SHAMSUDDIN ABBASI, J. This IInd Appeal filed under Section 100 of the Code of Civil Procedure, 1908, arises from the concurrent findings of the two Courts below, whereby the plaint of appellant's (plaintiff's) suit was rejected under Order VII Rule 11(a) and (b), C.P.C. and the appeal preferred against such rejection met the same fate.
2. Suit No.790 of 2017 was filed by appellant (plaintiff) against Respondents Nos. 1 to 3 (defendants) seeking specific performance and permanent injunction, based on an oral agreement to sell, alleged to be made in the month of April, 2016 through whatsapp messages and emails, in respect of Plot No.C-18, measuring 600 square yards, situated at Suparco Employees Cooperative Housing Society Ltd., Karachi (hereinafter referred to as the "suit plot"), for a total sale consideration of Rs.55,00,000/-, out of which the appellant (plaintiff) paid Rs.24,000/- towards outstanding dues to the Society on the requests of the respondent No.2 whereas the sale consideration was agreed to be paid upon completion of process of transfer (mutation) in the record of respondent No.3 on arrival of Respondents Nos. 1 and 2 in Pakistan. The conversation between the parties continued through whatsapp messages and emails till 21.09.2016 when appellant (plaintiff) came to know from respondent No.2 that respondent No.1 has entered into a deal for sale of suit plot with someone else, hence through legal notice dated 27.09.2016 he informed the respondent No.3 about sale transaction and requested him not to transfer the suit plot to anyone else and also served legal notices to the Respondents Nos. 1 and 2 calling upon them to perform their part of contract and he (appellant) is ready and willing to pay the entire sale consideration of the suit plot, but instead of performing their part of contract they continued contacting other buyers, thereby committed willful violation of the contractual obligation, hence the appellant (plaintiff) filed suit and prayed for following relief(s):- "(a) Judgment/Decree for specific performance of agreement in respect of Plot No. C-18, measuring 600 square yards, situated Suparco Cooperative Housing Society Ltd Gulzare-Hijri, Karachi, by directing the defendant No.1 to transfer the said plot in the name of plaintiff or his nominee in the record of defendant No.3.
Or On refusal of defendant No.1, the Nazir of this Honorable Court may be directed to transfer the said property bearing Plot No. C-18, measuring 600 square yards situated Suparco Cooperative Housing Society Ltd, Gulzar-e-Hijri, Karachi, in favour of plaintiff or his nominee.
(b) To grant permanent injunction in favour of plaintiff 'and against the defendants thereby all the defendants may kindly be restrained from alienating, mortgaging, selling, letting or create any third party interest in respect of Plot No. C-18, measuring 600 square yards situated Suparco Cooperative Housing Society Ltd, Gulzar-e-Hijri, Karachi.
(c) Cost of the suit is awarded.
(d) Any other relief(s) this Honorable Court may deem fit and proper in the circumstances of the case".
3. Respondent No.1 appeared and filed his written statement coupled with an application under Order VII Rule 11, C.P.C., mainly agitating that there was no contract for sale of suit plot either in writing or verbal between the parties and no amount was paid as token money and he never agreed to sell suit plot to the appellant either through whatsapp or emails and that he is sole owner of the suit plot and never authorized or nominate his son (Respondent No.2) to enter into a deal with anyone for sale of said plot and the claim of the appellant is barred by Section 25 of the Contract Act and 28 of the Specific Relief Act.
4. The learned trial Court after hearing the parties respective counsel while allowing the application under Order VII Rule 11, C.P.C. rejected the plaint of suit vide order dated 02.03.2022, penned down by the learned Senior Civil Judge-I, Malir, Karachi. Against the order of rejection of plaint, the appellant filed appeal, which was dismissed vide judgment dated 30.03.2023, handed down by the learned Additional District Judge-VIII, Malir, Karachi, in Civil Appeal No.40 of 2022 and aggrieved by the order passed by the learned trial Court and judgment delivered by learned First Appellate Court, the appellant has preferred this IInd Appeal and prayed for following relief(s):- "(i) Set aside the impugned judgment dated 30.03.2023 and impugned decree dated 30.03.2023 passed in Civil Appeal No.40 of 2022 by the learned Additional Sessions Judge-VIII, Malir, Karachi and the impugned order dated 02.03.2022 passed in Civil Suit No. 790 of 2017 by the 1st Senior Civil Judge Karachi, Malir.
(ii) Suspend the impugned judgment dated 30.03.2022 and impugned decree dated 30.03.2022 passed in Civil Appeal No.40 of 2022 by the learned Additional Sessions Judge-VIII, Malir, Karachi, and the impugned order dated 02.03.2022 passed in Civil. Suit No. 790 of 2017 by the 1st Senior Civil Judge Karachi Malir and to restrain the respondents from creating any third party interest in Plot No. C-19, measuring 600 square yards, situated in Suparco Co-operative Housing Society.
(iii) Grant such further, additional or alternative relief as this Honourable Court may deem fit and proper.
