1. MUHAMMAD SHAFI SIDDIQUI, J. This IInd appeal is against the concurrent findings of two courts below. The suit for declaration, specific performance, possession, mesne profits, damages/compensation was filed which was decreed by the trial court and the decree was maintained by the 1st appellate court. Being aggrieved, the appellants herein filed this IInd appeal on a number of grounds such as [i].J. there was no relief/prayer for specific performance in the main suit and [ii]. there was no relief/prayer for possession in the main suit.
2. After filing of written statement, the appellants being LRs of original defendant remained indolent as they never appeared for cross-examination or in the witness box for their own evidence during pendency of the trial perhaps after death of their father/defendant.
3. Heard learned counsel for the parties and perused the record.
4. From perusal of record, it appeared that the trial court on 23.11.2017, framed the following issues:-
(i) Whether suit of the plaintiff is not maintainable?
(ii) Whether the plaintiff after purchasing the suit property bearing No:R-531, Sector 2-B, situated at Jacob Lines, Madina Road, Karachi, resold the same to the son of defendant namely Asif?
(iii) Whether defendant has failed to perform his part of contract?
(iv) Whether plaintiff is entitled for possession of the suit property?
(v) Whether the plaintiff is entitled for any relief as claimed?
(vi) What should the decree be?
5. While framing the issues, the pleadings of the parties were considered and perhaps the trial court was then of the view that the plaintiff was also entitled for the relief of possession of the suit property and consequently, such issue was framed. Before the trial court, the appellants never objected to the framing of such issues and consequently, the evidence was recorded on these framed issues. The suit of the respondent was then decreed not as prayed but in the terms as incorporated in the second page of the decree dated 22.4.2019 [page 63]. The terms of the decree are as under:--. i. The plaintiff Mst. Zohra is declared as owner of the suit property viz House No. 531, Sector 2/B, situated at Jacob Line, Madina Road, Karachi. ii. She is directed to deposit the remaining sale consideration of Rs. 8,00,000/- with the Nazir of this judicial district within a period of one month from the date of this judgment. iii. The defendant(s) are directed to hand over vacant physical possession of the suit property to the plaintiff within a period of two months from the date of this judgment. iv. The defendant(s) are also directed to pay an amount of Rs. 20,000/- with 6% annual increase to the plaintiff as costs of successful litigation.
6. In terms of clause 'iii' of the decree, the appellants were directed to hand over vacant physical possession of the property to the plaintiff within a period of two months since sale deed had already been executed. Aggrieved of such decree, the appellants filed 1st Appeal No.168 of 2019. Memo of appeal is at page 269. The appellants did not challenge the wisdom of the trial court which 'framed the issue of handing over possession. None of the grounds was raised in this regard by the appellants before the 1st appellate court that such issue should not have been framed, hence, it was neither challenged before the trial court nor before the 1st appellate court that the issue of possession was unnecessarily framed. It is not even challenged by the learned counsel for the appellants in this llnd appeal and only oral submissions were made to this extent that since it is a legal issue, he may be permitted to argue.
7. Undoubtedly, the questions which are purely legal in nature can be raised at any proper forum, however, this issue of possession is the bone of contentions between the parties as the sale deed has already been executed and only an amount of Rs.0.8 million out of sale consideration was outstanding [deposited in court], for which perhaps the possession was not delivered. Pleadings of parties in fact suggest the contested points between the parties and prayer if left out could be considered by the trial court and appellate court.
8. I have also perused prayer clauses and perhaps prayer clause [f] has given liberty to the trial court that it may include any relief which may deem fit in the circumstances of the case. In order to discharge complete justice, the trial court had not only provided opportunity to the parties and framed the issue but also delivered a comprehensive judgment which judgment has been maintained by the 1st appellate court. These objections of the appellants should have been taken either at the stage when the issue was framed or before the 1st appellate court where grounds were raised. Even in this Ilnd appeal no such challenge to the framing of such issue was raised. Therefore, this point is not open for any consideration as far as this IInd appeal is concerned, which is a third tier of litigation.
9. Learned counsel for the appellants cited judgment of Ahmad Din v. Muhammad Shafi and others [PLD 1971 SC 762] where the Hon'ble Supreme Court was of the view that in such cases court should allow the plaintiff to amend the plaint by adding prayer for possession. Facts of the cited case are totally different. Relevant point is as under: The contention of the learned counsel for the appellant that the suit could not fail merely by reason of the fact that the consequential relief by way of possession had not been claimed is not altogether without substance. If his suit was otherwise maintainable and he was otherwise entitled to the relief it was open to the Courts to allow him to amend the plaint by adding a prayer for possession and paying the appropriate ad valorem court-fees and then to grant him relief even though he had not specifically asked for it."...
10. The case cited by learned counsel for the appellants is apparently distinguishable on the count that in this case before recording of evidence an issue of possession was framed and no objection was raised at the relevant time even the memo of appeal of 1st and IInd appellate court were silent as far as objection of framing of issue of possession is concerned. Framing of issue amounts to providing an opportunity to the parties. The relief is not only the one which is raised in the prayer clauses but at times relief that flows from the pleading of the parties may also be taken into consideration in order to discharge complete justice. In substance as the title of the suit suggests, it is for performance of the agreement and if it is the necessity that possession was supposed to be handed over in performance of the agreement, then the two courts below had applied their judicious minds and discharged complete justice.
11. In my opinion since cognizance was taken by the trail court at the relevant time and issue was framed therefore, the concurrent findings of two courts below on facts and procedural law cannot be disturbed. The appellants never seriously contested the suit, no evidence in rebuttal was recorded. Even no evidence for re-sale was recorded. I am therefore, of the view that this appeal merits no consideration and hence dismissed.
12. At the conclusion of this dictation in court, Mr. Naveed Ahmed Khan, learned counsel for the appellants submitted that since now there are findings of three courts against the appellants, the appellants may be given reasonable time to vacate the premises.
13. In view of the facts and circumstance of the case and at the request of learned counsel for the appellants I deem it proper to grant three [03] months' time to vacate the premises. In case of failure to hand over possession of the premises by 30th July, 2021, writ of possession shall be issued without notice with police aid.
14. The appeal stands dismissed along with pending applications in the above terms.