2008 PLP 378 (MLD)

MAULVI ANWARUL HAQ, J.

On 12-7-1988 respondent No.2 filed a suit against the remaining respondents. The suit questioned a power of attorney' allegedly given by the father of respondent No. 2 in favour of respondent No. 5 on 5-1-1988 and its sale in favour of respondent No.1 on 23-4-1998. Decree for possession was also prayed for after demolition of the super-structure, Respondent No.1 filed a written statement but later all the respondents except LDA were proceeded against ex-parte. The suit was decreed on 1-3-1996. Against this judgment and decree respondent No. 11 filed a first appeal which was dismissed by a learned ADJ on 20-2-2001.

2. On 26-12-2001 the petitioners filed an application under section 12(2), C.P.C. for eating aside of the said judgment and decree of the learned ADJ affirming that of the learned trial Court. It was stated that respondent No. 1 entered into an agreement of sale in favour of the petitioners on 10-11-1988. The consideration was settled at Rs.9,00,

000. A token advance of Rs.5,00,000 was paid and possession was delivered. The agreement was to be performed within five months from the said date. However, respondent No.1 expressed his inability to perform the agreement on the ground that some persons have obtained a stay order regarding the suit property from a civil Court. Notwithstanding the said information the petitioners paid a further sum of Rs. 2,00,000 to respondent No. 1 who executed another agreement on 6-4-1989. It was averred that a fraud has been played on the petitioners in the matter of said judgments and decrees. The application was contested by-respondent Nos.2 and

4. Issues were framed. Evidence of the parties was recorded. The learned ADJ dismissed the application on 24-4-2006.

3. Learned counsel for the petitioners contend that the learned Additional District Judge has acted with material irregularity in the exercise of his jurisdiction while dismissing the application on the sole ground that the agreement being pleaded by the petitioners was entered into pendente lice. According to them since the pendency of the suit was not disclosed by respondent No.1, the matter would not be hit by principles underlying section 52 of the Transfer of Property Act 1882. They rely on the cases of Muhammad Shahban and others v. Falak Sher and others (2007 SCMR 882), Muhammad Aslam and another v. Nazar Muhammad and others (2006 CLC 1804) and Sunni View Cooperative Housing Society v. Irshad Hussain and others (1993 CLC 2336). It has further been argued that rule of caveat emptor has been declared against the injunction of Islam in the case of Wafaq Pakistan v. Awan-ul-Nass (1988 SCMR 2041) and since the possession had been delivered under the agreement the petitioners were fully possessed of locus standi to file the said application.

4. I have gone through the copies of the record with the assistance of the learned counsel. The material contents of the application filed by the petitioners under section 12(2) C.P.C. have already been reproduced above. The agreements relied upon by the petitioners are Ex. A/1, which is dated 10-11-88 and Ex. A/2, which is dated 5-4-89. I have already noted above that the suit had been filed on 12-7-88.

5. So far as the agreement Exh. A/1 is concerned it narrates that the respondent No.1 has agreed to sell the suit property with reference to sale-deed dated 23-4-88 (impugned in the suit) for a consideration of Rs.9,00,

000. A sum of Rs.5,00,000 has been received as earnest money and the balance amount of Rs. 4,00,000 will be paid within 5 months) from the said date. The agreement narrates that the possession will be delivered at the time of registration of the sale-deed. Of course, there is no mention of pendency of any suit in this agreement.

6. However, Ex.A/2 clearly narrates that a suit regarding the Bungalow is pending in a civil Court and stay order stands issued and for this reason the respondent No.1 is unable to perform the agreement and the time is extended accordingly. The exact words are as follows:

This document admittedly bears the signatures of all the three petitioners.

7. The agreement further provides that in case the suit is decided against the respondent No. 1 then he will return the amount received by him from the petitioner with compensation. Further a pro note was c executed by him in the said amount in favour of the petitioners. A person, namely, Abdul Latif is stated to have stood surety for payment of the said amount as well.????

8. I confronted the learned counsel with the said contents of the agreement Ex. A/2 he responds that the particulars of the suit were not provided. I am afraid that once disclosure had been made, whereas they called upon the respondent No.1 to ensure the repayment of the amount advanced by executing a pro note and furnishing surety. It is unbelievable that they had not asked him for particulars of the suit. Even otherwise the agreement clearly narrates that parties stipulated that in case of failure of respondent No. 1 in the suit he will be liable to return back the advanced amount and to compensate the petitioners. The question of execution of the sale-deed and its registration and ultimately transfer in favour of the petitioner could have arisen only in case the suit was to be decided in favour of respondent No.1 and this is so narrated in the agreement.

9. Having thus examined the said records I find that none of the judgments cited by the learned counsel is attracted to the admitted facts of-the present case. It is a case of full disclosure and further stipulation between the parties vis-a-vis the result of the pending suit either way. This civil revision is wholly frivolous and is dismissed in limine. H.B.T./Z-58/L????????????????????????????????????????????????????????????????????????????????????? Revision dismissed.