P L D 1985 Lahore 523 (PLP)

(c) Civil Procedure Code (V of 1908)- --) O. VI, r. 17-Amendment of plaint-Court not empowered suo motu to direct plaintiff to amend plaint-Course to be adopted by Court in such matters stated. A Court has no power suo motu to direct the plaintiffs to amend the plaint. The best course if the Court was desirous of doing substantial justice between the parties was that the attention of the plaintiffs should have been drawn to the defect in the pleadings so that the same could be remedied and on such a suggestion a party might apply for amendment of pleadings. Neither any oral request nor a written application could be granted in anticipation as the request as and when made was to be dealt with and disposed of on its own merits after hearing the opposite-party. Link Mirza Manzoor Ahmad for Appellants. M. Z. Khan Burki for Respondents. Dates of hearing : 2nd and 3rd February, 1985. JUDGMENT This first appeal is directed against the order dated 15-12-1980 of the learned District Judge, Multan whereby the appeal of the respondents-plaintiffs was accepted, the judgment and decree of the learned trial Court rejecting the plaint under Order VII, rule 11, C. P. C. was set aside and the suit was remanded for the framing of issues and for trial in accordance with law. The learned first appellate Court also observed that if the respondents-plaintiffs are desirous to convert their suit into a: suit for specific performance of agreement of sale their application shall be granted by the learned trial Judge and they will also be directed to make up deficiency in the court-fee and submit an amended plaint and then if such an occasion arises after obtaining fresh written statements the issues will be framed. The appellants were also restrained from interfering in possession of the respondents-plaintiffs over the disputed land or alienating the same or getting the same partitioned till the decision of the suit.

2. The facts necessary for appreciating the respective pleas are that on 16-5-77 the respondents-plaintiffs instituted a suit for perpetual injunction against the appellants-defendants so as to restrain them from interfering in their possession of the suit land or alienating the same or getting the same partitioned. According to the averments contained in the ??? plaint the suit land was owned by Mst. Sbaram Khatoon who after the death of her husband Qadir Bakhsh had married Fazal Hussain respondent. Mst. Sharam Khatoon since deceased during her life time agreed to make sale of the disputed property by executing an agreement to sell on 29-1-1977 which was registered on 31-1-1977. It was also maintained that the sale price of the disputed property was fixed at Rs. 2,25,000 out of which they paid an amount of Rs. 1,10,000 before the Sub Registrar Multan at the time of registration of the said agreement. Ii was also avered that said Mst. Sharam Khatoon transferred the possession of the disputed property to them and in this respect she as well as her husband Fazal Hussain respondent executed the document on 29-1-1977. This agreement of sale had to be completed by 29-7-1977 but Mst. Sharam Khatoon died two months before the filing of the suit and the appellants defendants the legal representatives of Mst. Sharam Khatoon were out to interfere in the possession of the respondents-plaintiffs over the land in dispute in violation of the agreement to sell and in order to cause loss to the respondents-plaintiffs they were planning to alienate the land after having it partitioned in spite of the fact that as legal representatives of Mst. Sbarm Khatoon they were bound to abide by the agreement to sell and in law had no right to act in any manner contrary to the said agreement. It was further stated in the plaint that the cause of action accrued two days prior to the institution of the suit as despite being asked the defendants had refused to refrain from acting in violation of the agreement. Alongwith the suit a usual temporary injunction application seeking the same relief as was sought in the plaint till the decision of the suit was filed.

3. The stay application as well as the suit were resisted by the appellants-defendants by taking preliminary, objection as to the maintainability of the suit in the present form. On merits it was pleaded that Fazal Hussain who was cited as a defendant in the suit was not the husband of Mst. Sharam Khatoon as the nikah was never performed and that in fact Fazal Hussain who was a clever person was only a karinda of Mst. Sharam Khatoon and his name was included illegally in the mutation of inheritance due to manipulation, fraud and collusion of the revenue staff and defendants Nos. 2 and

3. It was further alleged that Mst. Sharam Khatoon had neither received any alleged consideration nor had ever executed any agreement to sell and so the said agreement was without consideration, fictitious and void. The defendants filed separate written statements on 7-10-1978 and 26-5-1980. The learned trial Court after hearing the parties held that the suit had been instituted by the respondents-plaintiff in an improper form to avoid payment of court-fee and the same was not maintainable as they were bound to institute a suit for specific performance of the agreement of sale. The plaint was accordingly rejected under Order VII, rule 11, C. P. C and the application for grant of temporary injunction was also dismissed. As, the appeal filed by the respondents-plaintiffs succeeded the defendants legal representatives of Mst. Sharam Khatoon thereafter filed the present appeal.

