' AMIN-UD-DIN KHAN, J.---Through this civil revision, petitioners-plaintiffs have challenged the judgment and decree dated 27.03.2008 passed by learned Addl: District Judge, Bhakkar, whereby the appeal filed by the Province of Punjab was accepted, by way of which, judgment and decree dated 29.07.2006 passed by learned Senior Civil Judge, Bhakkar, decreeing the suit for specific performance filed by the petitioners, were set aside.
2. Briefly, the facts as leading to this civil revision are that the petitioners-plaintiffs on 17.06.2000 filed a suit for specific performance on the basis of an agreement to sell dated 24.10.1968 with regard to the suit property, which was subject matter of tube well sinking scheme and as yet the proprietary rights were not conferred upon defendants Nos.2 to 13, therefore Province of Punjab was also impleaded as party. The defendants Nos.1 to 4 and 7 filed written statement and evasive denial was pleaded. Learned trial court framed issues and invited the parties to produce their respective evidence. After the close of trial, vide judgment and decree dated 29.07.2006 suit was decree by learned trial court to the extent of 5/6 share in term of sale agreement dated 24.10.1968.
' Astonishingly, the private defendants opted not to file the appeal. The Province of Punjab preferred an appeal before the learned first appellate court, which was accepted vide judgment and decree dated 27.03.2008. While amending issue No.1 and framing additional issues Nos.1-B to 1-I the case was remanded to the trial court with the direction to decide the same afresh after recording the evidence of parties regarding the additional issues. Hence, this civil revision.
3. Learned counsel for the petitioners-plaintiffs argues that the Province of Punjab was a formal party, as the plaintiffs have come to the court for implementation of a contract between the private parties and Province of Punjab was made party because the proprietary rights were not conferred upon the private defendants and further learned trial court has granted a decree in terms of agreement to sell in favour of plaintiffs by the private defendants dated 24.10.1968; that as the private defendants have not challenged the judgment and decree passed by learned trial court and the Province of Punjab was having absolutely no right to challenge the judgment and decree passed by learned trial court; that the remand order passed by learned first appellate court is absolutely against the law. Learned counsel while relying upon "PLD 1975 Lahore 1170 (Hakim Khan v. Aurangzeb and another) and 2004 SCM R 1798 (Qazi Shamsur Rehman and another v. Mst.
Chaman Dasta and others)" states that the defect of endorsement on the documents by the trial court is a procedural defect, which is curable.
4. On the other hand, learned Assistant Advocate General has supported the findings recorded by learned first appellate court and prays for dismissal of this civil revision.
5. I have heard the learned counsel for the petitioners and learned A.A.G. At full length and also gone through the record with their able assistance.
6. The private defendants/respondents have opted not to contest this civil revision and they have been proceeded against ex-parte. Only the Province of Punjab is defending this revision petition.
The agreement was between private parties. The province of Punjab was not party to that agreement, therefore the plaintiffs at the most could ask for the performance of agreement against the private parties. They cannot ask for implementation of the contract against the province of Punjab and even the learned trial court has granted decree in terms of agreement to sell. Meaning thereby the private defendants cannot be asked to pass a better title than they themselves have. Even otherwise, a decree for specific performance just declares the maturity of a contract between the parties. The rights in the property are created by execution of that decree.
Through a decree in question passed by learned trial court, the rights in the property in favour of plaintiffs against the private defendants/respondents have been declared, therefore province of Punjab was not an aggrieved party. If the province of Punjab has any grievance against the execution of that decree, that can be agitated by the province of Punjab at the time of execution of decree. As I am clear in my mind that the province of Punjab was having absolutely no right to file an appeal, therefore after setting aside the remand order asking the first appellate court to decide the appeal on merits will not serve any useful purpose. As such, in the peculiar circumstances of this case, I am of the view that the remand order passed by learned first appellate court is absolutely un-necessary and not required under the law. As I am of the opinion that the province of Punjab was not aggrieved party by the judgment and decree and no independent executable decree has been passed in favour of the plaintiffs and against the province of Punjab, therefore the appeal filed by the province of Punjab was not competent.
7. With regard to the reliance made by learned counsel for the petitioners-plaintiffs, I agree that the procedural defects by the court cannot affect the rights of a party and procedural defects are curable, which do not come to the roots, of a case.
8. For the foregoing reasons, this civil revision is allowed and the impugned judgment/remand order passed by learned first appellate court is set aside and that of learned trial court are upheld.