Muhammad Khalid Mehmood Khan, J. The petitioner on 27.4.1970 entered into an agreement to sell with respondent No.1 agreeing to purchase of a house, more particularly described in para 1 of the plaint as well as in Exh.P-1, against consideration of Rs. 14,000/- out of which the petitioner paid Rs.4000/- to respondent No.1 and remaining Rs.10,000/- was agreed to be paid on 31.7.1970 at the time of execution and registration of sale deed. It was agreed between the parties that costs of stamps and registration will be shared equally. Respondent No.2 to 7 were the owners of adjoining house, the respondent No.1 without the knowledge of petitioner on 8.7.1970 executed a sale deed of the house in dispute in favour of respondents No. 2 to 7 and on 10.7.1970 submitted for registration, the sale deed in favour of respondent No. 2 to 7 was registered on 01.8.1970 (Exh.P-6). Respondent No.1 inspite of the execution of sale deed in favour of respondents No.2 to 7 on 29.7.1970 received Rs.692/- for purchasing stamp papers. Respondent No.1 also extended 15 days time for execution of as per the endorsement back of first page of an agreement to sell. The petitioner coming to know about the execution of sale deed in favour of respondent No.2 to 7, filed a suit for specific performance of an agreement. Respondent No.2 filed an ejectment petition against the petitioner which was finally dismissed by relevant court. Respondent No.1 in his written statement has raised the defence that he entered into an agreement to sell of the suit house with respondents No.2 to 7 prior to entering into an agreement with the petitioner, as the respondents No.2 to 7 showed their inability to get the sale deed registered, so under such circumstances he agreed to sell the suit house to petitioner and after failure of petitioner to pay the balance amount he forfeited the petitioner's earnest money as per the terms of agreement to sell and executed and got registered sale deed in their favour. Respondents No.2 to 7 have not raised the defence that they are bonafide purchasers for value, and taken the defence that no agreement to sell between the petitioner and respondent No.1 was in existence when respondent No.1 sold the house to them and executed the sale deed. After filing the written statement respondents No.2 to 7 tried to amend their written statement, they filed application for amendment in the written statement for raising the plea that they are bona-fide purchasers for value without notice, their application was finally dismissed by the Hon'ble Supreme Court of Pakistan on 10.6.2000. The learned trial court, out of divergent pleadings of the parties, framed the following issues:- "ISSUES: i) Whether the defendant No.1 has agreed to sell the house in question in favour of the plaintiff for Rs.14,000/- and had received Rs.4000/- as advance money? OPP ii) Whether the defendant No.1 failed to perform his part of contract? If so with what effect? OPP iii) Whether the defendants No.2 to 7 illegally and with malafide intention purchased the house in question? If so with what effect? OPP iv) Whether the plaintiff is entitled to decree for specific performance of contract dated 27.4.70?
OPP v) Relief".
Both the parties adduced their respective evidence both verbal as well as documentary. The learned trial court vide judgment and decree dated 05.4.1983 dismissed the suit. The petitioner filed appeal against the judgment and decree dated 05.4.1983. The learned appellate court partially allowed the appeal, however refused to grant the decree for specific performance of agreement, hence the Revision petition.
2. Learned counsel for petitioner submits that it is a settled principle of law that no evidence can be produced and considered in contradiction of the pleadings of the parties. If respondent No.1's violation of the agreement is proved the petitioner need not to prove his readiness to perform his part of agreement, the time is not the essence of contract with reference to the immovable property. The judgment and decree of learned first appellate court is arbitrary and against all canon of law, justice and equity. It is established fact on record that it is the respondent No.1 who failed to perform his part of agreement. Learned counsel for petitioner has relied on Seth Essabhoy V. Saboor Ahmad (PLD 1972 Supreme Court 39), Muhammad Yaqoob and others V. Hakim Ali and others (2004 SCMR 584), Mst. Kharo and 2 others V. Sher Afzal alias Sheray (1992 SCMR 1844), Naib Subedar Taj Muhammad V. Yar Muhammad Khan and 6 others (1992 SCMR 1265), Malik Muhammad Bashir V. Muhammad Aslam and another (1990 SCMR 1632), Din Muhammad and another V. Subedar Muhammad Zaman (2001 SCMR 1992), Mrs. Mussarat Shaukat Ali V. Mrs. Safia Khatoon and others (1994 SCMR 2189), Hafeez Ahmad and others V. Civil Judge, Lahore and others (PLD 2012 Supreme Court 400), Messrs Pioneer Housing Society (Pvt.) Limited through Managing Director, Bank Square, Lahore V. Messrs Babar & Company through Shakir Ali Khan and 2 others (PLD 1999 Lahore 193).
