' NASIR SAEED SHEIKH, J.--- Through this judgment, R.F.A. No,224 of 2002 (Bashir Ahmad Chaudhary v. Tahir Mahmood and others), R.F.A. No,451 of 2002 (Tahir Mehmood v. Bashir Ahmed Chaudhary and others) and Cross-Objection No,25 of 2003 (Mian Tahir Mahmood v. Bashir Ahmad Chaudhry and others) are disposed of as all the above cases are directed against the same judgment and decree dated 11-3-2002 and are between the same parties.
2. Briefly stating the facts of the case are that a suit for specific performance of contracts dated 7- 5-1995 and 21-5-1997 was instituted by Bashir Ahmad Chaudhary appellant of R.F.A. No,224 of 2002 before the learned Senior Civil Judge, Faisalabad on 6-6-1998. The precise contention of the plaintiff in the suit was that a sale agreement dated 7-5-1995 was entered into by Tahir Mahmood son of Muhammad Shafi the respondent No,1 of R.F.A. No,224 of 2002, who is also the appellant of R.F.A. No,451 of 2002 of land measuring 14 Kanals, 10 Marlas, situated in Chak No,207/R.B., Tehsil and District, Faisalabad, which land has been described in the title of the plaint dated 6-6-1998 and hereinafter be referred to as the subject land. This agreement of sale dated 7-5-1995 was claimed by the appellant Bashir Ahmad Chaudhary to have been executed by Tahir Mahmood the respondent No,1 and was attested by two witnesses Muhammad Farooq son of Haji Noor Muhammad and Muhammad Ali Abid son of Farzand Ali. It was also the case of the appellant that sale consideration for the subject land was fixed as Rs,2,40,00,000 (rupees two crore and forty lac only) in the agreement of sale and at the time of its execution, a sum of Rs,45,00,000 (Rupees forty five lac only), in cash, was paid by the appellant as earnest money, which was received by the respondent No,1 in presence of those witnesses and this fact is so recorded in the agreement of sale dated 7-5-1995. The period for the completion of the registered sale deed in favour of the appellant was fixed up till 1-9-1996 in the agreement dated 7-5-1995. The appellant further claimed that through a separate agreement dated 21-5-1997, the respondent No,1 Tahir Mahmood further undertook to get, the subject land released from the Bank from which Bank the respondent No,1 stated to have obtained loan against the security of the subject land and an appeal was pending before the High Court in this loan matter. The respondent through this agreement dated 21-5-1997 undertook to get the appeal decided before 30-5-1998 and then to execute the sale-deed in favour of the appellant of the subject land. On the failure of the respondent No,1 Tahir Mahmood to fulfil his contractual obligation as claimed by the appellant a suit was instituted by the appellant. In the plaint originally instituted the appellant/plaintiff also narrated the fact that a collusive consent decree dated 10-1-1995 with respect to an area measuring 9 Kanals, 10 Marlas out of 14 Kanals, 10 Marlas total subject land, which was stated to have been gifted by the respondent No,1 to his wife Mst. Sabiha Shaheen the respondent No,2 was obtained by the said Mst. Sabiha Shaheen. The plaint in the present suit was ultimately amended on 22-9-2001 and the appellant assailed another consent decree dated 4-1-1995 in addition to decree dated 10-1-1995. The background of assailing the above decrees was in fact that Mst. Sabiha Shaheen defendant No,2 instituted two suits whereby she claimed that her husband Tahir Mahmood had orally gifted the subject land to her in the year 1989 and the possession of the subject land was also delivered to her by the husband and that her husband is out to sell out or dispose of the same, therefore, he be restrained from committing the alleged illegal acts. These two suits were not contested by the respondent No,1 Tahir Mahmood; resultantly, two decrees dated 4-1-1995 and 10-1-1995 respectively were passed in the suits instituted by Mst. Sabiha Shaheen defendant No,2. The appellant assailed the said decrees also to be collusive and result of fraud.
