' MIAN HAMID FAROOQ, J.----We through this single judgment propose to decide two appeals (C.As.1087 & 1775/2002), as identical questions of law are involved in both the cases, they are between the same parties and have arisen out of the single judgment.
2. Afore-noted direct appeals, under Article 185 (2) (d) of the Constitution of Islamic Republic of Pakistan, proceed against the single judgment dated 6-6-2002, whereby the learned Division Bench of the Lahore High Court, Lahore allowed to appeal (R.F.A. No, 56/1988) filed by respondent No,1 (Muhammad Adrees), judgment and decree passed by the trail Court dated 23-12-1987 was set aside, and his suit for specific performance of agreement was decreed, while the suit filed by respondent No,2 (Ghulam Farid) was dismissed.
3. Facts of both the cases, as comprehensively capitulated in the impugned judgment are reproduced bellows:-- "On 29-4-1984 the appellant filed a suit against the respondent No,1. In the plaint it was stated that the respondent No,1 agreed to sell the suit-land measuring 190 Kanal, 11 Marlas mentioned in para. One of the said 'plaint (Civil Suit No,383/84) to the appellant for a consideration of Rs,4,00,000 received Rs,2,00,000 by way of earnest and executed agreement dated 8-7-1981, and authorize him to recover the products of the land. Under the said agreement the respondent No,1 promised that he will execute a sale-deed in favour of the appellant after getting N.O.C. From the G.H.Q. And shall receive the balance amount; that the respondent No,.1 has not done the needful. A decree for specific performance was accordingly prayed for. The suit remained pending for some time when on 14-5-1985 the general attorney, of the respondent No,1 made a statement admitting the suit of the appellant. It was accordingly decreed on the same dated with the condition that, the balance of Rs,2,00,000 will be deposited by the appellant within 30 days. The said amount was deposited and thereafter the sale-deed was executed by the Court on 26-4-1986 and was registered on 27- 4-1986 in favour of the appellant.
' On 29-5-1985 the respondent No,2 (Ghnlarn Farid) filed an application under section 12(2), C.P.C. In this application it was stated that the agreement between the appellant and the respondent No, 1 is illegal as the respondent No,1 has not obtained a prior permission' from 'the competent officers for selling the land. It was then stated that the respondent No,1 has also entered into an agreement with the respondent No,2 on 5-21984 for the sale of land and has received a sum of Rs,2,00,000 in the manner stated in para-4 of the said application that the respondent No,2 has also filed a suit for cancellation of the said agreement in favour of the appellant on 10-9-1984 which is pending; that the attorney of the respondent No,1 has proceeded to concede the suit without the consent of respondent No,1; that the said power of attorney has been cancelled by respondent No,1 on 22-5- 1985; with these averments it was stated that the decree has been obtained by fraud and be set aside. The application was contested by the appellant who objected that the respondent No,2 has no locus standi to file the said application and that no fraud stand made out upon the reading of the application. It was further pointed out that the agreement in favour of the appellant was prior in time. The learned trial Court vide order dated 21-9-1987 allowed the said application and set aside the decree. The suit was directed to be heard and decided on its merits.
4. Against this order the appellant filed a civil revision which was returned by a learned Additional District Judge, Narowal on 14-3-1989 consequently it was presented in this Court as C.R. 1239 of 1989.
