AMIN-UD-DIN KHAN, J.---Through this single judgment I intend to decide the above captioned R.S.A.No.99 of 2009 as well as R.S.A.No.101 of 2009, as common question of law and fact is involved in both the appeals.
2. Through the appeals, appellant (Liaqat Ali) has challenged the judgment and decree dated 30.06.2009 passed by the learned Addl: District Judge, Jaranwala, whereby the appeal filed by Nawab Din (respondent No.15) against the consolidated judgment and decrees dated 29.06.2006 passed by the learned Civil Judge 1st Class, Jaranwala was accepted, by way of which, suit of Nawab Din for specific performance with regard to the suit property which is subject matter of R.S.A.No.101 of 2009 was decreed and suit of present appellant (Liaqat Ali) for specific performance was dismissed by setting aside the judgment and decrees dated 29.06.2006 whereby the suit of appellant was decreed, whereas in the suit of Nawab Din decree for specific performance was refused but the original owners, defendants Nos.1 to 4, were directed to return the earnest money amounting to Rs.5,00,000/- received by them and they were also directed to compensate Nawab Din by paying Rs.2,50,000/-. The dismissal of suit of appellant is subject matter of R.S.A.No.99 of 2009.
3. The facts are that on 13.07.1995 the appellant-plaintiff (Liaqat Ali) filed a suit for specific performance against defendants Nos.1 to 4 claiming an oral agreement to sell dated 20.02.1995 in his favour. Subsequently Nawab Din was also imp-leaded as defendant No.5 in the suit. Nawab Din, the rival claimant also filed his suit for specific performance on 28.02.1996 on the basis of written agreement to sell dated 06.05.1995. Both the suits were consolidated on 02.10.1996. The plaintiff of first suit i.e. Liaqat Ali was presumed as plaintiff and the proceedings were ordered in his suit. Along with the original owners as well as their Attorney and the rival plaintiff Nawab Din were presumed as defendants and suit of Nawab Din was consolidated with the suit of Liaqat Ali. Learned trial court after framing of consolidated issues invited the parties to produce their respective evidence. Both the parties produced oral as well as documentary evidence in support of their versions. After the completion of trial, vide consolidated judgment and decrees dated 29.06.2006 the suit filed by Liaqat Ali was decreed, whereas in the suit filed by Nawab Din the decree for specific performance was refused but the original owners, defendants Nos.1 to 4, were directed to return the earnest money amounting to Rs.5,00,000/- received by them and to compensate him by paying additional amount of Rs.2,50,000/-. The defendant Nawab Din filed appeal against the consolidated judgment and both the decrees. The defendants Nos.1 to 4, the original owners, as well as their Attorney also filed an appeal. Learned first appellate court decided both the appeals through a consolidated judgment dated 30.06.2009 but the separate decree sheets have been prepared, whereby while accepting the appeal filed by Nawab Din his suit has been decreed subject to payment of remaining amount of Rs.2,50,000/- to the original owners and by setting aside the decree passed by learned trial court in the suit for specific performance filed by Liaqat Ali, his suit was dismissed and suit of Nawab Din was decreed. In this way, the decree for return of money passed against the original owners was also reversed and grievance of original owners redressed.
As such both the appeals, one filed by Nawab Din and the other by original owners, were accepted.
Regular Second Appeal No.99 of 2009 has been filed against the acceptance of appeal of Nawab Din, whereas Regular Second Appeal No.101 of 2009 has been filed against the acceptance of appeal of original owners, defendants Nos.1 to 4.
4. Learned counsel for the appellant argues that though the appellant-plaintiff filed the first suit on the basis of oral agreement to sell in question dated 20.02.1995 on 03.07.1995, copy of said plaint has been produced by the defendants as Ex.D-3, but the second suit which is subject matter of this appeal was filed on 13.07.1995 on the basis of same cause of action and oral agreement to sell ,dated 20.02.1995 and first suit was withdrawn on 16.07.1995; that as the first suit was withdrawn after the filing of second suit, therefore, the bar contained under Order XXIII, Rule 1 of the C.P.C. Is not applicable. Learned counsel has advanced lengthy arguments on this point and also referred to the case law to satisfy the Court that filing of second suit, when first suit was still pending, is not hit under Order XXIII, Rule 1 of the C.P.C. And is not barred; that as in a suit for specific performance cause of action is reoccurring, therefore, there was no bar for filing the second suit when the first suit was still pending and subsequently withdrawn.
