' MUHAMMAD NAWAZ ABBASI, J.---These two connected petitions have been directed against the judgment dated 10-5-2005 passed by the Division Bench of the Lahore High Court in Regular First Appeal No,51 of 1999 preferred by Ch. Ghulam Rasool hereinafter called 'the petitioner' and Cross Objection No,4 of 1999 filed by Mrs. Nusrat Rasool hereinafter called 'the respondent' against the judgment dated 23-2-1999 passed by Civil Judge, Islamabad, whereby the composite suit for declaration, specific performance of contract with recovery of rent and permanent injunction filed by the petitioner was dismissed.
2. The pivotal questions involved in this petition requiring determination are, firstly whether the suit was not maintainable due to the bar contained in Order XXIII, Rule 1, C.P.C. And secondly as to whether the suit property was of benami character.
3. Learned counsel for the petitioner, in the light of pleadings of the parties and the evidence, brought by them on record in support of their respective stance, contended that the petitioner filed a composite suit for declaration and specific performance of the contract with permanent injunction on the basis of alleged oral agreement entered between the parties through the intervention of their elders and as per terms of the said agreement, the petitioner had to withdraw the suit earlier filed by him unconditionally whereas the respondent having acknowledged the ownership of the house of the petitioner, agreed to transfer the title of the house in his name and in pursuance thereof, the petitioner fulfilled his part of contract but the respondent backed out of her commitment. The learned counsel argued with vehemence that after unconditional withdrawal of the first suit by the petitioner, second suit on the same subject was filed by him on the basis of fresh cause of action, therefore, the suit would not be barred under Order XXIII, rule 1, C.P.C. And consequently, the dismissal of suit on this ground was against the law. The learned counsel next submitted that there was ample evidence on record to establish that the petitioner was real owner of the suit house, whereas the respondent with the status of benami was only an ostensible (Winer but unfortunately the trial Court as well as the High Court having taken a wrong view of the evidence, non-suited the petitioner- for the consideration that respondent being partner in her family business was not a sourceless person and could arrange funds to purchase the property.
The learned counsel further contended that notwithstanding the fact that respondent was in possession of document of title and she was also owner of house in the official record, the payment of sale consideration by the petitioner through cheque would negate her claim of payment of sale price from her own source and concurrent finding of the two Courts in this behalf without proper proof of independent source of income of the respondent have no significance.
4. The learned counsel for respondent No,1, with reference to the pleadings of the parties and the evidence as well as the case-law, submitted that neither the suit for declaration .Nor specific performance of the contract, was maintainable and the claim of the petitioner of the ownership of house stood falsified by his own evidence on record.
5. The facts of the case in small compass in the background leading to the filing of these petitions are that Ch. Ghulam Rasool petitioner herein filed the suit for declaration and specific performance of contract against his wife Mst. Nusrat Rasool and others wherein he pleaded that he having contracted marriage with Mst. Nusrat Rasool (respondent) ,in 1965 at Sargodha shifted to Islamabad and being a registered Government contractor, started the business of construction under the name and style of Rasool Construction. He having purchased a plot bearing No,1, St.
No,54, F-8/4, Islamabad, constructed a house from his own sources for the residence of his family and lived in the said house with the family. In 1982, he after selling the said house and purchasing the disputed plot measuring 2000 sq. Yds bearing No,52, Margalla Road, F-8/2, Islamabad in the name of respondent for a consideration of Rs,8,50,000 from one Gazi Karamullah constructed the disputed house by incurring expenditure to the tune of Rs,19 lacs. The petitioner pleaded in the suit that he having cordial relation with his wife was leading a happy family life and with a view to avail the benefit of concession in the taxes, he purchased suit property in her name vide registered deed and plot was also transferred in her name in the CDA record. Later, the petitioner with a view to create funds for investment in his business, leased out the house to Messrs AMMACO at a monthly rent of Rs,31,000 and received an amount of Rs,10,90,800 in advance from the tenant through a cross cheque which was credited in his A/C No,6036-216037-001, maintained in the bank of America, Islamabad Branch. The petitioner, with the above background asserted that Mst. Nusrat Rasool was a house wife and having no source of income could neither purchase the plot nor raise the construction from her own source and that he was the real owner of the house. In short, the case of the petitioner was that the suit was ultimately withdrawn by him in consequence to a compromise entered between the parties out of the Court on the intervention of the elders of the family wherein it was settled that petitioner would withdrawn the suit unconditionally where Mst.