3. Another prayer which was made in the present suit by the plaintiff/appellant was that Mst.
Sabiha Shaheen has further effected an exchange of the subject land with the respondents Nos.3 to 6 through the exchanged deed dated 27-2-1998 and this exchange deed as well as its mutation dated 27-3-1998 were also sought to be set aside and declared ineffective upon the rights of the plaintiff. The plaintiff also prayed in the suit that if relief of the specific performance of the agreement cannot be granted to the appellant, then in the alternative a decree for the recovery of Rupees ten crore as compensation/ damages along with markup at the bank rate be granted to the appellant/plaintiff against the defendants.
4. This suit was contested by all the defendants. The respondent No,1 Tahir Mahmood submitted a separate written-statement, whereas, Mst. Sabiha Shaheen respondent No,2 submitted her own written statement. The respondents Nos.3 to 6 independently contested the suit and submitted the written statement. The respondent No,1 completely denied the execution of the alleged agreements to sell claimed by the appellant Bashir Ahmad Chaudhary, and the receiving of earnest money of Rs,45,00,000 (Rupees forty five lac only) was also denied. It was further pleaded by the respondent No,1 that the alleged signatures and the thumb impressions upon the agreements to sell attributed to the said respondent were all forged. It was also pleaded that the plaintiff has himself admitted in one of the agreements that the subject property is subject to encumbrance as loan has been obtained against the subject property, therefore, it was also pleaded by the respondent No,1 that this statement of fact was sufficient hurdle in creating any valid agreement to sell in favour of the appellant Bashir Ahmad Chaudhary. As the plaintiff claimed and asserted that some Rest House fully decorated was in existence on the subject property, this assertion of the appellant/plaintiff was also denied in the written statement by the respondent No,1 by stating that there is no Rest House in the property in dispute nor is there any Banglow at all existed in the property and that no question of its interior decoration in the form of crockery, carpet and modern furniture as allegedly claimed by the plaintiff arises. It was further pleaded by the respondent No,1 in the written- statement in paragraph No,9 that the said respondent No,1 never remained owner of the subject property since 27-4-1989 and that the decrees dated 4-1-1995 and 10-1-1995 were passed against the respondent No,1 in favour of the respondent No,2 and that the respondent No,2 as owner of the subject property lawfully exchanged the same through a valid exchange deed executed by her and that the plaintiff has no right or authority to allege that the decrees dated 4-1-1995 and 10-1- 1995 were collusive. In paragraph No,12 of the plaint amended dated 20-7-2001, the plaintiff/ appellant further contended that the consent decrees passed in favour of the respondent No,2 were procured fraudulently and malafidely and were of no legal effect upon the rights of the respondent/ plaintiff and that although there was no need for him to file an application under section 12(2) of C.P.C. Against the said decrees, out of abundant precaution an application under section 12(2) of C.P.C. Has also been moved by the appellant/plaintiff against the said decrees which was pending adjudication at the time.
' The respondent No,2 in her written-statement stated that the subject property was orally gifted to her with possession by her husband and she thus claimed the ownership and possession of the subject property since 27-4-1989 and that her ownership was further declared as legal through decrees dated 4-1-1995 and 10-1-1995 by the court of competent jurisdiction in pursuance to which mutations were also incorporated in the name of the respondent No,2 and that in exercise of her valid right of ownership over the subject property, she further effected an exchanged of the subject property with the respondents No,3 to 6 through an exchange deed dated 27-2-1998. The respondents No,1 and 2 thus prayed for the dismissal of the suit of the appellant/plaintiff with costs.
' The respondents No,3 to 6 also contested the suit by claiming that they are bona fide purchasers of the subject property as it was given in exchange to them by the respondent No,2, who was the lawful owner of the subject property at the time of exchange and the possession of land measuring 13 Kanals, 7 Marlas out of the subject land was with the said respondents.
5. The plaint of the suit was first rejected by the Civil Judge vide order dated 27-7-1998 against which order an R.F.A. No,272 of 1998 was preferred by the appellant, which was dismissed by a learned Division Bench of this Court vide judgment dated 12-10-1999 announced on 17-2-2000. A C.P.L.A. No,513-L of 20,07 was preferred by the appellant against the judgment announced on 17-2- 2000 of R.F.A.' No,272 of 1998, which C.P.L.A. Was accepted by the honourable Supreme Court of Pakistan and the case was remanded back for trial and decision on merits in accordance with law.
