' SHAHID ANWAR BAJWA, J.---Factual background of this second appeal is that Suit No,1364 of 2004 was filed by the present appellant against present respondents for declaration, possession and permanent Injunction. It was contended in the plaint that plaintiff entered into sale agreement in respect of single story House bearing No, H-122, measuring 120 sq. Yds. Situated at Defence View, Phase-II, Karachi on 17-8-2004 with one Imran son of defendant No,
1. It was further pleaded in the plaint that Imran Khan appointed his mother as his attorney and received an amount or Rs,200,000 on 21-8-2004. It was further pleaded that on 29-10-2004 present respondent No,1 executed sale agreement and accepted that Rs,200,000 had earlier been given to Imran and thus acknowledged the payment of Rs,400,000. It was averred in plaint that on date of signing of agreement another amount of Rs,700,000 was received by respondent No,
1. Another agreement was signed on 19-11- 2004 and present respondent No,1 received an amount of Rs,13,00,000. Thus total consideration amount mentioned in the agreement being Rs,2,600,000, amount of Rs,200,000 was left to be paid which was to be paid at the time of execution and registration of sale-deed. It was stated in the plaint that plaintiff was all along ready to pay Rs,200,000d at the time of registration of sale-deed and mutation of property. It was thus contended that defendant received Rs,24,00,000 out of total sale consideration Rs, 26,00,000 but refused to register sale-deed. Consequently, it was prayed as under:-- "To pass judgment and decree in favour of plaintiff against defendant.
' Declaration to declare violation of sale agreement that the defendant No,1 handed over vacant physical possession to the plaintiff and as plaintiff is owner of the suit premises, bearing No,H-122 Defence View measuring 120 sq. Yds. Phase II Defence Karachi.
(1) The defendant No,1 Execute sale-deed and Mutation in favour of plaintiff.
(2) That hand over physical vacant possession to plaintiff.
(3) Any other relief/reliefs, this Hon'ble Court deem fit and proper in circumstances."
2. Written statement was filed. Receipt of Rs,24,00,000 was denied and sale consideration of Rs,26,00,000 was also denied. Trial Court framed the following issues:--
(1) Whether the suit is maintainable?
(2) Whether sale agreement was executed in between the parties for sale consideration of premises?
(3) Whether the value Rs,26,00,000 was fixed by the defendant No,1 attorney of owner Imran Khan?
(4) Whether the plaintiff has paid Rs,24,00,000 to the defendant No,1?
(5) Whether the plaintiff bound to pay the balance amount of Rs,200,000 after sale-deed, mutation and handed over physical possession of the suit property to the plaintiff?
(6) Whether defendant No,1 is bound to execute the sale-deed, mutation before the concerned department and handed over the physical possession to the plaintiff before receiving the balance amount Rs,2,00,000 within three months as per terms of the sale agreement?
(7) Whether defendant No,1 violation the sale consideration/sale agreement of 17-8-2004, 29-10- 2004 and 19-11-2004?
(8) Whether the defendant No,3 owner/attorney concerned the above said sale consideration or not?
(9) What should the decree be?
3. Thereafter trial Court dismissed the suit vide judgment, dated May 15, 2006. Being aggrieved by the order of trial Court First Appeal was filed and the appellate Court vide its order, dated May, 9, .2008 dismissed the appeal. Hence this IInd Appeal.
4. Appellant. Appeared in-person and argued her case. She referred to various documents and her contention was that these facts have not been considered by the Court below. On the other hand, respondents Nos. 1, 2 and 3 in spite of publication did not enter appearance. One Muhammad Saleem filed an application under Order I Rule 10, C.P.C. This application was allowed vide order, dated 13-5-2009. Mr. Azizur Rehman Akhund Advocate appeared for intervener and submitted that respondent No,1 sold property to Muhammad Burhan who sold it in terms to defendant No,4 and therefore, defendant No,4 is bona fide purchaser for valuable consideration.
5. I have considered submissions of the appellant and learned counsel for intervener and have also gone through the record.
6. It appears that prior to filing of present suit, Civil Suit No,1282 of 2004 was filed by the respondent No,1 against present appellant. In that suit present respondent No,1 had pleaded that she entered into sale agreement on 18-11-2004 whereby present appellant purchased premises for a lump sum consideration of Rs,26,00,000. She further stated that she received Rs,22,00,000 on different occasions leaving balance of Rs,200,000 to be paid. It was averred that present appellant declined to pay this amount of Rs,200,000. Secondly that suit was filed for rescission of contract. On 13-1- 2005 an application was filed by the present respondent No,1, which was as under:-- "Application under Order XXIII, Rule 1, C.P.C.