Nusrat Rasool would surrender her title in the house in favour of petitioner and would transfer the house in his name in the CDA Record as well as execute a formal registered transfer deed. The petitioner in support of his claim pleaded that he being in possession of the title deed along with other documents pertaining to the house twice mortgaged the same on behalf of Mst. Nusrat with Muslim Commercial Bank and also leased out it to World Bank on payment of advance rent which would be a strong evidence to suggest that respondent was only a benami. The petitioner also pleaded that in consequence to the compromise in question, the relation between the parties was restored and they started living peacefully but unfortunately civil litigation over family dispute was started between the father and brothers of Mst. Nusrat Rasool in which she was also made party and thus she having gathered an impression that petitioner was responsible for this litigation refused to transfer the house in his name in terms of the agreement and thereby desisted from performing her part of the contract.
6. The suit was contested by the respondent with the assertion that she having purchased the plot from her own sources constructed the house and was its exclusive owner. The learned trial Judge ultimately dismissed the suit and on failure of regular first appeal filed by the petitioner in the High Court, he has filed the present petition before this Court.
7. In the light of the above facts, the essential question requiring determination is that what would be the effect of withdrawal of the earlier suit filed by the petitioner wherein he sought a declaration to the effect that suit property was owned by him and status of respondent was that of only a benami owner.
8. The subsequent suit for declaration and specific performance of the contract with permanent injunction was filed by the petitioner after unconditional withdrawal of the first suit and the decree in the second suit was sought on the ground firstly that the petitioner was real owner of the property whereas respondent was only a benami and secondly, the first suit was withdrawn in consequence to an oral agreement entered between the parties out of the Court in which it was agreed that on unconditional withdrawal of the suit by the petitioner, the respondent would transfer the house in his name in the official record but subsequently she failed to fulfil her part of the contract.
9. The close scrutiny of the evidence brought by the parties on the record in the light of their pleadings in the two suits would clearly show that the first suit was withdrawn unconditionally without the permission of the Court to file the fresh suit and notwithstanding the different nature of the second suit, the essential question required for determination would be whether the relief claimed in the first suit was different to that of the second suit or not and what would be the form of decree in the two suits. The second question is whether unconditional withdrawal of suit without the permission of Court would not amount to abandon the relief and in the second suit, there was a fresh cause of action. This is not deniable that relief claimed in the two suits was the same and cause of action was almost same, therefore, the plain reading of Order XXIII, rule 1, C.P.C. Would show that subsequent suit on the same subject was barred under the law. In the light of pleading in the two suits and the relief claimed therein, the petitioner would be precluded to file the second suit as the cause of action in the subsequent suit was in continuation of cause of action in the first suit.
' Order-XXIII, rule 1, C.P.C. Provides that:-- ' Withdrawal of suit or abandonment of part of claim.---
(1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim.
(2) Where the Court is satisfied--
(a) that a suit must fail by reason of some formal defect, or
(b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim.
(3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub-rule (2), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.
(4) Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiffs to withdraw without the consent of the others.
10. The plaintiff may withdraw the suit at any time in terms of Order XXIII, rules 1 & 2, C.P.C. With the permission of the Court but if the suit is withdrawn without the permission of the Court, he will be precluded from instituting a fresh suit in respeci of such subject-matter as provided under sub- rule (3) of Order XXIII, C.P.C. It is clear from the pleadings of the parties in the two suits that notwithstanding the nature of subsequent suit the real controversy between the parties in both the suits related to the ownership of the suit property and there was no fresh cause of action in favour of petitioner in the second suit. The legal position emerged from the facts in the background would that petitioner having withdrawn the earlier suit without permission of the Court to file fresh suit had relinquished his claim and thereby precluded to file a fresh suit on the same subject-matter therefore, the second suit to the extend of seeking the relief of declaration that "respondent was a benami owner of the house" would certainly being barred by law would not be maintainable whereas the suit relating to the grant of relief of specific performance of the contract on the basis of the alleged oral agreement ,that "respondent having acknowledged the ownership of the house of the petitioner agreed to surrender the title of the house in his favour", was not supported by any other evidence oral or documentary except the sole statement of petitioner and in absence of any proof of such a compromise/agreement between the parties, the assertion that second suit was filed on the basis of fresh cause of action would have no substance. This is noticeable that the terms of compromise were not mentioned either in the application moved by the petitioner for withdrawal of the suit or in the order passed by the learned trial Judge, on the said application and so much so nothing was brought on record to show that the application for withdrawal of suit was moved with the consent and knowledge of the respondent. The petitioner without bringing any cogent and convincing evidence on record to prove the existence of a valid agreement between the parties and substantiating his claim through any reliable evidence made an attempt to succeed in the suit merely taking the plea that respondent being a house wife would have no source of income to purchase the plot and construct the house.
