' MUHAMMAD ALI MAZHAR, J.--- This Revision Application has been brought against the judgment and decree passed by Vth Senior Civil Judge, Karachi-West in Civil Suit No,2033 of 2006 which was affirmed by the learned Appellate Court in Civil Appeal No, 71 of 2008 vide judgment dated 8-7- 2010.
2. Brief facts of the case are that the applicant/plaintiff filed a civil suit for declaration, specific performance and permanent injunction against respondents in which it was inter alia, contended that applicant/plaintiff entered into an oral agreement to sell House No,1653, Sector 7-D, Surjani Town, Scheme 41, Karachi measuring 71.25 Sq. Yards in total sale consideration of Rs,4,00,000/- and at the time of agreement, the plaintiff paid a sum of Rs,1,10,000/- and defendant, No, 1 issued a receipt on 30-5-2005. The applicant/plaintiff paid Rs,1,90,000/- on different dates to defendant No,1 and he also attached the copies of receipts dated 2-6-2005, 11-6-2005 and 28-6-2005. In lieu of aforesaid payment, plaintiff claims to have been handed over the possession of the premises in question which was allegedly handed over to him by defendant No,1 on 30-5-2005. It is further stated that before acquiring physical possession, the plaintiff also paid to defendant No,1 some amount for purchase of doors. The applicant applied for Sui Gas connection in his own expenses and in order to prove the connection in his name, he has also attached a copy of application form for domestic connection and paid Sui Gas Bill for the month of November, 2006 which shows the name of applicant/plaintiff as consumer. After filing the suit, summons were issued to the defendants but they failed to appear and finally they were served through publication in daily newspaper Nawa-e-Waqt on 10-2-2007 and service was held good and matter was posted for filing written statements of the defendants.
3. The impugned judgment of learned trial court shows that at least nine dates were allowed to the defendants to file written statements but neither they appeared nor they filed written statements, consequently, they were debarred and declared ex parte. The applicant/plaintiff filed his affidavit in ex parte proof and his statement was recorded on 26-5-2008, in which he deposed almost the same facts as incorporated in the plaint. The suit of plaintiff was dismissed by the learned trial court on two grounds, firstly the applicant/plaintiff failed to produce any power of attorney allegedly executed between the defendants Nos.1 and 2 in which defendant No,2 was authorized to sell out the property in question and plaintiff also failed to produce any documentary evidence except few receipts and since whole suit was based on oral agreement and in order to prove factum of its execution, the applicant/plaintiff failed to produce any single witness in whose presence the parties orally agreed to this transaction. The judgment of trial court was appealed in civil appeal but its fate was not different. The learned appellate court on similar grounds dismissed the appeal and maintained the decree of trial court. It is pertinent to note that even in appeal despite notices to the respondents, they failed to appear in the appellate court. Now in this revision application also the respondents have been served twice through substituted service in daily newspaper Nawa-e-Waqt dated 20-8-2011 and daily Jang dated 22-8-2011 but they have chosen to remain absent.
4. In the plaint, the plaintiff has not only asserted his right on the basis of oral agreement but it was categorically stated that the possession of property in question was also handed over to him on 30-5-2005 and in order to show the factum of possession the applicant/plaintiff had also attached a copy of application form for Sui Gas connection and a paid Gas bill which shows his, name as consumer. Though the application for Gas connection or paid bill of Sui Gas do not confer any right and title upon the applicant/plaintiff but his plea that he paid the consideration on the basis of oral agreement which is coupled with the possession, therefore, this contention requires evidence. The learned trial court observed that the applicant/plaintiff failed to produce any single witness, who may support the oral agreement if any concluded between the parties to which learned counsel argued that since the defendants were declared ex parte and on the directions of court he filed ex parte proof and even then on the date when the judgment was passed the plaintiff brought his witnesses in court but learned trial court observed that since this ex parte suit, there is no need to record the evidence and matter may be decided on the basis of an affidavit of ex parte proof.
