' HASAN FEROZ, J.---Applicant being aggrieved and dissatisfied with the judgment dated 22-2-2013 passed by the learned IVth Additional District and Sessions Judge, Karachi (Central) in Civil Appeal No,128 of 2012 dismissing the Civil Appeal of the applicant maintaining the consolidated judgment dated 12-3-2012 and Decree dated 21-3-2012 passed by the Court of learned IInd Senior Civil Judge Karachi (Central) whereby suit of the applicant bearing Civil Suit No 936/2002 was dismissed and the suit of the respondent No,1 was decreed the applicant impugned the two concurrent judgments through this Revision Application on the legality, propriety and correctness of the above orders.
2. Brief facts giving rise to this Revision Application are that the applicant had filed a Civil Suit No,936 of 2002 for Specific Performance of verbal agreement, declaration and permanent injunction against the respondent No,1 who holds ownership rights of an immovable residential/commercial property constructed on Plot No, 53/9, C-1 Area, Liaquatabad, Karachi, (hereinafter referred to as Suit Property) which is four stories building in use and occupation of different tenants and at present a residential portion of 3rd floor of the said building is under possession and use of the applicant. The defendant No,1 offered the plaintiff to purchase the suit property for a sale consideration of Rs,2000000 with certain other terms and conditions. The plaintiff having considered the past good relations as well as weak financial condition of the defendant No,1/respondent No,1 accepted such offer. Accordingly on the same day plaintiff paid Rs, 800000 to the defendant No,1 who in return put him in possession of the suit property thereafter, the plaintiff continued to perform his part of contractual liability, he regularly paid Rs 200000 per year viz. From 5-1-1997 to 10-1-2001 and in this way the plaintiff has paid to the defendant No, 1/respondent No,1 Rs, 800000 in addition to the down payment, thus he paid total sum of Rs 1600000 to the defendant No,1/respondent No,1 in presence of witnesses towards the sale consideration of the suit property. However, the defendant No,1/respondent No,1 never issued any receipt in respect of aforesaid token amount nor plaintiff asked him to issue such receipt keeping in consideration of nature of contract and good faith upon the defendant No,1/respondent No,
1. On 10th January 2001 the plaintiff offered the 5th installment of Rs, 200000 the balance amount of the suit property to the defendant No,1/respondent No,1 but he refused to accept the same and demanded balance sale consideration of Rs,400000 in lump sum but 'despite his best efforts to convince the defendant No,1/respondent No,1 to abide by terms and conditions as agreed upon between them he was bent upon his demand. Thereafter the plaintiff suggested the defendant No,1/respondent No,1 that he would pay him the balance sale consideration of Rs, 400000 in lumps sum but for that he will have to execute and register the sale deed before the concerned Registrar and the payment would be made before the registrar but he refused and on 20th January 2001 he specifically asked and warned the plaintiff either to meet his demand within two weeks or ready to be dispossessed from the suit property. However the defendant No,1/respondent No,1 failing in his ulterior motives on 12-2-2001 moved a false complaint against the plaintiff before Deputy Commissioner, District Central, Karachi Lit he could not succeed his desired results as such moved another application to Army Monitoring Cell. The plaintiff alleges that the defendant No,1 intended to dispose of the suit property, escaping from performance of his part of contractual liability without any reasonable cause and justification hence plaintiff filed this suit.
' Resisting the suit the defendant No,1/respondent No,1 filed his written statement thereby denied the contents of plaint and legal objections to the effect of maintainability of suit. He specifically denied the acceptance of verbal contract between him and the plaintiff and receiving of any amount towards the alleged sale consideration. The defendant No,1/respondent No,1 in counter claim also filed Civil Suit No, 319 of 2005 against the plaintiff and Mst. Khairunnisa Begum wherein he claimed to be the lawful owner of the suit property. He has taken plea that on 5-5-1996 under a oral tenancy he let out Flat No, 6 situate at the 3rd floor of the suit property to the mother in law of plaintiff at a monthly rent of Rs, 1200 and said tenancy was created through Muhammad Hussain who is the tenant of Flat No,4 of the suit property. However, after 15 days she left the rented flat and without his consent and permission handed over the possession to the plaintiff and since then the plaintiff is in unauthorized and illegal possession of the same. It is further stated that the defendant No,1/plaintiff time and again requested the plaintiff to vacate the said flat but he avoided to hand over the same on one pretext or to other and in the meantime filed Civil Suit No,936 of 2002 on false ad fabricated grounds, which is pending adjudication. 1t is further stated that the plaintiff illegally and unlawfully also occupied two rooms situated on the roof of the 4th floor of the suit Property, hence filed suit with the following prayer:--
(a) To direct the defendant No,2 to handover the vacant and peaceful possession of Flat No, 6 situated at third floor and two rooms situated at roof of the 4th floor on House No, 53/9 situated at C-1 Area, Liaquatabad, Karachi to the plaintiff or anyone else claiming through or under the said defendants.