4. I have heard the learned counsel for the parties and have gone through the record of the learned Courts below. The learned District Judge accepted the plea of the learned counsel for the respondents plaintiffs that the suit as filed was maintainable under section 53-A of the Transfer of Property Act as the respondents-plaintiffs claimed to be in possession of the suit land on the basis of registered agreement of sale, so the theory of part performance fully applied and the transferee was entitled to the protection envisaged by the aforesaid provision of law. It was also noted that the suit was instituted on 16-5-1977 and according to the agreement the sale was to be completed by 29-7-1977 and as the respondents-plaintiffs were willing and ready to perform their part of the contract they could institute the suit for perpetual injunction as dispossession was apprehended. The learned first appellate Court was also of the view that the learned trial Judge acted in haste while rejecting the plaint under Order VII, rule 11, C. P. C. despite the fact that the present suit could be converted into a suit for specific performance of the agreement of sale in view of the rule laid down in S. Sibtain Fazli v. Star Film Distributors (P L D 1964 S C 337). Having examined the matter in this context the learned District Judge observed that in case an application is made before the learned trial Court, it shall be bound to grant the same in view of the aforesaid authority. In this perspective the other observations made by the learned District Judge were that the suit in the present form was maintainable and if the plaintiffs are desirous to convert the same into a suit for specific performance they shall have to pay the prescribed court fee. Thereafter, the order of rejection of plaint was set aside and the direction as noted above was made.

5. Learned counsel for the respondents-plaintiff is in defence of this appeal has referred me to the afore-noted observations and the finding of the learned District Judge. He has also referred to Akhtar Begum v. Mian Aziz (N L? R 1981 A C 545) wherein it was held that rights under an unregistered agreement which is partly performed are enforceable if the other conditions stand satisfied and that the plaintiff can be granted a declaration that he is in possession of property under an enforceable contract of sale in iris favour and the defendants or the persons claiming under them are restrained from interfering in plaintiff's possession. Learned counsel for the appellants-defendants on the other hand argued that the suit as filed was not maintainable and despite the objection taken as to its non-maintainability in the written statement, dated 7-10-1978 no request for converting the suit into one for specific performance was made and in these circumstances the learned trial Court was right in rejecting the plaint on 17.9-1980. It was also argued that even before the appellate Court no application seeking amendment regarding specific performance of the contract was filed and that the learned appellate Court on its own observed that in case an application for specific performance is made the Court is bound to grant the same. It was argued that the respondents-plaintiffs having failed to seek specific performance neither a declaration of title nor the perpetual injunction could legally be granted. In support of this submission reliance was placed on Dr. Faqir Muhammad v. Major Amir Muhammad (1982 S C M R 1178) and Ghulam Nabi v. Seth Muhammad Yaqoob (P L D 1983 S C 344,). It is true that in certain situations like the one noted in Akhtar Begum v. Mian Aziz (N L R 1981 A C 545) the suit for declaration that the plaintiff is in possession of property under an enforceable contract of sale and as such the defendants and the persons claiming under them are restrained from interfering with such possession can be granted. I may add that the case of Akhtar Begum (supra) is distinguishable on facts. In that case the plaintiff in the plaint after its amendment claimed that he had become the owner of the land having purchased it from Wasiq Billa by paying entire price prior to the sale in favour of the other party i. e. subsequent purchaser but as he was apprehending ouster from the land at the hands of the said subsequent purchaser, he sought an injunction restraining interference in his possession of the land. In the instant case the averments made were that the legal representatives of Mst. Sharam Khatoon were not entitled to act in violation of the agreement to sell executed by their predecessor-in interest. Moreover, in the plaint nowhere it was specifically asserted that the respondents-plaintiffs were ready and willing to perform their part of the contract. It is also pertinent to note that the bargain was to be completed as per recitals of the agreement to sell by 29-7-1977. It was admitted in the plaint that Mst. Sharam Khatoon had expired two months earlier and thereafter her legal representatives were not considering themselves bound by the said agreement and were out to resile from the said agreement and to act in violation thereof. In these circumstances the cause of action accrued to the respondents-plaintiffs to sue for the specific performance of the contract admittedly two days prior to the institution of the suit or in the alternative the cause of action to sue for specific performance of the contract accrued on 29 -7-1977 i. e. the date fixed for completing the contract, given in the agreement to sell itself. The respondents-plaintiffs despite the objection taken as early as on 7-10-1978 the date on which the written statement was filed did not move the trial Court till the rejection of the plaint on 17-9-1960 for amendment of the plaint so as to convert the suit into a suit for specific performance. It will, therefore, be seen that the period of limitation under Article 113 of the Limitation Act to file a suit for specific performance expired firstly in May, 1980 or at best on 29th of October, 1980. It was held in Muhammad Nawaz v. Mian Muhammad Anwar Abbasi (P L D 198?. B J 33) that "the recitals in the document and the statement of the plaintiff establish that it is a mere agreement to sell. Such a document does not create any right, title and interest in the property and the suit for declaration of title on the basis of such document is not maintainable". In the case of Dr. Faqir Muhammad v. Major Amir Muhammad declaration was sought that the plaintiff was an owner of plot allotted to him - under the Punjab Urban Improvement Act. The learned Judges observed that the agreement simply required construction of the plot but no title was transferred and as such the suit was not maintainable as the plaintiff claimed relief only for declaration with regard to his legal character as owner of the plot. In the case of S. Sibtain Fazli (supra) the dispute pertained to transfer of cinematograph film and it was observed that the suit for declaration and mandatory injunction may be treated as one for specific performance after taking into consideration the substance of the plaint. In the majority judgment it was observed that there was no difficulty in holding the said suit to be one for specific performance as in the suit for specific performance the plaintiff would have to ask for possession of the dupe negative on payment of the balance consideration. This is the relief which the plaintiff has substantially prayed for though he has put it in the form of mandatory injunction to deliver possession. It was further observed that the trial Court found that the mandatory injunction included a prayer for possession of the dupe negative and it directed the plaintiff to pay the full court-fee on the amount of consideration which would have to be paid in a suit for possession and the plaintiff had also paid that court-fee. However, in the present suit the same situation does not prevail as the respondents-plaintiffs neither maintained that they were ready and willing .to perform their part of the contract by paying the price nor they have deposited the balance of the consideration till date in Court nor they had offered to pay the same. In these circumstances the learned trial Court was right in observing the? suit was filed in this form in order to avoid the payment of the prescribed court-fee. Besides this the intention to avoid the payment of the balance price and to remain in possession as long as possible is apparent. It may he noted that respondents alleged that they are in possession of the suit land though t-is assertion was repudiated in the written statement filed by the appellants-defendants and in support of their version a copy of the Register Haqdaran Zamin was placed on record.