After the remand order, the following issues were framed by the trial Court:- Issues.
(1) Whether, defendant No,1 entered into sale agreements dated 7-5-1995 and 21-5-1995 with consent of defendant No,2? OPP.
(2) Whether bargain and terms of the sale agreements were settled in presence of defendant No,2 and he did not raise any objection on the bargain of the suit property as well as on the terms and conditions of the same? OPP.
(3) Whether execution of the same agreement dated 7-5-1995 was postponed as the suit property was mortgaged with the National Industrial Co-operative Bank for Rs,30 lac? If so, with what legal effect? OPP.
(4) Whether time for execution of the sale deeds was extended with consent of the defendants No,1 and 2 and the plaintiff has always been ready and willing to perform his part of agreement? OPP.
(5) Whether decrees dated 4-1-1995 and 10-1-1995 are illegal, ultra vires, so ineffective being based on fraud, misrepresentation and want of jurisdiction? OPP.
(6) Whether exchange deed dated 27-2-1998 and Mutation No,76667 is based upon mala fide, ill will and with notice of agreement to sell dated 7-5-1995 and 21-5-1997? If so, to what effects? OPP.
(7) Whether the plaintiff is entitled to the decree for specific performance of the sale agreement? If so, on what terms and conditions? OPP.
(8) Whether the suit is not maintainable in its present form? OPD.
(9) Whether the suit is bad for multifariousness? OPD.
(10) Whether the suit is under valued for the purpose of court fee and jurisdiction? OPD.
(11) Whether the plaintiff has no locus standi and cause of action on 1-4-1995 and 10-1-1995? OPD.
(12) Whether the defendants Nos.1, 2, 3 to 6 are entitled to special costs? OPD.
(13) In case issues Nos.1, 2 and 7 are decided in the negative, whether plaintiff is entitled to recover the earnest money paid by him to the defendants? OPD.
(14) Whether the plaintiff is entitled to the damages as claimed by him? OPP.
(15) Relief.
6. The parties produced their respective evidence. The learned Civil Judge while recording his findings on Issue No,1 held the sale agreement to have been executed and that passing of consideration i.e. Earnest money of Rs,45,00,000/- (rupees forty five lac only) was also established.
The learned Civil Judge while recording his findings on Issue No,1 in paragraph No,20 further held that Tahir Mahmood respondent No,1 did transfer his landed property to his wife Mst. Sabiha Shaheen defendant No,2, which she subsequently alienated through exchange deed dated 23-2- 1998 in favour of the respondents Nos.3 to 6. Later on in paragraph No,21, the learned Civil Judge held that Bashir Ahmad Chaudhary plaintiff has no doubt failed to prove his case for specific performance of contract, however, the learned Civil Judge held that the plaintiff is entitled to recover double the amount asserted in the agreement to sell by invoking the penal clause of the agreement, which the plaintiff was deprived of by the defendant No,l. While recording his findings on Issue No,6, the learned Civil Judge held that the respondents Nos.3 to 6 are bona fide purchasers without knowledge of the agreements of sale executed by the respondent No,l. While recording his findings on Issue No,7, the learned Civil Judge held that the plaintiff has not been able to prove specifically the factum of forgery and misrepresentation with respect to two decrees passed in favour of the respondent No,2 by the Civil Court and thus the issue on the plaint was decided in the negative. In the relief clause, the learned Civil Judge held that the plaintiff was not entitled to the decree for specific performance. However, a decree for the recovery of Rs,45,00,000 (Rupees forty five lac only) paid by the plaintiff as earnest money along with Rs,90,00,000 (Rupees ninety lac only) as double the amount for breach of the contract with markup at the bank rate till the full realization of the amount was passed with costs in favour of the plaintiff against the defendant No,1. The learned Civil Judge thus passed the judgment and decree dated 11-3-2002 in favour of the plaintiff/appellant.
7. R.F.A. No,224 of 2002 has been preferred by Bashir Ahmad Chaudhary plaintiff by praying that the impugned judgment and decree dated 11-3-2002 passed by the learned trial court be modified by granting relief of specific performance to him or in the alternative the damages of Rupees Ten Crore as prayed for be granted to the appellant against the respondents and that the suit be decreed as prayed for.
