SHAHID BILAL HASSAN-J: Succinctly, the respondents instituted a suit for specific performance of agreement to sell with the assertion that a patch of land measuring 17-Kanlas 16- Marlas was owned by Ahmad son of Mehr Chawa. The said Ahmad agreed to sell the said land to Haji Saeed Ahmad for a consideration of Rs.50,000/- vide disputed agreement to sell dated 14.12.1987, the reason behind this sale was alleged that Ahmad son of Chawa deceased instituted a suit for possession through pre-emption against Sarang son of Hamayon and Mst. Ghulam Fatima daughter of Ghulam Muhammad, which suit was decreed in his favour vide judgment and decree dated 12.11.1987 and he (Ahmad) had to deposit the sale price of the pre-empted land in the Court.
He was in need of Rs.50,000/- so as to deposit in Court, therefore, he agreed to sell the suit land to Haji Saeed, deceased respondent No.1/plaintiff vide disputed agreement to sell and received the entire sale consideration. As per averments of the plaint, there were stipulations mentioned in the disputed agreement to sell that after final decision of the said pre-emption suit, the predecessor of present petitioners had to transfer the suit land in favour of predecessor in interest of the respondents and in case of filing of appeal, he was bound to transfer the said land within one year after decision of final appeal. It was further averred that initially the judgment debtor of the said decree filed an application for setting aside the said ex parte decree but the same was dismissed vide order dated 26.02.1989. The petitioner(s) entered appearance and contested the suit by filing written statement. The divergence in pleadings of the parties was summed up into following issues:-
1. Whether Iqrarnama dated 14.12.1987 was genuinely executed and if the same was enforceable at law against the defendant: OPP
2. Whether the plaintiff has no cause of action and locus standi? OPD
3. Whether the suit is false and vexatious? OPD
4. Whether the suit has been undervalued for the purposes of court fee and jurisdiction, if so what would be the correct valuation? OPD
5. Whether the suit is within time? OPP
6. Relief.
Both the parties adduced their oral as well as documentary evidence in support of their respective contentions. At the end of trial, the learned trial Court decreed the suit in favour of the respondent(s) on 14.02.1994 and appeal preferred by the deceased petitioner Ahmad was dismissed on 30.11.996, who filed revision petition bearing No.652 of 1997 before this Court which was accepted on 06.03.2007 and while setting aside the judgments and decrees, the case was remitted to the learned trial Court with direction to grant permission to both the parties to produce further evidence in support of their pleadings and decide the case afresh on the basis of evidence already available on record and further to be produced by the parties. After remand, further evidence of the parties was recorded and on conclusion of trial, the learned trial Court decreed the suit of the respondent(s) vide impugned judgment and decree dated 30.11.2010. The petitioner(s) being aggrieved preferred an appeal against the same but it was dismissed vide impugned judgment and decree dated 16.09.2014 by the learned appellate Court; hence, the instant revision petition.
2. Learned counsel for the petitioners has argued that the impugned judgments and decrees are against law and facts of the case; that there are many discrepancies and contradictions in the depositions of the witnesses examined by the respondents, who have miserably failed to prove the genuineness of the disputed agreement to sell but the learned Courts below have ignored the same, thus, have committed misreading and non-reading of evidence while passing the impugned judgments and decrees; that the petitioners have successfully proved that the predecessor in interest of the respondents in fact paid a loan amount to the predecessor in interest of the petitioners after receiving gold ornaments from him as security but the learned Courts below have failed to appreciate the same and illegally passed the impugned judgments and decrees; that material illegalities and irregularities have been committed by the learned Courts below while has resulted in miscarriage of justice; therefore, by allowing the revision petition in hand, the impugned judgments and decrees may be set aside, consequent whereof the suit of the respondents may be dismissed throughout with costs.
3. Naysaying the above submissions, the learned counsel appearing on behalf of the respondents while supporting the impugned judgments and decrees has prayed for dismissal of the revision petition in hand.
4. Heard.
5. It is notable fact that the deceased respondent Haji Saeed Ahmad could not plead as to when, where and at what place the alleged agreement to sell was reached at and only pleaded that the deceased petitioner Ahmad entered into agreement to sell Ex.P1 with him on 14.12.1987, without mentioning the names of the witnesses, in whose presence the parties bargained and agreed to enter into the transaction in dispute, which otherwise was necessary and sine qua non to be pleaded and proved; however, in the instant case, as observed above, neither the said factum has been pleaded nor the same has been deposed or proved by the deceased respondent Haji Saeed Ahmad while appearing in the witness box rather he as P.W.6 deposed that he bargained about the disputed property with the defendant (deceased petitioner) against consideration of Rs.50,000/- (without disclosing the detail and measurement of the property in question). Moreover, the agreement to sell in question is a contingent agreement, which has been defined under section 31 of the Contract Act, 1872, as under:- A contingent contract is a contract to do or no to do something, of some event, collateral to such contract, does or does not happen.
