2002 PLP 1877 (SCMR)

CH. MUHAMMAD ARIF, J.‑‑‑Challenge in, this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, has been made to the judgment dated 14‑10‑.1996 passed by the Lahore High Court, Lahore in R.S.A. No.87 of 1996.

2. The background is that the respondent filed a suit against the petitioners for specific performance of sale agreement dated 27‑6‑1990 whereby petitioner No.1 had agreed to alienate his agricultural land measuring 24 Kanals, detailed in the headnote of the plaint, in favour of the respondent/plaintiff for a sum of Rs.1,65,000 received Rs.15,000 as earnest money; handed over the possession of the suit land and promised to execute sale‑deed on payment of the remaining amount of Rs.1,50,

000. It was also pleaded by the respondent that when they tried to avoid to execute sale‑deed, he filed the suit for specific performance of the agreement, which was withdrawn on account of a compromise between the parties on 27‑5‑1992. In consequence of this compromise, petitioner No.1 received a cheque for Rs.35,000 in order to get the suit land redeemed from the ADBP and promised to execute the sale‑deed in favour of the respondent within 15 days, after the redemption.

3. The present suit was filed when petitioner No.1, instead of executing the sale‑deed in favour of the respondent, gifted away the suit land in favour of petitioner No.2 (his son) vide Mutation No.91, dated 24‑9‑1992 and finally refused to abide by the agreement.

4. The suit was contested by the petitioners contending that it was the respondent who failed to pay the balance amount within the stipulated time with the result that failure to perform his part of the agreement by petitioner No. 1, is in order.

5. After framing proper issues and taking whatever evidence the parties wanted to produce in the lis, the learned trial Court decreed the suit on 29‑5‑1995.

6. The petitioners remained unsuccessful in their appeal before a learned Additional District Judge, Shorkot who held that petitioner No. l had been avoiding to comply with the terms and conditions of the compromise Exh.P.1 and that as the respondent/plaintiff was ready to perform his part of the conduct, the findings of the learned trial judge on the said question are confirmed. It was further held that no mala fides could be attributed to the respondent/ plaintiff and that he was not estopped by his words and/or conduct from making the suit. The findings of the learned trial Judge on Issues Nos.5 to 6 were also confirmed. On the main question regarding maintainability of the present suit in view of preliminary objection, it was held that the earlier suit of the respondent/plaintiff was on a different subject matter being one for declaration and cancellation of 'Hibba', whereas the instant was a suit for specific performance of the contract. Findings of the learned trial Judge to that effect were also confirmed.

7. Hence this petition.

8. Mr. M. Anwar Sipra, learned Advocate Supreme Court appearing in support of this petition has reiterated the plea in the lis that the present suit was hit by rule 2 of Order II of the Code of Civil Procedure in that earlier suit having been withdrawn, the respondent could ill‑afford to make another, on the same subject‑matter. According to the learned counsel, the present suit was substantially based upon the earlier agreement and as the earlier suit was withdrawn by the respondent, the judgments/decrees of all the three Courts below are liable to be reversed.

9. We are afraid the plea is devoid of any merit. It is not the case of the petitioners that the original agreement/contract was not over reached by the compromise dated 27‑5‑1992. The subject‑matter of the present suit was, no doubt, a follow‑up of the original agreement/contract dated 9‑5‑1992 but, still, the new dispensation which came about on 27‑5‑1992 was a separate cause entitling the respondent to file a suit for specific performance of the contract afore‑referred read in conjunction with compromise dated 27‑5‑1992. The learned Judge in Chambers of the Lahore High Court, Lahore has not been shown to be in error in observing that the petitioner's objection as to bar contained under Order 11, rule 2, C.P.C. is also not well- founded in that it is now well‑settled that the previous suit being not competent in law the said bar is not attracted insofar as the second suit is concerned" which is found to be competent in law. Even otherwise it is admitted position of fact between the parties that they entered into a compromise dat9d 27‑5‑192 whereby the original agreement to sell was ratified by appellant No.1 /petitioner. No. l herein, who also received another amount of Rs.35,000 in furtherance of the said agreement and undertook to convey the land in dispute to the respondent". We are not inclined to the view that the suit tile respondent way hit by the bar contained in Order 11, mile 2, Code of Civil Procedure.

10. No other point was urged.

11. For all that has gone before, the instant petition is dismissed and leave refused. Q.M.H./M.A.K./M‑77/S Petition dismissed.