2016 PLP 1258 (CLC)

CH. MUHAMMAD MASOOD JAHANGIR, J.

The facts germane for the disposal of instant civil revision are that Muhammad Yousaf present petitioner (hereinafter to be referred as 'plaintiff') filed a suit for possession before the learned trial court on 31.05.2002 regarding the property measuring 3-Kanal 11-Marla bearing Khawat No.43 Khasra No.64/23/1 (hereinafter to be referred as 'suit property') against Ameer and Mehmood, respondents Nos.1 and 2 only with the assertion that same is owned by him and respondents Nos.1 and 2 being licensees were put into possession and prayed for decree of possession. The said suit was resisted by the said respondents by filing their written statement on 17.02.2003 with the sole ground that suit property had already been exchanged by the plaintiff against the land bearing Khawat No.35 owned by Ayesha (respondent No.3) wife of Mehmood respondent No.1 through an oral agreement settled between the parties in the year 1996. Thereafter Mehmood, Ameer and Ayesha respondents (hereinafter to be referred as 'defendants') filed a suit for specific performance of an oral agreement while mentioning its date of settlement as 03.04.1996 before the learned trial court on 08.03.2003 against the plaintiff with the assertion that the plaintiff had agreed to exchange suit property along with property measuring 02-kanals and 19-marlas bearing Khawat No.46/43 owned by the defendants. The learned trial court consolidated the suit for specific performance of oral agreement to sell instituted by defendants along with the suit for possession filed by the plaintiff and framed the following consolidated issues:- "

1. Whether the plaintiff is owner of the suit property measuring 3-K, 11-M described in the head note of the plaint? OPP

2. Whether the plaintiff is entitled to decree for possession of the suit property against the defendant? OPP

3. Whether the parties entered into an agreement of exchange of land with respect to the suit property and agricultural land owned by the wife of the defendant No.1 ?OPP

4. Whether the defendants are entitled to the decree for specific performance of agreement of exchange of land dated 03.4.1996? OPD

5. Whether the defendants have handed over their property in khewat No.43, kahtooni No. 480 to the plaintiff inconsequence of this alleged agreement of exchange of land and have performed their part? OPD

6. Whether the suit of the defendant is within time? OPP

7. Whether the suit of the defendants is not correctly valued for the purpose of court fees and jurisdiction? If so, what is correct value? OPP

8. Whether the suit of the plaintiff is frivolous and filed just to harass the defendants? OPD

9. Whether the suit is mala fide and the plaintiff has no cause of action to file the present suit? OPP

10. Relief."

2. Both the parties were put to trial, who produced their stock of evidence in pros and cons and after scanning the same the learned trial court dismissed the suit for possession of the plaintiff and decreed the suit for specific performance of oral agreement to sell instituted by the defendants vide judgment and decree dated 23.12.2005, which remained intact when two appeals bearing No. 16/13 of 2007 and 18/13 of 2007 preferred by the plaintiff were dismissed by the learned Addl. District Judge, Vehari vide impugned judgment and decree dated 10.04.2008. Being aggrieved, this single civil revision has been filed by the plaintiff against the above referred consolidated judgments and decrees passed by the two courts below.

3. It is argued by the learned counsel for the plaintiff that the defendants were bound to plead the necessary ingredients of an oral contract, which they desired to be specifically performed to explain that when, where and in whose presence and on what terms and conditions the said oral agreement was settled between the parties, but where pre-requisites of an oral agreement are missing, the plaintiff is not entitled to a decree of specific performance; that in the plaint filed by the defendants neither venue nor the name of witnesses were pleaded and even the terms and conditions of the alleged contract were missing from it, but both the courts below erred in law while decreeing the suit filed by the defendants and dismissing the suit instituted by the plaintiff, and that the impugned judgments are result of misreading and non-reading of evidence, which being nullity in the eye of law are liable to be set aside by allowing this civil revision.

4. Conversely, learned counsel for the defendants has refuted the arguments of learned counsel for the plaintiff and supported the impugned judgments and decrees of the two courts below; that concurrent findings of fact recorded by the two courts below cannot be interfered with by this court while exercising revisional jurisdiction and the instant civil petition is liable to be dismissed.

