AMIN-UD-DIN KHAN, J. --- Through this civil revision, the petitioner-plaintiff has impugned the judgment and decree dated 30.05.2006 passed by the Addl. District . Judge, Bahawal Nagar, whereby the appeal filed by the respondents-defendants was accepted and the judgment and decree dated 06.10.2004 passed by the Civil Judge 1st Class, Minchin-Abad, decreeing the suit of petitioner was set aside.
2. Briefly, the facts as leading to this civil revision are that the petitioner-plaintiff on 19.03.1995 filed a suit for specific performance with regard to the suit property measuring 08-kanals situated in Khata No. 5, Rectangle No. 360/7 Killa No. 11 on the basis or agreement to sell dated 19.06.1991. The alleged agreement was with Liaqat A.I, the predecessor of respondents-defendants. He died in the meantime, therefore, suit was filed against them. They appeared and contested the suit and denied from the execution of any agreement by their predecessor. They also raised preliminary objection that previously on the basis of alleged agreement to sell, petitioner-plaintiff filed withdrawn, therefore, the suit in hand is not competent.
Out of the divergent pleadings of the parties, the Trial Court framed two issues only with regard to agreement to Sell and no issue has been framed with regard to the limitation as well as previous filing of suit and its withdrawal thereafter. Issues Nos. 1 and 2 are with regard to alleged agreement and entitlement of decree by the plaintiff and issue No. 3 is with regard to relief. Both the parties produced their oral as well as documentary evidence in support of their contentions. After the close of trial, the Trial Court vide judgment and decree dated 06.10.2004 decreed the suit. Feeling aggrieved by the said decree, an appeal was preferred by the defendants before the first Appellate Court, which was accepted on 30.05.2006 and the decree passed by the Trial Court decreeing the suit was set aside.
Hence, this civil revision by the petitioner-plaintiff.
3. Learned counsel for the petitioner states that the petitioner-plaintiff has fully proved the alleged agreement as well as the payment under the said agreement; that the first Appellate Court has non-suited the petitioner-plaintiff on the basis that suit is time-barred; that the first suit filed by the petitioner was though withdrawn by him with the permission to file a fresh suit but the first Appellate Court has observed that there was no formal defect in the previous suit and no permissio to withdraw the same in order to file a fresh suit could have been granted. Learned counsel states that in this view of the matter, the findings recorded by the first Appellate Court are not in accordance with law and further -states that in previous suit Mst. Jannat Bibi (widow of Liaqat A.I) filed consenting written statement and learned counsel (Qazi Abdul Salam, Advocate) who filed consenting written statement appeared in this suit as P.W-7; in this way, learned counsel states that even the petitioner has proved that consenting written statement was filed by permitted to resile the defendant and she cannot be from consenting written statement filed in the previous suit. It has been further contended that suit was filed within a period of limitation, as the period for limitation is provided under Article 113 of the Limitation Act, 1908, whereas if date is fixed for performance the limitation will start from that date or if no such date is fixed when the plaintiff has noted that performance is refused. Learned counsel states that the judgment and decree passed by the first Appellate Court be set aside and the decree passed by the Trial Court be restored.
4. On the other hand, learned counsel for the respondents -defendants states that the alleged agreement is forged one; that the order granting permission to petitioner-plaintiff for withdrawal of suit by filing a fresh suit is not helpful to the petitioner, as it is absolutely against the law. Learned counsel states that the first Appellate Court has rightly set aside the judgment and decree passed by the - Trial Court and lastly prayed that this civil revision is not competent and same be dismissed with costs.
5. I have heard the learned counsel for the parties at full length and also gone through the record with their able assistance.
6. The questions determinable by this Court are: (i) whether the suit is time-barred; (ii) whether the permission granted by the Trial Court to file a fresh suit after withdrawal of previous suit is helpful to the petitioner; and (iii) whether a unilateral agreement is enforceable under the law where plaintiff himself is not signatory to that agreement.
7. Though with regard to points (i) and (ii), the objection is available on written statement but the Trial Court has not framed issue. I have noticed that the matter in issue was well within the knowledge of both the parties and even the parties have not claimed the framing of issues, therefore, the parties have produced their evidence with regard to their pleadings keeping in view their contentions and pleadings. In this eventuality, there is no need at this stage to frame any issue with regard to the part of pleading which does not cover through the already framed issues and that point can be determined by this Court and even points (i) and (ii) have been determined by the first Appellate Court. So far as, point (iii) is concerned. It is a legal question, therefore, it also does not require framing of another issue at this stage.
8. First of all, I take point (iii). Before going int' the question that alleged agreement (Ex.P-1) has bee proved or not, the legal defect, that it is a unilater agreement by the said Liaqat A.I and it has not been signe' by the petitioner-plaintiff (Sher Muhammad), light can b taken from the judgment reported as "2010 SCM R 334 (Ms Gulshan Hamid v. Kh. Abdul Rehman and others)". Th alleged agreement does not come in the definition o agreement between the parties when petitioner- plaintiff ha not signed the same. Meaning thereby, he was not bound b that agreement and such- like agreement is even no enforceable under the law.
