2010 PLP 791 (MLD)

MUHAMMAD KHALID MEHMOOD KHAN, J.

Through this Civil Revision, the petitioner has assailed the judgment and decree, dated 6-1-2010 passed by the learned appeal Court whereby the judgment and decree passed by the Civil Judge Shor Kot was affirmed.

2. Briefly stated the facts relevant for the disposal of this Civil Revision is that the plaintiff has filed a suit for specific performance of contract on the basis of oral agreement with the appellant. The plaintiff alleges that he purchased the suit property consisting upon residential and commercial area, through an oral agreement. The defendant resisted the suit and controverted the assertions/allegations of the plaintiff.

3. Out of divergent pleadings of the parties, following issues were framed:-- ISSUES: (1) Whether defendant entered into an oral agreement to sell of the suit property with the plaintiff in consideration of Rs.24,000 and received Rs.18,000 as earnest money before the witnesses? OPP (2) Whether the plaintiff is entitled to have a decree for specific performance of oral agreement to sell? OPP (3) Whether the plaintiff has no cause of action and locus standi to file the suit? OPD (4) Whether the suit has net been correctly valued for the purposes of court-fee and jurisdiction, if and the market value of the suit property the at time of alleged agreement to sell? OPD (5) Whether the plaintiff is estopped by his words and conduct to file this suit? OPD (6) Relief.

4. The parties adduced their evidence and the learned trial Court dismissed the suit.

5. The plaintiff assailed this judgment and decree through an appeal which was allowed by the learned appeal Court on the sole ground that the evidence of the parties was recorded by the Reader and by relying upon PLD 2008 Lah. 4 set-aside the judgment and decree and remanded the case to the learned Civil Court for proceedings in accordance with-law.

6. The learned counsel for the petitioner contends that the remand order is against the facts available on record. Not a single word is available on the record which will show that the evidence was recorded by the Reader of the Court. Learned counsel for the petitioner refers the grounds of appeal which shows that this ground that the evidence was recorded by the Reader of the Court, was not taken. The main ground taken by the respondent is that the property is a valuable property and the value of the same is Rs.16,00,000 and how it can be sold through an oral agreement of Rs.24,

000. Learned counsel for the respondent supports the judgment of the learned appeal Court.

7. I have gone through the record and evidence produced by the parties.

8. The respondent has not taken the ground in their appeal that the Reader has recorded the evidence nor any evidence is available which shows that the Reader has recorded the evidence. Every statement of the witness is signed by the Court rather it is shown that the learned Civil Judge has given a note on 7-12-2005 that he has dictated the evidence. The learned appeal Court has wrongly decided the appeal on the ground that the Reader has recorded the evidence. Learned appeal Court should have decide the appeal on merits and should not decide the same on a sole ground that the Reader of the Court has recorded the evidence of the parties. I, therefore, in agreement with the learned counsel for the petitioner and set-aside the judgment, dated 6-1-2010 and remand the case to the learned appeal Court with the direction to decide the appeal on merits. The Civil Revision is accepted with no order as to costs. A.R.K./M-154/L Case remanded.