6. The most important feature of the case is that the respondents. plaintiffs never thought of amending the plaint and neither in the trial Court nor in the appellate Court even an oral request seems to have been made to allow conversion of the suit into a suit for specific performance. The learned appellate Court suo motu raised the question that in case such an application is made the same shall have to be granted and then set aside the order of the learned trial Court and remanded the suit for fresh trial with the direction that in case an application for amendment is moved the same shall be granted and then the suit be tried if the respondents plaintiffs pay the requisite court-fee. The question is whether in these circumstances the order rejecting the plaint could be set aside and whether a direction to grant the amendment application could be passed in anticipation of the filing of such an application. I am of the view that the learned appellate Court misdirected itself in setting aside the rejection order and in directing that such an application as and when moved shall be granted. To my mind a Court has no power suo Motu to direct the respondents-plaintiffs to amend the plaint. The best course if the Court was desirous of doing substantial Cave between the parties was that the attention of the plaintiffs should have been drawn to the defect in the pleadings so that the same could be remedied and on such a suggestion a party may apply for amendment of pleadings. Neither any oral request nor a written application can be granted in anticipation as the request as and when made is to be dealt with and disposed of on its own merits after hearing the opposite party. A perusal of the impugned order of remand would show that the same was based on the assumption that n Court is bound to grant an application for conversion of the suit. The order rejecting the plaint was set aside in order to 'provide an opportunity to the respondents-plaintiffs to move such an application and such an application in anticipation of its submission was also granted. The appellate Court as' such was conscious that the suit as filed was not maintainable. An application having not been moved before the appellate Court no basis existed for it to set aside the order of the learned trial Court. In view of the pleadings of the parties it was not right to assume that the possession of the land in suit was with the respondents-plaintiffs. That question was yet to be gone into. For all these reasons I have no hesitation in holding that the suit as filed was not maintainable. Accordingly by accepting the appeal the impugned remand order of the learned District Judge is set aside and that of the trial Court rejecting the plaint is restored. The respondents-plaintiffs shall also pay the costs of this appeal. M B A? Appeal accepted (c) Civil Procedure Code (V of 1908)- --) O. VI, r. 17-Amendment of plaint-Court not empowered suo motu to direct plaintiff to amend plaint-Course to be adopted by Court in such matters stated. A Court has no power suo motu to direct the plaintiffs to amend the plaint. The best course if the Court was desirous of doing substantial justice between the parties was that the attention of the plaintiffs should have been drawn to the defect in the pleadings so that the same could be remedied and on such a suggestion a party might apply for amendment of pleadings. Neither any oral request nor a written application could be granted in anticipation as the request as and when made was to be dealt with and disposed of on its own merits after hearing the opposite-party. Mirza Manzoor Ahmad for Appellants. M. Z. Khan Burki for Respondents. Dates of hearing : 2nd and 3rd February, 1985. JUDGMENT This first appeal is directed against the order dated 15-12-1980 of the learned District Judge, Multan whereby the appeal of the respondents-plaintiffs was accepted, the judgment and decree of the learned trial Court rejecting the plaint under Order VII, rule 11, C. P. C. was set aside and the suit was remanded for the framing of issues and for trial in accordance with law. The learned first appellate Court also observed that if the respondents-plaintiffs are desirous to convert their suit into a: suit for specific performance of agreement of sale their application shall be granted by the learned trial Judge and they will also be directed to make up deficiency in the court-fee and submit an amended plaint and then if such an occasion arises after obtaining fresh written statements the issues will be framed. The appellants were also restrained from interfering in possession of the respondents-plaintiffs over the disputed land or alienating the same or getting the same partitioned till the decision of the suit.