3. Learned counsel for respondents No.2 to 6 has argued that revision petition is liable to be rejected on a very short ground that petitioner has failed to file the decree sheet with the petition whereas the instant petition is against a decree. Learned counsel submits that it is an admitted fact between the parties that till today, learned trial court has not drawn the decree sheet. Learned counsel submits that the respondents have purchased the property/house when the petitioner failed to perform his part of agreement. It is an established fact on record that the petitioner was not having sufficient funds for making the balance consideration to respondent No.1, the petitioner fraudulently prepare an extension of 15 days allegedly written on the back side of the first page of an agreement to sell however the extension was not proved and both the courts below have refused to accept the fraudulent extension. The deposit of Rs.9555/- in the bank account is sufficient to confirm that petitioner was not having funds to pay the balance consideration to respondent No.1 as he deposited Rs.9555/- on 03.8.1970 in his account after expiry of target date. It is sufficient to prove that petitioner arranged the balance amount after the expiry of the agreement. The evidence available on record proves that it is the petitioner who failed to fulfill his part of agreement. Both the courts below have concurrent findings of facts which cannot be set aside by this Court in its revisional jurisdiction even if a different conclusion is drawn by this Court.
The protection of Section 41 of Transfer of Property Act is available to the respondents. Learned Counsel has relied on Mubarak Ali V. Muhammad Ramzan and others (2004 SCMR 1740) and Mst.
Shahana Khan V. Mst. Khalida Parveen (PLJ 2003 Karachi 175).
4. Heard. Record perused.
5. First argument of learned counsel for respondents is that revision petition is not maintainable as the petitioner has failed to file certified copy of decree with the revision. Section 115 of the CPC provides as under:- "115. Revision.--(1)...................
(a) ...............
(b) ...................
(c) ..................
Provided that, where a person makes an application under this sub-section, he shall, in support of such application, furnish copies of the pleadings, documents and order of the subordinate Court and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court.
Provided that such application shall be made within ninety days of the decision of the Subordinate Court which shall provide a copy of such decision within three days thereof, and the High Court shall dispose of such application within three months".
6. Under Order XLI Rule 1 CPC the form of appeal is provided which is read as under:- "Form of appeal. What to accompany memorandum.--(1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded".
7. The perusal of two provisions of law will show that under Order XLI Rule 1 CPC it is made obligatory for the appellant that memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded, meaning thereby the memorandum of appeal shall be accompanied by a copy of decree and where it is not so accompanied it is not validly presented appeal as the court cannot dispense with copy of the decree and can only dispense with the copy of the judgment only. However, if the decree is not drawn up an appeal is not competent, whereas under Section 115 of the Code of Civil Procedure the word used are "where a person makes an application under this sub-section, he shall, in support of such application, furnish copies of the pleadings, documents and order of the subordinate Court and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court". The word decree is not mentioned in Section 115 of the CPC. Under Section 115 of the CPC the only requirement is furnishing copies of pleadings, documents and order of subordinate court. It is a settled law that where second appeal is not provided the judgment and decree of appellate court can be assailed through a revision petition, as the word decree is not used in Section 115 CPC as used in Order XLI Rule 1 CPC, the revision petition under section 115 of the CPC without the copy of decree sheet is competent for the simple reason that the judgment is available on record and the revision is in the supervisory jurisdiction of the Court, hence the argument of learned counsel for respondents is repelled. Further the appeal is a statutory right whereas the revision is not a right and is the supervisory jurisdiction of the court, this shows that legislator ha intentionally not included the word decree in Section 115 of the Code of Civil Procedure. Reliance can be placed on Idara-e-Tahaffuz Amn-oIkhlaq-e-Aamaa through President and 4 others (2015 CLC 357) and Muhammad Nawaz V.
