Ali Akbar Qureshi, J:- This civil revision is directed against the judgment and decree 17.02.2001 and 12.10.2000, whereby the learned courts below dismissed the suit for declaration filed by the petitioner, whereas the suit for partition, filed by the respondent, was decreed.
2. Shortly, the fact necessary for disposal of this petition are, that the respondent namely, Ekhtiar Hussain instituted a suit for partition of house No.34 block No.4, Khanewal, measuring 4 marla and 3-1/2 sarsai, alleging therein, that the suit property was allotted jointly to the parties to the suit in equal share. The respondent is paternal uncle of the petitioner and as the property was not partitioned because the petitioner resides at Karachi and lastly prayed, that the property be partitioned equally in favour of parties to the suit.
3. The petitioner, while filing the written statement, admitted to the extent, that the suit property was allotted jointly in equal share to the parties to the suit but rest of the claim was denied on the ground, that the respondent sold his share against consideration of Rs.150,000/-, which was paid and the complete possession of the property is with the petitioner.
4. The petitioner, on the contrary, also filed a suit for declaration alleging therein, that the suit property was partitioned through family settlement dated 10.10.1992 and after partition, the respondent of the declaration suit, transferred the portion of the property which was purchased by the respondent.
5. The learned trial court, after consolidating both the suits, framed necessary issues on the basis of the divergent pleadings of the parties, recorded evidence and finally, dismissed the suit filed by the petitioner whereas the suit for partition, filed by the respondent, was decreed. Against the consolidated judgment and decree passed by the learned trial court, the petitioner filed an appeal which was dismissed, hence, this civil revision.
6. Learned counsel for the petitioner, at the very outset of the arguments submitted, that the petitioner has been non-suited on the ground, that the petitioner, filed the suit for declaration regarding the suit property instead of suit for specific performance, which is against the law and also the law laid down by the Hon'ble Supreme Court of Pakistan in judgment cited as Javaid Iqbal v. Abdul Aziz and another (PLD 2006 Supreme Court 66).
7. In response of the contention raised by the learned counsel for the petitioner, the learned counsel appearing on behalf of the respondent submitted, that both the learned courts below rightly adjudicated the matter and even otherwise, on merits, the petitioner has no case, therefore, this civil revision may be dismissed.
8. Heard. Record perused.
9. The record, particularly the suit filed by the petitioner and the findings recorded by the learned courts below, were examined carefully with the assistance of learned counsel for the parties, from where it is found, that the petitioner, while filing the suit for declaration, specifically mentioned the agreement between the parties, payment of the consideration and also the partition of the suit land in result of a family settlement.
10. Further, it is revealed, that the respondent has admitted the execution of the family settlement in pursuance of an arbitration but stated, that it was not acted upon as no legal cover was given to the arbitration or the family settlement. The learned trial court as well as the learned appellate court finally concluded, that the suit for partition filed by the respondent is competent whereas the suit filed by the petitioner for declaration, was dismissed and declared incompetent.
11. While scanning the findings recorded by the learned appellate court, I found, that the learned appellate court although decided the case filed by the petitioner considering it the suit for specific performance but did not convert the same into a suit for specific performance.
In paragraph No.22 of the judgment, the learned appellate court observed, that the petitioner, to prove the suit for declaration, should have proved the necessary ingredients of sale i.e. Bargain, payment of consideration and transfer of possession under the sale. All these ingredients are of a suit for specific performance and cannot be decided without converting the suit for declaration into the suit for specific performance of the agreement/contract.
12. The Hon'ble Supreme Court of Pakistan has already resolved the controversy involved in this matter in judgment cited as Javaid Iqbal v. Abdul Aziz and another (PLD 2006 Supreme Court 66), in the following manners: "13. On its part, in the exercise of its revisional jurisdiction, Lahore High Court was perfectly justified in observing that the suit could not fail merely for the reason that some relief which was available and not been claimed. Honourable Judge of the High Court is perfectly justified in observing that the suit could not have been dismissed on account of any defect in form. In view of the assertion of the respondents that they had passed on total sale consideration and obtained possession in part performance of sale, they would be entitled to full protection of their possession within the contemplation of section 53-A of the Transfer of Property Act, 1882. In our considered opinion, both the Courts below failed to take into account the legal impact and effect of the provisions contained in section 53-A of the Transfer of Property Act and the provisions of Code of Civil Procedure, 1908 providing sufficient mechanism for doing complete justice to the parties. Evidently and essentially, this was a fit case for exercise of jurisdiction under Order VI, rule 17, Order VII, rule 7 and section 151, C.P.C., rather than attaching much importance to the defective drafting of the plaint and the prayer clause. The view taken by the High Court in exercise of its revisional jurisdiction, in our considered opinion, does not suffer from any inherent legal infirmity misreading of record, misconception of law or error of jurisdiction. To the contrary the judgment of the High Court in the peculiar facts and circumstances of the case, on the fact of the record, appears to be just, fair, equitable and expedient to achieve the ends of justice and to defeat the mischief. The order of remand is, therefore, fully justified and not open to any exception."
13. In the afore-referred esteemed judgment, the Hon'ble Supreme Court of Pakistan has also dilated upon the scheme of the Code of Civil Procedure, 1908, in the following manner: "10. The Code of Civil Procedure 1908 (hereinafter referred as the Code) was enacted to regulate the proceedings before the civil Courts. Provisions contained in the Code are mainly rules of procedure. It is well-settled that all procedural laws are subservient to the cause of justice and, therefore, such laws neither limit nor control the power of the Court to pass an order or decree, which is necessary to do complete justice in the facts and circumstances of the case. Construction of procedural law in a manner, which tends to obstruct the course of justice, must be avoided as far as possible. The authors of the Code were fully conscious of the underlying object of procedural law and, in all probability in order to remove and dispel all doubts in this regard, categorically provided in section 151 of the Code that "nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of process of the Court."
14. In view of the law declared by the Hon'ble Supreme Court of Pakistan, there is no other option but to set aside the judgment and decree passed by the learned trial court. Therefore, this civil revision is allowed, the judgment and decree passed by the learned trial court is set aside, the suit filed by the petitioner is converted into suit for specific performance of agreement and the case is remanded to the learned trial court to decide the same afresh after providing fair opportunity of hearing and defending to the parties to the case.
15. Parting with the judgment, since this is an old matter, therefore, the parties to the case shall appear before the learned Senior Civil Judge, Khanewal, on 11.05.2015, who will hear the case himself or may assign to the any court of competent jurisdiction to decide the same expeditiously, preferably within a period of three months.