2017 PLP 452 (YLRN)

FAHEEM AHMED SIDDIOUI, J.

The instant civil revision is filed against the order dated 17-09-2016 passed by learned Additional District Judge, Ghotki whereby the Civil Misc. Application No.04/2016 was allowed as such the order dated 29-04-2016 passed by the learned Senior Civil Judge, Ghotki in FCS No.66/2016 was set aside and resultantly the application under Order XXXIX, Rules 1 and 2 of C.P.C. filed with the aforesaid suit was allowed.

2. The facts leading to this civil revision are that the respondent No.1 filed suit for specific performance, declaration and permanent injunction in respect of agricultural land situated in Deh Widar, Tapo Beriri, Taluka and District Ghotki. The said suit was accompanied with an application for interim relief seeking a restraining order against dispossession and alienation of the suit land. The said application was dismissed by the trial court vide order dated 29-04-2016. The respondent No.1 filed Misc. Appeal, which was allowed by the learned Additional District Judge-1, Ghotki vide order dated 17-09-2016, which is impugned in the instant revision.

3. The learned counsel for the applicants assailed the impugned order by submitting that the strong presumption was available in favour of the applicants but the appellate court could not assimilate the same. He submitted that the respondent No. 1 is seeking relief in respect of a verbal agreement, but the transaction as well as receipts are denied by the applicants but this fact was not considered by the appellate court. According to him, there are two documents on record and both are produced by the respondent No. 1 and now question arises which should be given weight. As Dhal Receipt (Form IX-B of village forms) is an official and public document therefore it should be given weight and from that very document it is clear that the possession of the land is with the applicants. He drew attention towards Article 129(e), as well as Articles 17 and 79 of Qanun-e-Shahadat and submitted that in view of the specific statutory provision, the instant matter should be remanded back to the appellate court for passing an appropriate order after proper enquiry in respect of possession. He took reliance from 1987 CLC 2416.

4. The learned counsel for the respondent No. 1 supported the impugned order. During his arguments, he submitted that there is only a simple denial in written statement and no specific denial in respect of the plaint of the suit. Regarding Dhal Receipt, his contention is that as the land has yet not been transferred therefore the same would be issued in the name of the owner in the record. According to him, in the said Dhal Receipt the name of the depositor is mentioned as Aakib who is the son of applicant No. 1 and he had given an affidavit in favour of the respondent No.

1. He contended that the land in question is really in possession of the respondent No. 1 and he had paid a huge amount which is clear from the receipts of payment. Regarding denial of agreement and receipts, the learned counsel for respondent submitted that mere denial is not sufficient but the denial should be specific otherwise it amounts to admission. He added that they had denied the receipts but did not make a motion before the trial court under Article 59 of Qanun-e-Shahadat for comparison. He submitted that the ingredients of the injunction are fulfilled as such the order of the lower Appellate Court is according to law. He took reliance from 1994 SCMR 2189.

5. Having heard arguments and going through the relevant documents, it is appropriate to point out that the respondent/plaintiff alleged that he entered in an oral agreement of sale of the suit property. An oral agreement to sell is permissible under the law and an aggrieved party may approach to the civil court for a decree of specific performance of the same. For an oral agreement to sale, the necessary ingredients are, offer and acceptance, consideration of the sale, proof for payment or part payment of the sale price and at least two witnesses of the agreement and transaction. It is considerable that the receipts are in writing and allegedly the same are signed by the original defendant, attested by two witnesses wherein sale consideration was also mentioned. In the present case, the oral agreement is specifically alleged rate agreed for the immovable property, written receipts of part payments with consideration and two witnesses wherein it is also mentioned when the remaining payment will be made and Sale Deed will be prepared. What is more, it is also alleged and mentioned in the receipts that the possession of immovable property is handed over to the respondent/plaintiff. The present scenario is apparently amounting to a concluded agreement to sell in spite of absence of a separate written agreement of sale, because it contained the essential terms of an agreement to sell the immovable property.

6. Now, there remained another aspect that is denial of the agreement as well as receipts of part payment of sale consideration. The learned counsel for the respondent during argument questioned the denial in written statement by submitting that it was general in nature and not specific denial. According to him, every allegation of facts in plaint if not denied specifically in written statement then the same is taken to be admitted against him. In this respect, I am of the view that if the denial is evasive then the same may come in the way of the defendant. However, I would restrain to say anything more regarding this point and it is left to the trial court to decide after going through the pleadings whether the parties are at issues or not?

7. Be the above as it may, learned Additional District Judge has duly attended to the documents placed on the record of the trial Court and has come to the conclusion that a prima facie case exists in favour of respondent Faqeer Hussain and upon due consideration of the rules governing the grant of temporary injunctions, he has exercised his discretionary jurisdiction in favour of respondent by holding that the trial Court had improperly exercised its discretion. The order passed in CMA 04/2016 by the Appellate Court below in exercise of discretionary jurisdiction is really unexceptionable so that it cannot be considered to have been passed arbitrarily or fancifully within the rule of law laid down in Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another (PLD 1970 SC 139) and, hence, it cannot become amenable to the exercise of revisional jurisdiction as has been reiterated also in Kanwal Nain and 3 others v. Fateh Khan and others (PLD 1983 SC 53).

8. Before parting, I would like to make it clear that whatever observations made by this Court and lower Appellate Court should not affect in any way the disposal of the suit and the learned trial Court shall not be influenced by any observation made by me or the learned lower Appellate Court and shall be free to decide the case according to merits. I further direct the learned trial Court not only to expedite the suit, but to dispose it of within stipulated time given by the lower Appellate Court that is four months from the date of communication of this order.

9. In the result, the instant revision application is decided in the above terms. Under these peculiar circumstances, there would be no orders as to costs. MQ/M-9/Sindh Order accordingly.