FARZAND ALI and another vs KHUDA BAKHSH and others

' MIAN SAQIB NISAR, J.---This appeal under Article 185(2)(d) of the Constitution of Islamic Republic of Pakistan, 1973 entails the following main propositions:- Whether the revision petition filed by the respondent No.1 (the respondent) before the learned High Court was nullity in the eyes of law because one of the respondents (Shaukat Ali) to the revision petition at the time of its institution was a dead person and therefore the petition was liable to be dismissed on this score alone; whether the respondent had purchased the property in dispute during the pendency of the suit for specific performance filed by the appellants against the respondents, on account of which such sale was hit by the rule of lis pendens; whether the execution of the agreement to sell when admitted by the respondents Nos.2 to 5 (the vendors), the owners of the property, was not required to be proved by the appellants through the examination of two, attesting witnesses; whether the respondent, having not challenged the judgment and decree of the trial court, partly allowing the appellants' suit and holding their agreement to sell to be valid, but dismissing his suit and further holding that the respondent has failed to prove his agreement was precluded from challenging the appellate courts judgment/decree in favour of the appellants through civil revision before the learned High Court; whether the agreement to sell of the appellants dated 18-6-1988 was valid and enforceable under the law, regardless of the fact that it was not signed by the appellants; whether the appellants were required to independently challenge the sale deed dated 5-3-1990 (or 1-3- 1990) executed in favour of the respondent by the vendors (note: which was executed during the pendency of appellants' civil suit); and their failure to do so shall have reflection upon their conduct and this omission shall adversely affect their rights to seek specific performance of the agreement to sell; whether in the facts and circumstances of the case, the appellants were/are entitled to the decree for specific performance in their favour, which per law is a discretionary relief.

2. The above propositions have arisen in the context of the following facts of the case:- The land in dispute measures 54 kanals, 1 marla, situated at Lahore Cantt (suit land) and was admittedly owned by the vendors. The respondent filed a suit for specific performance on 8-12-1988 against them (the vendors) claiming that the latter entered into an agreement with him on 7-6-1988 for the sale of the suit land for a total consideration of Rs.2,00,000 out of which an amount of Rs.50,000 was paid by the respondent to the vendors at the time of the execution of the agreement, whereas further consideration amount of Rs.50,000 was paid on 15-6-1988 in terms thereof; and upon the payment of the balance amount (rupees one lac), the sale transaction had to be finalized between the parties by or before 31-12-1988. The vendors denied the execution of the agreement and/or the receipt of consideration .As alleged. The above matter was still pending when the appellants on 19- 10-1989 (or 6-7-1989) filed a suit for specific performance against the vendors and the respondent averring therein that the vendors on 18-6-1988 entered into an agreement to sell with them for the sale of the suit property for a total consideration of Rs.2,60,000 out of which a sum of Rs.30,000 has been paid as earnest/advance money and on the payment of the balance consideration by 20-7- 1988, the vendors were obliged to finalize' the sale in their favour. In the (appellants) plaint it is clearly mentioned that earlier a suit for permanent injunction was filed by the respondent on 22-6- 1988 and he obtained a stay order, but that suit was dismissed on 1-12-1988, whereafter the respondent filed another suit for specific performance (the one mentioned above) and procured an injunctive order which is still continuing. It is also mentioned in the plaint that the appellants earlier moved an application for impleadment as a party in that suit of the respondent, which was subsequently withdrawn, in order to file the present suit. It is unequivocally mentioned (in the plaint) that respondent (who was defendant No.5) being in possession of the suit land, has prepared a forged agreement to sell in his favour in order to perpetuate his possession, and that the same is pre dated. In their written statement, the vendors admitted the execution of the sale agreement in favour of the appellants. They stated that they never declined to perform their part of the agreement, and also conceded that needful could not be done, because of the injunctive order in favour of the respondent. This written statement was filed on 23-11-1989 (or 28-11-1989), however they subsequently filed an amended written statement, and pleaded the version that despite the fact there was no injunctive order from 20-7-1988 till 8-12-1988 i.e. Four months and 12 days, the appellants took no step to fulfil their obligation, as they (appellants) had no money, obviously meaning that the appellants were not ready and willing to perform their part of the agreement.

However this second suit (of the appellants) was still pending in a different court when the vendors on 22-2-1990 entered into ,a compromise with the respondent and on the basis of a joint application moved by the parties envisaging the terms of compromise, a decree was passed by the court on 22-2-1990. Through this compromise, the vendors unequivocally and unambiguously admitted the agreement to sell of the respondent and the terms and conditions of the same. On the basis of the aforementioned decree, a sale deed was executed in favour of the respondent by, the vendors on 5-3-1990 (note:- according to the learned counsel for the appellants, the sale deed in favour of respondent No.1 though was pursuant to the compromise decree, the deed was executed and registered privately and not through the execution process of the Court thus such sale shall have no legal sanctity and remains to be private transaction inter se the vendors and respondent, which shall be hit by the rule of lis pendens. This aspect of the case shall be dealt with separately).

3. It is the case of the appellants that on learning about the said compromise decree, they filed an application under section 12(2), C.P.C. On 27-2-1990 (or 1-3-1990) challenging the decree, which was dismissed by the trial court on 11-5-1994, however, in Civil Revision No.2178 of 1994 filed by the appellants which was allowed by the learned High Court on 22-6-1994, the matter was remanded and the two suits were directed to be consolidated and tried together. The remand order of the High Court reads as under:-- "(3) After arguing the case for some time the learned counsel for the parties agreed that this revision petition decided in following terms:

(a) That the judgment and decree passed by the first court dated 22-2-1990 be set aside.