5. On 16-9-1985 the respondent No,2 filed the said suit referred to above. In the plaint it was stated that the suit land was allotted to the respondent No,1 under MLR 9 of 1959; that the land can be transferred only after obtaining an N.O.C. From GHQ; that the appellant is not a military person and that the respondent No,2 has learnt that respondent No,1 had agreed to sell the land to the appellant vide agreement dated 8-7-1981; that term of the agreement was that within two months N.O.C. Will be obtained from the G.H.Q. And if for some reason the N.O.C. Could not be attained the earned money will be returned; that the appellant himself cancelled the agreement later on; that vide agreement dated 5-2-1984 the respondent No,1 agreed to sell the land to the respondent No,2 for a consideration of Rs,3,35,000 and received a sum of Rs,1,50,000 as detailed in para-4 of the plaint; that under terms of the agreement since the respondent No,1 has not complied with the terms thereof he is liable to pay damages to the respondent No,2 in the sum of Rs,50,000 that the respondent No,1 had also obtained N.O.C. For selling the land to the respondent No,2; that on 9-5- 1984 the respondent No,1 got scribed a sale-deed but the appellant filed a suit and obtained a stay order and as such the sale was not completed that another sum of Rs,50,000 was also received by the respondent No,1 from respondent No,2 as detailed in para.8 of the plaint making a total of Rs,2,00,000. There is then a strange statement in this plaint in para.9 that the respondent No,1 while filing written statement in the Court received another amount of Rs,35,000 from the respondent No,2 and acknowledged the same in his written statement; that on 12-9-1984 the respondent No,2 had filed a suit for cancellation of agreement wherein a written statement was filed by the defendants in the case and the date was fixed on 27-5-1985 and on 14-5-1985 the suit filed by the appellant was got decreed by consent; that petition under section 12(2), C.P.C. Was filed which is pending; that the agreement and the decree dated 14-5-1985 are liable to be set aside and cancelled as the agreement was made without approval of the G.H.Q. With these averments a decree for cancellation of agreement dated 8-7-1981, consent decreed dated 14-5-1985 was prayed for and a decree for specific performance of agreement dated 5-2-1984 was sought. It was further prayed the damages in the sum of Rs,50,000 be also awarded against the respondent No, 1.
The respondent No,2 contested the suit by filing written statement. It was stated that the appellant himself is an army person and is exempt from the said condition of getting prior approval of GHQ.
6. Now after setting aside the said decree dated 14-5-1985 under section 12(2), C.P.C, both the suits were consolidated."
4. The learned trial Court framed necessary issues, recorded evidence of the parties and in the ultimate analysis decreed the suit filed by respondent No,2 (Ghulam Farid), subject to payment of balance amount of Rs,1,00,000 while suit filed by respondent No,1, (Muhammad Idrees), was dismissed, vide consolidated judgment and decree dated 23-12-1987. Respondent No,1 filed the appeal (R.F.A. No,56/1988) and the Division Bench of Lahore High Court, Lahore, decided the said appeal along with respondent's revision petition (C.R. No,1239/1989) through single impugned judgment dated 6-6-2002, hence the present appeals.
5. Ch. Muhammad Ashraf Wahlah Advocate, learned counsel for the appellant (In Civil Appeal No,1087 of 2002), while referring to para.6(b) of the Scheme promulgated on 20-4-1961, under paragraph-9 of Schedule-III to West Pakistan Border Area Regulation (MLR 9) (hereinafter referred to as Scheme) submitted that as in this case no objection certificate was required from the Deputy Commissioner before finalization of the sale, which was refused by the competent authority, and G.H.Q. Did not approve the transaction, therefore, agreement to sell favoring respondent No,1 (Muhammad Idrees) lost its efficacy and could not be specifically enforced. He has further submitted that Muhammad Idrees, on 4-8-1982, filed an application before District Armed Service Board for withdrawal of his name as purchaser for facilitating the appellant to return his earnest money, therefore, principle of estoppel would be operative against respondent No,1. He has added- that the judgments referred to by the High Court in the impugned judgment are not applicable in the present case. Ch. Muhammad Abdullah, Advocate, representing respondent No,2 (Ghulam Farid), adopted the arguments of Ch. Muhammad Ashraf Wahlah Advocate, however, added that Muhammad Idrees challenged the vires of para-6 of the scheme before the Lahore High Court through constitutional petition (W.P. No,66-12/1995), which was dismissed on 16-10-1997, therefore, in view of the said para. Of the Scheme, he was not eligible for the transfer of the land. He, when pointed out that his appeal was barred by 38 days, stated that as the identical appeal (C.A.
