' CH. MUHAMMAD MASOOD JAHANGIR, J. - The facts germane for the disposal of the instant Civil Revision are that Shaukat All the petitioner filed a suit for specific performance of an oral agreement to sell dated 5,4.2000 with the assertion that the respondents/defendants were owner of the disputed property fully mentioned in para-1 of the plaint and the petitioner/plaintiff purchased the said property from them for a consideration of Rs, 555,000/- out of which a sum of Rs, 530,000/- was paid to the respondents/defendants as token amount. Then possession of the property was delivered to the petitioner/plaintiff on the same day and it was settled between the parties that the disputed property would be transferred to the petitioner/plaintiff as and when demanded by him but thereafter the respondents/defendants denied to perform their part whereupon the plaintiff/petitioner was constrained to file the said suit before the learned Trial Court. The defendants/respondents were proceeded ex parte in the said suit.
2. The learned Trial Court collected ex parte evidence of the petitioner/plaintiff and ultimately dismissed the suit filed by the petitioner vide ex parte judgment and decree dated 11.11.2009. The petitioner/plaintiff filed an appeal before the learned lower Appellate Court which was accepted and the matter was remanded to the learned Trial Court vide judgment and decree dated 6.5.2010.
3. In the post remand proceedings the petitioner/plaintiff further produced his ex parte evidence before the learned Trial Court and the learned Trial Court after appreciating the evidence available on file dismissed the said suit vide judgment and decree dated 28.6.2012. The petitioner filed an appeal before the learned lower Appellate Court which met the same fate having been dismissed vide judgment and decree dated 81 1,2013. Feeling dissatisfied the petitioner has filed the instant civil revision before this Court.
4. The learned counsel for the petitioner has argued that the Impugned judgments and decrees passed by both the Courts below are against law and facts, that the Impugned judgments and decrees passed by both the Courts below are reflective of misreading and non-reading of evidence, that some of the defendants appeared before the learned lower Appellate Court and made conceding statement but the learned lower Appellate Court in spite of their conceding statement dismissed the appeal on erroneous premises of law, that both the Courts below considered the statement of plaintiff/petitioner as PW3 in isolation, that the impugned judgments and decrees passed by both the Courts below are not maintainable and while allowing this civil revision the suit of the petitioner be decreed.
5. Arguments heard and record perused.
6. The petitioner/plaintiff set up his claim on the basis of an oral agreement to sell dated 5.4.2000 and asserted that bargain between the parties had been struck against a consideration of Rs, 555,000/- and the petitioner/plaintiff paid an amount of Rs, 530,000/- out of total consideration to the respondents/defendants and obtained the possession from them. It is to be noted that essential elements regarding the sale transaction have not been explained by the petitioner/plaintiff in his suit. Perusal of plaint shows that the petitioner/plaintiff failed to mention the venue where the bargain between the parties was struck and how much period was fixed for completion of oral agreement to sell is also not reflected in the plaint. The petitioner/plaintiff has based his claim on an oral agreement to sell and although such an oral agreement to sell is permissible in law, but the beneficiary is bound to prove it through strong and credible evidence.
7. Petitioner/plaintiff asserted that out of total consideration of Rs, 555,000/- the major portion of sale consideration amounting to Rs, 530,000/- was paid by him as earnest money to the respondents/defendants, but it is not understandable that as to why the sale-deed was not executed because there was no reason to withhold the same. The petitioner/plaintiff himself appeared as PW3 who deposed in his statement that the disputed oral agreement to sell was arrived at between the parties on 5.4.2004. The contention of the learned counsel for the petitioner/plaintiff that both the Courts below examined the said portion of the statement of PW3 in isolation and petitioner himself again appeared as PW8 and clarified the said date of settlement of agreement to sell is without substance. The said statement of the petitioner as PW3 was recorded on 21.5.2009, but during the pedency of the suit the petitioner did not file any application before the learned Trial Court for correction of said alleged inadvertence. The suit was dismissed vie judgment dated 11.11.2009 and then the case was remanded by the learned lower Appellate Court vide judgment and decree dated 6.5.2010 with specific direction that the petitioner/plaintiff could also produce further evidence regarding the alleged deceased defendants whether they were alive at the time of filing of the instant suit. The plaintiff/petitioner was also allowed to produce any further additional evidence in support of his claim. However, the petitioner/plaintiff was not specifically allowed by the learned Trial Court to get recorded fresh statement before the learned Trial Court, but now statement of petitioner/plaintiff as PW8 even does not disclose that on what date the bargain was struck between the parties. The other contention of the learned counsel for the petitioner that some of the respondents conceded their claim before the learned lower Appellate Court and the learned lower Appellate Court did not consider the said fact is also misconceived.. The learned lower Appellate Court has rightly observed that the said power-of- attorney did not contain thumb impressions of all the executants.
8. Both the Courts below have rightly non-suited the petitioner, who badly failed to prove the alleged oral agreement to sell. The Court is not bound to decree a suit for specific performance even if the agreement is proved, as it is a settled principle of law that relief of specific performance of agreement is discretionary, which can be refused keeping in view the facts and circumstances of the case. The learned counsel for the petitioner is .Unable to point out any illegality or irregularity committed by both the Courts below while passing the impugned judgments and decrees, which are also not found to be tainted with are misreading or non-reading of evidence available on file to warrant interference by this Court in revisional jurisdiction. The instant civil revision being devoid of any force is dismissed in limine.