(b) That the suit for specific performance filed by the petitioners and the suit for specific performance filed by Khuda Bakhsh to consolidate and directed to be adjudicated by single judgment.

(c) That the suit for specific performance filed by Khuda Bakhsh be deemed to be still pending decision.

(4) In result, with the concurrence of the parties, this revision petition is allowed in the aforesaid terms. The judgment and decree rendered by the learned Court of first instance dated 22-2-1990 is hereby set aside. Resultantly the suit' for specific performance filed by Khuda Bakhsh shall be deemed to be pending decision. The learned trial court shall consolidate both the suits for specific performance and decide them together. The parties had undertaken to appear before the Court of first instance on 5-7-1994. The trial court shall thereon proceed further in the light of above decision. There shall be no order as to costs."

' It may be pertinent to mention here that the sale deed of the respondent which according to the learned counsel for the appellants was an independent and a private transaction was not set aside by the noted remand order. Besides, it also seems relevant to state that the respondent per the appellants filed his written statement in the suit filed by the appellants before the remand of the case, but according to the statement of the respondent, while appearing as P.W.2. He has denied this fact, and perhaps claims it was after the remand order; however the fact remains that in the written statement available on the record, he (respondent) in unequivocal and clear terms controverted the agreement to sell claimed by the appellants and refuted and avowed the said instrument to be result of collusion and mala fide between the appellants and the vendors (note:- and for this reason issue No.11 was framed by the court). After the remand order, the trial court framed the following issues:- "(1) Whether the agreement to sell was executed between Khuda Bakhsh, plaintiff and defendants Nos.1 to 4 on 7-6-1)88 in respect of his land? OPP.

(2) Whether the plaintiff had paid Rs. 50,000 as advance money on 7-6-1988 and further amount of Rs.50,000 on 5-6-1988 to defendants Nos.1 to 4? OPP.

(3) Whether the agreement of 7-6-1988 is false, forged and fabricated document and the plaintiff is liable to be prosecuted under section 476, Cr.P.C.? OPD 1 to 4.

(4) What is the effect of non-registration of agreement to sell dated 7-6-1988? OPD 1 to 4.

(5) What is effect of previous suit between plaintiff and defendants Nos 1 to 4? OPD I to 4.

(6) Whether the defendants are entitled to special costs? OPD.

(7) Whether the plaintiff has no cause of action and locus standi to file suit? OPD 5 to 6.

(8) Whether the plaintiff and defendants Nos. 1 to 4 have collided with each other? OPD 5 to 6.

(9) Whether the sale deed in respect of the suit land executed registered in favour of the plaintiff on behalf of defendants Nos. I to 4, is liable to cancellation? OPD 5 to 6.

(10) Whether the plaintiff has come to the court with unclean hands? OPD 5 to 6.

(11) Whether the agreement of 18-6-1988 was executed between Shaukat Ali, Farzand Ali, plaintiffs in other suit with defendants Nos.1 to 4? OPD S to 6.

(12) Whether the defendants Nos. 1 to 4 had received Rs.30,000 as earnest money in lieu of agreement of 18-6-1988? OPD 5 and 6.

(13) Whether the agreement of 18-6-1988 is based on mala fide? OP Khuda Bakhsh.

(14) Whether, the agreement of 18-6-1988 can be specifically enforced after payment of the remaining amount? OPD 5 and 6 Plaintiffs. In other suit.

(15) Relief. "

' The trial proceeded in the suit of the respondent. Parties led evidence; respondent examined Mst.

Zakia Bibi, one of the vendors, as P.W.1 who acknowledged the agreement to sell in his favour and also acknowledged the compromise Exh.C/1, in which such agreement has been admitted by the vendors. Respondent appeared as his own witness as P.W.2. From the appellants' side, the scribe of their alleged agreement to sell appeared as D.W.1, one of the attesting witness namely Hanif as D.W.2; Farzand Ali, one of the appellants/plaintiffs as D.W.3 and a lawyer Mumtaz Ali as D.W.4, however the other attesting witness of the agreement namely Aftab was not summoned/produced/examined by the appellants. The learned trial Court vide judgment 29-2- 1996 gave its findings on issues Nos.3 to 10 in favour of Khuda Bakhsh, while issues Nos.1, 2 and 8 were decided against him; on the other hand, issues Nos.11 to 15 were decided in favour of the appellants; yet the specific performance decree was declined to the appellants and instead their suit was decreed to the extent of allowing them the payment of double the amount of consideration which they had paid to vendors. The operative part of the judgment of the trial Court reads as under:- {{URDU TEXT}} ' The suit for specific performance filed by the respondent was dismissed by the court while giving its finding, primarily on issues Nos.1 and 2 ibid. The relevant portion of the judgment in this regard reads as under:-- {{URDU TEXT}} ' However on issue No.9, the findings of the trial Court are as follows:- {{URDU TEXT}} ' The respondent did not file any appeal against this judgment and decree, but the appellants did invoke the appellate jurisdiction, and the appellate court allowed the appeal on 10-3-2004, resultantly the suit filed by appellants for specific performance was decreed and the decision of the trial Court dismissing the suit of the respondent was maintained. The aforesaid verdict of the Appellate Court was challenged by the respondent through Civil Revision No.874 of 2004, which was dismissed by the learned High Court in limine on 26-4-2004. The said decision was impugned before this Court in Civil Appeal No. 407 of 2008, which was accepted and the matter was remanded to the High Court on 10-10-2012.

