' ZUBDA-TUL-HUSSAIN, J.--- This regular second appeal is directed against the judgment and decree dated 4-12-2003 passed by the learned Additional District Judge, Sialkot, whereby the appeal filed by the respondent Muhammad Tariq against the dismissal of his suit for specific performance by the learned Civil Judge, Sialkot, was accepted and the suit was decreed.
2. An agreement to sell seems to have been executed by Gillani Bakhsh i,e, predecessor-in-interest of the appellants in favour of Muhammad Tariq respondent, on 3-8-1992 regarding the sale of a house for a consideration of Rs,6,50,000 out of which an amount of Rs,50,000 was paid as earnest money before the Sub-Registrar at the time of the registration of the agreement to sell. It was stipulated that the balance amount would be paid within three months of the execution of the agreement to sell. As the transaction was not accomplished according to the terms of the agreement, originally, the respondent filed a suit for declaration on the basis of the transaction claimed by him, but subsequently after withdrawal of his suit with permission of the learned Court, he filed a suit for specific performance of the agreement against Gillani Bakhsh, who expired during the pendency of the suit and as such by way of amendment of the plaint, the appellants were impleaded as his legal representatives.
' It may also be mentioned at this very juncture that the respondent was minor at the time of institution of the suit, which was filed through his father as the next friend. It was contended on behalf of the respondent-plaintiff that he was ready and prepared to pay the balance amount for the execution of the registered sale-deed, but the said Gillani Bakhsh, at the behest of his children, declined to execute the sale-deed in his favour.
3. The suit was contested by the appellants. They denied the genuineness of the agreement to sell allegedly executed on behalf of their predecessor-in-interest and further maintained that in any case, the agreement was without consideration. It was also contended that the disputed agreement to sell was void as the same was entered into on behalf of the respondent, who, at the time of execution of the agreement, was minor. They raised various objections regarding cause of action, estoppel and collusive nature of the suit.
4. After the trial, the learned Civil Judge concluded that the agreement to sell was tainted with fraua and forgery and being without consideration, was not liable to specific performance. The suit of the respondent was, therefore, dismissed. The appeal filed by the respondent against the dismissal of the suit, as already stated, was accepted and a decree for specific performance of the agreement was passed in favour of the respondent.
5. The learned counsel for the appellant has, in the first instance, questioned the maintainability of the suit for specific performance on the ground that previously a suit for declaration about the same subject-matter and on the same grounds, having been filed and dismissed as withdrawn, the suit for specific performance was barred by virtue of Order II, rule 2, C.P.C. He pleaded two-fold arguments in this behalf. The learned counsel was of the view that firstly the former suit was not dismissed as withdrawn for a valid formal defect within the meaning of sub-rule (2) of rule 1 of Order XXIII, C.P.C. And secondly, while instituting the fresh suit, the respondent-plaintiff transgressed the legal and factual limits by introducing a new case, which was not permissible under the law.
Relying upon the cases of Muhammad Shafi v. Muhammad Sharif 2003 CLC 1404, Abdur Rashid v.
Mst. Akbar Jan and others 2003 YLR 2775, Mehinwal Khan v. Khuda Bskhsh and others 1996 MLD 252 and Muhammad Yousaf Memon v. Karachi Stock Exchange (Guarantee) Ltd. 1995 CLC 183, the learned counsel argued that the respondent-plaintiff had, in the subsequent suit for specific performance of the agreement, included additional relief and additional claim, which he had not included in the earlier suit for declaration, which was withdrawn by him. According to the learned counsel, as a fresh suit had been filed by violating the law, the same could not be allowed to continue and the relief demanded therein was barred under the provisions of Order II, rule 2, C.P.C.
According to the learned counsel not only the bar of Order II, rule 2, C.P.C., but even the principle of estoppel also operated against the respondent-plaintiff in that the contention regarding the payment of consideration was self-contradictory in both the suits. The learned counsel then maintained that the permission to file the fresh suit could only be given, where the suit was shown to have been filed by some reason on some formal defect, whereas the former suit of the respondent-plaintiff well-encompassed his claim and trial thereof could result in the determination of the respective rights and liabilities of the parties. He further contended that the defect, if any, claimed in the earlier suit, was not a defect in the form, but it was a defect' on its merits going to the root of the suit and as such, the permission granted by the learned trial Court for institution of fresh suit was illegal and ineffective and the subsequent suit was legally barred.