5. Learned counsel for the respondents frankly stated that he does not press this objection, as the learned counsel for the appellant is arguing the matter on merits but his objection is not of Order XXIII, Rule 1 of the C.P.C., therefore, need not be dilated upon much on this point and he will argue his objection on his turn. In these circumstances, I am clear in my mind that when the second suit is filed on the same cause of action, yet the first suit is still pending which was subsequently withdrawn, in the light of law laid down in "PLD 1983 Supreme Court 344 (Ghulam Nabi and others v.
Seth Muhammad Yaqub and others)" and PLD 1981 Lahore 336 (Abdullah and 8 others v. Bashiran Bibi and 4 others)", the bar of Order XXIII, Rule 1 of the C.P.C. Is not applicable to such suits.
6. On merits learned counsel for the appellant argued that the appellant-plaintiff - has fully proved his case by producing evidence and the findings recorded by the learned trial court were on the basis of evidence, oral as well as documentary, but the learned first appellate court fell in error while reversing the well reasoned findings of trial court. Learned counsel has referred the statement of DW-5 (Muhammad Ali) to argue that this witness admits that there was some agreement with Liaqat Ali about the suit property, therefore, this portion of statement is binding upon the person who has produced him as witness; that when the agreement of suit property with Liaqat Ali was in the knowledge of Nawab Din, his suit on the basis of even written agreement to sell cannot be decreed. Further argued that on the basis of oral agreement to sell the decree for specific performance can be granted. He has relied upon "2004 SCMR 530 (Mushtaq Ahmad and others v.
Muhammad Saeed and others) and 1994 SCMR 2189 (Mrs. Mussarat Shaukat Ali v. Mrs. Saila Khatoon and others)".
' It has been further argued by the learned counsel for the appellant that even if the original owner has admitted the agreement of Nawab Din but when the rights in the property have been claimed by the appellant, Nawab Din (defendant No.5) was required to prove his agreement against the appellant. Relies upon "2010 SCMR 988 (Rasool Bakhsh Naich through L.Rs. And others v. Syed Rasool Bakhsh Shah through L.Rs. And others)". With regard to filing of previous suit and admission of plaintiff Liaqat Ali when he appeared as PW-4 and filing of plaint Ex.D-3, learned counsel states that the contents of previous plaint have not been specifically admitted by the said witness, therefore, in the light of judgments "PLD 1972 Supreme Court 25 (Mst. Khair-ul-Nisa and 6 others v.
Malik Muhammad Ishaque and 2 others)" and 2000 YLR 594 (Muhammad Tufail and others v.
Karlat Ullah and others)", the same cannot be used against the plaintiff-appellant.
7. On the other hand, learned counsel for respondent No.15, Nawab Din argues that the filing of previous suit, the plaint of which was confronted to Liaqat Ali when he appeared as PW-4, the plaint has been produced by the defendant No.5 in his evidence as Ex.D-3; that on the basis of oral agreement to sell both the suits were filed and the agreement alleged in the previous suit as well as in the present suit materially contradict with each other, therefore, these contradictions have been pressed by defendant No.5 Nawab Din and the same have been noted by the learned first appellate court which were ignored by the learned trial court and the learned first appellate court has rightly passed a decree in his favour and rightly dismissed the suit filed by the appellant Liaqat Ali. While referring "PLD 1975 Karachi 509 (Haji Hakimullah v. Saghiruddin and 2 others)" learned counsel argues that the previous suit even if permitted to be withdrawn, the admissions made therein or the pleadings are binding upon the plaintiff, even otherwise the same have been confronted to him when he appeared as a witness. While referring "2012 SCMR 900 (Muhammad Sharif and others v. Nabi Bakhsh and others)" learned counsel argues that it is a discretionary relief and the learned first appellate court has rightly exercised discretion in favour of Nawab Din. Further while referring "2013 SCMR 1300 (Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L.Rs. And others)" argues that in case of suit on the basis of oral agreement to sell, plaintiff Liaqat Ali was requited to plead and prove the event of agreement to sell with full details by stating time, date and place of agreement as well as consideration amount and the terms of agreement, all the three ingredients are missing, therefore, no decree could have been passed which has rightly been set aside by the learned first appellate court. Further while relying upon "2013 SCMR 1600 (Abbas Ali v. Liaqat Ali)" argues that when the agreement in favour of plaintiff Liaqat Ali was admitted by the original owner, there was no need to produce the marginal witnesses. It has been further argued by the learned counsel for the respondent that admittedly Nawab Din is in possession of suit property which also negates the oral agreement to sell in favour of appellant Liaqat Ali. Further states that the statement of DW-5 is to be read as a whole and portions of his statement in isolation cannot be used against the respondent Nawab Din. Lastly argues that two witnesses of agreement to sell have been produced and further that the findings of learned Addl: District Judge require that preference should be given to the findings which are in accordance with the evidence as well as the prevailing law. Learned counsel for the respondent Nawab Din has also argued that the objection has been raised by the learned counsel for the appellant that one appeal was filed against the consolidated judgment and decrees. At this stage, learned counsel for the appellant states that he does not press this objection as one appeal was competent against the consolidated judgment and decrees.