2. The facts necessary for appreciating the respective pleas are that on 16-5-77 the respondents-plaintiffs instituted a suit for perpetual injunction against the appellants-defendants so as to restrain them from interfering in their possession of the suit land or alienating the same or getting the same partitioned. According to the averments contained in the ??? plaint the suit land was owned by Mst. Sbaram Khatoon who after the death of her husband Qadir Bakhsh had married Fazal Hussain respondent. Mst. Sharam Khatoon since deceased during her life time agreed to make sale of the disputed property by executing an agreement to sell on 29-1-1977 which was registered on 31-1-1977. It was also maintained that the sale price of the disputed property was fixed at Rs. 2,25,000 out of which they paid an amount of Rs. 1,10,000 before the Sub Registrar Multan at the time of registration of the said agreement. Ii was also avered that said Mst. Sharam Khatoon transferred the possession of the disputed property to them and in this respect she as well as her husband Fazal Hussain respondent executed the document on 29-1-1977. This agreement of sale had to be completed by 29-7-1977 but Mst. Sharam Khatoon died two months before the filing of the suit and the appellants defendants the legal representatives of Mst. Sharam Khatoon were out to interfere in the possession of the respondents-plaintiffs over the land in dispute in violation of the agreement to sell and in order to cause loss to the respondents-plaintiffs they were planning to alienate the land after having it partitioned in spite of the fact that as legal representatives of Mst. Sbarm Khatoon they were bound to abide by the agreement to sell and in law had no right to act in any manner contrary to the said agreement. It was further stated in the plaint that the cause of action accrued two days prior to the institution of the suit as despite being asked the defendants had refused to refrain from acting in violation of the agreement. Alongwith the suit a usual temporary injunction application seeking the same relief as was sought in the plaint till the decision of the suit was filed.

3. The stay application as well as the suit were resisted by the appellants-defendants by taking preliminary, objection as to the maintainability of the suit in the present form. On merits it was pleaded that Fazal Hussain who was cited as a defendant in the suit was not the husband of Mst. Sharam Khatoon as the nikah was never performed and that in fact Fazal Hussain who was a clever person was only a karinda of Mst. Sharam Khatoon and his name was included illegally in the mutation of inheritance due to manipulation, fraud and collusion of the revenue staff and defendants Nos. 2 and

3. It was further alleged that Mst. Sharam Khatoon had neither received any alleged consideration nor had ever executed any agreement to sell and so the said agreement was without consideration, fictitious and void. The defendants filed separate written statements on 7-10-1978 and 26-5-1980. The learned trial Court after hearing the parties held that the suit had been instituted by the respondents-plaintiff in an improper form to avoid payment of court-fee and the same was not maintainable as they were bound to institute a suit for specific performance of the agreement of sale. The plaint was accordingly rejected under Order VII, rule 11, C. P. C and the application for grant of temporary injunction was also dismissed. As, the appeal filed by the respondents-plaintiffs succeeded the defendants legal representatives of Mst. Sharam Khatoon thereafter filed the present appeal.

4. I have heard the learned counsel for the parties and have gone through the record of the learned Courts below. The learned District Judge accepted the plea of the learned counsel for the respondents plaintiffs that the suit as filed was maintainable under section 53-A of the Transfer of Property Act as the respondents-plaintiffs claimed to be in possession of the suit land on the basis of registered agreement of sale, so the theory of part performance fully applied and the transferee was entitled to the protection envisaged by the aforesaid provision of law. It was also noted that the suit was instituted on 16-5-1977 and according to the agreement the sale was to be completed by 29-7-1977 and as the respondents-plaintiffs were willing and ready to perform their part of the contract they could institute the suit for perpetual injunction as dispossession was apprehended. The learned first appellate Court was also of the view that the learned trial Judge acted in haste while rejecting the plaint under Order VII, rule 11, C. P. C. despite the fact that the present suit could be converted into a suit for specific performance of the agreement of sale in view of the rule laid down in S. Sibtain Fazli v. Star Film Distributors (P L D 1964 S C 337). Having examined the matter in this context the learned District Judge observed that in case an application is made before the learned trial Court, it shall be bound to grant the same in view of the aforesaid authority. In this perspective the other observations made by the learned District Judge were that the suit in the present form was maintainable and if the plaintiffs are desirous to convert the same into a suit for specific performance they shall have to pay the prescribed court fee. Thereafter, the order of rejection of plaint was set aside and the direction as noted above was made.

