' NAEEM AKHTAR AFGHAN, J.---This judgment disposes of R.F.A. No,51 of 2011 filed by the appellant (defendant No,1) against the judgment and decree dated 28-6-2011 (hereafter "the impugned judgment") passed by learned Civil Judge-VI Quetta (hereinafter "the trial Court"), whereby the suit for Specific Performance, Possession, Recovery of Rs,11-Lakhs and Permanent Injunction filed by respondents Nos.1 to 23 (plaintiffs ) has been decreed.
2. Facts of the case are that initially respondent Nos.1 and 2 filed suit for specific performance, possession, recovery of Rs,11-Lakhs and permanent injunction against the appellant and respondent No,24 (Tehsildar Quetta), but subsequently, by way of amendment, respondents Nos.3 to 23 were also arrayed as plaintiffs and amended suit was filed.
3. As per contents of the amended plaint, the predecessor of the respondents namely Shah Wazir had purchased house falling under Khasra No,601, 484, Mohal Karez Saleh Mohammad, Mouza Khezi, Tappa Baku Tehsil and District Quetta Samungli Road Quetta (hereinafter "the disputed property") from the appellant against consideration of Rs,34-Lakhs; that in this regard agreement dated 12-5-2006 was also executed between the parties in presence of witnesses and the same was attested; that at the time of transaction, the predecessor of respondents paid Rs,28,50,000 to the appellant through Cheque dated 12-5-2006 of Habib Bank Limited, which was en cashed by the appellant; that the predecessor of the respondents had paid Rs,50,000 as advance to the appellant at the time of transaction; that total amount of Rs,29-Lakhs was paid by the predecessor of the respondents to the appellant, while the balance amount of Rs,5-Lalchs was to be paid to the appellant at the time of transfer of the house in question; that in the meanwhile, the predecessor of the respondents was murdered, in respect whereof, FIR was registered; that the respondents being legal heirs of the deceased approached the appellant several times to transfer the disputed property in their names and to hand over possession of the same to them, but the appellant used delaying tactics and ultimately refused to transfer the disputed property in the name of the respondents or to deliver the possession of the same to them despite receiving sale price of the same; that the appellant has violated the terms and conditions of the agreement executed between him and the predecessor of the respondents.
' It has further been contended in the plaint by the respondents that the respondents had given Rs,11-Lakhs to the appellant for dealing in the business of fruit; that the respondents have half share in the business, but the appellant has neither provided the benefits of the business to the respondents nor has returned the actual amount of Rs,11- Lakhs to the respondents; that on approach by the respondent No,1 for return of Rs,11-Lakhs, the appellant refused to return the same.
The following relief was claimed by the respondents: "(1) To declare the plaintiffs as owners of the house in question bearing Mutation No, 79, Khasra No,601/484 situated at Samungli Road, Quetta.
(ii) To direct the defendant No,1 to transfer the mutation of the house of question and also hand over the possession of the same to plaintiffs as per agreement.
(iii) To direct the defendant No,2 to transfer the house in question in the name of plaintiffs in the Revenue record.
(iv) To direct the defendant to implement on the terms and conditions of the agreement dated 12- 5-2006.
(v) To direct the defendant No, 1 to return Rs,11,00,000 and benefits of business to plaintiff.
(vi) Any other relief which may deem fit and proper under the circumstances of the case may also be awarded to plaintiff. "
3. The suit was contested by the appellant by filing written statement. While raising preliminary legal objections, it was agitated by the appellant that no cause of action has accrued to the respondents for filing the suit, as the agreement dated 12-5-2006 was cancelled; that the suit is not maintainable under section 42 of the Specific Relief Act; that the suit has been filed by the respondents with mala fide and ulterior motives to blackmail the appellant; that the suit is bad for misjoinder and non-joinder of necessary parties as the deceased predecessor of the respondents has left other legal heirs as well who have not been made party to the suit; that the respondents have relied on the document which has been executed with fraud and mis-representation; that the agreement should have been registered under section 17 of the Registration Act; that the respondents have not valued the suit according to the Suits Valuation Act.
' While denying the contents of the plaint on merits, it was stated that the predecessor of the respondents executed agreement dated 12-5-2006 to play fraud and for some of his personal requirements; that the predecessor of the respondents personally backed out and cancelled the said agreement after one month of its execution, in pursuance whereof, a cancellation deed was also executed between the appellant and predecessor of the respondents.
' The contents of para-3 of the plaint with regard to the transaction of the disputed property was admitted by the appellant with the statements that said transaction was not completed as during the period the predecessor of the respondents himself requested for cancellation of the agreement dated 12-5-2006 and with mutual consent of the parties, the said agreement was cancelled, that the earnest money of Rs,50,000 paid to the appellant by the predecessor of the respondents was forfeited; that total amount of Rs,1-Lakh was given by the predecessor of the respondents to the appellant; that the agreement dated 12-5-2006 having been cancelled has no force of law.
' It was further contended by the appellant that when the respondent No,2 was informed by the appellant about the factual position, the respondents wrongly involved the appellant in the murder case of their predecessor; that after completion of investigation, the appellant was released by the police; that few days prior to filing of the suit, the respondents again filed a complaint against the appellant to pressurize and blackmail the appellant; that after cancellation of the agreement, the respondents have no concern or connection with the disputed property of the appellant.