(b) To award decree of mense profit at the rate of Rs, 2500 per month from April 2002 till the date of delivery of vacant possession of flat in question including two rooms to the plaintiff.
(c) Permanently restrain the defendant No,2 not to create any third party interest in any manner and in favour of any third person in respect of Flat No,6 situated at third floor and two rooms situated at roof of the thh floor on House. No, 53/9 situated at C-1 Area, Liaquatabad, Karachi.
4. Both the suits were consolidated and on the pleadings of the parties, following issues were framed by the trial Court:--
(1) Whether the respective suits bearing Nos. 936 of 2002 and 319 of 2005 are maintainable? '
(2) Whether the plaintiff in suit bearing No, 319 of 2005 has got cause of action?
(3) Whether the suit bearing No,319 of 2005 is hit by principle of res judicata?
(4) Whether defendant No,1 in Suit No, 936 of 2002 has entered into sale agreement on 5-9-1996 with the plaintiff for the sale of suit property against consideration of Rs, 2000000?
(5) Whether plaintiff (Moinuddin has paid Rs, 1600000 to the defendant No,1 (Azad Kamal) against sale consideration of suit property?
(6) Whether defendant No,1 (Azad Kamal) is bound to perform his part of contractual obligation alleged made orally with the plaintiff in respect of sale of suit property?
(7) Whether plaintiff in Suit bearing No, 936 of 2002 is entitled for the relief, so claimed?
(8) Whether plaintiff in suit bearing No,319 of 2005 is entitled for the relief he claimed?
(9) What should the decree be?
5. The record shows that the cases took rounds to be decided. In the first round the matter was remanded back by the Appellant Court for recording evidence of the parties and decision on merits. Therefore, the trial Court after recording evidence passed the impugned judgment, which was upheld by the learned 1st Appellate Court vide the impugned Appellate judgment and decree Hence the present Revision Application on the following grounds:--
6. It has been contended by learned counsel for the appellant that the impugned judgments and decrees of both the Courts below are not in conformity with law and procedure, therefore, are liable to be set aside. That the findings of the learned Trial Court as well as the learned Appellant Court in the judgments and decrees are not based on legal and factual positions, being mechanical and whimsical and further contended that while passing the impugned judgments and decrees both the Court below opted to pick and choose of certain material factors as against the applicant while avoided to take into consideration certain material contradictions and discrepancies found in the evidence and the documents of the respondent No,1 thus the impugned judgments and decrees are erroneous and capricious on the face of them and suffer with material illegalities and irregularities as while discussing Issues Nos. 4, 5 and .6 in the impugned judgment the learned trial Court observed that the applicant has not produced any documentary or oral proof in support of his case. That the learned Appellate Court committed gross negligence and irregularity while dealing with the Issues Nos. 4, 5 6 and 8 so discussed in the impugned judgment of the learned Trial Court and it was prayed:--
(A) To set aside the impugned judgment dated 22-2-2013 passed by the learned IVth ADJ at Karachi Central in Civil Appeal No, 128 of 2013 and the impugned judgment dated 12-3-2012 and decree dated 21-3-2012 passed by the Court of learned11nd Senior Civil Judge at Karachi Central in consolidated Civil Suit Nos. 936 of 2002 and 319 of 2005.
(B) To allow the Applicant to produce his witnesses for cross examination in support of his claim in consolidated Civil Suit Nos. 936 of 2002 and 319 of 2005 and to proceed in accordance with law.
7. The judgments are well discussed. The applicant not been able to point out illegality of courts below. The judgments do not suffer any jurisdiction error therefore; they cannot be upset in this Revision application. According this Revision application is dismissed with no order as to costs.