5. Learned counsel for the respondents-plaintiff is in defence of this appeal has referred me to the afore-noted observations and the finding of the learned District Judge. He has also referred to Akhtar Begum v. Mian Aziz (N L? R 1981 A C 545) wherein it was held that rights under an unregistered agreement which is partly performed are enforceable if the other conditions stand satisfied and that the plaintiff can be granted a declaration that he is in possession of property under an enforceable contract of sale in iris favour and the defendants or the persons claiming under them are restrained from interfering in plaintiff's possession. Learned counsel for the appellants-defendants on the other hand argued that the suit as filed was not maintainable and despite the objection taken as to its non-maintainability in the written statement, dated 7-10-1978 no request for converting the suit into one for specific performance was made and in these circumstances the learned trial Court was right in rejecting the plaint on 17.9-1980. It was also argued that even before the appellate Court no application seeking amendment regarding specific performance of the contract was filed and that the learned appellate Court on its own observed that in case an application for specific performance is made the Court is bound to grant the same. It was argued that the respondents-plaintiffs having failed to seek specific performance neither a declaration of title nor the perpetual injunction could legally be granted. In support of this submission reliance was placed on Dr. Faqir Muhammad v. Major Amir Muhammad (1982 S C M R 1178) and Ghulam Nabi v. Seth Muhammad Yaqoob (P L D 1983 S C 344,). It is true that in certain situations like the one noted in Akhtar Begum v. Mian Aziz (N L R 1981 A C 545) the suit for declaration that the plaintiff is in possession of property under an enforceable contract of sale and as such the defendants and the persons claiming under them are restrained from interfering with such possession can be granted. I may add that the case of Akhtar Begum (supra) is distinguishable on facts. In that case the plaintiff in the plaint after its amendment claimed that he had become the owner of the land having purchased it from Wasiq Billa by paying entire price prior to the sale in favour of the other party i. e. subsequent purchaser but as he was apprehending ouster from the land at the hands of the said subsequent purchaser, he sought an injunction restraining interference in his possession of the land. In the instant case the averments made were that the legal representatives of Mst. Sharam Khatoon were not entitled to act in violation of the agreement to sell executed by their predecessor-in interest. Moreover, in the plaint nowhere it was specifically asserted that the respondents-plaintiffs were ready and willing to perform their part of the contract. It is also pertinent to note that the bargain was to be completed as per recitals of the agreement to sell by 29-7-1977. It was admitted in the plaint that Mst. Sharam Khatoon had expired two months earlier and thereafter her legal representatives were not considering themselves bound by the said agreement and were out to resile from the said agreement and to act in violation thereof. In these circumstances the cause of action accrued to the respondents-plaintiffs to sue for the specific performance of the contract admittedly two days prior to the institution of the suit or in the alternative the cause of action to sue for specific performance of the contract accrued on 29 -7-1977 i. e. the date fixed for completing the contract, given in the agreement to sell itself. The respondents-plaintiffs despite the objection taken as early as on 7-10-1978 the date on which the written statement was filed did not move the trial Court till the rejection of the plaint on 17-9-1960 for amendment of the plaint so as to convert the suit into a suit for specific performance. It will, therefore, be seen that the period of limitation under Article 113 of the Limitation Act to file a suit for specific performance expired firstly in May, 1980 or at best on 29th of October, 1980. It was held in Muhammad Nawaz v. Mian Muhammad Anwar Abbasi (P L D 198?. B J 33) that "the recitals in the document and the statement of the plaintiff establish that it is a mere agreement to sell. Such a document does not create any right, title and interest in the property and the suit for declaration of title on the basis of such document is not maintainable". In the case of Dr. Faqir Muhammad v. Major Amir Muhammad declaration was sought that the plaintiff was an owner of plot allotted to him - under the Punjab Urban Improvement Act. The learned Judges observed that the agreement simply required construction of the plot but no title was transferred and as such the suit was not maintainable as the plaintiff claimed relief only for declaration with regard to his legal character as owner of the plot. In the case of S. Sibtain Fazli (supra) the dispute pertained to transfer of cinematograph film and it was observed that the suit for declaration and mandatory injunction may be treated as one for specific performance after taking into consideration the substance of the plaint. In the majority judgment it was observed that there was no difficulty in holding the said suit to be one for specific performance as in the suit for specific performance the plaintiff would have to ask for possession of the dupe negative on payment of the balance consideration. This is the relief which the plaintiff has substantially prayed for though he has put it in the form of mandatory injunction to deliver possession. It was further observed that the trial Court found that the mandatory injunction included a prayer for possession of the dupe negative and it directed the plaintiff to pay the full court-fee on the amount of consideration which would have to be paid in a suit for possession and the plaintiff had also paid that court-fee. However, in the present suit the same situation does not prevail as the respondents-plaintiffs neither maintained that they were ready and willing .to perform their part of the contract by paying the price nor they have deposited the balance of the consideration till date in Court nor they had offered to pay the same. In these circumstances the learned trial Court was right in observing the? suit was filed in this form in order to avoid the payment of the prescribed court-fee. Besides this the intention to avoid the payment of the balance price and to remain in possession as long as possible is apparent. It may he noted that respondents alleged that they are in possession of the suit land though t-is assertion was repudiated in the written statement filed by the appellants-defendants and in support of their version a copy of the Register Haqdaran Zamin was placed on record.

