2009 PLP 1538 (YLR)

MUHAMMAD ALAM KHAN, J.

This civil revision petition filed under section 115, C.P.C. is directed against the judgment and decree dated 28-4-2007 passed by the learned Additional District Judge-V Bannu, whereby appeal of the plaintiffs/appellants against the judgment and decree dated 27-2-2007 passed by the learned Civil Judge-VI Bannu was partially allowed.

2. Muhammad Nawaz Khan and others, plaintiffs/petitioners, had filed a suit for specific performance of agreement deed dated 1-1-2005 against Saif-ur-Rahman etc., defendants/respondents, to the effect that they being owners-in-possession of land measuring 9, Kanals 4 Marlas in Khata No.889 situated in Mouza Ghoriwala Bannu, in view of the said agreement to sell dated 1-1-2005 were bound to transfer land measuring 1 Kanal 13 marlas 3 sarsai in their favour as the transaction had been entered in the revenue record on their statement vide Roznamcha Waqiati dated 2-1-2005 along with Mutation No.2238 in the register of mutations.

3. The defendants were summoned to the Court who hotly contested the suit by filing replication and the divergent pleadings of the parties gave rise to the framing of thirteen issues including the relief. The learned trial Court after recording pro and contra evidence and hearing learned counsel for the parties dismissed the suit of the plaintiffs, but their appeal was partially allowed by the learned Additional District Judge-V Bannu to the extent of refund of earnest money of Rs.15000 given in advance to the defendants out of the total sale consideration of Rs.20,000 vide judgments and decrees referred to above. Hence, this revision petition by the plaintiffs.

4. I have carefully examined the entire record of the case with the valuable assistance of the learned counsel for the parties and anxiously considered the arguments advanced at the bar.

5. The record reveals that the impugned judgments and decree of the learned lower fora are based on mis-reading and non-reading of material evidence brought on record and are thus, not sustainable. On the one hand, the Courts had admitted the oral sale of the suit-land through the agreement deed dated 1-1-2005, while on the other it had dismissed the suit on the ground that the defendants/vendor had transferred the suit-land measuring 1, Kanal 13 marlas and 2 sarsai to Muhammad Zareen etc; through registered sale-deed No. 265 dated 19-5-2005. Perusal of the record makes it crystal clear that the defendants/ respondents had struck the agreement to sell in favour of the plaintiffs/ petitioners with respect to the suit-land and an earnest money of Rs.15000 was received by them on 1-1-2005 and this fact was also reported by the Patwari Halqa on the same date in the Roznamcha Waqiati at Serial No.151 the same date duly signed by the defendant/respondent No.1. This fact is further supported by the entry of Mutation No.2238 dated 2-1-2005 in favour of the petitioner duly admitted by the vendor on oath. Thus in view of the dicta handed down in the cases of Nazimullah and others v. Mst. Gohar Taja and others (2003 YLR 2008) and Mst. Ghulam Bibi and others v. Sarsa Khan and others (PLD 1985 Supreme Court 345), the learned lower appellate Court should have permitted the plaintiffs/petitioners to have amended the plaint in order to bring the real controversy between the parties on the file, as the same will not change the complexion of the suit because the proposed amendment emanates from the same cause of action. 5(sic) Consequently this revision petition is accepted, the impugned judgments and decrees of the learned lower fora are set aside and the lis is sent back to the learned trial Court for decision de novo. The plaintiffs are allowed to file an amended plaint whereafter the trial Court shall record pro and contra evidence and proceed with the trial strictly in accordance with law. The parties are directed to appear before the learned trial Judge on 21-2-2009. Record of the case be sent back to the trial Court forthwith. H.B.T./94/P Case remanded.