It was purportedly agreed between the deceased petitioner Ahmad and deceased respondent Haji Saeed Ahmad that on passing of decree in suit for possession through pre-emption the disputed land measuring 17-Kanals 16-Marlas out of the total land would be transferred in favour of Haji Saeed Ahmad, meaning thereby if the decree was passed the agreement to sell would be executed further otherwise not. In the present case, document Ex.P5 (judgment dated 23.10.1989 passed by the learned appellate Court), which has obviously been brought on record by exhibiting the same on behalf of the respondent(s), divulges that the learned appellate Court while hearing appeal against order dated 26.02.1989 whereby the learned trial Court dismissed the application of Sarang, etc. for setting aside ex parte decree dated 12.11.1987, decided the appeal as such that:- ......... Without adverting to the merits of the application, I have noticed that the ex parte decree was passed in favour of the pre-emptor on the basis of collateral-ship only and after the crucial date i.e. 31.07.1986, the respondent/pre-emptor does not possess any other superior pre-emptive right. I must say that collateral-ship was not a superior pre-emptive right on 12-11-1987, when the respondent succeeded to obtain the decree. I feel no hesitation in concluding that the said decree is nullity in the eye of law and it should have been ignored by the learned Trial Court while dealing with the application of the appellants/defendants. Learned counsel for the respondent has argued that merits of the case cannot be looked into while deciding an application under Order 9 Rule 13 CPC. I am not in agreement with the learned counsel for the respondent because merits of the case are always very which material while deciding such application. I am supported in my view by the case law laid down in Assistant Controller and two others v. Muhammad Iqbal (1989 CLC 398) where dealing with the similar situation, the Honourable Sindh High Court observed as under: "On my observation that even an ex parte suit, it is the duty of the Court to examine the question, where the relief prayed for, can be granted on the basis of the material available on record."
3. Seeking guidance from case law referred to above, I accept this appeal, set aside the impugned order and dismiss the pre-emption suit of the respondent, with no order as to costs.
Meaning thereby the said ex parte decree dated 12.11.1987 did not remain in field any more, as the said judgment and decree dated 23.10.1989 was not further challenged and if the same would have been assailed further the respondents should have brought on record the subsequent proceedings and orders but nothing as such has been brought on record; therefore, when the very basis of the purported agreement to sell did not remain in field, the contingent agreement Ex.P1 loses its value and cannot be enforced. Even otherwise, there are material contradictions in depositions of the deceased respondent Haji Saeed Ahmad (P.W.6) and alleged marginal witnesses (P.W.4) and (P.W.5) regarding their presence at the time of execution of purported agreement to sell (Ex.P1) because P.W.5 deposed that he did not accompany at the time when the stamp paper was reduced into writing and this witness at the end of cross examination stated that he pasted his thumb mark while visiting deed writer at Tehsil. Therefore, such a self-contradictory statement cannot be believed because on the one hand this witness deposed that he did not accompany when the stamp paper was reduced into writing and on the other hand states that he thumb marked while visiting deed writer at Tehsil, which shows that he did not know the contents of the document which was allegedly thumb marked by him. Mere exhibition of the document is not sufficient rather the contents of the same are to be proved, however, in the instant case, none of the P.W. deposed about the contents of the document i.e. purported agreement to sell Ex.P1.
6. In addition to the above, the pivotal document Ex.P1 shows that the same has been written twice with different inks as in opening part, the writing is with 'light ink' while after fourth line the writing has been made with 'strong ink' and date of writing of the said document after word 'Al-marqoom Morkha' is left blank. Moreover, at the back of the said stamp paper, there has been found no signature or thumb mark of its purchaser i.e. Mehar Ahmad and P.W.2, the stamp vendor, during cross examination deposed that he did not know Ahmad personally and issued the stamp paper after seeing the identity card. Depositions of P.W.7, P.W.8 and P.W.9 are based on hearsay, so the same have no value in the eye of law and cannot be relied upon.
7. All these facts and aspects have not been considered and pondered upon by the learned Courts below while passing the impugned judgments and decrees, which otherwise ought to have been dilated upon and responded to by the learned Courts below. Had the learned Courts below considered each and every aspect of the case as well as examined the documents especially the document Ex.P5, the result would have been different.
8. Pursuant to the above, it is observed that the learned Courts below have failed to adjudicate upon the matter in hand by appreciating evidence of the parties and law on the subject; therefore, the Courts below have misread evidence of the parties and when the position is as such, this Court is vested with authority and ample power to undo the concurrent findings while exercising revisional jurisdiction under section 115, Code of Civil Procedure, 1908, as has been held in Nazim- Ud-Din and others v. Sheikh Zia-Ul-Qamar and others (2016 SCMR 24), Sultan Muhammad and another v. Muhammad Qasim and others (2010 SCMR 1630), Ghulam Muhammad and 3 others v.
Ghulam Ali (2004 SCMR 1001) and Habib Khan and others v. Mst. Bakhtmina and others (2004 SCMR 1668).
9. The crux of the discussion above is that the revision petition in hand succeeds and the same is allowed, impugned judgments and decrees are set aside, consequent whereof the suit instituted by the respondent(s) stands dismissed. No order as to the costs.