6. The most important feature of the case is that the respondents. plaintiffs never thought of amending the plaint and neither in the trial Court nor in the appellate Court even an oral request seems to have been made to allow conversion of the suit into a suit for specific performance. The learned appellate Court suo motu raised the question that in case such an application is made the same shall have to be granted and then set aside the order of the learned trial Court and remanded the suit for fresh trial with the direction that in case an application for amendment is moved the same shall be granted and then the suit be tried if the respondents plaintiffs pay the requisite court-fee. The question is whether in these circumstances the order rejecting the plaint could be set aside and whether a direction to grant the amendment application could be passed in anticipation of the filing of such an application. I am of the view that the learned appellate Court misdirected itself in setting aside the rejection order and in directing that such an application as and when moved shall be granted. To my mind a Court has no power suo Motu to direct the respondents-plaintiffs to amend the plaint. The best course if the Court was desirous of doing substantial Cave between the parties was that the attention of the plaintiffs should have been drawn to the defect in the pleadings so that the same could be remedied and on such a suggestion a party may apply for amendment of pleadings. Neither any oral request nor a written application can be granted in anticipation as the request as and when made is to be dealt with and disposed of on its own merits after hearing the opposite party. A perusal of the impugned order of remand would show that the same was based on the assumption that n Court is bound to grant an application for conversion of the suit. The order rejecting the plaint was set aside in order to 'provide an opportunity to the respondents-plaintiffs to move such an application and such an application in anticipation of its submission was also granted. The appellate Court as' such was conscious that the suit as filed was not maintainable. An application having not been moved before the appellate Court no basis existed for it to set aside the order of the learned trial Court. In view of the pleadings of the parties it was not right to assume that the possession of the land in suit was with the respondents-plaintiffs. That question was yet to be gone into. For all these reasons I have no hesitation in holding that the suit as filed was not maintainable. Accordingly by accepting the appeal the impugned remand order of the learned District Judge is set aside and that of the trial Court rejecting the plaint is restored. The respondents-plaintiffs shall also pay the costs of this appeal. M B A? Appeal accepted Mirza Manzoor Ahmad for Appellants. M. Z. Khan Burki for Respondents. Dates of hearing : 2nd and 3rd February, 1985. This first appeal is directed against the order dated 15-12-1980 of the learned District Judge, Multan whereby the appeal of the respondents-plaintiffs was accepted, the judgment and decree of the learned trial Court rejecting the plaint under Order VII, rule 11, C. P. C. was set aside and the suit was remanded for the framing of issues and for trial in accordance with law. The learned first appellate Court also observed that if the respondents-plaintiffs are desirous to convert their suit into a: suit for specific performance of agreement of sale their application shall be granted by the learned trial Judge and they will also be directed to make up deficiency in the court-fee and submit an amended plaint and then if such an occasion arises after obtaining fresh written statements the issues will be framed. The appellants were also restrained from interfering in possession of the respondents-plaintiffs over the disputed land or alienating the same or getting the same partitioned till the decision of the suit.

2. The facts necessary for appreciating the respective pleas are that on 16-5-77 the respondents-plaintiffs instituted a suit for perpetual injunction against the appellants-defendants so as to restrain them from interfering in their possession of the suit land or alienating the same or getting the same partitioned. According to the averments contained in the ??? plaint the suit land was owned by Mst. Sbaram Khatoon who after the death of her husband Qadir Bakhsh had married Fazal Hussain respondent. Mst. Sharam Khatoon since deceased during her life time agreed to make sale of the disputed property by executing an agreement to sell on 29-1-1977 which was registered on 31-1-1977. It was also maintained that the sale price of the disputed property was fixed at Rs. 2,25,000 out of which they paid an amount of Rs. 1,10,000 before the Sub Registrar Multan at the time of registration of the said agreement. Ii was also avered that said Mst. Sharam Khatoon transferred the possession of the disputed property to them and in this respect she as well as her husband Fazal Hussain respondent executed the document on 29-1-1977. This agreement of sale had to be completed by 29-7-1977 but Mst. Sharam Khatoon died two months before the filing of the suit and the appellants defendants the legal representatives of Mst. Sharam Khatoon were out to interfere in the possession of the respondents-plaintiffs over the land in dispute in violation of the agreement to sell and in order to cause loss to the respondents-plaintiffs they were planning to alienate the land after having it partitioned in spite of the fact that as legal representatives of Mst. Sbarm Khatoon they were bound to abide by the agreement to sell and in law had no right to act in any manner contrary to the said agreement. It was further stated in the plaint that the cause of action accrued two days prior to the institution of the suit as despite being asked the defendants had refused to refrain from acting in violation of the agreement. Alongwith the suit a usual temporary injunction application seeking the same relief as was sought in the plaint till the decision of the suit was filed.