' Upon remand, the learned High Court through the impugned judgment dated 22-4-2014 has allowed the civil revision of the respondent' and dismissed the suit filed by the appellants qua specific performance by upholding the judgment/decree of the trial Court. Hence this appeal.

4. Learned counsel for the appellants has made the following submissions:- the respondent did not appeal against the dismissal of his suit and, therefore, the judgment and decree of the trial Court dated 29-2-1996 qua him attained finality; that the view set out by the learned High Court that without seeking the cancellation of the sale deed in favour of the respondent, the appellants could not have sought the specific enforcement of their suit is against the law laid down in the judgment reported as Muhammad Sharif v. Mst. Sughra Bano and others (1984 SCMR 1139); that the High Court has erroneously held that the respondent is the owner of the suit land on the basis of The sale deed dated 5-3-1990, which transaction was invalid on account of being violative of the rule of lis pendens, because at ,the time when vendors (respondents Nos.2 to 5) entered into a compromise with the respondent, the consent decree was procured, and the sale deed was executed, the suit for specific performance instituted by the appellants on 19-10-1989 (or 6-7-1989) was still pending; that the High Court has illegally and invalidly held that since the signatures of the appellants are not on the agreement dated 18-6-1988 (the specific performance whereof was sought by the appellants), thus it is unenforceable; that on account of the non-impleadment of legal heirs of Shaukat Ali, the revision filed by the respondent was incompetent and thus was liable to be dismissed; that the opinion of the learned High Court that as the two attesting witnesses of the appellants agreement to sell have not been examined, their agreement is not proved, is absolutely unfounded and erroneous, because vide written statement filed by vendors in the suit for specific performance of the appellants, they had admitted such agreement, and it is settled law that a fact admitted needs no proof; without prejudice to the above, it is pleaded that such agreement has been proved through the statement of D.W.1, the scribe, one of the attesting witnesses, D.W.2 Muhammad Hanif which evidence was adequate for the proof of the document in the circumstances of the case. (note: however vide amended written statement the vendors categorically refuted the enforcement of appellants agreement on the grounds taken therein as is mentioned earlier and furthermore Zakia Bibi while appearing as P. W.1 has denied the agreement).

' Learned counsel with regards to his contention that omission of the appellants in signing their agreement shall not invalidate the same, and has drawn support from the law laid down by this Court in the case reported as Messrs Jamal Jute Baling & Co., Dacca v. Messrs M. Sarkies & Sorts, Dacca (PLD 1971 SC 784). Besides, it is submitted that on the said proposition leave has been granted by this Court in some other case(s). The learned counsel has also urged that the compromise and the consent decree was a fraud played upon the appellants; and the sale deed executed by the vendors in favour of the respondent which is a private deal would not affect the appellants' right to seek specific performance.

5. Heard. It is settled law that grant of specific enforcement of an agreement to sell pertaining to an immovable property is a discretionary relief otherwise and specifically in terms of section 22 of the Specific Relief Act, 1877, which mandates:-- "22. Discretion as to decreeing specific performance.--The jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal.

' The following are cases in which the Court may properly exercise a discretion not to decree specific performance. I. Where the circumstances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant, though there may be no fraud or misrepresentation on the plaintiff's part. II. Where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff.

' The aspect of exercise of discretion and the noted provision has come under consideration for its interpretation and application before this Court in a large number of cases. And few of the judgments have been selected for guidance. In this context in Liaqat Ali Khan and others v. Falak Sher and others (PLD 2014 SC 506) it has been held:- "A plain reading of above reproduced statutory provision leads to a definite conclusion that the relief of specific performance claimed by respondents Nos.1 to 4 in their suit is, purely discretionary in nature and the Court is not bound to grant such relief merely as it is lawful to do so. At the same time, the discretion to be exercised by the Court shall not be arbitrary, but it should be based on sound and reasonable analysis of the relevant facts of each case, guided by judicial principles it will be the peculiar facts and circumstances of each case, particularly, the terms of the agreement between the parties, its language, their subsequent conduct and other surrounding circumstances, which will enable the Court to decide whether the discretion in terms of section 22 (ibid) ought to be exercised in favour of specific performance or not."

' In Mst. Mehmooda Begum v. Syed Hassan Saijad and 2 others (PLD 2010 SC 952), it has been categorically ordained as under:-- "Supreme Court was competent to consider she conduct of parties to agreement and circumstances attending to its execution, if specific performance would give an unfair advantage to plaintiff over defendant then the same should be refused."

' Further in Shakeel Ahmed v. Mst. Shaheen Kousar (2010 SCMR 1507) this Court opined:-- "Such discretion must be exercised on sound judicial principles of equity, fairness and good conscious and not on erroneous assumption or presumption---Court is not bound to grant relief merely because it is lawful to do so irrespective of the conduct of contracting parties and no unfair advantage to be given to a party or to the other in the suit for specific performance---Relief can be refused though there may not be any fraud or misrepresentation on the part of plaintiff."

' In Muhammad Sharif and others v. Nabi Bakhsh and others (2012 SCMR 900) while considering the remedy in the cases pertaining to the suit for specific performance and the power of the Court, it has been held:- "Remedy by way of specific performance for being an equitable relief and discretionary could not be claimed as of right---Court would not be bound to grant such relief merely because doing so would be lawful."

