. Mr. Sadiq Ali Khoja, learned counsel for the appellant contend ed that it was immaterial that the respondent No. 1 had not signed the agreement because a contract of sale could also be oral and implied from the circumstances of the case. He was unable to cite any case law touching upon the facts of the instant case. Besides he could not explain as to how the appellant could get away from the effect of the order, dated 21st May, 1977 rejecting plaint of his T. C. Suit No. 40 of 1975 and the finding given in the order that the agreement of sale was not proved. He was further unable to satisfy us as to the correctness of the finding of the learned Court below that the suit was barred under Order II, Rule 2, C. P. C.

4. For the reasons given above we find no substance in this appeal which is dismissed summarily. M.Y.M. Appeal dismissed.