3. The stay application as well as the suit were resisted by the appellants-defendants by taking preliminary, objection as to the maintainability of the suit in the present form. On merits it was pleaded that Fazal Hussain who was cited as a defendant in the suit was not the husband of Mst. Sharam Khatoon as the nikah was never performed and that in fact Fazal Hussain who was a clever person was only a karinda of Mst. Sharam Khatoon and his name was included illegally in the mutation of inheritance due to manipulation, fraud and collusion of the revenue staff and defendants Nos. 2 and

3. It was further alleged that Mst. Sharam Khatoon had neither received any alleged consideration nor had ever executed any agreement to sell and so the said agreement was without consideration, fictitious and void. The defendants filed separate written statements on 7-10-1978 and 26-5-1980. The learned trial Court after hearing the parties held that the suit had been instituted by the respondents-plaintiff in an improper form to avoid payment of court-fee and the same was not maintainable as they were bound to institute a suit for specific performance of the agreement of sale. The plaint was accordingly rejected under Order VII, rule 11, C. P. C and the application for grant of temporary injunction was also dismissed. As, the appeal filed by the respondents-plaintiffs succeeded the defendants legal representatives of Mst. Sharam Khatoon thereafter filed the present appeal.

4. I have heard the learned counsel for the parties and have gone through the record of the learned Courts below. The learned District Judge accepted the plea of the learned counsel for the respondents plaintiffs that the suit as filed was maintainable under section 53-A of the Transfer of Property Act as the respondents-plaintiffs claimed to be in possession of the suit land on the basis of registered agreement of sale, so the theory of part performance fully applied and the transferee was entitled to the protection envisaged by the aforesaid provision of law. It was also noted that the suit was instituted on 16-5-1977 and according to the agreement the sale was to be completed by 29-7-1977 and as the respondents-plaintiffs were willing and ready to perform their part of the contract they could institute the suit for perpetual injunction as dispossession was apprehended. The learned first appellate Court was also of the view that the learned trial Judge acted in haste while rejecting the plaint under Order VII, rule 11, C. P. C. despite the fact that the present suit could be converted into a suit for specific performance of the agreement of sale in view of the rule laid down in S. Sibtain Fazli v. Star Film Distributors (P L D 1964 S C 337). Having examined the matter in this context the learned District Judge observed that in case an application is made before the learned trial Court, it shall be bound to grant the same in view of the aforesaid authority. In this perspective the other observations made by the learned District Judge were that the suit in the present form was maintainable and if the plaintiffs are desirous to convert the same into a suit for specific performance they shall have to pay the prescribed court fee. Thereafter, the order of rejection of plaint was set aside and the direction as noted above was made.