11. Be that as it may, a promise ripens into an agreement only after an offer is accepted but every promise is not necessarily an agreement. There is difference between the contract and a promise as a valid contract creates obligation and is capable of enforcement in law whereas a mere promise to render service or to hand over certain property moveable or immoveable to a person without any consideration may not create a contractual obligation to be enforced in law. It is thus necessary for the party claiming the creation of a legal right in the moveable or immovable property under an. Agreement to prove the existence of such an agreement and its legal force. The transfer of the title of the immoveable property for love and affection or for such other reasons by way of gift or will may create right in the property but a promise for transfer of title without any consideration may not constitute a contract capable of enforcement in law. The promise to perform certain act without any consideration may have moral value but such promise neither creates a contractual obligation nor a legal right and thus a promise in absence of essential terms of consideration may have no binding force and legal effect. The acceptance of a proposal may bring into existence a promise but to have an agreement it is essential that there should be consideration for promise without which the promise may not have the legal status of an agreement. This is settled law that to constitute a binding agreement, the intention of the parties must be proved and an agreement by which the parties do not intend to create any legal obligation is not enforceable in law. In the light thereof, in the present case no such agreement enforceable in law has been proved.
12. In the light of the above factual position, the suit to the extent of declaration in respect of benami nature of transaction being barred under the provisions of Order XXIII, C.P.C. Was not maintainable whereas the relief regarding specific performance of the contract could not be granted for want of proof of the existence of a valid agreement between the parties enforceable in law. The mere oral assertion without bringing any other independent evidence oral or documentary in proof of existence of a valid agreement between the parties which can be enforced in law or without acknowledgement of an agreement by the opposite party is not sufficient to prove the existence of such an agreement. The petitioner having withdrawn the first suit unconditionally has relinquished his claim and nothing was brought on record that prior to the unconditional withdrawal of the suit or at a subsequent stage respondent abandoned her right of ownership of the house in favour of the petitioner or she agreed to surrender her title in the house.
13. In the light of factual position narrated hereinabove the conclusion would be that without proof of the benami status of the respondent, the declaration sought in the suit could not be granted even if the suit would have been maintainable. This may be seen that two essential elements must exist to establish the benami status of the transaction. The first element is that there must be an agreement express or implied between the ostensible owner and the purchaser, for purchase of the property in the name of ostensible owner for the benefit of the person who has to make payment of the consideration and second element required to be proved is that transaction was actually entered between the real purchaser and seller to which ostensible owner was not party. In the present case, the evidence brought on record would not directly or indirectly suggest the existence of any of the above elements to prove the benami charcter of the transaction of sale. The petitioner has not been able to satisfactorily discharge the burden that he purchased the property in the name of respondent for his benefit and respondent was not an active party to the transaction.
14. The resume of factual position in the light of the law on the subject would make it clear that the suit to the extent of declaration in respect of benami character of the transaction, was barred under Order XXIII, rule 1, C.P.C. And suit relating to the specific performance of the contract, was not maintainable for want of proof of existence of any valid agreement, oral or written between the parties enforceable in law.
15. In the light of foregoing reasons, we are of the considered opinion that the suit for. Declaration and specific performance of the contract with permanent injunction being not maintainable was rightly dismissed and concurrent finding of the two Courts on the controversial questions raised therein are not suffering from any legal or factual infirmity calling for interference of this Court.
16. In consequence to the above discussion, we find no substance in these petitions and the same are accordingly dismissed. Leave is refused.