9. So far as, point (i) relates to the period limitation of filing of suit is concerned. In this agreement n period for performance of limitation has been mentioned, a it is mentioned that the property is pledged and after it redemption the seller will complete the sale. Admittedly, firs suit was filed on 18.01.1994 which was withdrawn o 14.02.1995 and admittedly on the refusal of performance first suit was filed and at his own the plaintiff withdrew the same on 14.02.1995. Though he has prayed for permissio to file the fresh suit but it is settled now that the permissio granted by the Court for refilling of any lis cannot enhance the period of limitation. I have observed that in the allege agreement the time for performance is not given. The condition mentioned therein that after redemption the vendo will transfor the suit property, I am of the considered vie that even a property is mortgaged that is never a bar transferring the same as the charge on the property also flo with the ownership and when there was a clear cut refusal therefore, the time for filing of suit in hand in th circumstances of this suit was three years from the date o execution of alleged agreement to sell, therefore, the sui was barred on the basis of limitation.
10. So far as, permission to file a fresh suit on th ame cause of action is concerned. I am afraid that the order assed by the Trial Court wherein the previous suit was ending , is not in accordance with law as the only defect shich has been shown by the plaintiff is not correct. Actually e was to file a suit with regard to Killa No 11 and nadvertently he has filed suit with regard to Killa No. 12. I ave minutely checked the record available with the file of his case. It is clear that Killa Nos. 11 and 12 fall in Khata o. 5 in accordance with Jamabandi produced by the laintiff himself as Ex. P-5. In this view or the matter, this round for permission to file a fresh suit was also wrong, ven if it was the hurdle that could have been crossed by pplying for permission to amend the plaint.
11. No doubt that U/0. XXIII, Rule 1 of the C.P.C. he Trial Court has powers to allow the plaintiff to withdraw he suit with permission to file a fresh suit on the basis or ame cause of action but these powers are not unlimited but overn according to this rule. The plaintiff must show a ormal defect on the basis of which suit must fail or he must how other sufficient grounds for allowing him to institute a resh suit for the subject-matter of his suit.
Certainly when he Trial Court has exercised its jurisdiction U/O. XXIII, Rule (1) of the C.P.C. If defendant has been served in the suit nd was represented before the Court, then certainly he has - very right to raise objection with regard to granting ermission to file a fresh suit after withdrawal of suit pending efore the Court. In case in hand, it is even no visible from he order whether defendant was invited to file any objection n the request of plaintiff. It is dear from the order dated 14.02.1995 passed even without application of mind and this order cannot be termed the order passed after application of mind, the Trial Court without even determining whether there is any formal defect in the suit, granted permission to plaintiff to withdraw the suit and to file a fresh suit on same cause of action, and that too, without any condition. I have observed that the plaintiffs claim that his previous suit was laving a formal defect is factually incorrect. In this eventuality, when plaintiff was contributory to procuring a wrong order from the Trial Court dated 14.02,1995, therefore, he is bound to sustain the damage and consequences of that order. No doubt; a general rule is that no one should be punished for the wrong done by the Court but in case in hand the plaintiff is contributory of that wrong, so he has to sustain the effects of that order. On the basis of this defect the second suit was not maintainable on the same cause of action on the basis of which previous suit was filed and withdrawn. Therefore, the order dated 14.02.1995 (Ex. P-2) is not helpful to the petitioner- plaintiff.
12. In the light of what has been discussed above, learned counsel for the petitioner-plaintiff failed to show any illegality or infirmity in the judgment and decree passed by the first Appellate Court.
Resultantly, this civil revision having no merits is dismissed with costs.
13. Before parting with this judgment I feel necessary to comment upon the statement of P.W-7 (Qazi Abdul Salam, Advocate) who, appeared as witness of petitioner-plaintiff to make a statement that he was a counsel for Mst. Jannat Bibi, etc. (defendants) in previous suit and he filed consenting written statement on behalf of Mst. Jannat Bibi in that suit. If the said counsel was appointed by the defendants in previous suit, under Article 9 of the Qanun-eShahadat Order, 1984, it was professional communication which was conveyed to him by the defendants. He was not entitled to appear as a witness of plaintiff against the rights of his clients and make a statement against them in suit in hand with regard to filing of consenting written statement in previous suit between the same parties. It is not lesser than professional misconduct on behalf of said Advocate, who claiming to be an Advocate on behalf of the defendants in the previous suit and making statement with regard to his professional communication against the rights of his clients. I have seen this trend in some other cases also, therefore, copy of this judgment be sent to the Vice- Chairman, Punjab.
Bar Council for the guidance of young lawyers as well as all the Members of profession.
Civil revision .