5. Learned counsel for the respondents-plaintiff is in defence of this appeal has referred me to the afore-noted observations and the finding of the learned District Judge. He has also referred to Akhtar Begum v. Mian Aziz (N L? R 1981 A C 545) wherein it was held that rights under an unregistered agreement which is partly performed are enforceable if the other conditions stand satisfied and that the plaintiff can be granted a declaration that he is in possession of property under an enforceable contract of sale in iris favour and the defendants or the persons claiming under them are restrained from interfering in plaintiff's possession. Learned counsel for the appellants-defendants on the other hand argued that the suit as filed was not maintainable and despite the objection taken as to its non-maintainability in the written statement, dated 7-10-1978 no request for converting the suit into one for specific performance was made and in these circumstances the learned trial Court was right in rejecting the plaint on 17.9-1980. It was also argued that even before the appellate Court no application seeking amendment regarding specific performance of the contract was filed and that the learned appellate Court on its own observed that in case an application for specific performance is made the Court is bound to grant the same. It was argued that the respondents-plaintiffs having failed to seek specific performance neither a declaration of title nor the perpetual injunction could legally be granted. In support of this submission reliance was placed on Dr. Faqir Muhammad v. Major Amir Muhammad (1982 S C M R 1178) and Ghulam Nabi v. Seth Muhammad Yaqoob (P L D 1983 S C 344,). It is true that in certain situations like the one noted in Akhtar Begum v. Mian Aziz (N L R 1981 A C 545) the suit for declaration that the plaintiff is in possession of property under an enforceable contract of sale and as such the defendants and the persons claiming under them are restrained from interfering with such possession can be granted. I may add that the case of Akhtar Begum (supra) is distinguishable on facts. In that case the plaintiff in the plaint after its amendment claimed that he had become the owner of the land having purchased it from Wasiq Billa by paying entire price prior to the sale in favour of the other party i. e. subsequent purchaser but as he was apprehending ouster from the land at the hands of the said subsequent purchaser, he sought an injunction restraining interference in his possession of the land. In the instant case the averments made were that the legal representatives of Mst. Sharam Khatoon were not entitled to act in violation of the agreement to sell executed by their predecessor-in interest. Moreover, in the plaint nowhere it was specifically asserted that the respondents-plaintiffs were ready and willing to perform their part of the contract. It is also pertinent to note that the bargain was to be completed as per recitals of the agreement to sell by 29-7-1977. It was admitted in the plaint that Mst. Sharam Khatoon had expired two months earlier and thereafter her legal representatives were not considering themselves bound by the said agreement and were out to resile from the said agreement and to act in violation thereof. In these circumstances the cause of action accrued to the respondents-plaintiffs to sue for the specific performance of the contract admittedly two days prior to the institution of the suit or in the alternative the cause of action to sue for specific performance of the contract accrued on 29 -7-1977 i. e. the date fixed for completing the contract, given in the agreement to sell itself. The respondents-plaintiffs despite the objection taken as early as on 7-10-1978 the date on which the written statement was filed did not move the trial Court till the rejection of the plaint on 17-9-1960 for amendment of the plaint so as to convert the suit into a suit for specific performance. It will, therefore, be seen that the period of limitation under Article 113 of the Limitation Act to file a suit for specific performance expired firstly in May, 1980 or at best on 29th of October, 1980. It was held in Muhammad Nawaz v. Mian Muhammad Anwar Abbasi (P L D 198?. B J 33) that "the recitals in the document and the statement of the plaintiff establish that it is a mere agreement to sell. Such a document does not create any right, title and interest in the property and the suit for declaration of title on the basis of such document is not maintainable". In the case of Dr. Faqir Muhammad v. Major Amir Muhammad declaration was sought that the plaintiff was an owner of plot allotted to him - under the Punjab Urban Improvement Act. The learned Judges observed that the agreement simply required construction of the plot but no title was transferred and as such the suit was not maintainable as the plaintiff claimed relief only for declaration with regard to his legal character as owner of the plot. In the case of S. Sibtain Fazli (supra) the dispute pertained to transfer of cinematograph film and it was observed that the suit for declaration and mandatory injunction may be treated as one for specific performance after taking into consideration the substance of the plaint. In the majority judgment it was observed that there was no difficulty in holding the said suit to be one for specific performance as in the suit for specific performance the plaintiff would have to ask for possession of the dupe negative on payment of the balance consideration. This is the relief which the plaintiff has substantially prayed for though he has put it in the form of mandatory injunction to deliver possession. It was further observed that the trial Court found that the mandatory injunction included a prayer for possession of the dupe negative and it directed the plaintiff to pay the full court-fee on the amount of consideration which would have to be paid in a suit for possession and the plaintiff had also paid that court-fee. However, in the present suit the same situation does not prevail as the respondents-plaintiffs neither maintained that they were ready and willing .to perform their part of the contract by paying the price nor they have deposited the balance of the consideration till date in Court nor they had offered to pay the same. In these circumstances the learned trial Court was right in observing the? suit was filed in this form in order to avoid the payment of the prescribed court-fee. Besides this the intention to avoid the payment of the balance price and to remain in possession as long as possible is apparent. It may he noted that respondents alleged that they are in possession of the suit land though t-is assertion was repudiated in the written statement filed by the appellants-defendants and in support of their version a copy of the Register Haqdaran Zamin was placed on record.

6. The most important feature of the case is that the respondents. plaintiffs never thought of amending the plaint and neither in the trial Court nor in the appellate Court even an oral request seems to have been made to allow conversion of the suit into a suit for specific performance. The learned appellate Court suo motu raised the question that in case such an application is made the same shall have to be granted and then set aside the order of the learned trial Court and remanded the suit for fresh trial with the direction that in case an application for amendment is moved the same shall be granted and then the suit be tried if the respondents plaintiffs pay the requisite court-fee. The question is whether in these circumstances the order rejecting the plaint could be set aside and whether a direction to grant the amendment application could be passed in anticipation of the filing of such an application. I am of the view that the learned appellate Court misdirected itself in setting aside the rejection order and in directing that such an application as and when moved shall be granted. To my mind a Court has no power suo Motu to direct the respondents-plaintiffs to amend the plaint. The best course if the Court was desirous of doing substantial Cave between the parties was that the attention of the plaintiffs should have been drawn to the defect in the pleadings so that the same could be remedied and on such a suggestion a party may apply for amendment of pleadings. Neither any oral request nor a written application can be granted in anticipation as the request as and when made is to be dealt with and disposed of on its own merits after hearing the opposite party. A perusal of the impugned order of remand would show that the same was based on the assumption that n Court is bound to grant an application for conversion of the suit. The order rejecting the plaint was set aside in order to 'provide an opportunity to the respondents-plaintiffs to move such an application and such an application in anticipation of its submission was also granted. The appellate Court as' such was conscious that the suit as filed was not maintainable. An application having not been moved before the appellate Court no basis existed for it to set aside the order of the learned trial Court. In view of the pleadings of the parties it was not right to assume that the possession of the land in suit was with the respondents-plaintiffs. That question was yet to be gone into. For all these reasons I have no hesitation in holding that the suit as filed was not maintainable. Accordingly by accepting the appeal the impugned remand order of the learned District Judge is set aside and that of the trial Court rejecting the plaint is restored. The respondents-plaintiffs shall also pay the costs of this appeal. M B A? Appeal accepted