8. The respondent No,1 preferred R.F.A. No,451 of 2002 with the prayer that the judgment and decree dated 11-3-2002 be set aside and the suit of the respondent No,1 may be ordered to be dismissed with costs throughout.
9. The respondent No,2 Mst. Sabiha Shaheen preferred Cross-Objection No,25 of 2003 in R.F.A. No,451 of 2002 praying for the expungement/setting aside of the findings/adverse remarks to the extent of the plea of alleged presence and consent of the said respondent No,2 at the time of disputed agreements as recorded in the judgment and decree dated 11-3-2002 by the learned Civil Judge. It was thus prayed by her that the dismissal of the suit for specific performance as ordered by the learned Civil Judge be allowed to remain intact without adverse remarks of her presence as stated in the impugned judgment by the learned Civil Judge.
10. All the matters are heard together. We would first of all take up the arguments of the learned counsel for the appellant in R.F.A. No,224 of 2002 instituted by Bashir Ahmad Chaudhary. The learned counsel for the appellant has raised the following points:-
(i) the plaintiff/ appellant has proved on the record that agreement to sell was entered into by the defendant No,1 in presence of the defendant No,2, therefore, the consent decrees dated 4-1-1995 and 10-1-1995 become irrelevant and the agreement to sell can be enforced against both the respondents Nos.1 and 2, who were defendants Nos.1 and 2 respectively in the suit.
(ii) the respondent/ defendant No,1 did not cross-examine the witnesses on the fact of execution of the agreement to sell, therefore, the execution stands admitted by implication.
(iii) the defendant did not cross-examine the plaintiff's witnesses with regard to her presence, therefore, her presence is also admitted at the time of the execution of the agreement.
(iv) the defendant No,2 did not appear in the witness-box. However, her attorney appeared, who was the employee of the respondent No,
1. This according to the learned counsel is also an evidence of collusiveness of the respbndents Nos.1 and 2 inter se.
(v) the exchange deed of the subject-land between the respondent No,2 and the respondents Nos.3 to 6 has been established to be not bona fide, therefore, does not affect the rights of the appellant.
(vi) the respondents Nos.3 to 6 did not appear in the witness-box and produced an attorney, which is not sufficient piece of evidence to rebut the positive evidence of the appellant/ plaintiff.
(vii) the appellant contended the exchange deed by the respondent No,2 in favour of the respondents Nos.3 to 6 as a mala fide act, therefore, the respondent No,2 as well as the respondents Nos.3 to 6 did not establish their bona fides with respect to the exchange deed of the subject property effected between the respondent No,2 on the one hand and the respondents Nos.3 to 6 on the other hand.
(viii) the trial court held the evidence produced by the appellant to be true and trustworthy but the refusal of grant of relief of specific performance has been arbitrarily made and no valid reasons have been given by the trial court to non-suit the appellant in that context.
(ix) relief not given properly as prayed for.
(x) damages not awarded as prayed for.
(xi) agreement to sell in favour of the appellant by the respondents Nos.1 and 2 have not been proved, therefore, the subsequent exchange deed by the respondent No,2 in favour of the respondents Nos.3 to 6 is mala fide, illegal, void and has no legal sanctity.
11. The respondents Nos.1 and 2 have controverted the arguments of the learned counsel for the appellant by raising the following points:--
(i) both the agreements to sell have not been proved by the appellant by producing the marginal witnesses as per requirement of law.
(ii) scribe of agreements to sell Exh.P.3 and Exh.P.7 not produced, therefore, the agreements of sale not legally established.
(iii) wrong description of the subject property in both the agreements have been given.
(iv) there is an over-writing in the agreement to sell Exh.P.3 with the signatures of one Iqbal Junaid and there is no explanation as to how this Iqbal Junaid had an access to the agreement and how did he sign over-writing.
(v) bank account attributed to Mian Tahir respondent No,1 not established and in this context P.W.2 and P.W.3 did not sufficiently prove the case of the appellant.
(vi) cheques allegedly drawn by the appellant Bashir Ahmad Chaudhary were not proved.