Besides the above in line thereto, there is a plethora of dicta of this Court on this point. The pith and substance of the entire case-law on the subject is, that even in the case(s) where the agreement to sell is validly proved by the plaintiff, for the reasons which are by now quite settled for the exercise of the discretion by the courts, the courts may refuse to allow the relief of specific enforcement. And that the court is neither obliged to grant the relief of specific performance nor can the plaintiff claim it as a matter of right. Therefore in our considered opinion, this case on account of its peculiar facts and circumstances has to be decided and resolved in the light and on the basis of the discretionary principle. Because, it may be specifically and expediently stated that the present is not a matter, primarily between the vendors on the one hand and the vendee on the other. In other words it is not a simple, usual and straightforward case initiated by a vendee against the vendors. Rather from the factual narration/backdrop (note: which shall on need basis be reiterated at the proper stage also) it is a dispute truly, foundationally. Basically, and inherently between two rival plaintiffs (vendees) inter se, but against a common vendor, who (the vendors) has lost interest in the matter, after having sold the suit property in favour of the respondent through a registered sale deed, pursuant to a decree of the court which may be a consent decree in nature. Thus this is visibly and clearly a case of "competing and conflicting interest" between the appellants and the respondent (respondent No.1), who are the rival suitors and both claim the enforcement of their respective sale agreements ostensibly against a common vendor in respect of the same property. But in fact and law they want the enforcement of their agreements in preference to the other and/or against each other (emphasis supplied by us). It is thus why (as mentioned earlier) the legal propositions involved in the matter are required to be construed and resolved in light of the noted peculiar facts of the matter, the conduct of the parties, and by taking into account the totality of the surrounding circumstances.

6. Therefore, keeping the above criteria and the threshold in view, we shall (note: at the cost of repetition of some facts) examine the case of both the real adversaries, the respondent and the appellants. Firstly we shall take up the respondent's case and conduct. He earlier filed a suit for permanent injunction on 22-6-1988, since the cutoff date for the completion of his transaction i.e. 31-12-1988, per his agreement with the vendors had not been reached till then; anticipating the sale of the suit property by the vendors elsewhere, the object clearly was to seek a temporary injunction so as to secure his rights under the agreement and to prevent the vendors from alienating suit property in favour of a third party. This was a prompt and proper move by him. The temporary injunction seemingly was issued in his favour. But the plaint of the case was rejected on 1-12-1998 and obviously with the injunctive relief gone, thereafter in order to seek the enforcement of the agreement, the respondent acting swiftly filed the suit on 8-12-1988. The appellants were not a party to this suit and it is not established by them that the respondent till that day was aware of their agreement to sell and that they were deliberately not arrayed as a party. This suit was pending in the court of Sh. Karamat Ali, learned Civil Judge, Lahore; when on the basis of the compromise (Exh. C/1) through a joint application of the respondent and the vendors, the vendors expressly and unambiguously acknowledged, accepted and admitted the agreement, dated 7-6-1988 between them and the respondent. The relevant part of the application/compromise is reproduced as below:- {{URDU TEXT}} ' Pursuant to the above, the court passed the judgment on 22-2-1990 to the following effect:-- {{URDU TEXT}} ' It is in view of the above scenario that a sale deed was executed and registered by the vendors in favour of the respondent on 5-3-1990 (or 1-3-1990). It may be pertinent to mention here that the appellants had also filed a suit for specific performance against the vendors and the respondent, which was pending before another court (perhaps before Mehr Muhammad Nawaz learned Civil Judge) on the date of compromise/decree; and even if it is assumed that the respondent was aware of the suit filed by the appellants for specific performance, no cross-examination was conducted to his statement as P.W.2 when he said that no written statement was filed by him in that case and there is nothing on the record regarding whether he was served in that case and duly appeared or not; anyhow the only legal repercussion of the same shall be that he had purchased the suit property with the risk i.e. Depending upon the final outcome of the suit filed by the appellants (and at the most it can be argued that in such a situation the rule of lis pendens shall be attracted. But this principle would have become applicable had the appellants succeeded in their suit on the strength of their own case and the relief of specific performance was allowed to them, besides the rule of pari delicto as explained later is also attracted). But there is nothing on the record to suggest that the respondent acted fraudulently and misrepresented the actual owners, the vendors of the property, in entering into the compromise (Exh. CM or procuring the consent decree and/or ultimately securing the sale deed dated 5-3-1990 (1-3-1999) in his favour. It shall not be irrelevant to reiterate here that although the vendors initially denied the respondent's agreement to sell, they subsequently voluntarily, unconditionally, unequivocally out of their free will accepted the agreement and confessed the decree. This is so specifically mentioned in Exh.C/1 and also deposed by Mst. Zakia, p. W.1. And there also was no bar in their (vendors) way, that once having denied the agreement in the written statement, they could, not admit the same afterwards and that too in writing and act upon it.

7. Now let us now examine the appellants case in relation to the exercise of discretion in their favour; the suit for specific performance was filed on 19-10-1989 (or 6-7-1989) for seeking the enforcement of the agreement dated 18-6-1988 (note: the question in the context of inter alia the exercise of discretion and of validity and the lack of proof of the appellants agreement shall be examined and the effect thereof shall be considered separately). The date fixed in this agreement for finalizing the deal is 20-7-1989; the consideration amount is Rs.260,000 out of which only a sum of Rs.30,000 was paid to the vendors, while the balance of Rs.230,000 was still payable by 20-7- 1988; (this is the cut off date/or the date fixed between the appellants and the vendors for the finalization of the transaction). It may be pertinent to mention that the vendors accepted the agreement vide written statement filed on 23-11-1989. But subsequently through an amended version took the stance that the appellants have failed to perform their part of the agreement (see the preceding para of this opinion) and their plea is that for 4 months and 12 days there was no injunctive order operating, thus preventing the finalization of the deal. And from the appellants pleadings and their evidence, we are not persuaded, if there was an injunctive order throughout as allegedly claimed by them, thus no steps are shown to have been taken by them for the performance of their obligations under the agreement. Besides, the appellants never moved any application in the suit of the respondent for the vacation of the injunctive order, if there was any operative on the contrary they did file an application for their impleadment in the suit of the respondent, however that was withdrawn. The plea set out by the appellants that this was done with the purpose of filing a suit for specific performance is not only quite illogical, but also ludicrous, because the filing of such application and pursuing the same would never in any manner had prejudiced their E right to file an independent suit for specific performance; rather had they pursued such application for impleadment, they would have effectively safeguarded their interest in that litigation and resisted the passing of the compromise decree and the respondent's sale deed based thereupon. Even in the suit for specific performance filed by the appellants, it is not their case that they moved an application for procuring an injunctive order to restrain the vendors from transferring the suit property. Their suit as mentioned above was pending before a different court, they never attempted to seek transfer of either of the two suits to one 'court and for the consolidation of the matters. They in their plaint have never averred that they were ready and willing to pay the balance consideration to the vendors and have the deal accomplished.

