2012 PLP 1541 (CLC)

SYED IFTIKHAR HUSSAIN SHAH, J.

Through this revision petition, the petitioner has called in question the legality of judgment and decree dated 16-7-1998 passed by the learned Additional District Judge Rahimyar Khan whereby appeal filed by the respondent/defendant against the judgment and decree dated 12-2-1996 passed by the learned Civil Judge 1st Class Rahimyar Khan dismissing suit instituted by the respondent/plaintiff for specific performance of contracts dated 17-10-1981 and 20-10-1982 regarding the land mentioned in the head note of the plaint, was accepted.

2. The facts of the case in brief are that the respondent/plaintiff instituted a suit for seeking specific performance of contract dated 17-10-1981 and 20-10-1982 against the present petitioner Muhammad Ramzan in respect of land measuring 16-Kanals and 8-Marlas situated in Khata Nos.25, 26 and 28 of Mouza Kandey Wali District Rahim Yar Khan. Muhammad Ramzan plaintiff/respondent instituted three suits titled "Muhammad Ramzan v. Muhammad Bakhsh" regarding land measuring 6 Kanals, 18-1/2 marlas, "Muhammad Ramzan v. Ghulam Sakina" regarding land measuring 6-Kanals 18-1/2 Marlas and "Muhammad Ramzan v. Qadir Bakhsh regarding land measuring 8-Kanals, which were decreed by the learned Civil Court. Through an agreement dated 20-10-1982 a settlement was arrived at between the parties that the present petitioner would transfer 3/4th of the decreed land in favour of Shamas Din plaintiff and it was Shamas Din who bore all the expenses of Zar-e-Panjum, decreetal amount and the expenses of the litigation. The petitioner received a sum of Rs.17,000/- through Iqrarnama and another sum of Rs.41,000/- through a receipt dated 22-2-1985. In addition, the petitioner as well as the respondent jointly instituted another suit titled "Muhammad Ramzan and others v. Hafiz Rasool Bakhsh and others" wherein plaintiff/respondent deposited an amount of Rs.36000/- and Rs.6500/- and other expenses incurred on litigation through of Iqrarnama dated 17-10-1981 and it was agreed that the respondent would get 3/4th share of the decreetal amount at the rate of Rs.15000/- per acre but the said suit was dismissed. The respondent/ plaintiff also claimed damages of Rs.50,000/- and the recovery of Rs.36000/-. The petitioner/defendant resisted the suit, raised certain preliminary objections, however the execution of the agreement in question was not specifically denied and it was alleged that the agreements in question were never implemented.

3. Out of divergent pleadings of the parties, learned trial Court framed the following issues:

"Issues No.1 Whether the suit is time-barred.? OPD No.2 Whether the endorsement dated 27-2-1985 on agreement dated 20-10-1982 is the result of fraud, missrepresentation and collusion, if so, its effect? OPD No.3 Whether the plaintiff has no locus standi and cause of action to file the suit? OPD No.4 Whether the defendant did not receive any consideration from the plaintiff on the basis of the impugned agreement, if so, its effect? OPD No.5 Whether the suit is incorrectly valued for the purpose of court-fee? OPD No.6 Whether the suit is bad due to multifariousness? OPD No.7 Whether the suit is not maintainable in its present form? OPD No.8 Whether the agreement dated 17-10-1981 and dated 20-10-1985 along with two receipts dated 27-2-1985 were executed by the defendant in favour of the plaintiff and these are liable to be specifically enforced.? OPP No.9 Relief."

4. Learned trial Court after recording the evidence and hearing the learned counsel for the parties, dismissed the suit vide judgment and decreed the suit to the extent of Rs.36000/- and for rest dismissed the same vide judgment and decree dated 12-2-1996. The defendant/ respondent filed an appeal against the said judgment and decree, which was allowed vide impugned judgment and decree dated 16-7-1998. Hence, this revision petition.

5. Learned counsel for the petitioner has contended that the agreements in question were never executed between the parties and it is the petitioner who bore all the expenses incurred on the institution of suit till its decree; that the agreements in question are against the public policy but the learned lower Appellate Court has not looked into this aspect of the case and decreed the suit arbitrarily.