5. Arguments heard and record perused.

6. The ownership of the plaintiff regarding the suit property is admitted by the defendants and even proved by rendering the copy of Register Haqdaran Zameen for the year 1991-92 (Ex.P.1), copy of Register Haqdaran Zameen for the year 1995-96 (Ex.P.2) and copy of Register Haqdaran Zameen for the year 1999-2000 (Ex.P.3). However, the stance of defendants Nos.1 and 2 in the written statement filed by them on 17.2.2003 in the suit for possession (prior to filing of their suit for specific performance of oral contract) was that the plaintiff had agreed to exchange the suit property along with the property of Ayesha defendant No.3 bearing khewat No.35 without mentioning that against how much property the said transaction was done. It is significant to note that in their written statement, the defendants did not plead date, month, venue and names of witnesses to explain that when, where and before whom the oral exchange contract had been settled between the plaintiff and Ayesha defendant No.3 rather in preliminary objection No.3, it was only pleaded that the said oral agreement had been settled between the parties in the year 1996. However, by filing separate suit for specific performance of oral contract before the learned trial court on 08.03.2003, the defendants, for the first time, pleaded that on 03.04.1996 the alleged oral agreement had been settled by the plaintiff against a different property measuring 2 Kanals 19 Marlas owned by all the defendants bearing Khawat No. 46/43, however, they again failed to plead the venue and names of witnesses to explain that where and before whom the transaction of the alleged transaction was settled.

7. The defendants to prove their alleged oral contract produced Falak Sher (DW/1), who during the cross-examination deposed as under:- However, the other supporting witness, Nawab (DW-2), brought by the defendants into the witness-box, in response to a question put forwarded by the learned counsel for the plaintiff, stated as under: He also deposed that:- He further deposed as under:- The said glaring major contradictions in the statements of DWs have badly damaged the case of the defendants. Falak Sher DW/1 deposed that the other relatives of the defendants were also present, but he could not tell their names. Whereas DW/2 deposed the names of said relatives as Fateh Muhammad, Dur Muhammad and Muhammad Shafi, but admittedly none of them was produced by the defendants in proof of their stance.

8. However, one of the defendants Ayesha Bibi appeared as DW/3, who even did not depose during her examination-in-chief that on what date, month or year the alleged oral agreement had been settled. The first seven lines of her examination-in-chief are important, which in verbatim are reproduced hereunder:- However, during the cross-examination she (DW3) deposed as under:- she further deposed that:- In response to a question put forwarded by the learned counsel for the plaintiff, she (DW3) again replied as under:-

9. A minute perusal of the deposition of Ayesha Bibi (DW.3), reveals that she made the statement in complete departure of the stance, which the defendants pleaded before the learned trial court in the shape of their written statement in the suit for possession filed by the plaintiff wherein defendants Nos.1 and 2 averred that the plaintiff had agreed to exchange the suit property with the property bearing Khawat No.35 owned by Ayesha whereas, as per contents of the plaint in a suit for specific performance of oral contract filed by the defendants, the suit property was exchanged with the property measuring 02-Kanal 19-Marlas bearing Khawat No.46/43 owned by all the defendants. Ayesha DW/3 against her pleadings deposed that property measuring 3-1/2 Kanals, owned by her was exchanged by the defendants with the suit property. whereas the copy of Register Haqdaran Zameen pertaining to year 1999-2000 (Ex.D/1) reflects that Ayesha was only owner of 02-Kanal 19-Marlas. No other documentary evidence was produced to prove her testimony. Even the defendants failed to prove any entry in Register of Khasra gardawari, which proves their stance that at the time of alleged transaction of exchange the possession of the property, which was previously owned by the defendants was also handed over to the plaintiff. Furthermore the other glaring contradiction in the evidence led by DW1 and DW3 has not been captured by the courts below when both of them deposed a different time regarding settlement of bargain of exchange because as observed supra Falak Sher DW/1 deposed that bargain of exchange was settled at 2/3 p.m. whereas Ayesha defendant/DW/3 stated that the said contract was settled prior to 11:00 a.m. The said major contradictions are not ignorable and the defendants, who based their claim on an alleged oral contract without narrating the basic ingredients, in their pleadings badly failed to prove their stance by leading evidence. When the basic ingredients are missing in the plaint, then no evidence can be led on such points as it is settled law that nobody can be allowed to lead evidence in departure of his pleadings. Even none of the witnesses mentioned the exact date regarding settlement of the oral contract, terms and conditions of the contract or the exact specification of the property owned by the defendants, which was allegedly exchanged with the suit property. The critical analysis of the written statement filed by the defendants in the suit for possession as well as their plaint filed in the suit for specific performance of oral agreement with the elapse of 21-days thereafter and the evidence adduced by the defendants has made their posture highly doubtful. Undoubtedly, an oral agreement is valid just like a written contract provided the same fulfills the conditions of a valid agreement and also proved through convincing and strong evidence. In the recent era, the apex court while rendering the judgment reported as Nazir Ahmad and another v. Yousaf (PLD 2011 SC 161) and Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L.Rs. and other (2013 SCMR 1300) has authoritatively held that a suit for specific performance of oral contract wherein beneficiary had neither mentioned the terms and conditions of the bargain nor disclosed the names of witnesses in whose presence the oral agreement to sell was arrived at cannot succeed. There is also no second opinion other than that even in the cases where the agreement is proved by the party relying on the same, the courts may refuse to allow the discretionary relief of specific performance. This view has again been affirmed by the apex court while interpreting Section 22 of the Specific Relief Act, 1877 and referring plethora of judgments in case Farzand Ali and others v. Khuda Bukhsh and others (PLD 2015 SC 187).