Moreover, their agreement to sell is subsequent in time to the agreement of the respondent; they have not proved that the agreement of the respondent is pre dated as alleged E by them in their pleadings; they have paid only Rs.30,000 as part of consideration and never made any attempt to pay the balance amount. They have also not proved on the record if they had the requisite money at the relevant point in time and were in a position to pay the same. Rather to the contrary, the respondent, according to the version of the appellants, even it is accepted (note:- though not accepted by the vendore/respondent), has paid a sum of Rs.400,000 to the vendors for reaching the compromise and for having the sale deed in his favour. It is the respondent who had to pay further amount over and above what he agreed to pay under his agreement to the vendors; moreover it is an admitted fact on the record that there is enmity between the appellants and the respondent and that the possession of the property is with the latter, and the probability cannot be ruled out that in order to dislodge the respondent from purchasing the property the appellants filed the suit for specific performance.

8. Attending to the other aspect of the matter relating to the exercise of discretion, the plea of the appellants' side is, that the agreement of the respondent was denied by the vendors and even by them, therefore it should have been proved by him in accordance with law. The argument is valid but it cuts both ways. As shall be explained later in this opinion, it goes against the appellants with much more force; however in this regard it may be reiterated that initially the vendors though in the written statement denied the agreement but vide compromise (Exit. C/1) in very specific and clear terms accepted and acknowledged same to be valid. And there is no bar in law which shall operate against them to the effect, that having once denied the execution of the agreement, they were prohibited and precluded from subsequently admitting the same before court of law in the same proceedings, and that too in writing, and then to act upon such admitted document. It was a lawful compromise by all means and the sale deed in favour of the G respondent was duly executed by the vendors for lawful consideration. The agreement though earlier denied but thereafter accepted, culminated into a sale, thus the efficacy and importance of the earlier denial altogether diminished. It may be emphasized that at the point of time when the vendors entered into the compromise with respondent and confessed the decree by admitting his agreement to sell, the appellants till then were not the co-defendants of the case; there was no denial of the said agreement by appellants, as they after having moved an application for impleadment as a party, later on withdrew the same and lost the chance of denying and resisting the suit of the respondent, resultantly in such a situation, failure on part of the respondent in terms of proving his agreement by examining two attesting witnesses was not of much significance and relevance. However the point which shall even in that eventuality remain is whether the sale in favour of the respondent shall be hit by the rule of lis .Pendens or not. Before dilating upon the above, it is expedient to adjudge whether the appellants' agreement was valid in law and, whether that has been proved in accordance with law by them since the application of lis pendens shall only be resorted to if the appellants are first found entitled to the decree for specific performance.

9. In the above context, the first and the foremost aspect of the case is, if the agreement to sell of the appellants was valid because if it is not valid the question of its enforcement through the process of law and the exercise of discretion does not arise. It is an undisputed fact that appellants agreement has not been signed by them. And an agreement to H sell immovable property is not a "deed poll", unlike e.g. a power of attorney which is only executed by the principal and the agents execution is neither required nor expedient. Rather in law such an agreement (of immovable property) is a contract (note: may be executory in nature) and the first, and the foremost requisite of a contract (agreement) is that the parties should have reached agreement, which unmistakably means, that an agreement is founded upon offer and acceptance. Thus for the purposes of a valid contract (agreement) there should be the meeting of minds of the contracting parties (who are competent in law to contract). And where a contract is reduced into writing, not only should it be founded upon the imperative elements of offer and acceptance, but its proof is also dependent upon the execution of the contract by both the contracting parties i.e. By signing or affixing their thumb impression. So that it should reflect and establish their "consensus ad idem", which I obviously is the inherent and basic element of the meeting of the minds, which connotes the mutuality of assent, and reflects and proves the intention of the parties thereto. In particular it refers to the situation where there is a common understanding of the parties in the formation of the contract in the absence of which there is neither a concept nor the possibility of a valid contract.

