2017 PLP 1195 (MLD)

MUHAMMAD AMEER BHATTI, J.

The suit for specific performance filed by the petitioners on the basis of the oral agreement to sell was dismissed by the learned trial Court vide judgment dated 20.01.2010 and appeal whereof also met with the same fate as learned first appellate Court dismissed the appeal of the petitioners vide judgment dated 21.01.2011.

2. At the very outset learned counsel for the petitioners is confronted the deficiency with regard to mentioning of names of alleged marginal witnesses of the oral agreement to sell and fixation of period of completion of agreement to sell in the plaint which was mandatory in view of law laid down by Hon'ble Supreme Court in a case reported in (2013 SCMR 1300), it is expedient to reproduce the relevant para of the judgment:-- "(a) Specific Relief Act (1 of 1877)

S. 12-Suit for specific performance

Oral agreement to sell immovable property

Proof--Plaintiff filed a suit for specific performance of an oral agreement to sell immovable property

Trial Court decreed the suit in favour of plaintiff

High Court set aside judgment and decree of Trial Court

Validity

Perusal of plaint showed that plaintiff had neither mentioned date of striking of bargain nor witnesses in whose presence the oral agreement to sell was arrived at were mentioned

No period was fixed for completion of oral agreement to sell and such fact did not find mention in the plaint

Names of alleged marginal witnesses of the oral agreement were not incorporated in the plaint

Material contradictions existed in the statements of witness of plaintiff and alleged marginal witnesses of the oral agreement

Statement of one of the marginal witnesses was based on hearsay evidence

Plaintiff failed to produce any document showing that possession was delivered to him in pursuance of the oral agreement to sell

Plaintiff failed to prove execution of oral agreement between the parties and also the payment of amount at the time of oral agreement

Oral agreement to sell had to be proved through credible and unimpeachable evidence but in the present case plaintiff failed to do that

No material illegality or irregularity was found in the impugned judgment of High Court

Appeal was dismissed accordingly." and this deficiency obvious from plaint is fatal hence how the suit of the petitioners was maintainable and by dismissing the same concurrently by Courts below what illegality and irregularity has been committed, he contends that it is specifically mentioned that payment of sale consideration was paid to the respondents in presence of witnesses and on account of non-mentioning of their names in the plaint, petitioners could not be non-suited as they testified payment of earnest money when they appeared as witness, hence both the learned Courts below have misread and misconstrued record of the case as evidence of the said witnesses have not been read/examined in its true perspective which is material illegality and irregularity warranting interference of this Court in exercise of revisional jurisdiction, which mandated to correct the wrong done by Courts below.

3. I am afraid, Hon'ble Supreme Court of Pakistan held that non-mentioning of names of witnesses and date of completion of oral agreement specifically in unequivocal manner is fatal hence incorporation of these two elements in plaint in unequivocal manner were necessary without which the suit of the plaintiff was not maintainable. It is obvious from the record that petitioners have not specifically incorporated the names of the witnesses as well as date of completion of agreement to sell in the plaint, which being fatal entail penalty of dismissal of the suit, hence this petition has no merits thus dismissed. No order as to costs. MQ/A-50/L Petition dismissed.