2005 PLP 766 (SCMR)

TANVIR AHMED KHAN, J.

Leave to appeal is sought against the judgment, dated 20-3-2003 whereby a learned Single Judge of the Lahore High Court, Lahore accepted Writ Petition No.2290 of 2000 filed by the private respondent No.5, Mst. Kajal widow of Ansar Ali deceased, within seven days.

2. The facts briefly narrated for the disposal of the petition are that a Toyota Coaster bearing Registration No.1097/IDT was intercepted by the police on 19-10-1998 and took its possession from the petitioner under section 550, Cr.P.C. Prior to it the petitioner filed a declaratory suit claiming a restraint order to the effect that the disputed vehicle be not taken from him. The above suit was, however, dismissed and no further exception was taken to the same. After interception of the vehicle, the petitioner sought its Superdari stating that he purchased the said vehicle from Ansar Ali deceased for a consideration of Rs.6,00,000 and paid Rs.3,00,000 as earnest money and got its possession. Said Ansar Ali, on the other side, denied the stance taken by the petitioner and he too applied for Superdari of the vehicle. The learned Magistrate 1st class, Khushab, through his order dated 14-5-1999 granted the Superdari of the vehicle to the petitioner. During the pendency of the Superdari application said Ansar Ali was murdered on 13-4-1999 and the revision against the Superdari order of the Magistrate was filed by his brother, which was dismissed by the learned Additional Sessions Judge, Khushab, through his order, dated 31-5-1999. Writ Petition No.2290 of 2000 filed before the Lahore High Court, Lahore, by the private respondents, i.e. legal heirs of said Ansar Ali, was accepted by a learned Single Judge vide his judgment dated 20-3-2003 and a direction as mentioned in the opening paragraph was made. Hence, this petition for leave to appeal.

3. The petitioner has only based his claim on an oral agreement allegedly taken place between him and said Ansar Ali whereby it was claimed that he had paid Rs.3,00,000 to him and the remaining amount was still to be paid. However, possession of the vehicle was given by Ansar Ali deceased to the petitioner. A perusal of the documents appended with this petition demonstrates that said Ansar Ali totally denied the stance taken by the petitioner. It would be appropriate at this juncture to reproduce the determination of the learned Civil Judge in dismissing the suit filed by the petitioner, which is in the following terms:-- The plaintiff has not produced any agreement to sell alleged to have been made between the parties with regard to the disputed vehicle. However, in an inquiry by D.I.-G. dated 8-10-1998 it has been reported that transaction had taken place between the parties. As the question of title is in dispute, the suit in its present form is not maintainable. If there is some agreement between the parties and plaintiff has paid Rs.3,00,000 as earnest money the remedy available to him is to file a suit for specific performance of agreement and not the present suit for permanent injunction. As earlier stated, the above judgment was never assailed before any higher forum and the same had attained finality. The learned Single Judge of the Lahore High Court while accepting the writ petition has advanced cogent reasons in support thereof. The petitioner has not brought a single document worth consideration on record as to substantiate his claim. It would be appropriate at this stage to reproduce the determination of the learned Single Judge which is in the following terms:-- The impugned order having been passed in violation of principle of natural justice, no document with regard to payment of earnest money or agreement or any other document having been produced before any Court, specially the finding of Mr. Ghulam Mehdi Khan, Civil Judge 1st Class, Khushab, that Khurram had not produced any agreement to sell alleged to have been made between the parties, the same finding having not been assailed any further, I am of the considered view that the order impugned dated 14-5-1999 is not legal and cannot be sustained. Accordingly, writ petition is accepted and the order, dated 14-5-1999 is set aside. Respondent Khurram Shafi is directed to hand over the vehicle to Mst. Kajal, the widow of Ansar deceased within 7 days from today without fail. Learned counsel for the petitioner has failed to point out any illegality or legal infirmity in the impugned order warranting interference by this Court. Resultantly, for what has been stated above, the instant petition being devoid of any merit is hereby dismissed and leave refused. S.A.K./K-11/S Leave refused.