' The contention of the respondents about giving Rs,11-Lakhs to the appellant for business of fruit and their partnership with the appellant was strongly denied. It was prayed that the suit being false and frivolous be dismissed.
4. Out of the pleadings of the parties the trial Court framed the following issues;
(1) Whether the predecessor-in-interest of plaintiffs late Shah Wazir has purchased the house in question Karez Saleh Muhammad, Mouza Khezai, Tappa Baleli, Tehsil and District Quetta from the defendant No,1 for consideration of Rs, 34,00,000 through an agreement dated 12-5-2006?
(2) Whether at the time of transaction the predecessor-in-interest of plaintiff tate Shah Wazir has paid Rs,28,50,000 to defendant No,1 through cheque bearing No, T09154155 dated 12-5-2006 through Habib Bank Limited, along with advance money of Rs,50,000?
(3) Whether the predecessor-in-interest of plaintiffs late Shah Wazir personally cancelled the agreement dated 12-5-2006 after a month? OPD.
5. After framing of issues, the respondents produced P.W.1 Sher Muhammad, P.W.2 Musa Khan, P.W.3 Zahoor Ahmed Bank Manager, HBL, P.W.4 Abdul Rehman Notary Public and thereafter, respondent No,2 got recorded his statement also as attorney for the remaining respondents.
' In rebuttal, the appellant produced DW-1 Haji Muhammad Anwar, DW-2 Hashmatullah Qambrani Notary Public, DW-3 Shahab-udDin, DW-4 Arif Jamal, Stamp vender and thereafter, the appellant got recorded his statement on oath.
6. After concluding evidence and hearing arguments the trial Court has decreed the suit vide impugned judgment in the following terms:-- In the light of above discussion the suit of plaintiff is decreed in their favour and it is declared that the plaintiffs are owners of the house in question bearing Mutation No, 79, Khasra No, 601/484 situated at Samungli Road, Quetta and defendant No,1 directed to transfer the mutation of the house in question and also hand over the possession of the same to plaintiffs as per agreement.
Further defendant No,2 is directed to transfer the house in question in the name of plaintiffs in the Revenue record. Further the defendant No,1 is directed to return Rs, 11,00,000 and benefits of business to plaintiffs. No order as to cost. A decree sheet be drawn. After completion and compilation the case be consigned to record".
7. Feeling aggrieved of the impugned judgment, the appellant has filed the instant appeal.
8. Learned counsel for the appellant stated that the trial Court omitted to frame issues on the basis of preliminary legal objections raised by the appellant in his written statement; that the trial Court badly ignored the point of limitation as well as relevant provisions of the Specific Relief Act pertaining to specific performance of the agreement; that even proper issues arising out of the pleadings of the parties in respect of factual controversy have not been framed by the trial Court; that the trial Court has failed to appreciate that suit for declaration was not maintainable for specific performance/enforcement of an agreement.
' Learned counsel prayed for remanding the matter to the trial Court to frame necessary issues of facts as well as law arising out of the pleadings of the parties, to afford opportunity to both the parties to lead further evidence and thereafter to decide the suit afresh on' merits in accordance with law.
9. Learned counsel for the respondents while contesting the appeal stated that the trial Court has properly framed the necessary issues arising out of the pleadings of the parties; that there is no occasion for re-framing of the issues; that the trial court after proper appreciation of oral as well as documentary evidence has rightly decreed the suit in favour of the respondents; that the impugned judgment is not suffering from any illegality or irregularity, warranting interference by this Court.
' Learned counsel for the respondents strongly opposed the remand of the matter to the trial Court for reframing of issues and decision afresh.
10. Heard the learned counsel and perused the available record. Perusal of record reveals that the appellant has raised number of preliminary legal objections in his written statement, but the trial Court has not framed any issue of law on the basis of preliminary legal objections raised by the appellant in his written statement. Perusal of record reveals that the agreement dated 12-5-2006 relied upon by the respondents is an unregistered document, in respect whereof, the appellant has raised objection that same was compulsorily register able under section 17 of the Registration Act, but in this regard no issue has been framed by the trial court.
' Record further transpires that the assertion made by the respondents about giving Rs,11-Lakhs to the appellant for the joint business of fruit has specifically been denied by the appellant in his written statement, but without putting this factual controversy in issue, the trial Court has passed decree for Rs,11-Lakhs in favour of the respondents.
11. The careful perusal of the pleadings of the parties and the issues framed reveal that the trial Court has not properly framed the issues of A facts as well as law arising out of the pleadings of the parties.
12. No doubt it is duty of the parties to the suit to point out the framing of necessary issues, but it is equally the duty of the trial Court to frame necessary issues for determining the real controversy between the parties. Merely because the parties have not pointed out, does not absolve the trial Court to perform its legal and statutory duty. Action or inaction on the part of the Court cannot prejudice a party to litigation.
13. For the above reasons, without touching the merits of the case, the appeal is accepted with no order as to costs, the impugned judgment and decree dated 28-6-2011 passed by the learned Civil Judge-VI, Quetta is set aside, the suit is remanded to the trial Court with directions to avail proposed issues from both the parties and thereafter to frame all the necessary issues of facts as well as law arising out of the, pleadings of the parties, to afford fair opportunity to both the parties to the suit to lead further evidence and to get their statements recorded, if opted, and thereafter to decide the suit afresh on merits in accordance with law within a period of six months of receipt of this judgment.