2018 PLP 1851 (CLC)

MOHAMMAD IBRAHIM KHAN, J.

This is a Regular First Appeal under section 96/Order XLI Rule 1 of the Civil Procedure Code, 1908 read with Paragraph 10(8) of Shariah Nizam-e-Adl Regulation, 2009 against order/judgment/decree dated 22.10.20l6 passed by the learned Senior Civil Judge/A'ala Illaqa Qazi Dir Lower at Timergara, whereby suit of the Plaintiff (herein the Appellant) was dismissed.

2. It was regarding obtaining a decree for declaration in respect of a house the boundaries of which are given in the head-note of the plaint being purchased on the strength of deed dated 05.11.2010. There is another prayer for obtaining its possession together with grant of decree for the permanent injunction restraining Muhammad Khurshid Khan the Defendant (herein the Respondent) from all types of interference.

3. The parties had struck the Bargain by the deed dated 05.11.2010 for sale consideration of Rs. 25 lacs which were paid in lump sum. There was a term for a condition that the house will be given in possession of the Plaintiff (herein the Appellant) by a date 04.12.2010 and after that in view of the further conditions under the deed the said Muhammad Khurshid Khan will have no concern with the house. As and when the Defendant (herein the Respondent) was contacted for handing over possession of the suit house he further demanded one month time but subsequently on one pretext or the other he refused to vacate the house. Thereafter numerous requests were forwarded but even then possession of the suit house was not given to the plaintiff (herein the Appellant), hence, the present suit has been instituted.

4. This claim was contested through written statement raising various legal and factual objections, the learned Civil Court was pleased to frame the following issues on the basis of averments taken in the pleadings of the parties:- ISSUES:-

1. Whether Plaintiff has got cause of action? OPP

2. Whether sale deed dated 05.11.2010 is genuinely made? if so its effect? OPP

3. Whether Plaintiff has performed his duty according to sale deed dated 05.11.2010? if so its effect? OPP

4. Whether Plaintiff has affixed proper Court fee? OPP

5. Market value of suit property? OPP

6. Whether the Plaintiff is entitled to the decree as prayed for? OPP Relief.

5. Thereafter both the parties were given ample opportunities to adduce their respective evidence in support of their view-point. Accordingly, the Plaintiff (herein the Appellant) examined Muhammad Saeed petition writer as PW-1, Imran-ud-Din Advocate Oath Commissioner as PW-2, the Appellant (hereinbefore called the Plaintiff) himself appeared in the witness-box as PW-3 and one Rasool Zada was examined as PW-4 Likewise, on the other hand, the Defendant (herein the Respondents) recorded his statement as DW-l and produced Muhammad Israr as DW-2.

6. In a Suit No.272/11 of the year 2012 upon delivery of findings on each and every issue, the suit was dismissed mainly under the findings on issues No.6 which is reproduced as under for ready reference:- The Plaintiff (herein the Appellant) was also put under the directives to furnish court fee within one month, failing which the suit would deem to be rejected under Order VII Rule 11(C) of the Civil Procedure Code.

7. Having heard arguments of learned counsel for the parties record with their valuable assistance gone through.

8. There are applications bearing Civil Miscellaneous No. 1078-M of 2016 under the subject "Application for amendment of suit regarding addition of specific performance of suit deed dated 05.11.2010 in relief "" with the words; Besides there is another Civil Miscellaneous Application No.1079-M of 2016 under the subject "Application for framing of additional issues".

9. Consequent to filing of these separate applications for amendment of the suit regarding addition of specific performance of the deed and application for framing of additional issues when were taken up for arguments. The thrust of the arguments at first instance is mainly on the ground that the issues framed by the learned lower Court are deficient in view of the legal and factual objections taken in the written statement and thereby it is imperative for the Court to frame additional issues, failing which the object behind grant of the decree would not be achieved. Learned counsel for the Appellant has referred the following issues:-

10. With the help of learned counsel for the parties it is as evident that certain objections have not been reduced into issues. Yet when the requirement has already been met by adducing the evidence to that effect it would be not even necessary to frame issues which have already been issues already framed. In such scenario in support of his stance, learned counsel for the Appellant placed reliance on 2008 SCMR 1384 "Mst. Rasheeda Bibi and others v. Mukhtiar Ahmad and others" citation (h) in particular regarding framing of issues. Duty of the Court under O. XIV R. l, 1999 SCMR 786 "Bharoo and 2 others v. Chief Settlement Commissioner and 2 others", 1999 SCMR 12229 (sic) "Bashir Ahmad and others v. Ch. Nawab and others", 1989 SCMR 1719 "Bakht Zamin v. Said Majid", 1997 SCMR 1849 "Roazi Khan and others v. Nasir and others", 2014 CLC 1117 (Peshawar) " Mubarak Ali Shah v. Muhammad Khan and 3 others" and 2009 SCMR 1256 "Muhammad Bashir v. Muhammad Hussain 16 others." In respect of the same issue while controverting the arguments and dictums of the Hon'ble superior Courts as referred to above by learned counsel for the Appellant in rebuttal learned counsel for the Respondent placed reliance on 2011 YLR Note 33 (Lahore)" Abdul Majeed v. Kishwar Nasim and others" with particular reference to citation (b) wherein it has been held:- "Appellate court was not required to give issue wise findings unlike Trial Court".