5. To some extent the learned trial court rightly observed that applicant/plaintiff failed to produce any documentary evidence but an important aspect has been overlooked that plaintiff is stated to be in peaceful possession of subject property against the payment of valuable consideration therefore, a crucial question which relates to part performance is to be adjudicated whether in the above circumstances transferor or any person claiming under him shall be debarred from enforcing any right against transferee. The record further shows that when the suit was pending one Muhammad Aslam filed an application under Order I, Rule 10, C.P.C. For becoming party in the suit on the basis of sub-power of attorney which application was heard and dismissed vide order dated 19-4-008 by the learned trial court.
6. It is not the requirement of law that an agreement or contract of sale of immovable property should only in writing, however, in a case where party comes forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement alone, heavy burden lies on the party to prove that there was consensus ad idem between both the parties for a concluded oral agreement. An oral agreement by which the parties intended to be bound is valid and enforceable. However, an oral agreement requires for it's prove clearest and most satisfactorily. In the case of Rasool Bakhsh v. District Judge, Dera Ghazi Khan and 15 others reported in 2000 YLR 1513 (Lahore), it was held that writing is not necessary to constitute a valid agreement to sell. Oral agreement can also be valid and legal and is binding on the parties. All the agreements or contracts whether oral or in writing if they are made by the free consent of the parties competent to contract for a lawful object and are not expressly declared to be void. In this context reference may be made to Ali Muhammad Khan v. Riazuddin Khera PLD 1981 Karachi 170. In the case of Mst. Rasheeda Begum and others v. Muhammad Yousaf and others reported in 2002 SCM R 1089, the Hon'ble Supreme Court held that an agreement to sell immovable property is a contract enforceable by law. Section 54 of the Transfer of Property Act expressly provides that a contract of sale does not, of itself, create any interest in or charge on the immovable property which constitutes its subject-matter. As a matter of fact an agreement to sell only creates a right to obtain another document conferring title in respect of the immovable property mentioned therein and for that very reason it does not require registration. There is also no legal provision to the effect that an agreement to sell should only be in writing. Be that as it may, while determining the question whether an agreement to sell is required by law to be attested by witnesses a line of demarcation must be drawn between the agreements to sell executed before and after promulgation of Qanun-e-Shahadat Order, 1984.
7. At this juncture, I would like to refer to 1999 SCM R 900 (Rehmat Ali v. Additional District Judge, Multan and others) in which the Hon'ble Supreme Court held that the words the Court may proceed ex parte and pass decree without recording evidence" in rule 6 (1) (a) as instead by Law Reforms Ordinance, 1972 come up for interpretation before this court in the case of Shamroz Khan and another v. Muhammad Amin and others (PLD 1978 SC 89) and Mr. Justice Dorab Patel observed as under "The words 'and pass decree without recording evidence' were inserted by the Law Reforms Ordinance, 1972 and we would observe here that before this Amendment the consistent practice of the Courts was to record evidence before decreeing a suit under this rule. The practice of recording evidence could lead to delays and as submitted by Mr. Inayat Elahi the object of the amendment was to empower the courts to decide a case without recording evidence. But does this mean that the question was left to the discretion of the courts or does it mean as submitted that it was incumbent on Courts to decree a suit without recording evidence? If Mr. Inayat Elahi's submission is correct, courts would be compelled to decree patently time-barred suits or suits which were patently dishonest or which contained absurd and exaggerated claims. Such an intention cannot lightly be attributed to the legislature now would we be justified in doing so because the amended rule now reads: ' the Court may proceed ex parte and pass decree without recording evidence ....'
' This means that the Court may proceed ex parte and that it may pass a decree without recording evidence. The word 'may' here imports discretion and means may, not shall, therefore, when a Court strikes off the defence of a defendant, it has further to decide in the exercise of discretion whether it should decree the claim against the defendant after recording evidence or without recording evidence, and like all discretion vested in the Courts, this discretion must be exercised judicially."