8. I have heard the learned counsel for the parties at full length and also gone through the record as well as the findings of two courts below with the able assistance of learned counsel for the parties.
9. So far as the objection of Order XXIII, Rule 1 of the C.P.C. Is concerned, it has not been pressed by the learned counsel for the respondent Nawab Din. The objection of learned counsel for the appellant that one appeal was filed against the consolidated judgment and decrees, the same has also not been pressed by the learned counsel for the appellant, therefore, there is no need to further dilate upon these objections.
10. No doubt a suit for specific performance is competent on the basis of an oral agreement to sell with regard to immovable property but equally there must be no doubt in the mind of anyone that the plaintiff of such suit can succeed only, if he pleads the agreement specifically in the suit keeping in view the specific date, time and place of agreement arrived at between the parties and the witnesses of agreement as well as earnest money passed under the agreement and also plead the full terms of agreement because in an oral agreement to sell there is no document in support of version of the plaintiff. When the plaintiff comes to the court, at least he must canvas his version of oral agreement to sell agreed between the parties by specifically pleading the same and must plead his case with full details. In my view the first thing on the basis of an oral agreement, which comes in shape of writing according to the version of plaintiff, is his plaint because whole the building on the basis of oral agreement to sell is built upon that foundation which is made in the plaint. If in the plaint nothing is pleaded, the plaintiff cannot succeed. It is important because if in general language the oral agreement is pleaded in the plaint, plaintiff will be at liberty to introduce through evidence at every stage the new terms of agreement favorable to him or proof thereof as he wants, therefore, when he comes to the court, his agreement must be pleaded in the plaint with full details so that the other party may defend the suit if it is denied by it and for the adjudication and consideration of court, the agreement must be pleaded with full details in the plaint. I am fortified by the judgment of august Supreme Court of Pakistan reported as "2013 SCMR 1300 (Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L.Rs. And others)".
11. Now I come to the important point that the plaintiff-appellant Liaqat Ali earlier filed the suit for specific performance on 03.07.1995 and subsequently withdrew the same on 16.07.1995 filed by him.
The defendants have produced certified copy of previously filed suit as Ex.D-3, wherein the case of appellant-plaintiff Liaqat Ali was that defendant No.1 (Ali Muhammad) is the owner of suit property and through oral agreement to sell dated 20.02.1995 he agreed to sell the suit property and defendant No.2 (Muhammad Ashraf) was impleaded being Attorney of defendant No. 1. Nawab Din was impleaded as defendant No.3 in the said suit. In the suit in hand the original owners of suit property have been stated as original defendants Nos.1 to 3 i.e. Ali Muhammad, Muhammad Rafique and Mst. Khudija Bibi, whereas said Muhammad Ashraf has been imp leaded as defendant No.4 and Nawab Din as defendant No.5. The same oral agreement to sell dated 20.02.1995 has been claimed and even the payment of consideration amount is the same. This fact of pleading by the plaintiff in his previously filed suit, copy of which is available on record as Ex.D-3, is sufficient to hold that the plaintiff is telling a lie. I have noticed that the claim of plaintiff was that for some time he remained tenant over the suit property, this version of plaintiff has not been proved but on the basis of two plaints it is sufficient to hold that he never remained tenant when he does not know that who are the owners of suit property. The previous plaint was confronted to the plaintiff when he appeared as a witness. He has not denied from the filing of said suit. In this way, on the basis of judgment reported as "PLD 1975 Karachi 509 (Haji Hakimullah v. Saghiruddin and 2 others)" the previous suit filed by a party even withdrawn subsequently, cannot be presumed to have never been brought before the court, therefore, pleadings therein can be used against the party filing the same. In case in hand, when the plaint of previous suit was confronted to the plaintiff, who has not denied from filing the same and the contents of previous plaint are evidence consisting upon the 'admissions at least of plaintiff which contradict his claim through the present suit, therefore, that document which is Ex.D-3 is fatal for the claim of plaintiff Liaqat Ali. Learned first appellate court has rightly dismissed the suit of Liaqat Ali and reversed the findings of learned trial court while granting a decree for specific performance in favour of respondent No.15 Nawab Din.
