2002 PLP 3176 (YLR)

(1) Whether plaintiff is entitled to the decree for specific performance or in alternative for recovery of Rs.5,54,662? OPP (2) Relief. Thereafter, case was being adjourned for recording of evidence of the plaintiff and some evidence of the plaintiff was recorded. On 7‑2‑1993 the case was adjourned to 7‑4‑1993 for recording of evidence of the plaintiff when on 18‑3‑1993 file was summoned on the application of the plaintiffs. In the first instance the names of said persons impleaded as defendants Nos. 5 to 8 were ordered to be deleted. Thereafter, an application under Order 32, rule 7, C.P.C. was taken up for permission to compromise on behalf of the minor defendant. Statements of respondents Nos. 4, 6 and 7 and learned counsel for respondent No.4 was recorded to the effect that they have received the total consideration amount and that the suit of the plaintiffs be decreed. The case was adjourned to 7‑7‑1993 for orders. On this date application were filed on behalf of Muhammad Yaqoob, the predecessor‑in- interest of the present appellants, respondents Nos. 8 and 9 praying that they be impleaded as party to the suit. In this application it was stated that the said respondents Nos. 4 to 7, had already entered into an agreement for sale of land in favour of the said applicants on, 30‑8‑1988 and 9‑10‑1989 and that the suit is collusive. This application was allowed on 14‑12‑1993 and plaintiffs were directed to file an amended plaint. This amended plaint was filed on 29‑1‑1994. In Para.6 of this amended plaint it was stated that against the added defendants no relief is being sought. It was, however, stated that agreement executes in their favour is illegal and no binding upon the plaintiffs. Muhammad Yaqoob died and the appellants were impleaded as his. L.Rs. and amended plaint was filed on 14‑3‑1995. In their written statement filed by Muhammad Yaqoob and Muhammad Mansha it was stated that agreement dated 22‑12‑1988 is collusive as respondents Nos. 4 to 7 had already agreed to sell the land to them vide agreement dated 30‑8‑1988 for consideration of Rs.9,40,000 and they had received Rs:1,60,000 as earnest money; that Shujaul Hassan respondents latter ratified the agreement on 9‑10‑1989. This written statement was filed on 27‑2‑1994. On 4‑10‑1994 the plaintiffs filed an application under Order 1, rule 10, C. P. C. seeking impleadment of Safdar Hussain. respondent No.9 in the suit on the ground that said Muhammad Yaqoob, Muhammad Mansha and Safdar Hussain have purchased the share of suit‑land from Shujaul Hassan respondent No.7 vide sale‑deed dated 30‑5‑1992 registered on 20‑3‑1993. Safdar Hussain was accordingly impleaded alongwith L.Rs. of Muhammad Yaqub in the amended plaint filed on 14‑3‑1995. Respondents Nos. 4 to 7 filed an amended written statement on 30‑5‑1995. In this written statement they admitted the case of the plaintiffs but denied the said agreement as also having executed sale‑deed dated 30‑5‑1992 in favour of said added defendants. Following additional issues were framed:‑‑ (1‑A) Whether plaintiffs are estopped to file this suit by their words and conduct? OPD (1‑B) Whether plaintiff has no cause of action? OPD (1‑C) Whether suit is collusive between plaintiff and defendants 1 to 4? OPD (1-D) Whether the defendants Nos. 1 and 2 have executed an agreement to favour of defendants Nos. 5 and 6 dated 30‑8‑1988? OPD (1‑E) Whether the sale‑deed dated 30‑5‑1992 on behalf of defendants No. 3 in favour of defendant No. 8 was validly executed with consideration? OPD Evidence of the parties was recorded. Issues Nos. (1‑C), (1‑D) and (1‑E) were taken up together. It was found that respondents Nos. 4 to 7 have admitted the execution of the agreement and receipt of money vide statement dated 18‑3‑1993. No finding was recorded as to whether agreement dated 30‑8‑1988 or sale‑deed dated 30‑5‑1992 were executed or not. It was stated that since no suit for specific performance of the said agreement had been filed, the same is of no help to the added defendants while sale was held to be hit by principle of lis‑pendence. Issues (1‑A), (1‑B) and (1‑C) were also taken up together and were decided against the added defendants with the observation that there is no evidence on record in support of the said issues. The suit was accordingly decreed vide judgment and decree dated 17‑12‑1995.

2. For order we propose to pass in this case we will not be noting respective contentions of the learned counsel for the parties as there is no necessity for the same. Suffice it to say that the appellants have placed on records a certified copy of plaint dated 14‑12‑1995 in a suit filed by the appellants against the respondents Nos.4 to 7 for specific performance of the agreement dated 30‑8‑1988. Learned counsel for respondents Nos. 1 to 7 admits that such a suit has been filed on the date mentioned above. This being so the sole reason stated by learned trial Court for discarding agreement dated 30‑8‑1988 stands negated. We have already stated above in detail the sequence of the events that happened in the suit as would be apparent on the face of record. An examination of the impugned judgment shows that the matter of execution of the agreement relied upon by the plaintiffs has not been dealt with vis‑a‑vis the pleas raised by the appellants. Similarly there is no finding regarding the execution of the agreement being relied upon by the appellants. The respondents Nos.4 to 7 have denied the execution of the said sale‑deed in favour of the added defendants in the main suit. There is no finding regarding the execution of the said document. The suit for specific performance of the said agreement being relied upon by the appellants had already been filed before the learned trial Court decided the present suit. We find a note on this plaint that a connected suit is pending before Mr. Muhammad Afzal Khan, Civil Judge arid is fixed for 17‑12‑1993. The endorsement made by the learned Senior Civil Judge on the plaint shows that the suit was marked to the said learned Judge for 14‑12‑1995. Needless to state that it is said learned Judge who has passed the impugned judgment. We therefore, find that except for holding in detail that compromise took place between the plaintiffs and respondents Nos.4 to 7 the impugned judgment decides nothing.

3. For all that has been discussed above, this Regular First Appeal is allowed and the impugned judgment and decree dated 17‑12‑1995 of the learned trial Court is set aside. The result would be that the suit filed by the plaintiffs against the remaining respondents and appellants shall be deemed to be pending in the learned trial Court where the other suit filed by the appellants against respondents Nos.4 to 7 is pending. Both the suits shall be consolidated. The plaintiffs in this case shall be impleaded as defendants in, the said other case (according to the certified copy being Civil Suit No.356/1 of 14‑12‑1995) after completion of the pleadings in the said suit consolidated issues shall be framed. The proceedings shall be carried out in the suit filed by the plaintiffs in this case. Parties shall be at liberty to rely upon the evidence already recorded in this suit and of course to lead such further evidence as they deem proper. After recording of the evidence both the suits shall be decided in the light thereof and in accordance with law.

4. The parties shall appear before the learned trial Court for the said purpose on 10‑4‑2002. No order as to costs. H.B.T./M‑1309/L Appeal allowed.