8. In the case of Rehmat Ali (supra), the honourable Supreme Court went on to hold that courts can pass ex parte decree even without recording evidence as the pleadings are to be filed on oath on solemn affirmation. Nevertheless, the Superior Courts had always looked with disfavour, decrees granted against absentees, without consideration of available record or application of mind as amended Order IX, Rule 6, C.P.C. Does not provide any arbitrary authority or blatant discretion toward decrees by closed eyes. Spirit of law demanded that whenever trial Court did not find it necessary to examine evidence, reasons must be recorded for showing justification for deciding the claim without taking further proceedings and without recording evidence. Reference may also be made to a judgment of Z.Z. Ahmad (Retd.) Deputy Inspector-General of Police v. National Bank of Pakistan (PLD 1991 SC 363), as in this case Order IX, rule 1(a), C.P.C. Again came up for.
Consideration. In this precedent, the view taken was that where summons had been duly served upon the defendant but he did not appear when the suit was called for hearing and decree was passed against defendant without recording evidence, all the ingredients of Order IX, rule 6 (1) (a), C.P.C. Stood satisfied and that proceedings taken against the defendant on the said date, thus, were in fact ex parte and in so far as a decree was passed against the defendant on that date it could legitimately be treated as an ex parte decree falling within the purview of Order IX, rule 6 (1)
(a), C.P.C. And was not a judgment, falling under Order X, rule 4 (2), C.P.C., so the application under Order IX, Rule 13, C.P.C. For setting aside the decree on showing good cause was correct and proper.
The principle which is deducible is that against the judgment passed under Order IX, rule 6 (1) (a), C.P.C., an application under Order IX, Rule 13, C.P.C. Would be competent in addition to the appeal which is available under law against decree. To same effect is the judgment of the court in case of Messrs Landhi Industrial Trading Estates Ltd., Karachi v. Government of West Pakistan through Excise and Taxation Officer, "N" Division, Karachi (1970 SCM R 251).
9. Order IX, Rule 6, C.P.C. Empowers the Court to proceed ex parte and pass the judgment even without recording of evidence. It is also well-settled principle of law that Court of law is not expected to shut its eyes and mechanically pass the order and decree in favour of plaintiff. Such power also empowers the court to pass judgment and decree and to dismiss the suit as well. When a Court strikes off the defence of a defendant, it has further to decide in the exercise of discretion whether it should decree the claim against the defendant after recording evidence or without recording evidence, and like all discretion vested in the Courts, this discretion must be exercised judicially. The plaintiff has to stand on its own legs to satisfy the conscious of court as to the existence of any right sufficiently or otherwise of evidence. The learned trial court has observed that the plaintiff failed to produce any single witness but on contrary the applicant/plaintiff has categorically stated, even in Ground No,12 of this Revision Application, that the applicant/plaintiff produced witnesses in court but trial court suggested that in ex parte proceeding there is no need of producing evidence.
10. I have no hesitation in my mind to hold that this is a fit case of part performance with possession, therefore, in my view it would advance the cause of justice to allow an opportunity to applicant/plaintiff to produce evidence/witnesses of oral agreement, payment and delivery of possession. The applicant claims that only Rs,1,10,000/- is payable more, therefore, it would be appropriate to remand the matter to the learned trial court to decide the suit afresh with an opportunity to the applicant to produce all witnesses in the court in addition to affidavit in ex parte proof instead of non-suiting the applicant on technical knockout.
11. As a result of above discussion, this revision application is admitted to regular hearing and allowed. Consequently, the impugned judgment and decree, passed by the learned trial court and appellate court are set aside and matter is remanded to the learned trial court with the directions to decide the suit within three months. However, if the learned trial court feels appropriate, as a last resort, fresh summons may also be issued to defendants in the interest of justice. Civil Revision Application stands disposed of.