10. It is also heart burning to observe that the learned lower appellate court while rendering the impugned judgment, no doubt, referred the evidence of the parties but failed to appreciate with a comparative analysis and even to give its findings on any of the issues settled by the learned trial Court. The observance of the parameters set down in Order XLI, rule 31 of the Code of Civil Procedure, 1908 is mandatory and where appellate court over looks, ignores or fails to consider evidence on record or judgment of appellate court lacks application of mind, it would amount failure to comply therewith. Recital of the judgment passed by the learned lower appellate court must show that he made a sincere endeavor to make proper appraisement of merits of case put forward by the parties, which is, unfortunately, lacking in the judgment of learned lower appellate Court. The basic theme of the provision ibid and its sub-clauses is that the appellate court is bound and obliged to render its independent findings on each point of determination, but in the present case the mandate of law was ignored by the learned lower appellate court, therefore, the impugned judgment is found not qualified to be a judgment in the eye of law and same can be termed as cursory judgment mainly depending upon surmises, although sufficient material in the shape of evidence was available before it. The superior courts time and again have laid down certain principles and made it incumbent upon the appellate court to deal with each and every aspect of the case while hearing the appeal, but the same were ignored by the learned Addl. District Judge while passing the impugned judgment, which is really gloomy on his part.

11. At the fag end of the arguments, learned counsel for defendants has argued that concurrent findings recorded by both the courts below cannot be interfered with by this Court while exercising jurisdiction under Section 115 of Civil Procedure Code, 1908. The said contention is also without any force. Although, the scope of interference with concurrent findings of fact is limited, but such findings can be interfered with by this Court under Section 115, C.P.C. if courts below appeared to have either misread evidence on record or while assessing evidence had omitted from consideration some important piece of evidence, which had direct bearing on the issue involved. In arriving at such view this court is fortified by the dictum laid down in the judgment reported as Abdul Hakeem v. Habibullah and 11 others (1997 SCMR 1139) and the relevant portion thereof is reproduced as under:- "

6. Before considering the contentions of the parties on merit, we would like to mention here that the scope of interference with concurrent finding of fact by the High Court in exercise of its revisional jurisdiction under section 115, C.P.C. is very limited. The High Court while examining the legality of the judgment and decree in exercise of its power under section 115, C.P.C. cannot upset a finding of fact, however erroneous it may be, on reappraisal of evidence and taking a different view of the evidence. Such findings of facts can only be interfered with by the High Court under section 115, C.P.C. if the Courts below have either misread the evidence on record or while assessing or evaluating the evidence have omitted from consideration some important piece of evidence which has direct bearing on the issues involved in the case. The findings of facts will also be open to interference by the High Court under section 115, C.P.C. if the approach of the Courts below to the evidence is perverse meaning thereby that no reasonable person would reach the conclusions arrived at by the Courts below on the basis of the evidence on record." This question has also been dealt with by the august Supreme Court of Pakistan in the judgment report as Muhammad Anwar and others v. Mst. llyas Begum and others (PLD 2013 SC 255) while holding that it is obvious and clear that no Court in the country has the jurisdiction to decide about the rights of the parties wrongly and in violation of law and the Revisional Court has no exception to this rule. It has also been held therein that Court could not pass an order of its liking, solely on the basis of its vision and wisdom, rather it was bound and obligated to render decisions in accordance with law and the law alone. So, this court can decide in which cases the interference is warranted. The circumstance of the instant case to maintain the impugned judgments and decrees, which are found to be illegal, unlawful and perverse being the result of misreading and non-reading of the evidence on the record and surely suffered from excess of jurisdiction exercised by the learned courts below, which is exceptionable by this court in the exercise of revisional jurisdiction. The judgments and decrees passed by both the courts below are tainted with misreading and non-reading of evidence and have been passed in complete derogation of law settled by the apex Court as referred supra, which has rendered the same illegal, unlawful, ultra vires and without jurisdiction.

12. Consequently, the instant civil revision is allowed, the impugned judgments and decrees passed by the learned courts below are hereby set aside and the suit for specific performance on the basis of exchange filed by the defendants is hereby dismissed whereas suit for possession instituted by the plaintiff is decreed with cost throughout. SL/M-316/L Petition accepted