PD 2002 Lahore 350 (PLP)

2. The respondents Nos. l and 19 conceded the suit vide written statement filed on 18‑4‑1968. It was contested by the said predecessors of respondents Nos.2 to

18. They denied that Bagh Ali had executed any agreement. Their plea was that the petitioner in collusion with respondent No. l is trying to deprive them of lawful share in the suit property. Regarding PTD it was stated that the widow of the deceased had handed over the same to the petitioner after the death of Bagh Ali.

3. The said sister and brother of the deceased filed a suit against respondents Nos. l and 19 for separate possession of their share in the suit shop by partition as also for rendition of accounts for the business in the shop. The suits were consolidated. Evidence of the parties was recorded. Vide consolidated judgment and decree dated 23‑7‑1975 the learned trial Court decreed the suit filed by the petitioner, the suit for partition was dismissed but a decree for rendition of accounts regarding business in the shop was passed in favour of respondents Nos.2 to

18. Against the said judgments and decrees two first appeals were filed by respondents Nos.2 to 18 while one appeal was filed by respondent No.

19. All the three appeals were heard by a learned Additional District Judge, Sialkot. He found that the minor defendants in the case filed by the petitioner had not been sued through guardian ad litem. The decree in favour of petitioner was accordingly set aside. Since the suit for partition was dismissed only on the ground that the suit of the petitioner for. specific performance has been decreed, the said. decree of dismissal was also set aside. The result was that both the suits were remanded back to the learned trial Court vide order dated 16‑3‑1983. After remand the learned trial Court framed the following issues:‑‑ (1) Whether the plaintiff and Bagh Ali deceased entered into any agreement regarding the shop to dispute, if so, what that agreement was? OPP (2) If Issue No. l is proved, whether the plaintiff is entitled to the possession of shop, through specific performance of the said agreement by the defendants, if so, on what terms? OPP (3) Whether the alleged agreement to sell is based upon fraud an signatures of Bagh Ali deceased are also result of fraud and are forged one, if so, its effect? OPD (4) Whether the C.S. 348/1985, the plaintiffs are entitled to revolution of accounts and partition of the disputed shop? OPD (5) Whether this suit is not maintainable in its present form? OPD (6) Relief. The learned trial Court vide consolidated judgment and decree dated 22‑11‑1986 again proceeded to decree the suit filed by the petitioner, dismiss the suit for partition and to decree the prayer for rendition of accounts. Against this judgment and decree two first appeals were filed by respondents. Both . these appeals were taken up by a learned Additional District Judge, Sialkot, Vide judgment and decree dated 6‑6‑1995 the appeal in the specific performance suit was allowed and suit filed by the petitioner was dismissed. Regarding the other suit it was observed that the appeal has not been filed against the decree whereby the suit was dismissed and in the said suit .qua the rendition of accounts a final decree was passed on 3‑10‑1987. The other appeal was referred to as an appeal against the interim order passed on 28‑9‑1987 and was dismissed.

4. Learned counsel for the petitioner contends that the evidence on record has been misread by the learned Additional District Judge while passing the impugned judgment and decree dismissing the suit of the petitioner for specific performance of the agreement to sell. According to the learned counsel notwithstanding the relationship of all witnesses with the petitioner, the execution of the agreement by deceased Bagh Ali stood proved. Learned counsel for respondents Nos.2 to 18 on‑ the other supports the impugned judgment and decree of the learned Additional District Judge.

5. I have gone through the copies of the record appended with this civil revision by the petitioner. The copy of the agreement dated 12;3‑1967 Exh.Pl is available on file. The agreement is scribed by ‑Malik Karamat Khan purports to bear the signatures of Bagh Ali and is witnessed by Malik Sher Khan and Malik Shukar Ilahi. `It narrates that Bagh Ali had borrowed Rs.2,000 from Malik Gul Muhammad, his (Humzulf) through Muhammad Aslam which is due and that he has suffered losses in his business and due to lack of capital his business in the said shop is running properly. Therefore, he has agreed to sell the shop to said Gul Muhammad petitioner for Rs.12,000 out of which he has received Rs.2,000 through bank consolidated judgment. I have already referred to the earlier judgment of the learned trial Court dated 23‑7‑1975 and remand order dated 16‑3‑1983. I find that the learned trial Court virtually copied down the judgment of his learned predecessor in the post remand proceedings. Only one line has been written by him while discussing Issue No.4 as to why he is dismissing suit for partition. It is reproduced herein "but as discussed above, Bagh Ali had already agreed to sell disputed shop, no question of partition arises". This is a civil revision. I do find that when consolidated judgment was before the learned Court of appeal it was vested with powers under Order 41, Rule 33, . C P.C. to pass any. decree which ought to have been passed. This power is not subject to filing of an appeal by a party provided the party is before the Court. In the present case I find that learned Court .of first appeal has failed to exercise the said jurisdiction vesting in him under Order 41, Rule 33, C.P.C. To my mind, the appropriate decree or order to be passed and made in this case when it was found that decree in favour of the petitioner is not sustainable and particularly when only reason for dismissing the suit for partition stated in the same judgment was that suit for specific performance is being decreed, the learned First Appellate Court ought to have passed a preliminary decree for partition. To my mind, section 115, C.P.C. does authorise this Court to correct the said error.

8. In view of the above discussion, the judgment and decree of the learned Additional District Judge dismissing the suit filed by the petitioner is upheld and at the same time the findings of the learned trial Court on Issue _ No.4 pertaining to the suit for partition is reversed. The result is that while upholding dismissal of the suit of the petitioner for specific performance of the said agreement to sell dated 12‑3‑1967, a preliminary decree is passed in favour of respondents Nos. 2 to 18 and against respondents Nos. l and 4 for separate possession of 3/4 share in the suit shop by partition. Copy of this judgment be immediately remitted to the learned Trial Court where the parties shall appear on 28‑3‑2000. The learned trial Court shall requisite the records and proceed to pass the final decree in accordance with law. No order as to costs. Q.M.H./M.A.K, /G‑160/L Case remanded.