' JAWWAD S. KHAWAJA, J.---Humayun Mirza petitioner-plaintiff impugns the order of the learned trial Court dated 1-12-2006, whereby an application tiled by Mst. Azra Asghar (respondent No,2) under Order I, Rule 10 CPC has been allowed and she has been directed to be impleaded as a defendant in the suit.
2. The petitioner filed a suit on 31-5-2003 praying, inter alia, for annulment of an agreement dated 7-6-2000 and for recovery of damages against the defendant-respondent No,1, namely, Mrs. Shahida A. Rajput. It was petitioner's case that he had entered into an agreement to sell the suit property to respondent No,1 for a total consideration of Rs,63,00,000 out of which he had received Rs,15,00,000 on the execution of the agreement. The petitioner also admitted receiving Rs,6,00,000 through a cheque dated 29-6-2000 and a further sum of Rs,4,00,000 through a cheque dated 26- 7-2000. He, however, alleged that respondent No,1 had falsified the receipts for the two cheques, mentioned above, through interpolation and instead of the figures of Rs,6,00,000 and Rs,4,00,000, the amounts therein were respectively interpolated as Rs,16,00,000 and Rs,14,00,000.
3. Respondent No,1 Mrs. Shahida A. Rajput also filed a suit seeking specific performance of the above-referred agreement dated 7-6-2000. This suit was filed on 28-9-2000. According to her, the petitioner-plaintiff had been delaying execution/transfer of the property to her name and also that time for performance of the agreement was not of the essence.
4. Both suits were consolidated and are being tried together by the learned trial Court. On 10-10- 2006, Mst. Azra Asghar (respondent No,2) filed the above-referred application under Order I, Rule 10, C.P.C.,. She claimed that Mst. Shahida Rajput (respondent No,1) had entered into an agreement dated 22-3-2005 to sell the suit property to her (Mst. Azra Asghar) for a total consideration of Rs,1,00,00,000 out of which a sum of Rs,80,00,000 had been paid while the balance sum of Rs,20,00,000 was outstanding. A similar application was filed by Mst. Azra Asghar in the suit for specific performance filed by Mst. Shahida Rajput.
5. Learned counsel for the petitioner has argued that the applicant Mst. Azra Asghar has no locus standi in the case, firstly, because the alleged agreement between her and Mst. Shahida Rajput was entered into during the pendency of the two suits, mentioned above. Secondly, it was contended that the applicant could, at best, have filed a suit against respondent No,1 because of her alleged agreement with the said respondent but she had no cause of grievance against the petitioner-plaintiff because there was no privity of contract between the two.
6. Learned counsel for Mst. Azra Asghar could not dispute the fact that there was no privity of contract between Mst. Azra Asghar and. The petitioner Humayun Mirza. He, however, stated that the agreement to sell between Humayun Mirza and Mrs. Shahida A. Rajput (respondent No,1) contained in clause-4 in the following terms:-- "That the SELLER will make himself available and, sign all the documents which he is called upon by the above to sign by the PURCHASER or the Society (L.C.C.H.S) in connection with the transfer of the above-said property in favour of the PURCHASER or any Of her nominee."
' The term 'SELLER' in the agreement has been used for the petitioner while the respondent Mst.
Shahida A. Rajput has been described therein as the' 'PURCHASER'. It was submitted on behalf of Mst. Azra Asghar that the above clause gave an independent right to Mrs. Shahida A. Rajput to enter into an agreement with Mst. Azra Asghar. This contention is wholly misconceived. The obligation assumed by the petitioner under the said clause is that he will execute documents in favour of. Mrs. Shahida A. Rajput or her nominee. No right has been assigned to Mrs. Shahida A.
Rajput to enter into further agreements with third parties. It is also clear that the petitioner has retained with himself the right to sign transfer documents whether in favour of the purchaser or her nominee. Through this device he has ensured his own direct involvement in all cases where rights in favour of third parties are to be created.
7.Learned counsel for the respondent Mst. Azra Asghar referred to the case titled Sana Ullah v.
Rashid Ahmad Khokhar and three others (2000 SCM R 937) to contend that clause-4 reproduced above was sufficient to confer authority on Mrs. Shahida. A. Rajput to enter into an agreement to sell the suit property to a third party such as Mst. Azra Asghar. I have gone through the cited precedent and find the same to be clearly distinguishable on facts. In the said case there were three owners of the suit property, who had entered into an agreement to sell the same to the buyer.
The buyer, who was described as the Second Party in the agreement had been given a right to enter into agreements for onward sale of the property to third parties. The relevant clause of the agreement which was considered in the cited precedent was in the following terms:-- {{URDU TEXT}} It is clear from the wording of this clause that the Second Party, had specifically been granted authority to enter into an agreement with a third party without the intervention of the original owners. The said clause in effect amounted to the purchaser being an authorized attorney of the original owners, capable of executing agreements as of right, in favour of third parties. No such construction can be placed on clause-4 of the agreement between the petitioner and Mrs. Shahida A. Rajput. As noted earlier, the petitioner has not given any authority to Mrs. Shahida A.
Rajput to execute an agreement on her own with a third party without involving the petitioner. In the circumstances, the precedent cited on behalf of Mst. Azra Asghar cannot be treated as authority in support of her case.
8. There is yet another aspect of the case which requires consideration. Section 54 of the Transfer of Property Act expressly stipulates that a mere agreement to sell does not, by itself, create any interest in the property which is subject-matter of such agreement. It is thus clear that the agreement to sell between the petitioner Humayun Mirza and the respondent Mst. Shahida .A Rajput did not confer any right or interest in favour of the said respondent. It, therefore, follows that Mst. Shahida A. Rajput, who herself did not have any interest in the suit property, could not enter into any agreement for the sale of the same. This aspect of the present case also distinguishes it from the case of Sana Ullah v. Rashid Ahmed Khokhar supra.
9. In view of the foregoing discussion, this petition is allowed. As a consequence the application filed by Mst. Azra Asghar under Order I, Rule 10, C.P.C. Is dismissed with costs.