1087/2002) arising out of the same judgment, which is within time, is being adjudicated upon and the consolidated judgment is under challenge in both the appeals, therefore, the delay in filing the appeal (C.A. 1775/2002) be condoned. He has relied upon the case of Pakistan Television Corporation v. S. Ahtramullah (1987 SCM R 753). Contrarily, Ch. Muhammad Ashraf Advocate, representing respondent No,1 (Muhammad Idrees), submitted that as the agreement favouring respondent No,1 stood admitted and he was not declared as "undesirable person" by any competent forum, therefore, his suit was rightly decreed. He referred to section 19 of Colonization of Government Lands (Punjab) Act, 1912 (hereinafter called as Act) to support the impugned judgment by submitting that Subedar Sardat Khan had become full owner of the questioned property, therefore, there was no legal impediment for completing the sale. He has further submitted that the appeal filed by Ghulam Farid is barred by time, therefore, it be dismissed. His next contention is that Subedar Sardar Khan sold the questioned land to Muhammad Idrees, got the consideration price and he is precluded from raising the plea that the agreement of Muhammad Idrees could not be enforced, and the principle of pari delicto is applicable in this case.
6. We have heard the learned counsel for the parties and examined the available record. Firstly, adverting to the question of limitation, as the appeal (C.A.1775/2002) filed by Ghulam Farid is barred by 38 days.
' Since similar questions of law arising out of common judgment dated 6-6-2005 are also involved in another appeal (C.A.1087/2002) and we prapose to decide both the appeals through single judgment, therefore, we condone the delay in filing the appeal. Reference can be made to the judgment reported as Mehreen Zaibun Nisa v. Land Commissioner, Multan and others (PLD 1975 SC 397), Pakistan Television Corporation (ibid), Sheikh Muhammad Rashid v. Majid Nizami, Editor-in- Chief The Nation and Nawa-e-Waqt (PLD 2002 SC 514) and Water and Development Authority through Chairman, WAPDA House, Lahore v. Abbas Ali Malano and another (2004 SCM R 630).
7.Almost all the material facts, viz. Subedar Sardar Khan (vendor) agreed to sell the questioned land for consideration in favour of Muhammad Idrees (vendee) through a lawful agreement dated 8-7-1981; the receipt of a sum of Rs,20,0000 by the vendor as earnest money; the vendor was willing; to perform his part of the agreement but for the bar contained in para.6(b) of the Scheme; Subedar Sardar. Khan also agreed to sell the same land to Ghulam Farid, vide agreement dated 5- 4-1984 and Ghulam Farid never raised plea of "bona fide purchaser for consideration" at any stage, stand admitted. The only pivotal question around which whole of the controversy revolves is as to whether the suit for specific performance, filed by respondent No,1 (Muhammad Idrees,) on the basis of an agreement to sell dated 8-7-1981, could be dismissed in view of the bar of no objection certificate contained in para-6 (b) of the Scheme. Undoubtedly his admitted agreement was prior in point of time. The said crucial question has properly been dealt with and decided by the learned High Court in view of the evidence available on record and the law applicable thereto. It has not been established on record that respondent No,1 is not a "suitable person" for settlement in the border area or he was declared as an "undesirable person" by any competent forum having jurisdiction. The appellants failed to place on record any material to show that at the time of execution of agreement to sell between Subedar Sardar Khan and Muhammad Idrees any other Military personnel was willing to purchase the land. Learned counsel for the appellant has not been able.To demonstrate as to how respondent No,1 is unfit, not suitable and undesirable person for settlement in the Border Area. We do not see any cogent, realistic and reasonable cause for refusal to award a no objection certificate to respondent No,1 by the competent authority. The learned High Court while dealing with the aforesaid condition of the Scheme has rightly observed that the said condition was imposed with a defence point of view. Thus, the learned High Court has adequately safeguard the interest for the defence purpose and has rightly taken care of the situation by holding "if at any time the appellant is found to be a person not fit to hold the land from defence point of view appropriate proceedings can be taken of course after notice to the appellant and giving him a chance to explain". In view whereof, the purpose for which said para. Of the Scheme was incorporated has duly been addressed to. As regards the judgments relied upon by the learned High Court, we find that although the said judgments were rendered with reference to the prohibition contained in section 19 of the Act as well as para-25, MLR 64 of 1959, yet principle of law enunciated in those judgments are fully applicable in the case in hand. This Court in the case of Ghulam Muhammad alias Ghulamoon v. Maula Dad and 6 others (1980 SCM R 314), has held that the petitioner entering into an agreement for transfer of the land, undertook to complete the formalities of the sale and parted with possession after receiving consideration could not be allowed to rely upon the provisions of para-25 of MLR 64 of 1959 or section 19 of the Act so as to non-suit the purchaser. It has been held in the case of Rajab Ali v. Mst. Aisha and other (1989 SCM R 135) that the petitioner, who sold the land to respondent No,1 through an agreement, received consideration amount and delivered possession of land, cannot challenge the said transaction or resale from it on the ground that there is some prohibition contained in law for the sale/transfer of the property. The dictum laid down in the said cases is completely attracted to the facts and circumstances of the present case and the learned High Court has rightly relied upon those cases.
