1993 PLP 260 (SCMR)

SAAD SAOOD JAN, J.‑‑‑This is a petition for special leave to appeal from the judgment dated 8‑6‑1991 of the Lahore High Court. It arises in the following circumstances:‑‑

2. The dispute between the parties relates to a house situate in Canal Park, Gulberg, Lahore. It was evacuee property and was transferred to Mst. Shehzadi Begum, respondent No.3. She obtained the Permanent Transfer Deed on 29‑12‑1976. To discharge the liabilities that she had incurred in paying the price of the house to the Settlement Department she obtained Rs.5,000 on 30‑12‑1976 and Rs.13,000 on 12‑1‑1977 from the petitioner, and, on the last mentioned date executed an agreement to sell the house to him for the sum of Rs.1,05,

000. Subsequently, between 22‑2‑1977 and 30‑ 1977, she received (further sums amounting to Rs.15,000 on six different dates from the petitioner. On 30‑4‑1977 she executed a sale‑deed in his favour wherein it was inter alia provided that she would receive Test of the consideration of Rs.72,000 at the time of the registration of the deed. Afterwards, according to the petitioner, she wanted to wriggle out of the agreement and with that object in view she started avoiding the registration of the deed on one pretext or the other. In the circumstances he presented the deed for registration before the Sub‑Registrar, Lahore, Cantonment, on 19‑5‑1977. To begin with she expressed her inability before the Sub‑Registrar to go ahead with the registration on account of some pending litigation but later she denied execution of the sale‑deed. Consequently, the Sub‑Registrar refused to register the document by his order dated 4‑3‑1978. The petitioner filed an appeal before the Registrar. While admitting the appeal to regular hearing the Registrar issued a stay order forbidding her to alienate the property to another person. He accepted the appeal on 18‑6‑1979; consequently, in pursuance of the direction given by the Registrar the Sub‑Registrar registered the deed on 24‑6‑1979.

3. It appears that Mst. Shehzadi Begum had also been obtaining loans periodically from respondents Nos.1 and 2 (hereinafter called the contesting respondents) for paying the price of the house to the Settlement Department. Thus, till 7‑1‑1977 she had received Rs.65,000 from respondent No.1 and Rs.66,000 from respondent No.2. She executed an agreement to sell the house in their favour, too, on 7‑1‑1977. The price of the house was fixed at Rs.1,31,000 which was equal to the sum of the amounts that she had already (received from them till that date. Later, she declined to complete the sale unless she was paid some more money. The contesting respondents yielded to her demand and paid her another sum of Rs.69,000; of this amount the Contribution of respondent No.1 was Rs.35,000 and the rest was provided by respondent No.2. On 19‑5‑1979, after receiving this additional payment she executed two sale‑deeds in their favour transferring the house to them in equal shares. The deeds were registered on 20‑5‑1979 by the Sub‑Registrar, Lahore City, even though the house fell within the limits of the Sub-Registrar, Lahore cantonment and despite the fact that the stay order issued by he Registrar was still in force.

4. At the time of the execution of the sale‑deeds the house was partly in e possession of Mst. Shehzadi Begum and partly in that of her tenants. After e registration of the sale‑deeds she delivered the possession of the portion that was with her to the contesting respondents and directed her tenants to attorn in their favour which they did.

5. By executing three sale‑deeds in respect of the same property in favour of two separate sets of vendees respondent No.3 laid down the sure foundation of expensive litigation between them. On 23‑6‑1979 the contesting respondents filed a suit for a declaration inter alia to the effect that the sale‑deed executed by her in favour of the petitioner was a forged, fictitious and bogus document and did not have any legal effect upon their rights. On his part the petitioner brought a suit for possession of the house on 11‑7‑1979 on the basis of the sale‑deed executed by respondent No.3 in his favour. He also initiated separate proceedings for the ejectment of the tenants.

6. The parties resisted the suits brought against them. They challenged the legalities of the sale‑deed/deeds executed by the respondent No.3 in favour of the opposite‑party/parties. The contesting respondents, in addition, also took the plea that as their suit was prior in point of time the suit brought by the petitioner could not be proceeded with by operation of the prohibitory provisions of section 10, Civil Procedure Code.

7. Mst. Shehzadi Begum filed a written statement in the suit brought by the petitioner. She denied that she had sold the house or executed a sale‑deed in his favour. On the other hand, she supported the case of the contesting respondents and stated that she had transferred the house to them. She averred that she had not received any money from the petitioner. After submitting her written statement she took no further part in the proceedings, leaving the two sets of vendees to fight it out between themselves.

8. Both suits came up for trial before the same Court at Lahore. Issues were framed separately in each suit. One of the issues framed in the suit filed by the petitioner was to the effect whether it was liable to be stayed under section 10, Civil Procedure Code. The trial of this issue was postponed for reasons not apparent on the record and the petitioner was called upon to lead evidence on some other preliminary issues which he did. Later, the file of his suit was tagged with the suit brought by the opposite‑party, giving the impression that the two suits had been consolidated. The evidence was recorded in the suit filed by the contesting respondents. It was only when the final judgment was being recorded in their suit that the trial Court took notice of the issue relating to the stay of proceedings in the suit preferred by the petitioner. It found the issue in favour of the contesting respondents and held that the provisions of section 10, Civil Procedure Code, were fully attracted to the suit preferred by the petitioner; accordingly, it directed stay of proceedings in his suit.