But in this case this is conspicuously lacking by virtue of non-execution (non-signing) of the agreement by the appellants,, therefore in law and fact it is no contract (agreement). The argument that the agreement to sell in favour of the appellants has been admitted by the vendors and, therefore, is valid and the non-signing has lost its efficacy, suffice it to say that despite the above, the respondent has joined issue with the appellants vis-a-vis the validity and valid execution of the agreement, therefore, the appellants cannot rely upon and take advantage of any admission made by the vendors, because of the law, that an admission made by a co-defendant is not binding on the other even if made in the written statement. Reliance in this regard can be placed on the judgments reported as Shah Muhammad and 2 others v. Dulla and 2 others (2000 SCMR 1588), Allah Rakha through. L.Rs. v. Nasir Khan and 4 others (2007 CLC 154) and Zeeshan Bhatti v. Maqbool Bhatti and another (PLD 2001 SC 79). Besides the above, in the judgment reported as Mst. Gulshan Hamid v. Kh. Abdul Rehman and others (2010 SCMR 334) (three members bench of this Court) while considering the specific proposition, whether the plaintiffs in a suit for specific performance was entitled to enforce the agreement which was not signed by them (the vendee), it has been categorically held that "Such unilateral agreement not signed by plaintiff-vendee was not mutually enforceable, whereupon no decree could be passed". The argument of the learned counsel for the appellants that in some case(s), leave has been granted, therefore, leave on this account should also be allowed in the present matter, we are not persuaded to grant leave in this case on that account alone; learned counsel for the appellants has relied upon the judgment reported as Messrs Jamal Jute Baling & Co., Dacca v. Messrs M. Sarkies & Sorts, Dacca (PLD 1971 SC 784) to argue to the contrary, wherein it has been held that "terms of agreement reduced into writing and proved to have been accepted and acted upon by both parties--- Agreement, proper and valid even if one party had not signed such agreement". However the conditions are that the agreement should be accepted by the parties who are actually in dispute qua the validity thereof, and the agreement should have been acted upon. In this case as explained earlier in the light of the facts of the case the real dispute is between the appellants and the respondent, who (respondent) has never admitted the agreement and it has also not been acted upon. It may be even relevant to reiterate here that Mst. Zakia even denied the agreement when she appeared as P.W.1, however, she was never even cross-examined by the appellants. Resultantly the judgment supra relied upon by the learned counsel for the appellants is not attracted in the instant matter.

10. Considering the proposition if the agreement of the appellants was required to be proved by the examination of two attesting witnesses, it is settled law that an agreement to sell an immovable property squarely falls within the purview of the provisions of Article 17(2) of the Qanune-Shahadat Order, 1984 and has to be compulsorily attested by the two witnesses and this is sine qua non for the validity, of the agreement. For the purposes of proof of such agreement it is mandatory that two attesting witnesses must be examined by the party to the lis as per Article 79 of the Order ibid. In this case, the respondent had unequivocally denied the execution of the said agreement and it is on account of the above that issue No.11 was also framed requiring, the appellants to prove their agreement; the appellants never objected to the issue or sought to get it struck off; thus for all intents and purposes they accepted the responsibility of proving the same, despite the fact that according to their stance now the said agreement was admitted by the vendors in their written statement. However, the appellants for this purpose produced P.W.1 who is the scribe of the document, but admittedly is not the attesting witness and in number of judgments of this court it has been clearly held, that a scribe of an agreement to sell immovable property is not a substitute for an attesting witness, and does not legally qualify to be so, therefore, his evidence may have a supportive value, but is neither in line with the mandate of law nor does it meet the test of Article 79 ibid. The only attesting witness examined by the appellants is D.W.2, namely, Muhammad Hanif, whereas the other attesting witness, Aftab has not been examined, and no explanation has been given by the appellants for this vital omission which was essential for proving their agreement to sell. This is fatal to the case of the appellants as per the law laid down in Hafiz Tassaduq Hussain v.

Muhammad Din through Legal Heirs and others (PLD 2011 SC 241). The repeated argument to overcome this legal impediment is that the vendors have accepted and acknowledged the agreement to sell in the written statement; in this context the constant answer is that an admission of a co-defendant is not binding upon the other co-defendant and as the respondent had denied the agreement to sell of the appellants and issue was also framed, therefore, the appellant were duty bound to prove the same in terms of the law enunciated in the judgment (supra) and Article 79 ibid. ' Notwithstanding the lack of proof of their agreement, with the vendors as mentioned above, we have also examined the quality of the evidence led by the appellants for proving their agreement.

The first witness is scribe. In his entire examination-in-chief, he has not stated that he knew the vendors personally. He never procured and secured the identification of all (the ladies) and never identified the vendors on the basis of their ID cards, rather he only mentioned to have checked the ID cards of some and further states {{URDU TEXT}} ' He has not categorically mentioned if he had also seen the faces of the other three ladies- vendors for identification by comparing their faces with their ID cards and such ID cards carried their photographs also. This witness in his cross-examination has not given the date or even the month as to when the agreement to seal was scribed by him. He has not produced his license as deed writer or the register required to be maintained by him, thus his evidence, irrespective of him not being an attesting witness, even otherwise is not of much value. As far as Muhammad Hanif (D.W.2) is concerned, in his examination-in-chief, he simply mentioned:- {{URDU TEXT}} ' He has not deposed that it is the vendors, who had affixed the signatures or thumb impressions on the said agreement. The statement is in general and vague terms and he has also not testified if he knew the vendors personally so as to testify the execution of the agreement by the vendors. He has conceded that Mian Aftab Ahmed is the other attesting witness. This witness has not been produced and no explanation on behalf of the appellants for this omission is forthcoming on the record. In his cross-examination, D.W.2 has conceded that there is enmity between the appellants and respondent. This witness was categorically suggested by the vendors in the cross- examination to be closely related to the appellants, but he replied But when cross- examined by the respondent, he unequivocally acknowledged {{URDU TEXT}} ' What credibility can be attached to the statement of this witness, for the purposes of proof of execution by the vendors, who in the court of law in the same breath has made a false statement.

