CH. IJAZ AHMAD, J.--- The brief facts out of which the present appeal arises are that agreement to sell dated 22.8.2003 was executed between the appellant and respondent No. 1 regarding land in question measuring 257 kanals and 15 marlas for consideration of Rs. 1,44,98,438/-at the rate of Rs.
450,000/- per acre. According to the terms and conditions of the agreement appellant has paid Rs.
36,24,160/- to respondent No. 1 through two pay orders amounting to Rs. 17,00,000/- and Rs.
15,00,000/- and Rs. 4,24,610/- in cash. The sale-deed has to be executed in terms of the agreement to sell within four months and 15 days which comes to 9.1.2004. The respondent failed to execute sale-deed in favour of the appellant. The appellant being aggrieved filed suit for specific performance against the respondent in the Court of Civil Judge 1st Class, Lahore. Respondent No. 1 appeared in the Court on 22.3.2004 and admitted the claim of the appellant subject to deposit of balance amount of Rs. 1,08,73,828/-. Learned counsel of the appellant requested adjournment to secure instructions from the appellant. The appellant on the next date filed application before the Trial Court for appointment of local commission which was dismissed by the Trial Court vide order dated 29.3.2004. Thereafter the appellant and respondent No. 1 filed miscellaneous applications before the Trial Court. Finally the Trial Court directed the appellant to appear in person on the following dates:--
(i) 19.7.2004, (ii) 22.7.2004, (iii) 17.9.2004 and
(iv) 7.10.2004.
The appellant failed to appear consequently on account of his failure the Trial Court dismissed the suit vide judgment and decree dated 25.11.2004. Hence the present appeal.
2. The appeal was fixed before this Court on 12.1.2005. Notice was sent to the respondents. Learned counsel of the respondents have entered appearance. With the concurrence of the learned counsel of the parties the appeal is decided as pacca case.
3. Learned counsel of respondent No. 1 has raised a preliminary objection that appeal is not maintainable before this Court in view of the contents of para 13 of the plaint in which the appellant has mentioned value of the suit as 15,000/-. Therefore, appeal is not maintainable before this Court in view of Section 18(1)(a) of Punjab Civil Courts Ordinance, 1962. In support of his contention he relied upon the following judgments:-- National Bank of Pakistan Vs. Muhammad Akram Khan (2000 CLC 1493)
Ghulam Mustafa Vs. Rawat and others (PLD 1997 Kar. 622)
4. Learned counsel of the appellant submits that appellant has mentioned Rs. 15,000/- as value of the suit for Court-fee. Further contends that the contents of the plaint be read as a whole and in case para 13 is read with paras 2 and 4 of the plaint then it becomes clear that the appellant has filed suit for specific performance with regard to the property with a value of Rs. 1,44,98,438/-.
Therefore, objection raised by the learned counsel of the respondent has no force.
5. Learned counsel of the appellant submits on merits that the Trial Court erred in law to dismiss the suit of the appellant for non-appearance of the appellant which is not in consonance with Order IX, Rule 12 and Order V, Rule 4. CPC. In support of his contention he relied upon the following judgments:-- Ghulam Mohy-ud-Din Vs. Noor Dad (PLD 1988 S.C. (AJK) 42)
Safdar Ali Khan Sayal Vs. District Judge (PLD 1982 Lah. 63)
M. Aftab Sehgal Vs. Station. House Officer (1994 MLD 1659)
Learned counsel of respondent No. 1 submits that four opportunities were granted to the appellant for personal appearance but he failed to appear and filed mala fide miscellaneous applications before the Trial Court, therefore the Trial Court was justified to dismiss the suit of the appellant which is in accordance with law keeping in view the conduct of the appellant and the legal position that specific performance is discretionary relief. Therefore, Trial Court was justified to dismiss the suit of the appellant in view of the conduct of the appellant.
6. Learned counsel of respondent No. 2 submits that respondent No. 2 was only an instrument for execution of agreement to sell between the appellant and respondent No. 1 which is admitted by both the parties. He further submits that respondent No. 2 has no interest in the case.
7. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record.
8. First we would like to decide the preliminary objection raised by the learned counsel of respondent No. 1 qua maintainability of the appeal before this Court. It is better and appropriate to reproduce para 13, para 2, para 4 of the plaint to resolve the controversy between the parties:- "13. That the value of the suit for the purpose of Court-fee is Rs. 15,000/- and the plaintiff will deposit when this Honourable Court make order for deposit of Court-fee.