(vii) payments of the earnest money given at variatice in different pleadings by the appellant.
(viii) respondent No,2 was not party to the agreements of sale Exh.P.3 and Exh.P.4, therefore, suit for specific performance cannot be enforced against her.
(ix) decrees dated 4-1-1995 and 10-1-1995 were first challenged by the appellant through application under section 12(2) of C.P.C., which application was withdrawn by the appellant, therefore, the said decrees cannot be assailed through the instant suit by the appellant and thus the suit is not maintainable.
(x) the appellant/plaintiff did not himself appear in the witness-box and the power-of-attorney does not authorize the attorney Muhammad Ashraf (P.W.7) to appear and make statement on Oath in the name or on behalf of Bashir Ahmad Chaudhary, therefore, the statement of Muhammad Ashraf has no legal authenticity.
(xi) the witness Muhammad Ali Abid, who is alleged to be one of the marginal witnesses of the agreements Exh.P.3 and Exh.P.4 is a close relative as brother-in-law of the appellant/plaintiff.
12. The learned counsel for the appellant in R.F.A. No,451 of 2002 in addition to the arguments raised above stated that the relief of specific performance has been rightly refused to the appellant by the learned Civil Judge. It is further argued that since the appellant has not been able to prove the execution of the agreements Exh.P.3 and Exh.P.7, therefore, he is not entitled to the grant of relief of recovery of the return of the earnest money as well as that of the amount of Rs,90,00,000 (rupees ninety lac only) additionally allowed by the learned Civil Judge. It was prayed that the impugned judgment be set aside and the suit of the respondent No,1 of R.F.A. No,451 of 2002, who is also appellant in R.F.A. No,224 of 2002 be dismissed with costs.
13. The learned counsel for the respondents Nos.3 to 6 has supported the arguments of the learned counsel for the respondents Nos.1 and 2 and has further contended that the respondents Nos.3 to 6 entered into exchange with the respondent No,2 of the subject property in a bona fide manner by giving valuable constructed property belonging to the said respondents Nos.3 to 6 to the respondent No,2 through a registered exchange deed dated 23-2-1998, therefore, the suit of the appellant has been rightly dismissed against the respondents Nos.3 to 6.
14. We have considered the arguments of the learned counsel for the parties and have perused the record.
15. The learned Civil Judge has recorded a finding in this case that the appellant is not entitled to the relief of specific performance of the agreement to sell and therefore his suit to the extent of the prayer of specific performance of agreements to sell has been declined. We observe that the crucial point in the instant matter is with respect to the passing of the two decrees dated 4-1-1995 and 10-1-1995 Exh.P.18 and Exh.P.13 respectively. It is the case of the respondents Nos.1 and 2 that in the year 1989, the respondent No,1 orally gifted the subject land to his wife respondent No,2 and also delivered the possession to her. On account of the strained relations between the respondents Nos.1 and 2, two suits were instituted by the respondent No,2 against the respondent No,1, wherein the judgment and decrees were passed on 4-1-1995 and 10-1-1995 respectively upon the consenting statement of the respondent No,1. These judgment and decrees fortified the contentions of the respondents that oral gift was made with possession in favour of the respondent No,2 by the respondent No,1 of the subject property. It is also an admitted position that the present appellant moved two applications before the learned Civil Judge, who passed the judgment and decrees dated 4-1-1995 and 10-1-1995 for setting aside of the said decrees by invoking the provisions of section 12(2) of C.P.C. The precise contention raised by the appellant in moving the said application under section 12(2) of C.P.C. Was that the decrees challenged were fraudulent and collusive in order to defeat the lights of the appellant. The appellant surprisingly withdrew the two applications moved under section 12(2) of C.P.C. For setting aside of the said decrees, which facts are proved through the statement made on behalf of the appellant before the Civil Court, which are Exh.P.21 and Exh.P.33.