6. Coming to the merits of the case, it was argued by the learned counsel for the appellants that the document of agreement to sell was unlawful and the result of fraud involving the mixed questions of law and facts, which could be raised in the second appeal under section 100 of the Civil Procedure Code. While referring to the record of the learned trial Court, the learned counsel maintained that the lawful possession should be on the basis of evidence on record, which is legally admissible whereas in the instant case, the judgment of the learned First Appellate Court was not based on any evidence nor the evidence was appreciated with judicial consideration and that the result was on the basis of misreading and non-reading of evidence as well as the material mistaken assumptions. The learned counsel referred to the form and contents of the disputed agreement to sell and submitted that fraud and forgery as well as misrepresentation was floating on the face of the document. The learned counsel then concluded that in any case, the agreement was illegal for lack of proper consideration.
7. Refuting the arguments of the learned counsel for the appellants, the learned counsel for the respondent maintained that the comparative study of the plaint of the former suit does not reveal any kind of improvement in the case of the respondent-plaintiff except that the former suit was for a declaration and the subsequent suit was for specific performance of the agreement. The learned counsel argued that there being an agreement to sell between the parties and the same having not been acted upon, the respondent-plaintiff had the cause of action for specific performance of the agreement and the suit in the form of declaration was sure to fail because of the defect of the form. Regarding the merits and evidence, the learned counsel for the respondent firstly argued that during the evidence, the appellant-defendants raised an allegation of misrepresentation to the effect that their predecessor-ininterest was given an impression for the execution of a power of attorney, but instead of power of attorney, the agreement to sell was got executed from him, whereas, this case was never set up by them in their written statement.
8. The learned counsel was, thus, of the opinion that the evidence led on that point being beyond the scope of pleadings/written statement was neither admissible nor could be read in favour of the appellant-defendants. He relied upon the cases of Fazal Subhan and 11 others v. Mst. Sahib Jamala PLD 2005 SC 977 and Abdul 'Hague and others v. Shaukat Ali and 2 others 2003 SCMR 74 to argue that a fact which was not pleaded in the plaint or written statement could not be allowed to be proved through evidence and if any evidence had been led on that point, the same could not-be taken into consideration.
9. The learned counsel also objected to the competency of the appeal under section 100 of the C.P.C. He contended that the second appeal could lie only on any of the three grounds namely the decision being contrary to the law or the decision having failed to determine some material issue of law or usage having the force of law, or a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, when such procedural defect may possibly have produced error or defect in the decision of the case upon the merits. The learned counsel referred to section 101 of the C.P.C. To argue that no second appeal shall lie except on the grounds mentioned in section 100, C.P.C. It was argued that nothing has been brought forward in the present appeal on any question of law regarding a defect in the judgment within the meaning of section 100, C.P.C. And the questions of fact raised and argued on behalf of the appellants could not be of any avail in the disposal of the second appeal.
10. It is an admitted fact that the respondent-plaintiff had originally filed a suit for declaration and injunction, the contention being that the predecessor-in-interest of the appellants had handed over the possession of the suit house to him by delivering the documents of title and receiving the whole consideration. The subsequent suit was based upon an agreement to sell allegedly executed by Gillani Bakhsh in favour of the respondent-plaintiff. It cannot be denied that in the wake of an agreement to sell, the suit for declaration and injunction was totally incompetent and it was bound to fail, because of this formal defect.