2. That before the execution of the agreement to sell with the defendant No. 1, the defendant No. 1 identified his land himself in the presence of the defendant No. 1 that his land is located on the said mettled road and the front of the land is near about 1000 feet which is located on the said mettled road, therefore, upon the assurance of the defendant No. 1 regarding the front of the land the plaintiff entered into an agreement to sell with the defendant No. 1 on 22.8.2003 @ Rs. 450,000/- per acre amounting to a total of Rs. 1,44,98,438/- for 257 kanals, 15 marlas and the plaintiff at the time of execution of the said agreement paid Rs. 36,24,610/- in the form of pay order No. 2088751, dated 23rd August, 2003 amounting to Rs. 17,00,000/- and pay order No. ABN-AMRO No. 2900297, dated 25.8.2003 amounting to Rs. 15,00,000/- and paid Rs. 4,24,610/- cash to the defendant No. 1 and for the remaining rest amount i.e. Rs. 1,08,73,828/- is to be paid in four months to the defendant No. 1 for the execution of sale-deed in favour of the plaintiff. Copy of the agreement to sell dated 22.8.2003 is annexed as Annexure-A. Whereupon the defendant not only put his signatures but also imposed his thumb mark on the agreement to sell.
4. That the plaintiff as per the agreement arranged the balance amount of Rs. 108,73,828/- and got prepared and deposited the same in the name of defendant No. 1 Khalid Pervaiz and got issued to pay order No. 20643, dated 8.1.2004 drawn at Union Bank, Township Branch, Lahore Annex-G for the balance consideration amount to be raid to the defendant No. 1. It is also important to mention here for the preparation of the sale-deed in favour of the plaintiff, the plaintiff required some documents i.e. Fard Nishandahi, Fard Aks, Fresh Fard Bai and Fard Masavi required and requested through his counsel requesting the defendant No. 1 to forthwith to provide the requisite documents required for the preparation of the titled deed but the defendant No. 1 reluctant to adhere the lawful request of the plaintiff."
It is settled principle of law that the plaint is to be read as a whole. In case it is read as a whole then the objection raised by the learned counsel of respondent No. 1 has no force. It is settled principle of interpretation that document must be read as a whole as the law laid down by the Honourable Supreme Court in the following judgments:- Reference by the President of Pakistan (PLD 1957 S.C.2 19)
Hakim Khan Vs. Govt. Of Pakistan (PLD 1992 S.C. 595)
Even otherwise if para 13 is read alone still the objection is not sustainable in the eyes of law in terms of the language used by the appellant in para 13 which clearly reveals that it is for the purpose of Court-fee and not for purpose of value of jurisdiction of the Court. AT this stage we would not hesitate to hold that para 13 of the plaint is not happily word in accordance with law. It is settled principle of law that each and every case is to be decided on its peculiar circumstances and facts as the law laid down by the Honourable Supreme Court in Trustee of Port of Karachi Vs. Muhammad Saleem (1994 SCMR 2213). The judgments cited by the learned counsel of respondent No. 1 are not attracted in the present case in view of peculiar circumstances highlighted in the above paragraphs. Therefore, objection raised by learned counsel of respondent No. 1 has no force.
9. As far as merits of the case are concerned it is admitted fact that appellant has filed application again'st order of the Trial Court for personal appearance of appellant on the ground that mother of appellant's counsel was seriously ill and finally she died on 22.11.2004 the counsel of appellant could not inform the appellant and filed up duly supported by his affidavit with the following prayer:- it is, therefore, respectfully prayed that application may be accepted and the petitioner may kindly be allowed some reasonable time to produce the attorney duly attested by the Embassy before this Honourable Court in the interest of justice and fairplay.'
The said application was dismissed by the Trial Court in the impugned order in the following terms:- "The application moved for offering another opportunity is absolutely unjustified."
It is better and appropriate to reproduce Order IX, Rule 12 and Order V, Rule 4, CPC to resolve the controversy between the parties: "Order LX, Rule 12. -- "Consequence of nonattendance, without sufficient cause shown, of party ordered to appear in person---Where a plaintiff or defendant, who has been ordered to appear in person, or show sufficient cause to the satisfaction of the Court for failing so to appear, he shall be subject to all the provisions of, the foregoing rules applicable to plaintiffs and defendants, respectively, who do not appear." (underlining is our).
