1998 PLP 451 (SCMR)

MUKHTAR AHMAD JUNEJO, J.

Petitioner Qaim Din has sought leave to appeal against the judgment dated 17-11-1994 delivered by the Lahore High Court, Rawalpindi Bench, in Civil Revision No.473 of 1985., Admittedly the suit land mentioned in Suit No.622 of 1979 and Suit No. 204 of 1980 of District Rawalpindi was owned by Sakhi Walayat. On 22-9-1979 the petitioner filed Suit No.622 of 1979 in the Court of Civil Judge, Gujar Khan for specific performance of a sale agreement dated 4-8-1979 by which Sakhi Walayat was said to have agreed to sell the suit land to the petitioner, from whom he received Rs.2,000 as earnest money, while remaining money amounting to Rs.10,390 was to be paid at the time of execution and registration of the sale-deed. Sakhi Walayat, who was the only defendant in said suit, contested the suit by filing a written statement where he controverted the claim of the petitioner. His stand was that he had already sold the suit land through a registered sale-deed and as such, the suit was not maintainable. After filing of the written statement, Sakhi Walayat did not pursue the matter any further. Consequently said suit was decreed ex parte on 13-1-1980 when it was ordered that the petitioner shall deposit Rs.10,390 in the trial Court by 15-2-1980 and then the sale agreement would be executed. Said judgment dated 13-1-1980 was not appealed against or otherwise challenged by Sakhi Walayat. However, Beero, predecessor of the respondents, who was not party to said suit, filed on 26-2-1980 Suit No.204 of 1980 for a declaration that the decree for specific performance of the contract passed in favour of the petitioner and against Sakhi Walayat in respect of the suit property, was ineffective in respect of his rights and that the petitioner be restrained from interfering with possession. Beero in his suit claimed that the suit land was sold to him by Sakhi Walayat under a sale-deed registered on 12-8-1979. The suit was contested by the petitioner and Sakhi Walayat who filed separate written statements. The trial Court framed issues, one of which was, whether Beero has purchased the suit land from Sakhi Walayat under a sale-deed and whether the decree obtained by the petitioner in Suit No.622 of 1979 was binding on him. After recording evidence, the trial Court under a judgment and the decree dated 11-3-1985 decreed the suit, after taking view that the decree in Suit No:622 of 1979 was not binding on Beero who was owner of the land purchased by him. Said judgment and decree were assailed by the petitioner in Civil Appeal No.97 of 1983 which was dismissed on 4-7-1985 by the learned Additional District Judge, Rawalpindi who maintained findings given by the trial Court. The petitioner took the matter to the High Court by filing Civil Revision No.473 of 1985 which was dismissed on 27-11-1994 by a learned Single Judge of the Lahore High Court under the impugned Judgment. Hence this petition. Mr. Bashir Ahmed Ansari, learned counsel for the petitioner argued that the decree obtained by the petitioner in Suit No.622 of 1979 on 13-1-1980 was final and it was binding not only on Sakhi Walayat but on Beero too. The learned counsel challenged the suit filed by Beero to be barred by res judicata under section 11, C.P.C. In the alternative, he argued that suit of Beero was barred by section 12(2), C.P.C which was retrospective being procedural law. Maintainability of the suit filed by Beero was also challenged on the ground that he had not sought possession . Admittedly, Beero was not party to Suit No.622 of 1979 and he cannot be bound by the decree passed in said suit. For similar reason, the decree passed in said suit cannot operate as res judicata in Suit No.204 of 1980 because parties in two suits were not the same. In his Suit No.204 of 1980 Beero challenged the decree passed in Suit No.622 of 1979 to be not binding on him. For making such prayer Beero was not required to seek possession of the suit property. According to the decree passed in Suit No.622 of 1979, the petitioner was required to deposit Rs.10,390 by 15-2-1980 in the Trial Court. There is nothing on record to show if he made such deposit. The learned counsel for the petitioner also wanted to take advantage of the fact that the petitioner's Suit No.48 of 1979 for pre-empting sale of suit land by Sakhi Walayat in favour of Beero, was decreed by the Assistant Commissioner/Collector, Gujrar Khan on 22-9-1980. The suit was decreed on condition that the petitioner would deposit by 22-10-1980 Rs.58,307 including the amount already deposited. The learned counsel for the petitioner conceded that the said amount was not deposited and hence, said suit shall be deemed to have been dismissed. As against an oral sale agreement supposed to have come into existence between the petitioner and Sakhi Walayat, there is a registered sale-deed in favour of Beero. For the foregoing reasons, we are not inclined to grant leave to appeal and we dismiss this petition. A.A./Q-61/S Leave refused.