ORDER ORDER AMIN-UD-DIN KHAN, J.-- Through this single judgment, I intend to dispose of C.R.
No.196 of 2011 and C.R. No.195 of 2011 as common questions of law and facts are involved and both the Civil Revisions have arisen from one and the same order.
2. The brief facts of the case are that plaintiffs-respondents Nos.1 to 4 filed a suit for Specific Performance against the petitioners on the basis of an affidavit dated 8-6-2005 allegedly sworn by Munir-ur-Rehman and Mazhar Ahmad. The claim of the plaintiffs in the suit is that the alleged two persons have agreed to sell the suit property on their behalf as well as on behalf of the defendants and received Rs.75,00,000, out of the total amount of Rs.80,00,000. Along with the suit an application for temporary injunction has also been filed in which it has been prayed that defendants be restrained from alienating the suit property, from changing Its nature and they be also restrained from interfering in the suit property. The suit was resisted by filing written statement as well as reply of the petition. The alleged agreement was denied. The learned Civil Judge, Fortabbas vide order dated 30-4-2010 accepted the application only to the extent that respondents would not alienate the suit-land till the final disposal of the suit. Aggrieved with the said order, the petitioners/defendants filed an appeal before the learned Additional District Judge, Fortabbas which was also dismissed vide judgment dated 18-2-2011. Dissatisfied with the aforesaid decisions of the courts below the petitioners/defendants have challenged the same before this court through present revision petitions.
3.. On court query that when the jurisdictional value of the suit was Rs.80,00,000, how the appeal was competent before the learned Additional District Judge, though this objection was not raised before this court by the learned counsel for the respondents, learned counsel for the petitioners while referring to section 11 of the Suit Valuation Act, submitted that no doubt the appeal was not competent before the Additional District Judge but no objection was raised by the learned counsel for the respondents or even it was not seen by the court itself whether the court has jurisdiction to entertain and decide the appeal, therefore, it being a contributory negligence on part of the parties and even the objection has not been raised till today, therefore, it can be ignored and this revisional powers can be exercised by this court. Learned counsel for the petitioners submitted that in the alleged affidavit if it is admitted, even then by no stretch of imagination, it can be said to be an agreement. Learned counsel further submitted that there are no signature of the plaintiff's party on affidavit. Learned counsel also submits that though there are two persons mentioned as identifier, they cannot be presumed to be the witnesses of the document. Learned counsel submits that there is no mention of any power of attorney on behalf of other owners allegedly agreed to sell the suit property.
4. On the other hand learned counsel for the respondents submits that he has got recorded the statement in chief of five P. Was. Learned counsel for the defendants is not cross-examining the witnesses. According to learned counsel plaintiffs have also purchased other property of the defendants worth Rs.11,00,00,000 from their brothers and sisters, therefore, there was no dispute between the brothers and sisters of the persons who gave affidavits to assure the plaintiffs that other owners are also willing to transfer property in their favour.
5. I have heard the learned counsel for the parties and perused the material available on record.
6. The strict scrutiny of the alleged agreement to sell is not legally required, so it may not prejudice the case of either of the parties. While relying upon "Atta Muhammad v. Muhammad Aslam and others" (1994 M LD 464) learned counsel for the petitioners submitted that when agreement is disputed, temporary injunction cannot be granted. In support of the contention that there are no signatures of the plaintiffs on the agreement, he has relied upon "Mst. Gulshan Hamid v. Kh. Abdul Rehman's and others" (2010 SCM R 334). On the other hand learned counsel for the respondents has placed reliance on "Messrs Al-Shams (Pvt.) Limited v. Haji Muhammad, Afzal and 3 others (1997 M LD 573) that oral agreement to sell is even permissible and implementable under the law.
Learned counsel, for the respondents while relying upon "Muhammad Afzal and others v. Wall Muhammad" (2004 CLC 658) contended that revisional jurisdiction of this court cannot be exercised till the time, the judgments or orders of the courts below are based on illegality or material irregularity. The authorities relied upon by the learned counsel for the petitioners are applicable to the facts of this case whereas the case-law relied upon by the learned counsel for the respondents is distinguishable to the facts of this case. So far as the alleged affidavit is concerned, this sole affidavit does not constitute agreement between the parties because the unilateral agreement was not signed by the plaintiffs. Furthermore this alleged agreement is also denied by the petitioners.
6 A. The learned courts below while exercising jurisdiction in granting stay order and dismissal of appeal, have committed illegality and material irregularity because when agreement is disputed and there is even no receipt for a considerable amount of Rs.75,00,000. Even there is no cheque or Bank Draft in order to show the payment. It is also settled law that an agreement to sell does not create or confer a right. It just gives a right to file a suit for specific performance. Transfer of the suit property will depend upon the fate of the suit. Till the decision of the suit any embargo on the property admittedly owned by the petitioners is not justified under the law.
7. For the foregoing discussion, both the civil revisions are accepted and the order dated 30-4-2010 passed by the learned Civil Judge 1st Class, Fortabbas and judgment dated 18-2-2011 passed by the learned Additional District Judge, Fortabbas are set aside. Resultantly, application for grant of temporary injunction filed by the plaintiff/respondents is hereby dismissed..