12. The claim as well as agreement of Nawab Din has been admitted by the original owners. The argument of learned counsel for the appellant that Nawab Din was bound under the law to prove his agreement by producing two marginal witnesses against the appellant. Even the original owners i.e. Defendants Nos.1 to 4 and their Attorney have admitted his claim. I am of the view that when there are two parties pressing their agreements to sell of immovable property against the same property as well as owner and if the original owner admits the claim of one party and contests the claim of other party, the party whose claim is denied by the original owner if succeeds to prove his agreement to sell, then the agreement in favour of other party which is later in time if admitted by the owner has to be proved against the first party by producing marginal witnesses of the agreement in accordance with the required standard of proving a document keeping in view the Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984. In this case, the appellant failed to prove his oral agreement to sell in accordance with the settled standard of proving the oral agreement to sell. When the claim of Nawab Din has been admitted by the plaintiff, therefore, he was not bound to produce the witnesses to prove his claim against the appellant. Even otherwise I have noticed that Nawab Din (defendant No.5) produced Muhammad Yaqoob as DW-3 who is marginal witness of the agreement to sell (Ex.D-3), he himself appeared as DW-4 and the other marginal witness was produced as DW-5. In this way, both the marginal witnesses have been produced and the objection raised with regard to non production of two witnesses raised by the learned counsel for the appellant is factually incorrect.
13. On the statement of DW-5 as learned counsel for the appellant has agued that there are some admissions on the part of this witness with regard to the agreement to sell of appellant, the contention of learned counsel for the respondent is correct that whole of the statement of witness is to be considered and the parts of statement supporting the appellant, same cannot be used against Nawab Din. The whole of his statement shows that he has admitted to this extent that there is a claim of appellant Liaqat Ali with regard to the suit property and no agreement of appellant prior to the agreement of Nawab Din has been admitted by the said witness. In this view, statement of that witness is not against the case of respondent Nawab Din.
14. The case law referred to by the learned counsel for the appellant "2004 SCMR 530 (Mushtaq Ahmad and others v. Muhammad Saeed and others)" to argue that the oral agreement to sell previous in time has preference over the subsequent written agreement in favour of any other party. This case law is not with regard to any oral agreement to sell, therefore, is not applicable to this case as well as not helpful for the appellant.
15. The case law cited by the learned counsel for the appellant "PLD 1972 Supreme Court 25 (Mst.
Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others)" and "2010 SCMR 988 (Rasool Bakhsh Naich through L.Rs. And others v. Syed Rasool Bakhsh Shah through L.Rs. And others)" relate to the Section 27 of the Specific Relief Act, 1877. In this case, the claims of both the claimants were not matured to the standard of proof simultaneously to judge the right of either of the parties on the basis of Section 27 of the Act ibid. The appellant-plaintiff failed to prove his case and the agreement of Nawab Din was not only admitted by the original owners but he also proved his case in accordance with law, therefore, the case law referred supra by the learned counsel for the appellant is not applicable herein and not helpful for the appellant. The other case law referred to by the learned counsel is also not applicable in the circumstances of this case, as such, not helpful for the appellant.
16. The crux of above discussion is that the learned first appellate court has rightly granted the decree for specific performance in favour of respondent No.15 Nawab Din and dismissed the suit of the appellant-plaintiff for specific performance. Therefore, the findings recorded by learned first appellate court are in accordance with law. In this view of the matter, both the appeals filed by the appellant stand dismissed with costs throughout.##T##