' SAAD SAOOD JAN, J.-This regular first appeal is by the defendants from the judgment and decree, dated 10th April, 1978 of Civil Judge 1st ,Class, Lahore whereby the suit of respondent No, 1 for the specific performance of an agreement to sell a plot of land was decreed.
2. On 19th July, 1961 appellants Nos. 1 and 2 together with the predecessor-in-interest of appellants No, 3, (i), (iii), (iv) and (v), hereinafter called the appellants, entered into an agreement to sell a plot of land measuring 2 kanals, on Egerton Road, Lahore. The said plot was formerly evacuee property and had been provisionally transferred to the appellants. The sale price was fixed at Rs, 54,550. The appellants received Rs, 15,000 by way of earnest money at the time of the execution of the agreement. The remaining part of the sale price was to be paid within 30 days of the appellants receiving the permanent transfer deed from the settlement department. The appellants did not obtain the permanent transfer deed for a long time. This omission on their part led respondent No, 1 to file a suit on 28th June, 1971 for a mandatory injunction seeking a direction to the appellants to obtain the permanent transfer deed. While this suit was pending the appellants obtained the permanent transfer deed on 18th April, 1974. The case of respondent No, 1 is that the appellants did not inform her of the acquisition of the permanent rights. However that may be, on 14th April, 1977 she filed the present suit for specific performance of the agreement, dated 19th July, 1961.
3. The appellants resisted the suit and raised a number of legal objections. With regard to merits they did not dispute that they had entered into an agreement to sell the land in dispute with respondent No, 1 but alleged that they had executed the deed of 19th July, 1961 under misrepresentation of facts and wrong assumptions and that the consideration for the sale was grossly inadequate.
4. By an order, dated 28th December, 1977 the learned trial Court consolidated the two suits, that is, the suit for permanent injunction and the suit for specific performance. On 9th January, 1978 it framed the issues incorporating the various pleas taken up by the parties. The issues were :
(1) Whether the suit is bad for non-joinder of a necessary party ? 0. P. D.
(I-A) Whether the previous suit is redundant and liable to dismissal ? 0. P. D.
(2) Whether the suit as such is not competent ? 0. P. D.
(3) Whether the L. D. A. Has acquired the land? If so, its effect ? O. P. D.
(4) Whether the agreement was an outcome of misrepresentation ?
(5) Whether there is any ambiguity about the property in agreement ? If so, its effect ? 0. P. D.
(6) Whether the agreement was about the land in excess of the defendants' title ? If so, its effect ?
0. P. P.
(7) Relief.
' Since the appellants had not disputed the execution of the agreement to sell in their written- statement but were avoiding its implementation on various grounds the burden of proving all the issues was placed upon them. That being so the learned trial Judge called upon the appellants to lead their evidence on iSth February, 1978. On this date the appellants were not ready with their evidence. They bad neither submitted any list of witnesses within the period prescribed by law nor had taken out processes for the summoning of their witnesses. Instead, they moved an application for the framing of additional issues. This application was partly allowed and they were given another opportunity to lead their evidence on 8th April, 1978. On this date, too, their evidence was once again not available. It was stated at the bar that they had filed a revision petition in the High Court and it was for this reason that they had not brought their evidence. It was a false statement as no application in revision had been moved in the High Court. However that may be, the learned trial Court refused to adjourn the proceedings on the ground that no order from the High Court staying the proceedings has been received. The learned trial Court then declined to grant further adjournment to the appellants and closed their evidence under rule 3 of Order XVII of the Code of Civil Procedure. The proceedings were then adjourned for arguments to the next day, that is, 9th April, 1978. On this day counsel for the appellants stated that his clients had after withdrawing his brief reappointed him as their counsel and that he should be given time to prepare his arguments.