8. Now dealing with the pleas of estoppel on the basis of letter dated 4-8-1982, the varsity and genuineness whereof has been challenged by the learned counsel for respondent No,
1. We find that the said letter was not produced in evidence by the appellant either before the learned trial Court or before the High Court, inasmuch as, no application for permission to lead additional evidence was filed at any stage. The said letter is neither a proved document nor admitted in evidence, as contemplated under the law, thus no reliance could be placed upon it at this belated stage, especially when the allegedly signatory of the letter has denied the said letter. Furthermore, respondent No,1 was not confronted with the said letter at any point of time during the proceedings.
9. Now adverting to the judgment passed by learned Division Bench in constitutional petition (W.P.No,66-R/1995) and heavily relied upon by Ch. Muhammad Abdullah Advocate. Respondent No,1 challenged the vires of the Scheme on the ground that the Scheme was promulgated without any lawful authority. It was held by the Lahore High Court in the said case that inconsistency if any in the Regulation and the scheme was removed by promulgation of the Ordinance III of 1981 and "thus had a definite purpose behind it as it was necessary to save the border belt from being occupied by undesirable persons, it being a sensitive area and therefore, the control of General Headquarter with regard to the alienations of the lands situated there was not only expedient but also in the national interest". So the ratio of the said judgment is that the purpose of the said para. Of the Scheme is to restrain undesirable persons to occupy or purchase the land situated in the border belt. The vendee was neither adjudicated upon nor declared as "undesirable" or not a suitable person" to settle in the border belt by any forum of competent jurisdiction. In the absence of any adjudication, it cannot be held that respondent No,1 is either an "undesirable person" or "not a suitable person" and "unfit" to occupy the land in border belt. The said judgment is of no help to the appellant.
10. In the above perspective, we are satisfied that the learned High Court rightly reversed the findings of the learned trial Court on issue Nos. 3, 4, 5 and 7 and no exception could be taken of those findings.
11. Now coming to the next limb of the case, whereby the learned High Court decided the revision petition (C.R.1239/1989). We find ourselves in complete agreement with the findings of the learned High Court, as contained in para-14 of the impugned judgment, whereby, it was held that no case of fraud or misrepresentation was made out for setting aside the decree. We are not persuaded to take a different view than of the learned High Court. It appears appropriate to reproduce para.14 of the judgment, which reads as under:- "Coming to the said civil revision. We do find ourselves in agreement with the learned counsel that the decree could have been set aside only on the ground stated in section 12 (2),C.P.C. No, case of fraud or misrepresentation stood made out on the reading of the said application. So far as the ground from setting aside the decree is concerned, it is not at all a ground envisaged by section 12(2), C.P.C. But pertained to the merits of the case. In any case since both the matters have been re-heard, tried and decided the said order impugned in C.R. No,1239/87 loses significance. However since the sale-deed had been executed and registered in favour of the appellant we will dispose of the C.R. With the observation that the said sale-deed shall stand resorted and shall be deemed to be valid and in operation."
12. In the above background, we have examined the impugned judgment and are of the firm view that the judgment rendered by the learned High Court does not suffer from any legal infirmity warranting interference by this Court. Thus, we are inclined to maintain the impugned judgment, which we hereby do.
13. For the foregoing reasons, both the appeals are devoid of merits, thus stand dismissed with no order as to costs.