2002CLC361 (PLP)

Muhammad Sharif Chohan for Petitioner. Ch. Bashir Ahmed for Respondent. Date of hearing: 4th October, 2001. This judgment will also dispose of Civil Revision 1284‑D of 1989 as both the cases are between the same parties and arise out of the consolidated judgments and decrees of the learned two Courts.

2. Both the parties filed separate suits. Jamal Din, the petitioner, filed suit for cancellation of the agreement, dated 25‑6‑1977 according to which he covenanted to sell the house in dispute owned by him in favour of Mst. Mehmooda Begum the respondent herein. His case in the plaint was that he had mortgaged his house in favour of the respondent for a consideration of Rs.6,500 but in connivance with the petition‑writer it was written as a sale agreement for a consideration of Rs.10,

000. It was further averred that it was against the provisions of Registration Act and Contract Act, and was, thus, unenforceable.

3. Mst. Mehmooda Begum, the respondent, filed a suit for declaration claiming title to the suit house on the basis of the aforesaid agreement. Her case was that the house in dispute was sold by the petitioner for a consideration of Rs.10,000, the entire sale consideration was received by the petitioner who had delivered possession of the house to the respondent and despite demands by the respondent did not get the transaction registered.

4. The two suits were consolidated and issues were framed. Evidence was recorded in the suit of Mst. Mehmooda Begum. The learned trial Court, vide judgment, dated 4‑7‑1988 dismissed the suit of the petitioner while the suit of the respondent was decreed. It found that execution of agreement to sell was duly proved, it was not the out come of fraud, collusion or misrepresentation. Jamal Din, the petitioner had no cause of action and was estopped to bring the suit. While recording finding on Issue No.3, the learned trial Court held that the suit was not maintainable in the form it was filed and the respondent should have brought a suit for specific performance. It was also held that the agreement did not create title in favour of the respondent. However, it was observed that respondent being a widow deserved sympathy. While recording finding on Issue No.7, it was held that "to provide substantial justice the plaintiff is liable to get the decree of the Court registered from the office of the Sub‑Registrar as per its value when she occupied the disputed property. Unless she gets the decree of the C registered, the decree may not be considered a title deed".

5. Against the said consolidated judgment and decrees two appeals were filed by the petitioner which were dismissed by the learned First Appellate Court on 4‑6‑1989. Civil Revision No. 1283‑D of 1989 arises out of the suit filed by Mst. Mehmooda Begum while Civil Revision No. 1284‑D of 1989 arises out of the suit filed by the petitioner.

6. The learned counsel for the petitioner contends that mere agreement to sell did not create any right in favour of the respondent to entitle her to claim a declaration add even the learned trial Court so observed. His next contention is that the declaratory suit was brought because the respondent knew that the suit for specific performance was barred by time and it was also, so held by the learned trial Court. It is further contended that the observation of the learned trial Court that the Property was village immovable property is not backed by any evidence. He even contended that the agreement to sell was not duly proved, the petitioner had mortgaged the house and the sale agreement was fraudulent.

7. On the other hand, the learned counsel for the respondent contends that the matter stands concluded by concurrent findings of the learned two Courts. The agreement, Exh.P.1, was duly proved and it was so concurrently held by the learned two Courts. As to the form of the suit his contention was that even if the form of the suit was defective, the learned trial Court should have directed amendment in the plaint. Reliance was placed on Ahmed. Din v. Muhammad Shafi and others PLD 1971 SC

762. He further contends that the finding of the learned trial Court that the suit for specific performance was barred by time proceeds on misreading of the agreement as according to him no time was fixed for performance and it was agreed that whenever desire by the respondent the petitioner will execute the sale‑deed.

8. The submissions made by the learned counsel for the parties have been considered. The agreement Exh.P.I has concurrently been found to have been proved. The respondent had examined P. W.1, a marginal witness and had herself appeared as P, W.3. It was not even suggested to her that EXh.P.1 was the outcome of any fraud or collusion. D.W.1 admitted that the petitioner had signed Exh.P.1, but without reading it. D. W.2 stated that he participated in the bargain, the price of the house was fixed at Rs.6,500 and it was agreed that whenever the petitioner paid back the said amount to the respondent, he will get back the house. In his statement as D.W.3, the petitioner admitted that he had handed over the sale‑deed in his favour and the PTD in favour of his vendor to the respondent. Delivery of these documents to the respondent would no have been required in case of a mortgage. It may be noted that particulars of fraud were not given by the petitioner in his plaint although required by rule 4 of Order VI of the Code of Civil Procedure. The averment in, the written statement in the suit filed by Mst. Mehmooda Begum was that) the Mortgage deed was converted into sale agreement in collusion with the petition‑writer. There is no evidence to support it. The finding of the learned two Courts as to execution of Exh.P.1 is, therefore, not open to any exception. And, therefore, it was not liable to be cancelled as such the suit of the petitioner was rightly dismissed. The question, however, is, whether declaratory suit filed by the respondent could be decreed.

9. Possession of the house was delivered to the respondent under the aforesaid agreement to sell. Therefore, she could defend her possession under section 53‑A of the Transfer of Property Act. However, she could not press the said agreement as a sword. Thus, the declaratory suit filed by the respondent was not maintainable and she should have asked for specific performance. However, if the suit of the respondent was also to be dismissed, there would be situation of stalemate because neither the respondent shall be able to perfect her title nor could the petitioner obtain possession from the respondent because of the protection available to the latter under section 53‑A of the Transfer of Property Act. Such a situation is, therefore, to be avoided. I am, therefore, of the view that the respondent should be directed to suitably amend the plaint to claim the relief of specific performance. The power to direct amendment is available to the Court even suo motu under the provisions of rule 17 of Order VI of the Code of Civil Procedure.

10. Reference may also be made to the case of Ahmed Din (supra) in which a declaratory suit was filed without seeking further relief of possession by the appellant before the Honourable Supreme Court. The suit was dismissed by the learned trial Court as barred by time. The first appeal was allowed and the case was remanded. This Court, however, directed dismissal of the suit, on the ground that the appellant should have asked for the relief of possession. It was further held that the Civil Court had no jurisdiction to examine a mutation of a refugee right‑holder. The judgment of this Court was maintained to the. extent it found that the Civil Court had no jurisdiction. However, regarding the maintainability of the suit the following observations were made:‑‑ "If a suit was otherwise maintainable and he was otherwise entitled to the relief it was open to the Courts to allow him to amend the plaint by adding a prayer for possession and putting an appropriate ad valorem court‑fees and then to grant him a relief even though he had not specifically asked for it."

11. Resultantly, Civil Revision No.1283‑D of 1989 is allowed, impugned judgment and decrees are set aside. The case is remanded to the learned trial Court. The respondent is allowed to amend the prayer paragraph of the plaint to claim relief of specific performance, the paragraph relating to valuation of the suit for the purpose of court‑fee and jurisdiction, and pay proper court‑fee if attracted. All pleas of law and fact will be open to the petitioner in defence to the suit for specific performance. If necessary, further issues may be framed. The parties may be allowed to lead further evidence and' thereafter the suit of respondent shall be decided afresh in accordance Civil Revision No. 1284‑D of 1989 is concerned it is dismissed. S.A.K./J-38/L Petition dismissed.