The learned trial Court allowed the request and adjourned the proceedings to 10th April, 1978. On this date counsel for the appellants sought further adjournment on the flimsy pretext that the brief of the case was with another lawyer. The learned trial Court refused to adjourn the proceedings further and after observing that the suit did not require any elaborate arguments proceeded to decide the same. He dismissed the earlier suit for mandatory injunction on the ground that it had become infructuous. He decided all the other issues against the appellants and granted a decree for specific performance to respondent No, I. From the decree of the learned trial Judge the appellants have come in appeal to this Court.
5. The first contention on behalf of the appellants is that the learned trial Court had not given them enough opportunity to lead evidence and as such its order in closing their evidence was unreasonable. We find little merit in this contention. As already stated the issues were framed on 9th January, 1978 and the appellants were directed to lead their evidence on 15th February, 1978.
They had thus 37 days for the purpose, This was a fairly reasonable period. Under rule 1 (I) of Order XVI of the Code of Civil Procedure they were required to file the list of their witnesses within 7 days after the settlement of issues. They did not file any list. They did not apply to the Court for the issuance of processes to their witnesses. ' On the date fixed for evidence not a single witness on their behalf was present in Court. There is no explanation worth the name for the lapse of the appellants in this regard. True that on the said date they moved an application for the framing of additional issues which was allowed but then there is no explanation why the said application was not moved earlier and why they waited till 15th February, 1978 to make the application. It is also to be noticed that the additional issue framed was purely of a legal nature which did not require any evidence. It is, therefore, not Open to them to allege that as they could not be aware of the fate of their application prior to 15th February, 1978 they could not arrange for their evidence earlier. In the circumstances the learned trial Court showed them undeserved indulgence when instead of closing their evidence it granted them another opportunity for the purpose by adjourning to 8th April, 1978. Now, between 15th February, 1978 and 8th April, 1978 there was an interval of more than 50 days. Once again the appellants did not get any processes issued for their witnesses not did they bring any witness in Court on the new date. The only explanation offered on their behalf for not being ready with their evidence was admittedly a false one. Quite obviously, they were not serious about leading their evidence and merely wanted to prolong the proceedings. In the circumstances the learned trial Court was entirely justified in not giving them another opportunity for the purpose.
We are, therefore, unable to accept that the trial Court acted unreasonably when it closed their evidence on 8th April, 1978.
6. It is then contended that before closing the evidence of the appellants the learned trial Court should have given an opportunity to one of the appellants who was present in Court to appear as his own witness. To us this contention appears to be an afterthought and of no substance. It does not appear that when the Court refused to grant further adjournment the appellant present in Court came forward to get his own statement recorded. It is also to be noticed that in the memorandum of appeal no grievance was made that the trial Court had declined to record the statement of one of the appellants. We must therefore repel the contention of the appellants.
7. While closing the evidence of the appellants the learned trial Court bad mentioned that it was acting under rule 3 of Order XVII of the Code of Civil Procedure. The learned counsel for the appellants argued that the provisions of this rule were not available to the learned trial Court as on'
15th February, 1978 the next date for leading evidence to the appellants was not given on their request. He stated that the provisions of the said rule were penal in nature and before they could be applied it was necessary that the adjournment for producing evidence should have been sought by the appellants themselves. In support of his contention be referred to Muhammad Haleem v. H. H. Muhammad Naim (I), Abdul Aziz Khan v. Shah Jehan Begum (2), Zaitoon Begum v.
Muhammad Ilyas (3), Lal v. Ghulam Muhammad (4), Industrial Sales & Service, Karachi v. Archifar Opal Laboratories Limited, Karachi (5), Dale! Khan v. Province of West Pakistan (6) and Rahim Bux v.
Nazir Khanum (7) The cases reported as Muhammad Halim v. H. H. Muhammad Naim, Zaitoon Begum v. Muhammad Ilyas and Dalel Khan v. Province of West Pakistan have no relevance to the appeal before us but the other cases cited by the learned counsel for the appellants do support his contention. Thus in Abdul Aziz Khan v. Shah Jehan Begum the Supreme Court observed : - "This rule applies to a case where time has been granted to a party at his instance, to produce evidence, or to cause the attendance of witnesses or to perform any other act necessary for the progress of the suit and will not apply unless default has been committed by such party in doing the act for which the time was granted." IA ' Similar views were expressed in Lal v. Ghulam Muhammad, Industrial Sales & Service, Karachi v.
