2003 PLP 1155 (MLD)

Representation

• M.A. Zafar for Petitioners.
• Nemo for Respondents.
• 2. Learned counsel for the petitioners contends that the learned Courts below have misread the evidence on record while passing the impugned judgments and decrees. According to the learned counsel the impugned judgments are not supported by the evidence on record. No one has turned up for (he respondents who are represented by Ch. Muhammad Salim, Advocate whose name stands listed in the cause list for today. Apart from this registered P.C. notices have also been issued to the respondents for today. No one, however, has turned for them despite several calls. They are, however, accordingly proceeded against ex parte.
• 3. I have gone through the copies of the records appended with this civil revision, with the assistance of the learned counsel. I have already referred to the pleadings of the parties in some details above. The agreement being relied upon by the petitioners is on record as Exh.P.1. It is a registered document. The petitioner produced Muhammad Ramzan Bhatti, Advocate as P.W.2 who states that Exh.P.1 was scribed by him on the instructions of respondent No.1 and that he had put his thumb-impressions in his presence and he had entered his N.I.C. No. The witness further states that he also identified respondent No.1 before the Registrar. Nothing material has come out in the cross-examination, P. W.3 is Ashiq Ali who has made a statement in line with the plaint. In rebuttal Lai Muhammad, respondent No.1 appeared as D. W.1. He stated that he had not agreed to sell the land to the petitioners rather had agreed to sell the land to Azhar Iqbal who brought a suit which was decreed; that the father of the petitioners asked him to appoint him as a attorney and he will get the PTD issued. He took him to Mr. Ramzan Bhatti, Advocate but instead of power of attorney an agreement was got fabricated. Thereafter he cancelled the power of attorney. He admitted that he had not mentioned the factum of pendency of the said other suit in his written statement. He does not remember as to which of the two suits was filed earlier. He admitted that Ramzan Bhatti, Advocate had been his counsel and they know each other. D.W.3 is respondent No.2. He stated that he had entered into an agreement on 6-3-1987 with respondent No.1 and had paid him Rs.13,000 and he has got a decree which has not been challenged by the petitioners. He denied the suggestion that there was no agreement and that the decree was obtained collusively.
• 5. Learned A.D.J., on the other hand, has proceeded to reject the testimony of Muhammad Ramzan Bhatti, Advocate, P.W.2 on the ground that Lal Khan was not known to him previously. Much stress has been laid on the stamp paper issued by Haji Muhammad Tufail Chohan on 14-4-1987, for execution of a power of attorney and the learned Additional District Judge has wondered as to how the agreement to sell has been executed on the same. He has also endorsed the view of the learned trial Court that the agreement was without consideration. He has also endorsed the findings of the learned trial Court on Issue No.6-A for the reasons stated therein.
• 6. A bare reading of the agreement would show that the findings of the learned Courts below that the agreement was without consideration, is wholly without any basis. The agreement clearly narrates that the consideration has been settled at Rs.20,000 out of which Rs.2,000 have been paid as earnest money. The reason for rejecting the testimony of Muhammad Ramzan Bhatti, Advocate, P.W.2 is negated in the statement of Lal respondent No.1 as D.W.1 where he has admitted that the said Advocate and the witness know each other. The learned Courts below while directing the petitioners to file an application under section 12(2), C.P.C. completely failed to read Exh.P.4 which is the judgment dated 26-5-1988 of learned District Judge, Okara. Against the said decree dated 7-1-1988 the petitioners had filed am appeal. To this appeal both the respondents were party. The learned District Judge has observed that although the petitioners have a right to file an appeal yet since they have already filed a suit for specific performance of the contract of the same property, according to law the said decree is not binding upon them because they are not party to these proceedings. The learned District Judge further held that the proper remedy is that they should implead respondent No.2 as a party in their own suit and amend pleadings accordingly. It was because of the said findings of the learned District Judge that the appeal was withdrawn. Now this judgment was not challenged by any of the respondents anywhere. This being so, there was no question of the suit being barred by section 12(2), C.P.C. There is no gain saying the fact that the petitioners were not party to the said suit filed by respondent No.2 against respondent No.1 and conceded by the latter on 7-1-1988 vide Exh.P.2.
• 7. It will be pertinent to note here that no attempt was made by the respondents to prove, in fact, to produce the so-called agreement dated 6-3-1987 which was made the basis of the said decree dated 7-1-1988. Another aspect completely lost sight of by the learned Courts below was that it was suggested to the said Advocate P.W.2 by the respondents that on the date when the agreement was executed and registered he had also scribed a power of attorney which was registered. Now according to respondent No.1, he had only given a power of attorney which was converted into an agreement. At the same time it was pleaded that the power of attorney was cancelled later on. Neither a copy of the said power of attorney nor the copy of the said cancellation deed was produced.

Headnotes / Summary

Judgment & Decree