16. The provisions of section 12(2) of C.P.C. Create a legal bar for a person, who feels himself aggrieved of any judgment or decree passed by a Civil Court on the ground that the said judgment and decree has been obtained through fraud and misrepresentation or is collusive, then A the only remedy which is available to such a person is to move an application under section 12(2) of C.P.C. Before the Court which passed the judgment and decree in question and a separate suit is not maintainable at all by such a person. The legal position which thus emerges on account of the admitted facts of the instant case are that the judgment and decrees dated 4-1-1995 and 10-1- 1995 were passed by a Civil Judge declaring that the respondent No,1 has made an oral gift in favour of the respondent No,2. The appellant did move applications under section 12(2) of C.P.C., but withdrew the same. The legal effect would be that the judgments and decrees dated 4-1-1995 and 10-1-1995 have attained finality. It would thus be the effect of those said judgments and decrees that the respondent No,1 ceased to be the owner of the land in the year 1989, when he made an oral gift of the subject land with possession in favour of the respondent No,2. The alleged agreements to sell claimed by the appellant in the year 1995 from the respondent No,1 are, therefore, cannot create any legal right in favour of the appellant as these agreements are attributed to the respondent No,1, who was not at all the owner with possession of the subject land in the year 1995 on account of the decrees passed on 4-1-1995 and 10-1-1995. The suit of the appellant assailing the judgments and decrees dated 4-1-1995 and 10-1-1995 is, therefore, not at all sustainable and is liable to be dismissed on this short ground alone.
17. The execution and making of the agreements to sell dated 7-5-1995 and 21-5-1995 respectively is specifically denied by the respondent No,
1. As per provisions of Article 17 read with Article 79 of the Qanun-e-Shahadat Order, 1984, if such an agreement affecting an immovable property as claimed by a plaintiff of a suit is denied to have been executed by the defendant to whom those agreements are attributed, then the plaintiff has to prove the claimed agreements to sell by producing two marginal witnesses of the agreements in question. Admittedly, the basic agreement to sell is dated 7-5-1995 Exh.P.3 and the subsequent agreement is just extension of the said agreement. The original agreement Exh.P.3 has to be established by the appellant as its execution was specifically denied by the respondent No,1. The appellant admittedly produced only one witness Muhammad Ali Abid as P.W.4 and the other marginal witness Farooq has not been produced by him. We do not find any explanation in non-production of the said marginal witness Farooq by the appellant/plaintiff during the trial. The said witness has also not been given up by the appellant during the trial. In the absence of any plausible explanation or reasons in not producing the said second marginal witness Farooq by the plaintiff/appellant during the trial, it cannot be said that the requirements of Article 79 of the Qanun- C e-Shahadat Order, 1984 have been fulfilled by the appellant. The non-production of the second marginal witness makes the original agreement to sell Exh.P.3 as an inadmissible document.
18. The contention of the learned counsel for the appellant that the execution of the original agreement Exh.P.3 has been established by proving the subsequent writings, which are witnessed by two witnesses and both of those marginal witnesses have been produced, is not entertainable because the original agreement to sell has to be established by the appellant/plaintiff independently and the subsequent writings for proving the extension of the original sale agreements would fall down if the original agreement to sell is held not to be proved in accordance with law, thus, we find that the learned Civil Judge has not acted in accordance with law by holding that the agreements to sell Exh.P.3 and Exh.P.7 have been proved by the appellant.
This finding of the learned Civil Judge is contrary to the statutory provisions of Article 17 read with Article 79 of the Qanun-e-Shahadat Order, 1984 and is, therefore, not sustainable. In view of the fact that we do not find the original agreement to sell Exh.P.3 to have been proved by the appellant during the trial, the very transaction forming basis of the claim of the appellant fades away, therefore, we do not find any legal justification to sustain the judgment and decree passed by the learned Civil Judge for the recovery of earnest money of Rs,45,00,000 (Rupees forty five lac only) or of the double the amount of Rs,90,00,000 (Rupees ninety lac only) of the said earnest money.
19. In view of the above circumstances, R.F.A. No,224 of 2002, filed by the appellant Bashir Ahmad Chaudhary, is dismissed; R.F.A. No,451 of 2002 along with Cross-Objection No,25 of 2003 is accepted, the impugned judgment and decree dated 11-3-2002 passed by the learned Civil Court is set aside and the suit instituted by the appellant is dismissed. The parties to bear their own costs.