6. On the other hand learned counsel for the respondent has contended that the plaintiff got instituted suit for seeking decree for possession through pre-emption from the present petitioner and he bore all the expenses incurred on litigation, deposited Zar-e -Panjum, even the decreetal amount in the Court and also deposited Zar-e-Panjum in case titled "Muhammad Ramzan and others v. Hafiz Rasool Bakhsh and others" and it was agreed between the parties and after passing the decree in favour of Muhammad Ramzan, he will transfer 16-Kanals and 8-Marlas in favour of the respondent, he failed to fulfill his part of contract, therefore, the learned Lower Appellate Court rightly accepted the appeal and decreed the suit. Relies on "2008 MLD 265 [Lahore]", "2011 SCMR 1162 [Supreme Court of Pakistan]" "PLD 2011 Lahore 522", "1997 CLC 1231 [Lahore]", "PLD 2004 Lahore 330", "1987 CLC 1608 [Lahore]", "1989 CLC 1310 [Lahore]", "1998 CLC 27 [Karachi]" "1993 SCMR 145 [Supreme Court of Pakistan]" and "2009 CLC 1070 [Karachi]."

7. I have heard the learned counsel for the parties and have also gone through the record.

8. The respondent examined Ghulam Farid P.W.1 scribe of agreement Exh.P-1 and receipt Exh.P-2, who categorically deposited that Shamas Din paid Rs.50,000 to Ramzan in his presence. Abdul Raheem P.W.2 is the marginal witness of receipt Exh.P-3. Azeem Ashraf Advocate on whose dictation the agreement Exh.P-1, Exh.P-2 and Exh.P-3 were written appeared as P.W.3. Mukhtar Ahmad P.W.4 is the marginal witness of receipts Exh.P-1 and Exh.P-3. The plaintiff himself appeared as P.W.5 and produced copy of judgment dated 9-2-1983 Exh.P-4, copy of decree sheet dated 15-1-1985 Exh.P-5, copy of decree dated 28-1-1985 Exh.P-6, copy of decree-sheet dated 28-1-1985 Exh.P-7, copy of challan forms Exh.P-8 to Exh.P-13 and copy of Jamabandi dated Exh.P-14. The petitioner/defendant in rebuttal only stated that he himself bore all the expenses of the litigation. He specifically denied the execution of agreement dated 17-10-1981 and receipt dated 20-10-1982.

9. The minute perusal of Paragraphs Nos.2, 4 and 5 of written statement reveals that Muhammad Ramzan petitioner did not specifically deny the execution of the agreements and it was alleged that agreement dated 17-10-1981 and 20-10-1982 were not implemented. The respondent has otherwise proved the execution of the aforesaid agreements by examining independent witnesses. The evidence of the respondent is consistent, corroborative and convincing. The petitioner admitted his signatures over receipt Exh.P-2. According to the preliminary Objection No.2 of the written statement his thumb-impression on Exh.P-2 were obtained under some misapprehension whereas while appearing as D.W.1, he stated that his counsel Sheikh Azeem Ashraf procured his thumb-impression over receipt through deceitful manner. The original challan forms regarding the deposit of all dues in the Court were produced by the respondent in evidence. The plea of the petitioner that he disposed of his property through mutation Exh.D-1 and Exh.D-2, could not substantiate his claim. The petitioner also admitted that he along with Shamas Din jointly instituted suit against Hafiz Ghulam Rasool and others and Sheikh Azeem Ashraf, Advocate was their counsel and Ghulam Farid P.W.1 was the clerk of said learned counsel and the expenses were jointly incurred by both petitioner and Shamas Din. The learned Lower Appellate Court, after minutely examining the evidence of the parties had rightly come to the conclusion that the respondent had proved the existence of agreement between the parties and the payment of consideration.

10. Now coming to the legality of agreement whereby respondent agreed to finance prosecution of three suits for pre-emption. Such-like contracts are not prohibited in the country and learned counsel for the petitioner could not produce any law on this point. However, such agreements have been explained under section 25 of the Contract Act being against public policy or not. Every agreement to finance litigation per se is not opposed to public policy rather there may be a case in which it would be in the furtherance of law, equity, justice and necessary to resist oppression and that a litigant who has absolute title to a property but no means to retrieve the same, therefore, in such situation the agreement will be lawful and justified. Such agreements are to be carefully scrutinized and when found to be unconscionable, unjust and inequitable, for improper object, against law, oppressive or leading to vexatious litigation, the same should be treated as against the public policy. The agreement executed by the parties of this case is not against public policy and there is nothing unconscionable, unjust and inequitable in the same. In view of above discussion, the findings of learned lower Appellate Court are in accordance with law, the revision petition in hand is without any merits, the same stands dismissed. K.M.Z./M-199/L Petition dismisse