Leaving apart the above evidence, in the examination-in-chief of Mst. Zakia Bibi who appeared as P.W.1 in the suit filed by the respondent, she categorically stated {{URDU TEXT}} This witness has not been cross-examined on the above statement except a vague suggestion. It is settled law that if a crucial and vital fact deposed in the examination-in-chief, is not subjected to cross-examination it shall be deemed to have been admitted, and this is the lapse on part of the appellants. Even otherwise the agreement to sell was not put to this witness nor was she confronted with the agreement to sell. The argument again, that because the vendors have admitted the execution of the agreement by them in their written statement, there was no need to cross-examine or confront Mst. Zakia Bibi (P.W.1), suffice it to say that this plea is repelled by Article 140 of the Qanun-e-Shahadat Order, 1984, and as per the law laid down in the judgment reported as Sikandar Hayat and 4 others v. Master Fazal Karim (PLD 1971 SC 730) in which it has been categorically held:--- "Where' a party has gone into the witness-box on the point in issue and in the witness-box has made a statement inconsistent with the admission or the statement made in the witness-box involves the denial of the previous admission or runs counter to that admission, then the previous admission cannot be used as legal evidence in the case against that party unless the attention of the witness during cross-examination was drawn to that statement and he was confronted with the specific portions of that statement which were sought to be used as admissions. Without complying with the procedure laid down in section 145, the admission contained in the previous statement cannot be used as legal evidence against that party. Where the statements relied on as admissions are ambiguous or vague, it is obligatory on the party who relies on them to draw in cross-examination the attention of opponent to the said statements before he can be permitted to use them for the purpose of contradicting the evidence on oath of the opponent."

' In the judgment reported as Atta Muhammad represented by Legal Heirs and others v. Matloob Mani Khan (1996 SCMR 601) while considering the effect of non-confrontation of the witness with regards to his previous statement in the cross-examination, it was held:-- "Previously made statement of a witness could not be taken into consideration for purpose of contradicting him, without confronting him with that sratement-Where vendee entered. Into witness-box but was not confronted with his previously Made statement copy of such statement could not be taken into: consideration by the Court for no one should be condemned unheard."

' In the judgment reported as Syed Qamar Ahmad and another v. Anjum Zafar and others (1994 SCMR 65), it has been ordained:- "He was never confronted with this document. The question is whether in law it could be used against him and its contents read in evidence. Our answer is in the negative. Under section 145 of the Evidence Act, then in force, a party relying on the previous statement of the other party embodied in a document should put that document to him and give him an opportunity to explain his position. Without complying with the requirements of section 145, such previous statement cannot be used as legal evidence."

In the light of the above we are of the candid view that the agreement to sell should have been proved by the appellants through two attesting witnesses, but they have miserably failed to do so.

And the non cross-examination of P.W.1, and failure to confront her with her previous statement had added adverse legal effect against the appellants as mentioned above.

11. Considering the plea of lis pendens raised by the appellants' learned counsel, it may be mentioned that the scope, the principle and the application of rule of lis pendens has been elaborately dilated in the judgment reported as Muhammad Ashraf Butt and others v. Muhammad Asti Bhatti and others (PLD 2011 SC 905). The ratio of the above law is that a subsequent transferee cannot sustain his transfer (e.g. The sale) if he has purchased the property during the pendency of the suit. He is bound by the outcome of the suit, obviously that shall be so if the case is decided against the transferor from whom he is purchasing the property or against the transferee if he is a party to the case, but if the lis is decided in his favour, there shall be no question about the application of the rule of lis pendens. Conceiving this case in light of the ratio of the above judgment, now when the suit of the appellants for the specific performance has been dismissed by the trial Court and the learned revisional court and such verdicts are being upheld for the reasoning given in this opinion especially the exercise of discretion by the court(s) in this case, the conduct of the appellants, the invalidity of their agreement to sell etc. How could the rule of lis pendens be resorted to. As lis pendens shall only be applicable in case of success of the appellants, but not in the case of their defeat and failure. Resultantly, the plea raised by the learned counsel based upon this principle is liable to be discarded.

12. While dilating upon the question qua the effect of the non-filing of appeal by the respondent against the judgment and decree of the trial Court and if it had attained finality, we are of the view that the argument on the face of it has no legal force, because in fact the suit filed by the appellants for specific performance was dismissed by the trial Court, no decree for enforcement of their contract was passed in their favour, rather the decree passed was only against the vendors and that too, to the extent of paying the appellants double the amount; and above all the findings on issue No.9 were given by the trial court in favour of the respondent. Thus by no stretch of legal perception the respondent can be said to be an aggrieved person of the said judgment and decree of the trial court compelling him to file an appeal. As there was no occasion for him to have filed an appeal against the judgment and decree which did not cause any prejudice to his rights, rather it kept his sale deed intact per the finding on issue No.9 and per the law, an appeal can be filed by such persons who are effected by the decree. It lies against a decree and not against the findings or decisions. At the most, the suit of the respondent for specific performance was dismissed and this was a decree against him but as mentioned above independent thereto his sale was protected at the same time by the trial court. However, he for the first time got aggrieved of the judgment and decree passed by the learned Appellate Court by virtue whereof the sale of the respondent was set aside and the agreement to sell of the 'appellants was enforced, and that is when he had the cause to file revision, which was his right and was so exercised. Therefore, the argument that such judgment and decree of the trial court vis-a-vis the appellants had attained finality in the facts of this case is of no consequence.