(iv) Graciously grant the costs of the present proceeding.
5. It is contended on behalf of the appellant that the impugned order/judgment of the two Court below are bad in law and facts, hence liable to be set-aside. It is next submitted that plaint discloses multiple prayers which cannot be out rightly rejected without recording of evidence. It is also submitted that the matter should be decided on merits and not on technicalities. Per learned counsel, the Judges of learned trial Court as well as the learned First Appellate Court failed to appreciate the contents of the plaint as well as whatsapp messages and emails which clearly prove that there was an oral agreement to sell and by their order/judgment they have extended undue favour to the Respondents Nos. 1 and 2 without application of a judicial mind and ignoring the neutral appreciation of whole record, hence both order/judgment suffer from illegality and material irregularity and liable to be set-aside Lastly submitted that the appellant has a good prima facie case in his favour and there is every likelihood of his success if the matter is remanded back to the learned trial Court with direction to record evidence and decide the matter on merits and prayed accordingly. In support of his submissions, he has placed reliance on the cases of Sadaruddin v. Sultan Khan and others (2021 SCMR 642), Muhammad Nawaz v Haji Muhammad Baran Khan (2013 SCMR 1300), Aroma Travel Services (Pvt.) Ltd. v. Faisal A; Abdullah Al Faisal Al- Saud (PLD 2018 Sindh 414) and Ali Muhammad Khan v Riazuddin Khera (PLD 1981 Karachi 170).
6. On the other hand, the learned counsel for the Respondents Nos. 1 and 2 while controverting the submissions of learned counsel for the appellant has submitted that the suit for specific performance without an agreement was barred by the provisions of Contract Act as well as Specific Relief Act and no cause of action accrued to the appellant to file the suit. It is next submitted that the findings recorded by the learned trial Cowt are upheld by the learned First Appellate Court, which are outcome of fair evaluation of record and relevant law, hence call for no interference by this Court. He has placed reliance on the cases of Muhammad Yasin v.
Muhammad Ismail and others (2024 CLC 922), Messrs Haider Builders and Developers v.
Pakistan Kumar and 2 others (2024 CLC 672), Pakistan Agricultural Storage and Services Corporation Ltd. v. Mian Abdul Latif and others (PLD 2008 SC 371), Muhammad Ajmal v. Abdul Khaliq and others (2023 MLD 654), Muhammad Nawaz v. Haji Muhammad Baran Khan (2013 SCMR 1300), Inayatullah Khan and others v. Shabir Ahmad Khan (2021 SCMR 686) and Rao Abdul Rehman v. Muhammad Afzal (2023 SCMR 815).
7. I have heard the learned counsel for both the sides, given my anxious consideration to their submissions and have also scanned the entire record carefully with their able assistance.
8. What emerges from the record is that the plaint of suit of the appellant seeking specific performance and permanent injunction was rejected under the provision of Order VII Rule 11, C.P.C.
Impugning rejection order, the appellant preferred appeal, which was dismissed by learned First Appellate Court vide judgment dated 30.03.2023. Relevant except of the said judgment is reproduced below:- "14. Perusal of the contents of the plaint reveals that plaintiff/appellant did not mention date and time, place of striking of the alleged oral agreement between him and the owner/respondent No.01. Even he (plaintiff/appellant did not state names of the witnesses of the alleged oral agreement which is mandatory requirement for maintaining suit for specific' performance and contract on the basis of oral agreement to sell. By now it is well settled law that oral agreement is to be pleaded in the suit with full and minute details by mentioning for specific date, time and place of agreement and earnest money, paid under the said oral agreement. In this regard I may refer case of Tufail Muhammad v. Nazar Hussain and others (2022 MLD 1745).
15. 1t is settled principle of law that a party has to first plead facts and pleas in pleadings and then to prove the same through evidence. A party cannot be allowed under the law to improve its case beyond what was originally set up in pleadings. The principle of "secundum allegata et probate" that a fact has to be alleged by a party before it is allowed to be proved is fully attracted in this case, which has full backing of provisions of Order VI, rule 2 and order VIII, rule 2, Code of Civil Procedure, 1908. In the present case the appellant/plaintiff did not mention date, time, place and names of the witnesses of the alleged oral agreement to sell in whose presence the alleged oral transaction took place. The witnesses produced by plaintiff in evidence would be nothing but an improvement, as any evidence led by a party beyond the pleadings is liable to be ignored.
Reliance is placed on judgments reported as Muhammad Wali Khan and others v. Gul Sarwar and others (PLD 2010 SC 965) and Haider Ali Bhimji v. Vlth Additional District Judge, Karachi (South) and another (2012 SCMR 254). The appellant filed the suit without mentioning material facts which was mandatory requirements of Order VI rule 2 C.P. C. All the prayers are not maintainable. The facts of the case laws relied upon by the learned counsel for the appellant is quite distinguishable from the facts of the case at hand therefore, the case law cited 'above are of no help for the appellant.