11. The term "formal defect" refers to a defect in the form prescribed by the law and it always gives liberal meanings. Of course, the defect 'should be such as may not be going to the root of the case or affecting its merits. When the cause of action was based upon an agreement to sell, the only lawful form of the suit was for specific performance of the agreement in accordance with the terms enumerated therein. The bar contained in Order II, rule 2, C.P.C. Does not apply, where relief claimed in the first suit was incompetent or the suit itself was barred by section 56 of the Specific Relief Act. The relief of declaration and injunction cannot be granted in a matter of breach of contract and specific performance is the only proper and efficacious remedy. If an authority is needed, reference in this behalf may be had to Ghulam 'Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344. The subject-matter in both the suits was the same and the nature of dispute was also identical insofar as the acclaimed rights are concerned. Although the question of consideration was controversial and variable, but this, by itself, was giving rise to the question and was also relatable to the form of the suit and as such, if the respondent-plaintiff had to put forth the claim on the basis of agreement to sell, he had no option except to file a suit for specific performance after withdrawal of the former suit for declaration and injunction. The effect of the discrepancy if any, in the contentions and the evidence, had to be independently decided by the learned trial Court through judicial scrutiny of the evidence. Therefore, to say that there was no formal defect in the former suit or the subsequent suit was not maintainable, is not a plea having sanction of the law. The contentions of the appellants in this behalf are not tenable.
12. As to the contents and the genuineness of the agreement to sell, the first matter of concern is that it involves a question of fact, which has been duly determined by the learned First Appellate Court. Even if this issue is taken into consideration on the ground that the question of fraud and misrepresentation is the mixed question of law and fact, it is found that the execution of the agreement to sell, as such, is not denied by the appellants nor was it disputed by their predecessor-in-interest. The signatures of the predecessor-in-interest of the appellants are admitted and the only contention, which has been raised is that he was, subjected to misunderstanding and misrepresentation of fact, because he was made to understand that he had to execute a power of attorney, which factor, according to the appellants, was evident from the face of the very document. In this behalf, the foremost important question that arises and has nowhere been answered by the appellants is that if Gillani Bakhsh was going to execute a power of attorney than what was the purpose of it or for what purpose, the power of attorney was to be given to the respondent-plaintiff, who at the time of the execution of the agreement, was a minor.
And even if the power of attorney was to be executed in favour ofthe father of the respondent- plaintiff, for what purpose he was going to be appointed the attorney. There being no answer to this question, it can safely be inferred that the contention raised by the appellants is neither plausible nor acceptable.
13. Moreover, the signatures of the executant are admitted on this document. The onus to prove the misrepresentation and fraud lies upon the party, who alleges the same. In the present case, one of the marginal witnesses i,e, P.W.2 was the nephew of Gillani Baldish predecessor-ininterest of the appellants. No evidence was produced on behalf of the appellant-defendants to substantiate allegation of fraud and the perusal of the impugned judgment shows that the learned Additional District Judge thoroughly examined all the factual and legal aspects of the point at issue involved in the suit. I, therefore, do not find any reason to tamper with these findings on the question of fact regarding the execution and validity of the impugned agreement to sell.
14. The execution of the agreement to sell and implementation of the same was primarily a factual controversy. The contention of the learned counsel for the respondent that the instant appeal is not well-qualified within the ambit of section 100, C.P.C., is not totally devoid of force. The claim in the suit has been determined on the basis of question of fact regarding the execution of the agreement to sell. This being a finding of fact, the conclusion drawn by the learned First Appellate Court should be conclusive as the First Appellate Court of the learned Additional District Judge in this case was the sole judge of facts and as held in the case of Mst. Bhirawan and 3 others v.
Ahmad Bakhsh and others PLD 1955 Lah. 187, the conclusions from the facts arrived at by him cannot be discarded, unless those conclusions are not possible in law.
15. The objection that the respondent-plaintiff being minor, at the time of the execution of the agreement to sell, could not enforce a contract made in his favour is not valid for the reason that even by virtue of section 11 of the Contract Act, 1872, although the minor cannot make a contract, but he can lawfully be made transferee. Thus, a minor can enforce a contract made in his favour for a valuable consideration, especially when no liability is to be incurred by him. The minor being a beneficiary of an agreement, section 11 of the Contract Act, 1872 would not impair his rights and interests. He is, therefore, not debarred from acquiring a title to anything valuable. The judgments in the cases of Firm Bhola Ram, Harbans Lal and another v. Bhagat Ram and others AIR 1927 Lah. 24, Haji Noor Muhammad Jamote and others v. Osman and others PLD 1993 Kar. 26 and Mst.
Muhammadi and others v. Ghulam Nabi and others 2007 SCMR 761 can be relied upon in this behalf.
16. For what has been discussed above, this appeal has no merit and is accordingly dismissed with costs.