13. As regards the, proposition that the civil revision filed by the respondent against Shaukat Ali who was one of the plaintiffs in the suit for specific performance was against a dead person and thus the very institution was nullity in the eyes of law, before dilating upon the said point, it may be mentioned that Farzand Ali and Shaukat Ali are real brothers and both were the residents of mouza Sangatpura, Tehsil Cantt, District Lahore i.e. Residents of the same address; this too is the position of the (Shaukat's) LRs uptil now. Shaukat Ali died during the pendency of the suit and though his legal representatives were brought on the record, per the memo of parties in appeal filed by the appellants, but Shaukat Ali is shown as the appellant however through his LRs, whose (LRs) names are mentioned thereunder; when the decree was drawn by the appellate court the names of the LRs were not specified, rather the appellant was shown to be Shaukat Ali through LRs. It is in the above situation that the respondent filed the revision against Farzand Ali by name and Shaukat Ali through his LRs, which was dismissed in limine. In C.P.L.A., the description of the parties remained the same however, all the LRs of Shaukat Ali engaged Mr. Amir Alam Khan learned Advocate Supreme Court to represent them along with Farzand Ali before this Court. They have all signed the wakalat nama in favour of the learned counsel Mr. Amir Alam Khan duly represented the LRs of Shaukat Ali before this Court and also argued the case on their behalf and agreed for the remand of the matter and the revival of the revision petition. Farzand Ali duly appeared before the learned High Court after the remand of the matter and contested the same through Mr. Shahzad Shaukat, learned Advocate Supreme Court, who took the objection about the maintainability of revision petition on the above score but the LRs of Shaukat Ali kept mum and took no step to appear before the court; they perhaps wanted a technical knockout of the revision. But this was not possible per the law laid down in the judgments reported as Malik Bashir Ahmed Khan and another v. Qasim All and 12 others (PLD 2003 Lah. 615) and Muhammad Yar (deceased) through L.Rs. And others v.

Muhammad Amin (deceased) through L.Rs. And others (2013 SCMR 464), wherein it has been held that where a /is is initiated against more than one person out of whom one was dead, the lis as a whole is/was not Q a nullity, but it is a defect which is curable. Ideally the respondent should have moved an application to bring on record by name the LRs of Shaukat Ali. The appellants could have themselves moved to the court to be arrayed by name; the court could itself have directed the appellants to be arrayed by name; although they already were so arrayed in legal sense as in memo of revision petition 'Shaukat Ali deceased through his LRs' is mentioned. It is not a case where the respondent had filed a revision petition by concealing the death of Shaukat Ali. It is only the specific names of the LRs which needed to be brought on the record formally. The appellants in fact themselves abstained from participating in the hearing of the revision and no prejudice to them has been shown to have been caused, as Mr. Shahzad Shaukat had forcefully argued the matter on behalf of Farzand Ali before the High Court and the same would have been and are the arguments on behalf of the L.Rs of Shaukat Ali as well. The said LRs even have joined Farzand Ali to file this appeal through the same learned counsel and all are the resident of the same place as mentioned above. If their grievance is that they were deprived of an opportunity of hearing before the revisional court, such plea on account of the above fact has no force. Even otherwise if there has been any flaw in terms of hearing of the LRs of Shaukat Ali, the omission has been remedied by this court by granting them full opportunity of being heard on the points raised before this Court and on the points which were raised by Farzand Ali before the learned High Court; and this is not the grievance of the LRs that they would have raised some other points/pleas as well. They have been given full length hearing and all the propositions involved in the matter have been examined/considered and resolved. In the context of the non-hearing of the LRs it seems pertinent to rely upon the law laid down in Agha Abdul Karim Shorish and others v. Province of West Pakistan (PLD 1969 Lah. 289) in which it was held that "Maxim-Audi alteram partem (no one should be condemned unheard)-Rule not inflexible and its application must depend on particular facts and circumstances of each case". Besides in the judgment of this Court reported as Abdul Qadir and others v. The Settlement Commissioner and others (PLD 1991 SC 1029), it is ordained "It may be remarked that right of opportunity of hearing is not merely a technical right. It has often been observed by the superior Courts that it is linked with tangible, factual and legal aspects of the case and it would depend upon the facts and circumstances thereof as to whether the observance of the technical rule of audi alteram partem by a lower forum and ritualistic performance in this behalf would serve the ends of justice or it would negate the ends of justice. If the forum before which such a question is raised is able to examine the merits as we have done in this case and/or as was done by the High Court in one case, there would be nothing wrong in deciding the matter finally and refraining from multiplicity of proceedings; which as an end product also causes injustice and misery in so far as the delay, expense and anxiety is concerned". Thus as earlier stated since the LRs of Shaukat Ali had been fully heard, we do not find this to be a fit case for the dismissal of the respondent's revision petition on the ground that the names of Shaukat Ali's LRs were not specified in the memo of revision petition. It is the admitted position (at the cost of repetition) that Shaukat Ali was shown to be the deceased represented through his LRs in the petition filed before the Learned High Court. Besides the above reasoning on this point, we also endorse the view/opinion of the learned High Court given in the impugned judgment (on this point). This plea of the appellants is also discarded.

14. As far as the question that the suit of the appellants should be dismissed because they have failed to seek the cancellation of the appellants sale deed, it may be mentioned that complete answer has been provided in the judgment of this Court Muhammad Sharif v. Mst. Sughra Bano and others (1984 SCMR 1139) which ordains that a suit is maintainable even if plaintiff failed to sue for cancellation of registered sale deed executed in favour of some other party while asking for specific performance of earlier sale agreement.

15. The above are the detailed reasons for the short order dated 1-1-2015 whereby the appellants' appeal was dismissed, which reads as:-- "Heard. For reasons to be recorded later, this appeal has no merits, thus is accordingly dismissed."