16. In my humble view the suit was incompetent, causeless and not maintainable. Learned trial Court has attended each and every aspect of the case and the order of rejection of plaint is speaking one. The impugned order requires no interference. Therefore, the point is accordingly replied in negative".
9. Admittedly, no agreement is reduced in writing and the entire case of the appellant revolves around an oral agreement to sell and that too through whatsapp messages and emails with Respondent No. 2, who is not actual owner of the suit plot. In terms of Article 117 of Qanun-e- Shahadat Order, 1984, the burden to prove an agreement either in writing or verbal rests on the party who claimed the same and not on the opposite party. Since the Respondent No.1 (defendant) has denied the existence of relationship of seller and purchaser, therefore, Article 78 of the Qanun- e-Shahadat Order, 1984 requires the appellant (plaintiff) to prove the execution of oral agreement as mandated by Article 79 of the Qanun-e-Shahadat Order, 1984, which provides that in order to prove an instrument which by law is required to be attested, it has to be proved by two witnesses.
In the case in hand, the Respondent No.1 (defendant No.1) is the sole and absolute owner of the suit plot and the appellant has failed to place on record any evidence that he (Respondent No.1) ever intended or entered into any sale transaction in respect of the suit plot with the appellant either through whatsapp messages or emails. The entire record of conversations through whatsapp messages and emails, brought on record, is between appellant and Asad Hussain (son of the Respondent No.1) who is not competent to enter into a sale transaction with the appellant more particularly when the Respondent No.1 in his written statement has specifically stated that he never authorized his son (Asad Hussain) to fetch a buyer or enter into an agreement to sell in respect of the suit plot on his behalf. Even otherwise, if it is taken as true that there was an oral transaction for sale of suit plot, then also the appellant has failed to place on record any evidence as to oral transaction between him and the respondent No.1, the actual owner of the suit plot. In cases where sale is pleaded through oral agreement then the terms and conditions which were orally agreed are to be stated in detail in the pleadings. In such like cases, a party beside detailing subject matter of the sale and consideration is also required to provide other necessary details such as striking of the bargain, names of the witnesses in whose presence the said oral transaction for sale was arrived at, which are the essential requirement for proving an oral agreement to sell.
Admittedly, not a single penny has been paid by appellant towards sale consideration and an amount of Rs.24,000/-, alleged to have been paid by the appellant, as per his own pleadings were paid to the Society towards dues and not as part of sale consideration. I am, thus, of the view that the appellant has failed to make out a case for specific performance on the basis of an agreement to sell. Reliance in this behalf may well be made to the case of Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others (2019 SCMR 524) and Muhammad Nawaz through L.Rs v. Haji Muhammad Baran Khan through L.Rs (2013 SCMR 1300).
10. Admittedly, there are concurrent findings on the issue of fact against appellant. The two Courts below have concurrently refused to exercise their discretion in favour of the appellant. The impugned order/judgment passed by the learned two Courts below are well reasoned and in accordance with law, therefore, there is no reason to interfere in the concurrent findings of two Courts below, which are outcome a proper application of judicial mind to the facts and circumstances of the case, hence call for no interference. The Hon'ble Supreme Court in case of Naseer Ahmed Siddique through legal heirs v. Aftab Alam and another (PLD 2011 SC 323) held as under:- "Where trial Court has, exercised its discretion in one way and that discretion has been Judicially exercised on sound principles and the decree is affirmed by the appellate Court, the High Court in second appeal will not interfere with that discretion, unless same is contrary to law or usage having the force of law."
Likewise in the case of Keramat Ali and another v. Muhammad Yunus Haji and others (PLD 1963 SC 191), it has been held as under:- "The High Court in second appeal has no jurisdiction to go into the question relating to the weight to be attracted to a particular item of evidence."
Similarly, in the case of Muhammad Iqbal and another v. Mukhtar Ahmad through L.Rs (2008 SCMR 855) it has been held that:- "when the two Courts below came to the conclusion that they arrived at and rightly so. This perfectly sound conclusion should not have been interfered with by the High Court in the exercise of its second appellate jurisdiction."
11. For the foregoing reasons and relying an the dictum laid down by the Hon'ble apex Court in the cases (supra), I am of the considered view that the learned Judges of the First Appellate Court as well as the trial Court have correctly rejected the plaint of appellant's suit under Order VII Rule 11, C.P.C. as the appellant failed to establish his claim of specific performance, based on an oral agreement to sell, alleged to be made through whatsapp and emails or that Respondent No.1 ever agreed to sell his plot to the appellant. The impugned order/judgment passed by the learned two Courts below are based on proper application of judicial mind to the facts and circumstances of the case and applicable law, therefore, there is no reason to interfere in the concurrent findings of facts. In view thereof, the findings recorded by the learned two Courts below are upheld.
Resultantly, the instant IInd Appeal No.99 of 2023 is bereft of merit stands dismissed along with all pending applications, however, with no order as to costs.