CH. MUHAMMAD IQBAL, J.----Though this writ petition, the petitioner has challenged the judgment dated 02.03.2009, passed by the learned Civil Judge, Dera Ghazi Khan whereby the application under Section 12(2), C.P.C. filed by the petitioner was dismissed and the order dated 03.07.2009, passed by the learned Additional District Judge, Dera Ghazi Khan who dismissed the revision petition of the petitioner . The petitioner has also challenged the ex-parte judgment and decree dated 18.09.2003, passed by learned Civil Judge, Dera Ghazi Khan whereby the suit for specific performance filed by the respondent No.3 was decreed.
2. Brief facts of the case are that the respondent No.3/Allah Bakhsh filed a suit for specific performance against the petitioner on the basis of a written agreement to sell dated 26.08.1997 in respect of land measuring 06 Kanal 18- 1/2 Marla falling in Khatas Nos.46, 752 of Mouza Gadai Shamali Tehsil and District Dera Ghazi Khan in which the petitioner appeared and filed contesting written statement by contending that he never executed any agreement to sell in favour of the respondent, did not receive any consideration and also conte nded that the suit is hopelessly time. barred. On 02.04.2003 ex-parte proceedings were proceeded against the petitioner by the learned trial Court whereafter evidence of the respondent was recorded and vide judgment and decree dated 18.09.2003, the suit for specific performance filed by the respon dent No.3 was decreed ex-parte. After knowledge, the petitioner filed application under Section 12(2), C.P.C. before the learned Civil Judge, Dera Ghazi Khan on the ground that the respondent/Allah Bakhsh is his stepbrother and he promised that he will withdraw the suit on the basis of a compromise outside the Court but he did not honour his undertaking and obtained ex-parte judgment and decree.
Further alleged that the alleged agreemen t to sell is a forged document and the respondent/plaintif f failed to prove the same. The respondent appeared before the Court and filed reply of the applica tion under Section 12(2), C.P.C.
After framing issues and recording evidence of the parties, vide order dated 02.03.2009, the learned Civil Judge, Dera Ghazi Khan dismissed the petition under Section 12(2), C.P.C. filed by the petitioner . Being aggrieved the petitioner filed a civil revision which was dismissed by the learned Additional District Judge, Dera Ghazi Khan vide judgment dated 03.07.2009. Hence, this writ petition.
3. Learned counsel for the petitioner submits that fraud has been committed by the respondent No.3 with the petitioner; that, firstly the respondent No.3 got incorporated inherited property in his own name and when the petitioner filed a suit for declaration, the respondent got recorded his conceding statement on 06.10.1999 whereafter a mutation No.10622 was sanctioned in favour of the petitioner on 28.03.2001; that thereafter the respondent No.3 prepared a forged agreement to sell dated 26.08.1997 and at that time the petitioner was not owner; that no description of the suit property is mentioned in the agreement to sell; that the respondent did not produce both the marginal witnesses, as such, the judgments of the learned Courts below are patently illegal; that the learned Courts below did not consider the aforementioned facts on the basis of which the respondent No.3 obtained decree by concealment of facts.
4. Learned counsel for the respondent No.3 submits that the petitioner appeared before the learned trial Court, filed written statement and his application under Section 476, Cr.P.C. was dismissed whereafter he deliberately disappeared from the Court and ex-parte judgment and decree was passed; that the petition under Section 12(2), C.P.C. filed by the petitioner was rightly dismissed by the learned Courts below which does not require any interference.
5. Heard.
6. Admittedly , both the parties of the lis are the stepbrothers. Petitioner/Qadir Buksh's father name is Allah Ditta and mother name is Pilli whereas the respondent/Allah Bukhsh's father name is Mehra Khan. Allah Bukhsh etc. firstly committed fraud with present petitioner by incorporating mutation No.9219 dated 05.05.1986, mutation No.3200 deed 27.03.1986 in their names whereas the property was owned by Ms;t. Pilli, mother of petitioner Qadir Bukhsh.
Petitioner challenged the said mutations through suit for declaration titled Qadir Bukhsh v. Allah Bulchsh etc. The petitioner produced comprise deed (Exh.C.1) on which bas is the suit was decreed on 06.10.1999 and on the basis of said judgment and decree, mutation No.10622 of the suit land was entered in favour of Qadir Bukhsh and Bhakko, sister of Qadir Bakshh which was sanctioned on 28.03.2001.
7'. Respondent No.3 secondly committed fraud with the petitioner by preparing an agreement to sell dated 26.08.1997 without any description of the property owned by the present petitioner . It is interesting that on 26.08.1997, the petitioner was not owner of the suit property i.e. land measuring 06 Kanal 18 Marla falling Khata No.46 and Khata No.752 situated in Moza Gadai Shumali Tehsil and District Dera Ghazi Khan. Thirdly , the respondent filed a suit for specific performance on the basis of aforesaid alleged agreement to sell dated 26.08.1997 against the petitioner in which the petitioner appeared but the respond ent promised the petitioner that he will withdraw the said suit upon which the petitioner did not appear before the court and the respondent No.3 succeeded to obtain ex-parte decree in his favour on 18.09.2003.
8. After getting knowledge of the ex-parte judgment and decree, the petitioner filed petition under Section 12(2), C.P.C. and categorically stated that respondent No.3 committed fraud with him. In this regard, the petitioner himself appeared as A.W.1, produced Esa Khan as A.W.2 and also produced docume ntary evidence but the learned Courts below did not appreciate the fraud brought on record by the petitioner and in a hasty and routine manner dismissed the petition under Section 12(2), C.P.C. Admittedly the petitioner is an illiterate person and from the beginning, the respondent being stepbrother of the petitioner , committed fraud with the petitioner . The petitioner has successfully proved the elements of fraud, as such, the orders of the learne d Courts below are illegal and based on misreading and non-reading of evidence as well as record.