' It is respectfully submitted on the behalf of plaintiff that this Hon'ble Court may please to allow the plaintiff to withdraw suit on the ground that the defendant has filed Suit No,1364 of 2004 before Hon'ble Xth Senior Civil Judge, Karachi on the same suit property which is served upon the plaintiff and plaintiff appeared before the Court, 14-1-2005 is fixed for the W.S. & C.A."
' It is respectfully submitted that plaintiff want to contest that very matter and to avoid any confliction in between two judgments of Court therefore, application may be allowed. (Copy of suit is attached).
' Prayer is made in the interest of justice. Karachi (Sd.)
Dated 13-1-2005 Advocate for the Plaintiff"
7. On this application order was passed on same day as under:-
13-1-2005 ' Case called. Counsel for the plaintiff is present and filed an application under Order XXIII Rule 1, C.P.C. In which he has stated that the defendant has filed Suit No,1364 of 2004, in the Court of Xth.
Senior Civil Judge Karachi South on the same property, so that he does not want to proceed the matter.
' In view of above, the suit of the plaintiff stands dismissed as withdrawn with no order as to cost."
8. There are three sale agreements available on the file. One is agreement, dated 11-8-2004. Parties to this agreement are Imran Khan and present appellant. Imran Khan is son of the present respondent No,
1. Property is the same. It is stated that Rs,200,000 is paid and Rs,24,00,000 is yet to be paid. Then there is an agreement, dated 26-10-2004 between the present respondent No,1 and present appellant. Sale consideration is same as Rs,26,00,000. It is stated that Rs,400,000 is already paid and Rs,700,000 is to be paid at the time of execution of the agreement and remaining Rs,15,00,000 will be paid thereafter. Then third agreement is dated 19-11-2004 where it is stated that Rs,400,000 were paid during first phase, Rs,700,000 were paid on 29-10-2004, Rs,13,00.,000 were paid on the date of agreement and balance Rs,200,000 will be paid at the item of mutation of the premises.
9. Now coming to the evidence recorded. Present appellant appeared as P.W.1. She stated all the facts which have been narrated above. She was cross-examined. She also produced two witnesses and they were also cross-examined. Concerned sale agreement was brought out through evidence and receipts were produced. Respondent No,2. As attorney of respondent No,1 in his examination-in-chief states that disputed property belonged to Imran Khan. He stated that respondent No,1 is his mother. He stated that he had no knowledge about alleged sale consideration. In evidence of the plaintiff (present appellant) reply to the legal notice by Mr. Naeem Ahmed Rana Advocate on behalf of present respondent No,3 was produced. However respondent No,3 in his evidence stated that it was not sent by him. One Riaz Ahmed proprietor of Mujataba Estate respondent No,2 appeared as his own witness. He stated that he is son of respondent No,1 and she had authorized him. He denied that there is any agreement. He stated that Imran Khan is owner of disputed property and he was in Saudi Arabia. He stated that he did not know whether Imran Khan received any token money from present appellant. He did not know whether Imran Khan had given any power of attorney to Mst. Shamim BaNo, He denied that there was agreement between Mst. Shamim Bano and present appellant on 29-10-2004. He denied receipt of Rs,24,00,000. He admitted that Suit No,1282 of 2004 was filed by Mst. Shamim Bano and the same was dismissed as Withdrawn. Thereafter said Riaz Ahmed appeared as his own witnesses also.
10. The intervener's case was that Mst. Shamim Bano sold property to Mohammad Burhan vide registered sale-deed dated March 8, 2005. He submitted that there was thereafter an agreement between Muhammad Burhan and Muhammad Saleem on November 5, 2008 and prior to that agreement, dated October 20, 2004 General Power of Attorney was executed by Muhammad Burhan in favour of Muhammad Saleem. This power of attorney was duly registered.
11. In the entire discussion by the trial Court there is no reference whatsoever to Suit No,1282 of 2004, its plaint and order, dated 13-1-2005. In the plaint of that suit the present respondent No,1 had herself admitted that she received an amount of Rs,24,00,000. This aspect has not been attended to either by the trial Court or even by the Appellate Court. There is specific admission in evidence of attorney of respondent No,1 that she had filed Suit No,1282 of 2004 and that suit was dismissed as withdrawn. What was that suit. What was pleaded in that suit and why that suit was withdrawn are all the factors which should have been taken into consideration by the Courts below. Since they were not taken into consideration this appeal is accepted, judgments and decrees of two Courts below are set aside and matter is remanded to A trial Court for decision afresh after taking into consideration plaint of the Suit No,1282 of 2004, application under Order XXIII, Rule 1, C.P.C. Filed in that suit and order passed thereon and effect of these on the suit of the present appellant.
12. Under the circumstances, parties are left to bear their own costs.