Order V Rule 4, CPC. -- "No party to be ordered to appear in person unless resident within certain limits---No party shall be ordered to appear in person unless he resides---(underlining is our),
(a) within the local limits of the Court's ordinary original jurisdiction, or
(b) without such limits but at a place less than fifty or (where there is railway or steamer communication or other established public conveyance for five-sixth of the distance between the place where he resides and the place where the Court is situate) less than two hundred miles distance from the Court-house."
It appears that without adverting to the above provisions of law the Trial Court has dismissed the application of the appellant without judicial application of mind which is condition precedent as the law laid down in the following judgments:-- Gouranga Mohan Sikdar Vs. Controller of Import and Export (PLD 1970 S.C. 158)
Mollah Ejahar Ali Vs. Govt. Of East Pakistan (PLD 1970 S.C. 173)
Even the public functionaries are duty bound to decide the controversy between the parties after judicial application of mind after addition of Section 24-A in the General Clauses Act as the law laid down by the Honourable Supreme Court in Airport Support Services' case (1998 SCMR 2268). It is admitted fact, as mentioned above, that appellant has filed application for extension of time to allow appellant to produce his attorney before the Trial Court which application was decided as mentioned above without application of mind. The impugned order is not sustainable in the eyes of law, as mentioned above, the application filed by the appellant was dismissed without cogent reasons by the Trial Court. Therefore, impugned judgment and decree is not in consonance with the law laid down by the superior Courts in the aforesaid judgment. The appellant has also filed application under Order 12 read with Section 151, CPC on 25.10.2004 with the following prayer:- "Under the above-mentioned circumstances, it is, most respectfully prayed that the application may kindly be allowed and the defendant may kindly be directed to admit or deny the same after inspection."
The aforesaid application was not decided by the Trial Court as is evident from impugned judgment and decree which is not in consonance with the law laid down by the superior Courts in the aforesaid judgment. It is pertinent to mention here that Trial Court must have to decide the application of the appellant keeping in view the requirements and conditions prescribed under Order IX, Rule 12 and Order V, Rule 4, CPC. Therefore, impugned order and decree is not sustainable in the eyes of law.
It is pertinent to mention here that there are certain conditions prescribed under Order V, Rule 4, CPC as the law laid down by this Court in Bilqees case (PLD 1979 Lah. 387). This Court has interpreted Order IX, Rule 12, CPC in Syed Muhammad Abdul Jaleel Shah's case (PLD 1962 Lah. 401) wherein following principle has been laid down:-- "After giving due consideration to the matter, I am clearly of the opinion that Order IX, Rule 12, CPC does not empower the Court to strike of the defence. In passing the impugned order the subordinate Court appears to have acted in the exercise of its jurisdiction illegally and with material irregularity. I accordingly set aside the impugned order and direct the Court to proceed in accordance with law. The Court will be at liberty to require the presence of Syed Muhammad Abdul Jalil Shah Gardezi either under Order III, Rule 1, C.P.C. Or under Order X, Rule 4, C.P.C. And if he fails to appear then the Court may proceed either in accordance with the provisions of Order IX, Rule 12, C.P.C. Or under Order X, Rule 4, C.P.C."
The aforesaid judgment was considered and followed by this Court in the following judgment:- Muhammad Sharif's case (1995 MLD 923)
The Honourable Supreme Court in such circumstances has laid down a principle in Muhammad Ismail Chaudhry's case (PLD 1960 S.C. (Pakistan) M1) that Trial Court has misused the power under Order IX, Rule 12, CPC. It is pertinent to mention here that counsel of the appellant has filed application duly supported by his affidavit that he could not contact the appellant on account of illness of his mother and who ultimately died on 22.11.2004. Therefore, impugned judgment and decree is not in accordance with the law laid down by this Court in Sardar Ali Khan Sayal's case (PLD 1982 Lah. 63). It is settled principle of law that Courts should decide the cases on merits instead of technicalities. It is pertinent to mention here that appellant has filed application to admit or deny certain documents on 25.10.2004 which was not decided by the Trial Court as is evident from the impugned order and decree. Therefore, Trial Court has dismissed the suit in hurry in view of order of the District Judge dated 23.11.2004 which is not in consonance with the law laid down by the Honourable Supreme Court in Ghulam Mohy-ud-Din's case (PLD 1964 S.C. 829).
In view of what has been discussed above, this appeal is accepted and impugned order and decree dated 25.11.2004 is set aside and the case is remanded to the Trial Court to decide the applications of the parties afresh in accordance with law. The parties are directed to appear before the Trial Court on 28.3.2005. .