9. The petitioner has also challenged the ex-parte judgment and decree dated 18.09.2003, passed by the learned Civil Judge, Dera Ghazi Khan. Both the learned counsel for the parties also rendered arguments in this regard.
10. The respondent filed a suit for specific performance on the basis of a written agreement to sell dated 26.08.1997. Perusal of record shows that agreement to sell (Exh.P .1) does note contain description of the property which is fatal for the case of the respondents. No explicit details of the land are described in agreement whereas essential ingredients of sale are not mentioned in the agreement and without offer, acceptance and without payment of consideration the agreement to sell is not valid instrument in the eyes of law. Reliance is placed upon the case reported as Rehmatullah and others v. Saleh Khan and others (2007 SCMR 729). In a latest judgment cited as Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others (2019 SCMR 524), the Hon'ble Supreme Court of Pakistan has held as under: "13. Perusal of the receipt (Ex.P1) does not indicate any consensus between the owners and the buyers and we are in no manner of doubt that there was no meeting of minds. The receipt is just a receipt showing that an amount of Rs.50,000/- had been paid subject to further steps, the most material of which was execution of a formal agreement containing all essential terms of sale. For a receipt to be termed and treated, as a contract, if on going through the receipt four basic components can be spelt out without ambiguity namely: Identity of seller and purchaser .
The amount of sale consideration.
Identity and accurate description of the property agreed to be sold.
Parties to the agreement to sell an immovable property are at consensus ad idem.
It is clear and obvious to us that the first, third and fourth ingredients were missing from the receipt. As such it was correctly not treated as an agreement. Further , the receipt envisages execution of a property agreement to sell.
Such agreement was never executed, there was never an agreement in existen ce whose specific performance could be sought. In order to succeed in a suit for specific performance of a contract , the plaintiff has to assert that a valid and enforceable contract existed between him and the other side besides specifically and clearly pleading the terms and conditions on the basis of which the contract was executed which he desired to be specifically performed. Where the requisites of a contract are found to be deficient, the plaintiff cannot seek specific performance of a contract. Even otherwise, the decree for specific performance is a discretionary relief which can be refused in case the Court is not satisfied either on the merits or on equities of the case."
11. Even otherwise, under Articles 17 and 79 of Qanun-e-Shahadat Order , 1984 it was bounden duty of respondent No.3 to prove alleged agreement to sell by producing both the marginal witnesses but here in this case admittedly only one marginal witness namely Nawab was produced where other marginal witness of the agreement to sell namely Ammer Bukhsh was not produced in the witness box and no reason has been furnished for his nonappearance which fatal legal flaws frustrate the entire claim of the respondent, as such, respondent No.3/plaintif f miserably failed to prove the agreement to sell as per law. Reliance is placed on the cases titled as Hafiz Tassaduq Hussain v. Muhammad Din through legal heirs and others (PLD 2011 SC 241), Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 SC 187) and Farid Bakhsh v. Jind Wadda and others (2015 SCMR 1044 ).
12. The respondent filed suit on the basis of agreement to sell dated 26.08.1997 whereas at that time, the petitioner was not owner of the suit land then how can he make an agreement to sell of the same in favour of respondent No.3 and the suit land was already in the name of the respondent No.3 . Neither at the time of execution of alleged agreement to sell nor at the time of filing of the suit, the petitioner was owner of, the suit land, as such, classic fraud has been committed by the respondent No.3 with the. petitioner .
13. The respondent No.3 has alleged that the agreement to sell was executed on 26.08.1997 but he filed suit on 07.07.2001 after lapse of 4 years whereas under Article 113 of the Limitation Act, 1908, the prescribed period of limitation to file a suit of specific performance of an agreement to sell is three years, as such, suit is barred by limitation. The Hon'ble Supreme Court in a case reported as Muhammad Khan v. Muhammad Amin through LRs and others (2008 SCMR 913) has held that if from the bare reading of the plaint, the suit is beyond the prescribed period of limitation under Article 113 of the Limitation Act, in such circumstances there is no need to frame any issue of limitation and record any evidence and same is liable to be dismissed on this alone. Reliance is also placed on the case reported as Muhammad Rafique v . Muhammad Iqbal and another (2007 SCMR 863 ) and M. Hannan and 2 others v . Dr. Anwarul Hassan and another (2002 SCMR 361 ).
14. From the above, it is established that the learned Courts below by committing misreading and non-reading of record as well as misapplication of law, passed the impugned orders as well as judgment and decree which are not sustainable in the eyes of law. Reliance is placed on the case of Nazim-ud-Din and others v. Sheikh Zia-Ul- Qamar and others (2016 SCMR 24 ).
15. In view of above, this writ petition is allowed, the order dated 02.03.2009, passed by the learned Civil Judge, Dera Ghazi Khan, order dated 03.07.2009, passed by the learned Additional District Judge, Dera Ghazi Khan are set aside, petition under Section 12(2), C.P.C. filed by the petitioner is accepted; resultantly , the ex-parte judgment and decree dated 18.09.2003, passed by the learned Civil Judge, Dera Ghazi Khan is also set aside and suit for specific performance filed by the respondent No.3 is hereby dismissed. No order as to costs.