' MAULVI ANWARUL HAQ, J.---On 25-6-1998 the appellant filed a suit against the respondents.
According to the plaint in the first instance respondents Nos.2 and 3 entered into an agreement with respondent No.1 on 26-2-1987 for allotment and construction of a house on Plots Nos.36-A and 37-A, "Butterfly Houses Scheme" in the Lahore Cantonment. Respondent No.1 made some payments detailed in para. No.1 to respondents Nos.2 and 3 and raise some construction. Thereafter on 14-3- 1989 respondent No.1 agreed to sell to the plaintiff her rights in the said property and executed an agreement to sell. The payments detailed in para.2 of the plaint were made by the appellant to respondent No.1 under agreement dated 15-3-1989 and a NOC was also issued by respondent No.3 to the said agreement. The appellant made all the payments except a sum of Rs.63,000 that was to be paid at the time of registration of the sale-deed which was to be effected in her favour.
Thereafter she raised and completed construction and let out the house to one Syed Ali Imran who is her tenant in the said house. The plaint then narrates that it the then transpired that respondent No.3 had filed a suit for specific performance against respondents Nos.4 and 5, which was dismissed on 28-1-1990. The R.F.A. No.70 of 1990 was decided by means of compromise on 24-11- 1990. Respondent No.3 then filed an execution application which was dismissed on 4-5-1991.
Respondent No.3 filed a F.A.O. 140 of 1991 in this Court which was dismissed on 18-1-1992. The Honourable Supreme Court of Pakistan on 20-10-1993 dismissed C.A. No.385 of 1992. Then it was stated that the appellant approached respondents Nos.1 and 3 for performance of the agreement who advised to her to apply for the execution of the decree passed on 24-11-1990 by this Court. A joint application was filed by the appellant and respondent No.1 for execution of the decree dated 24-11-1990, which was dismissed on 27-6-1995. A first appeal was dismissed by a learned Additional District Judge, Lahore on 12-12-1996 for non-prosecution. An application for re- admission of appeal was dismissed on 8-4-1997 while F.A.O. No.90 of 1997 which was treated as a first appeal against the original order of the Executing Court was dismissed on 27-6-1995. On 30-7- 1995 respondent No.4 filed a suit against the appellant for possession of the plot after removal of the superstructure. The suit was decreed ex parte on 23-12-1996. An application for setting aside ex parte decree was dismissed by the learned trial Court on 26-4-1997. F.A.O. No.97 of 1997 is pending.
With these averments the appellant prayed for a decree for specific performance of the decree dated 14-3-1989 or alternate for compensation in the sum of Rs.30,00,000.
2. The said suit was registered and notices and summons were issued to the defendants in the case. On 25-7-1998 respondents Nos.4 and 5 put in appearance through a learned counsel. On 21- 10-1998 respondents Nos.4 and 5 filed an application under Order VII, rule 11, C.P.C. On 13-2-1999 the reply was filed by the appellant. Meanwhile, summons were being issued to the remaining respondents. On 10-9-1999 learned trial Court directed that they be served by proclamation in the Daily Jurrat. In the record we do not find any proclamation having been so effected. Be that as it may, the plaint was rejected by the learned trial Court vide order dated 26-5-1999.
3. This R.F.A. Was admitted to regular hearing on 28-10-1999 and notices were issued. As per office note respondents Nos.2 and 3 have been served. Respondents Nos.1 and 4 are stated to have given up their residences stated in the Memo. Of appeal while respondent No.5 has been served through his son.
4. Learned counsel for the appellant informs that in C.P. No.710 of 1999 and C.P. No.1125-L of 1998 a compromise had been arrived at between the respondents Nos.4 and 5 on the one hand.
Respondent No.1, on the other hand, whereby respondent No.5 has agreed to sell the plot to the appellant against price agreed before the Honourable Supreme Court and according to the learned counsel the said price has been paid. According to the terms of the said agreement this R.F.A. Is to be withdrawn against respondents Nos.4 and 5 and matter is to be pursued against respondents Nos. 1 to 3. Learned counsel has placed a copy of the order of the Honourable Supreme Court dated 22-12-1999 on the file and prays that he be allowed to withdraw the R.F.A.
Against respondents Nos.4 and 5 and to pursue the suit for damages against respondents Nos.1 to 3.
5. We have examined the trial Court record. As noted by us respondents Nos.1 to 3 were yet to be served in the suit when the learned trial Court proceeded to reject the plaint on the application of respondents Nos.4 and 5. Now as would be evident from the contents of the application filed by respondents Nos.4 and 5 as also the impugned order passed by the learned trial Court rejecting the plaint, the averments made by respondents Nos.4 and 5 were that on the face of the plaint no privity of contract has been claimed by the appellant with respondents Nos.4 and 5, who were the owners of the land and against whom the suit of respondent No.3 had been dismissed and later execution application filed for enforcement of compromise decree was dismissed. We have further noted above that in the plaint alternate relief of damages was also sought against respondents Nos.1 to 3. The said respondents had yet to appear and to put up their defence in the suit.
6. Now the latest position that emerges is that a compromise has been effected between the appellant and respondents Nos.4 and 5 on terms recorded before the Honourable Supreme Court and the R.F.A. Is to be withdrawn as against respondents Nos.4 and 5.
7. The R.F.A. Is accordingly dismissed as withdrawn against the respondents Nos.4 and 5 on whose application the plaint was rejected as against them. However, it is allowed inasmuch as respondents Nos.1 to 3 have yet to be served in the suit and the learned trial Court has yet to examine the plaint vis-a-vis the said respondents after their service and to proceed further in the case accordingly. The impugned order dated 26-5-1999 is set aside to the extent of respondents Nos.1 to 3. It shall be deemed that the suit is pending against the respondents qua the relief of damages claimed in the suit. The record of the learned trial Court shall be remitted to the learned Senior Civil Judge, Lahore, who shall summon the parties and proceed further in the matter in the light of observations made above. A copy of the order and proceedings dated 22-12-1999 of the Honourable Supreme Court shall also be remitted along with records to the learned Senior Civil Judge, Lahore. No order as to costs.