9. After staying the proceedings in the petitioner's suit, the trial Court began examining the evidence led in the other suit. It appears that the petitioner had attached his original sale‑deed on the file of own suit and placed a certified copy thereof on the suit of the contesting respondents. The copy was initially admitted into evidence and exhibited as D‑

3. However that may be, the trial Court found that the copy of the sale -deed was inadmissible in evidence. It also held that the sale‑deeds executed by Mst. Shehzadi Begum in favour of the contesting respondents stood properly proved. In the circumstances, it decreed the suit of the contesting respondents and by way of consequential order dismissed the suit of the petitioner.

10. From the judgment of the trial Court the petitioner preferred two appeals. As the values of the two suits for purposes of jurisdiction were different, one of the appeals which related to the suit brought by the petitioner was filed in the High Court and the other before the District Court. Before the two appeals could be disposed of the pecuniary limit of the appellate jurisdiction of the District Court was enhanced. Consequently, the High Court transferred the appeal pending before it to the District Court for disposal. Appearently, the Additional District Judge who was seized of the appeal initially preferred in the District Court was not aware that the other appeal too had been transferred to the District Court. Consequently, he took up for consideration only that appeal which was filed by the petitioner in the District Court. As a result the other appeal which was transferred by the High Court to the District Court stands undisposed of till today.

11. The learned Additional District Judge found that as the house in dispute fell within the limits of the Sub‑Registrar Lahore Cantonment the registration of the sale‑deeds executed in favour of the contesting respondents by the Sub‑Registrar, Lahore City, was void. He also took notice of the stay order issued by the Registrar and held that in the face of the said order the Sub‑Registrar could not competently register the two deeds. He further held that the contesting respondents had failed to show that the sale‑deed executed by respondent No.3 in favour of the petitioner was a forged or a fictitious document or of no legal effect. Accordingly, he accepted the appeal and dismissed the suit of the contesting respondents. In addition he also directed them to pay penal costs to the petitioner.

12. From the judgment of the learned Additional District Judge the contesting respondents preferred a revision petition before the High Court. During the hearing of the petition it was not brought to the notice of the High Court that one of the two appeals preferred by the petitioner from the judgment of the trial Court had not yet been disposed of. However that may be, a learned Single Judge upheld the finding of the first appellate Court that the registration of the sale‑deeds executed by respondent No.3 in favour of the contesting respondents was void. It also upheld the view taken by the trial Court that the copy of the sale‑deed produced by the petitioner was not admissible in evidence as no reason had been given for not producing the original document. During the course of the arguments before the learned Single Judge a request was made by the contesting respondents that their suit should be treated as one for specific performance of the agreement of sale- deed dated 7‑1‑1977 and the sale‑deeds executed by respondent No.3 in their favour. The learned Single Judge allowed their request and granted the decree for specific performance of the agreement of sale dated 7‑1‑1977 and the sale‑deeds against respondent No. 3 subject to the condition that they should pay the requisite court‑fee on the plaint of the suit and on the memorandum of revision petition in the High Court within three months. From the judgment of the High Court the petitioner seeks leave to appeal from this Court.

13. After hearing the learned counsel for both parties we are of the opinion that on account of the deferral by the trial Court of its decision on the issue relating to stay of proceedings in the petitioner's suit to a very late stage has led to grave miscarriage of justice. As already noticed the trial Court did not decide this issue almost till the end of the proceedings in the two suits when it started recording the final judgment, thus, leaving the petitioner in a state of uncertainty with regard to the fate of his own suit. Had the said issue been decided at the earliest as the trial Court ought to have been done, the petitioner would have no doubt led all his evidence in the suit brought by the contesting respondents. Apart from that, the way in which the trial Court conducted proceedings in the two suits was sufficient to give rise to belief in the petitioner's mind that the trial of his suit might not be stayed. Thus, the trial Court not only framed issues on merit in his suit but also recorded some evidence before tagging the file thereof with the suit of the opposite‑party. In the circumstances the petitioner could reasonably assume that during the trial of his own suit he would have an opportunity to lead evidence to prove his sale‑ deed and that the two suits would be decided together. It is also to be noticed that the trial Court while recording evidence in the suit brought by the contesting respondents allowed him to produce a certified copy of his sale‑deed and even exhibited it as Exh.D‑3, without deciding the objection of the other side. In the circumstances he was not entirely responsible for not producing or proving his original sale‑deed in the suit brought by the opposite‑party and was in fact misled by the manner in which the trial Court proceeded with the trial of the two suits. He ought not to have been penalized for his lapse in this regard. We are therefore unable to support the judgments of the High Court and the trial Court.

14. For the reasons stated above, we convert this petition into appeal and accept the same. As one of the appeals of the petitioner is still pending in the District Court this case too is remanded to that Court. The two appeals should be disposed of in accordance with the law after giving the petitioner an opportunity to prove the sale‑deed executed in his favour by respondent No.3. There will be no order as to costs in this appeal. AA./B‑206/S Case remanded.