' MUHAMMAD NAWAZ ABBASI, J.-The petitioner through this petition has sought leave to appeal against the judgment, dated 9-7-2002 passed by a learned Single Judge of Lahore High Court, Rawalpindi Bench in a Regular First Appeal, arising out of a suit for specific performance of the contract.
2. The, facts of the case in brief are that Malik Ansar Ahmad, real brother of the petitioner, having promised for early return of the amount obtained a loan of Rs,30,00,000 from petitioner for purchase of air-conditioned coaches and a Plot bearing No,875,Sector 1-8/3, Islamabad. The brother of petitioner having purchased the vehicles and the plot, transferred the same in the name of his wife Mst. Farhana Naz, respondent No,1 in the present petition. Mst. Farhana Naz, after death of her husband, obtained another loan of Rs,15, 00,000 from petitioner for purchase of house in Karachi as she intended to settle in Karachi, after selling the Plot bearing No,875, Sector 1-8/3, and Islamabad. In these circumstances respondent No,1 entered into an agreement dated 7-5-1999 with the petitioner for sale of the plot in question for a consideration of Rs,45,00,000. As per agreement, the amount of loan of Rs,30,00,000 was adjusted towards the sale price and out of balance sale price, an amount of Rs,14,00,000 was paid in cash. The remaining amount of Rs,one lace was to be paid at the time of transfer of the house in the C.D.A. In the name of petitioner on or before 1-6-1999. Upon failure of respondent No,1 to transfer the house under the agreement, the petitioner filed a suit for specific performance of the contract in the civil Court at Islamabad and also impleaded the C.D.A. As defendant in the suit. The written statement filed by the C.D.A.
Revealed that the respondent No,1 had already transferred the plot in the name of Jalil Akram, respondent No,3 in the present petition. Mst. Farhana Naz, respondent No,1 despite service, did not appear in the Court and she was proceeded ex parte vide order, dated 23-4-2001. Subsequently, both C.D.A. And respondents Nos.2 and 3- were also proceeded ex parte vide order, dated 30-4- 2002. The learned trial Judge recorded the statement of petitioner on 11-5-2001 and she in addition to her own statement also produced a copy of legal notice sent by her to respondent No,1 and the copy of agreement to sell dated 7-5-1999 in evidence. The petitioner then moved an application for additional evidence on 23-5-2002 on which date, the suit was dismissed and the application for additional evidence was also dismissed with the observation that the same was moved after the dismissal of suit.
3. Learned counsel for the petitioner contended that the original agreement was in possession of the respondent, the copy of which was placed on record and its perusal would show that payment of Rs,30 lacs and Rs,14 lacs by the petitioner as sale consideration of the plot was acknowledged by respondent No,1 and that the petitioner in her statement on oath, having described terms of the sale agreement, in detail stated that Rs,44 lacs were paid towards price of the plot. The learned counsel argued that in absence of any evidence to the contrary the dismissal of suit by the trial Court for want of availability of original agreement to sell was not justified and that the learned Judges in the High Court without taking into consideration the unrebutted statement of the petitioner on oath and considering that the suit was dismissed by the trial Court, without disposing of the application for additional evidence, dismissed the appeal in perfunctory manner
4. Learned counsel appearing on behalf of respondent No,3 on the other hand has argued that said respondent purchased the plot for valuable consideration from its owner (respondent No,1) in October, 1999 and that without proof of the agreement to sell in respect of the house and payment of sale consideration the claim of petitioner would be unfounded and the sale in favor of respondent No,3 would be protected by virtue of section 41 -of the Transfer of Property Act. The learned counsel, however, has not been able to contradict the fact that the statement on oath made by the petitioner claiming payment of Rs,44,000 for the purchase of plot remained unrebutted and the plot was transferred in the name of respondent. No,3 pending disposal of suit in which the status quo order passed by the trial Court was holding field.
4-A. We having heard the learned counsel for the parties, are inclined to grant the leave to consider inter alia the following questions:--
(a) Whether in absence of original agreement to sell, the statement on oath made by the petitioner, would not be sufficient in proof of the existence of an agreement of sale of plot between the parties?
(b) Whether the dismissal of suit without disposal of an application for additional evidence was legal and proper?
(c) Whether respondent No,3 would be entitled to the benefit of section 41 of Transfer of Property Act?
' Leave is accordingly granted. The parties shall maintain status quo pending disposal of appeal.