Muhammad Shafi and another (2006 YLR 2613). The judgment of Mubarik Ali (Supra) has a different facts, in that case the petitioner filed two separate suits, one for declaration and partition of the property and the other for redemption of the said property. The court decreed both the suit through separate judgments as the suits were not consolidated, the judgment debtor filed two appeals against these judgments and decrees of the Learned Civil Court, the First Appellate Court accepted appeals through two independent judgments. The petitioner did not file appeal in the redemption suit and filed revision petition against the judgment and decree of the First Appellate Court in a suit for partition. In this revision petition, with its memo., certified copies of judgment and decree of redemption suit were filed whereas the other documents such like evidence and copies of pleadings of partition suit were appended. In the heading of the revision petition, it was also indicated that the same was being filed from judgment and decree passed by the First Appellate Court in appeal arising from partition suit. The High Court issued pre-admission notice, the respondents raised a preliminary objection that the evidence and pleadings of the suit of redemption had not been appended as from the certified copies of the judgment and decree of redemption suit appended with the revision petition, the same was deemed to have been directed against the judgment and decree passed in the redemption suit. The revisional court declined the oral request of peteitioner counsel to substitute judgment and decree appended with the revision petition in redemption suit with the certified copies of judgment and decree of the partition holding that after a period of about five years, the same could not be allowed as the petitioner's conduct was negligent and also contumacious. The Hon'ble Supreme court of Pakistan held as under; "The discretion in the matter exercised by the learned Judge of the High Court against the petitioner on his oral prayer for placing on record the said documents has not been shown to have suffered from either arbitrariness or having not been based on relevant consideration. It has been properly, exercised therefore, the same does suffer from any illegality as such we are not inclined to interfere in the same in exercise of discretion under Article 185 of the Constitution in favour of granting leave."
8. The agreement to sell Ex.P-1 is an admitted document between the petitioner and respondent No1, the receipt of Rs.4,000/- being the earnest money is also admitted, the respondent No.1 has taken the defense that he earlier entered in agreement to sell with respondent No.2 to 7 but the respondent No.2 to 7 shown their inability to purchase the house and after that he agreed to sell the house to petitioner, on petitioner's failure to pay the balance amount his earnest money was forfeited and he executed the sale deed in favour of respondent No. 2 to 7. The respondent No. 2 to 7 raised their defense that no agreement to sell between the petitioner and respondent No.1 was in existence when they purchased the house and respondent No.1 executed the sale deed in their favour, the status of petitioner is only of a tenant and no more.
9. The respondents after filing the written statement wanted to take the plea of bonafide purchaser for value without notice but their plea remain un accepted up to the Hon'ble Supreme Court of Pakistan. These are the admitted facts between the parties, the petitioner claim is that respondent No.1 requested petitioner to extend the date of execution of sale deed from 31.7.1970 to 15.8.1970 and the said extension was reduced in to writing on the reverse page of the agreement to sell. The learned trial as well as the learned appeal court has held that the extension has not been proved as it is not witnessth by the two witnesses and the petitioner was not having sufficient amount for making the payment to respondent No.1 as is evident from Ex.P-5, Ex.P-5 is the bank statement which shows that petitioner deposited a sum of Rs.9,550/- in his account on 3.8.1970. The learned trial as well as the learned appeal court has misinterpreted EX.P-5, a draft sale deed is available on record as Ex.P-3 which shows that the document was written on 30.7.1970 one day before the last date as per agreement to sell Ex.P-1, the document shows that the petitioner has to pay Rs.9,550/- being the balance consideration on execution of the sale deed, the last date of execution of the sale deed was 31.7.1970, the respondent when has not executed the sale deed on 31.7.1970 than the petitioner deposited the amount of Rs.9,550/- in his account, the deposit of Rs.9,550/- on 3.8.19070 shows that the petitioner was having the balance amount in his pocket and was ready to pay the balance consideration on execution of the sale deed, If we exclude the extension of 15 days even than it is the respondent No.1 who failed to perform his part of agreement as he executed the sale deed in favour of respondent No.2 to 7 on 11.7.1970 and continued to defraud the petitioner that he will execute the sale deed on 31.7.1970 in his favour, he received Rs.692/- on 29.7.1970 for purchasing the stamp papers and did not disclose the fact that he has already sold the house to respondents No.2 to 7 and have executed the sale deed, the respondent No.1 waited for registration of sale deed till 31.7.1970 and got it registered on 1.8.1970. This act of respondent No.1 is sufficient to establish the malafide of the respondent No.1. As far as the case of respondents No.2 to 7 is concerned they have not pleaded that they are bonafide purchaser for value without notice and when they tried to amend the written statement their request was declined by all courts including the Honourable Supreme Court of Pakistan, in the absence of the defense of bonafide purchaser for value without notice the malafide and knowledge for the respondents No.2 to 7 is floating on record, the respondents 2 to 7 got drafted and executed the sale deed on 11.7.1970 and presented for registration on 1.8.1970 this mean when the have paid the entire consideration on 11.7.1970 why they waited up to 1.8.1970 the answer is that they were waiting the expiry of petitioner's agreement to sell, this act of respondent is sufficient to prove that the petitioner's agreement was in their knowledge hence the malafide of both the parties i.e, seller and purchaser stand proved on record.
10.The upshot of the discussion is that petition succeeds, the impugned judgment and decree of two courts below is set aside and the petitioner suit is decreed with costs through out.