11. Whereas application for amendment of suit regarding addition of specific performance of the deed dated 05.11.2010 in relief "". Learned counsel for the parties were also later heard with vehemence. Learned counsel for the Appellant referred to PLD 2013 Supreme Court 239 "Abaid Ullah Malik v. Additional District Judge Mianwali and others", 1989 MLD 3495 (Lahore)" Mushtaq Ahmad and others v. Arif Hussain and others", 2017 CLC 378 (Peshawar) "Sher Shah v. Alam Sher", PLD 2016 Supreme Court 712 "Ghulam Qadir and others v. Sh. Abdul Wadood and others", 2003 SCMR 1493 "Syed Match Company Ltd. through Managing Director v. Authority Under Payment of Wages Act and others", PLD 2006 Supreme Court 66" Javaid Iqbal v. Abdul Aziz and another", 2003 SCMR 318 "Mst. Arshan Bibi through Mst. Fatima Bibi and others v. Maula Baksh through Mst. Ghulam Safoor and others' and (2003 CLC 116) Gul Roze and another v. Sargand and others'. In view of the dictums of the Hon'ble superior Courts as referred to by learned counsel for the Appellant seeking amendment at the stage of appeal it has been held that amendment plea can be taken at any stage of the proceedings but it ought to be permitted where such amendment is required to reach to a correct conclusion and for determination of the real dispute in between the parties. The learned appellate Court had same powers which were exercised by the Court in its original jurisdiction with regard to suits as appeal was continuation of suit.

12. It is true that the present Appellant (hereinbefore called the Plaintiff) has been non-suited by the learned Judge of the trial Court mainly for the reason under findings on issue No.6. According to section 4 of the Sale of Goods Act, 1930 whenever there is any condition laid down such an agreement would not at all be an agreement pertaining to sale, rather to enforce the right for obtaining the ownership the suit form would be under Specific Relief Act and thereby according to the findings under Chapter 12(2) of the Specific Relief Act, suit for specific performance would be competent.

13. Learned counsel for the Appellant has candidly admitted that the findings of the learned Civil Court are absolutely correct to the extent that the Plaintiff (herein the Appellant) was under an obligation to have brought a suit for specific performance on the basis of deed dated 05.11.2010 which has allegedly been executed in between the parties and for this reason he has annexed an application for seeking amendment in the plaint to this effect. Whereas the judgment of the Hon'ble Sindh High Court (Karachi) 2010 YLR 297 "Fazal Hussain Shah through Heirs and others v. Rustam through Legal Heirs" and other judgment of the Hon'ble Lahore High Court reported as 2011 MLD 96 "Muhammad Bashir and 2 others v. Abdul Rauf and another". When such documents creating title has not been proved in accordance with production of truthful witnesses 2 in numbers then it would deem to have not been proved. Learned counsel for the Respondent has referred to the statement of the Defendant (herein the Respondent) recorded as DW-l Muhammad Khurshid Khan in the very opening line of his cross-examination he has admitted:- But at the same breath this witness categorically denied to have received an amount of Rs.25 lacs as entered in the sale deed.

14. Leaving aside the findings upon the evidence adduced by the parties, it is of paramount importance to dispose of the application for seeking amendment in the plaint regarding addition of specific performance of the deed dated 05.11.2010 in relief "" which is in total negation of the ratio decidendi settled by the Hon'ble Supreme Court in its judgment cited as 2008 SCMR 515 "Khair Muhammad and others v. Nawab Bibi and others, wherein the application for amendment has been dismissed as the proposed amendment would change complexion and character of suit for declaration. The relevant citation speaks of:- "Suit for declaration. Agreement by vendor to sell land in favour of Plaintiff, Subsequent sale of land through mutation by attorney of vendor in favour defendant. Suit for declaration by plaintiff that he was owner in possession of suit-land and such mutation was void. Dismissal of suit by Trial Court affirmed by Appellate Court and then in revision by High Court. Application by plaintiff before Supreme Court for allowing him to amend plaint and treat suit for declaration as suit for specific performance. Validity, Concurrent findings of fact of three courts were that such mutation was valid and plaintiff was not owner of land. Proposed amendment would change complexion and character of suit for declaration. Parties had been litigating for last 37 years, Plaintiff had called in question mutation of sale after 6 years. Supreme Court dismissed amendment application and main petition in circumstances."

15. Altogether this is a stage for seeking amendment of suit regarding addition of specific performance of the deed dated 05.11.2010, where this is a suit for declaration and the proposed amendment would certainly change the complexion and character of the suit then such amendment cannot be allowed, though the application for amendment can be presented at any stage. This application is decided accordingly.

16. In the event when the Court is of the opinion that the form of suit is defective for want of that on the basis of an agreement in between the parties surely in this case the suit for declaration would not be incompetent, rather suit for specific performance is required to be instituted. Thus, findings on all the rest issues would be bootless exercise and discussion and disposal on the strength of evidence adduced by the parties would further complicate the situation and prejudice the subsequent suit, if any, under the ambit of specific performance. Thereby the plaint is hereby returned to the Plaintiff (herein the Appellant) under Order VII Rule 10 of the Civil Procedure Code. The Plaintiff/Appellant may file a fresh suit for obtaining specific performance on the strength of the agreement dated 05.11.2010 within the ambit of its limitation and legal framework.

17. In such terms, this appeal disposed of accordingly. ZC/260/P Order accordingly.