Archifar Opal Laboratories Limited, Karachi and Rahim Bux v. Nazir Khanum. We would therefore, agree with the learned counsel that rule 3 of Order XVII of the Code of Civil Procedure was not!
Available to the learned trial Judge.
8. However, the order of the learned trial Court in closing the evidence of the appellants and proceeding further with the case can be B justified on the basis of the provisions of sub rule (3) of rule 1 of Order XVII. This sub-rule was introduced in the Province of the Punjab in 1937. It reads as follows : "Where sufficient cause is not shown for the grant of an adjournment under sub-rule (I) the Court shall proceed with the suit forth- . With."
' Here the trial Court was confronted with a situation where the appellants were not ready with their evidence and they did not show sufficient cause for obtaining an adjournment. In the circumstances the learned trial Court could while proceeding with the suit under sub-rule (3) (ibid) close
(1) PLD 1969 SC 270 (2) PLD 1971 SC 434
(3) PLD 1971 Lah. 143 (4) PLD 1975 Lab. 385
(5) PLD 1969 Kar. 418 (6) PLD 1970 Quetta 79
(7) 1980 CLC 595 ' their evidence so as to get to the next stage in the trial. This is what it precisely did. As mentioned earlier the appellants had not denied execution of the agreement to sell but were avoiding its implementation on a number of grounds. The onus of establishing these grounds which were incorporated in a number of issues was placed upon them. When they failed to produce any evidence to discharge their burden no evidence was required to be led by respondent No, I who stood by the agreement to sell. Consequently, after closing the evidence of the appellants, the learned trial Court took the next step in the proceedings which was to fix a date for the hearing of arguments. We can find no fault with the order of the learned trial Court in this regard.
9. The next contention of the learned counsel for the appellants is based upon the construction of rule 2 of Order II of the Code of Civil Procedure. It is argued that during the pendency of the suit for mandatory injunction a separate suit for specific performance was not maintainable and that the proper course for respondent No, I was to amend the plaint in the earlier suit so as to include the relief of specific performance as well. It is also argued that the second suit, that is, the one for specific performance of the agreement was barred by the provisions of rule 2 (2) (ibid). In our opinion this contention is entirely misconceived. Sub-rules (I) and (2) of rule 2 deal with the situation where more than one relief is available to a plaintiff in respect of the same cause of action. These sub-rules have no application to suits based upon entirely different causes of action.
No doubt both the suits filed by respondent No, 1 were based upon the same agreement to sell but no labour is required to discover that the causes of action in them were distinct and separate. As pointed out under the agreement to sell the sale was to be completed after the appellants had obtained a permanent transfer deed in respect of the land in dispute. Even though they had received a fairly substantial amount by way of earnest money yet they were not taking any steps to carry out their obligation in obtaining a permanent transfer deed. It was this inactivity of the appellants that formed the cause of action in the suit for mandatory injunction. In the second suit, that is, the one for specific performance of agreement, the cause of action was the alleged failure of the appellants to complete the sale even though they had obtained the permanent right in the land in dispute. It is also to be noticed that as the sale-deed was to be executed only after the appellants had obtained permanent rights the cause of action for the second suit arose after the institution of the first said. Thus, as the causes of action in the two suits were not only entirely different but arose at different points of time respondent No, I could competently institute two separate suits. The provisions of rule 2 of Order II were therefore inapplicable here.
10. Admittedly the appellants obtained a permanent transfer deed in respect of the land in dispute on 18th April, 1974. As a result the suit for mandatory injunction became infructuous. As the two suits had been consolidated, the learned trial Court while decreeing the suit for specific performance dismissed the suit for mandatory injunction by the same judgment. The learned counsel for the appellants argued that the judgment of the learned trial Court was contradictory inasmuch as it had dismissed one suit of respondent No, 1 and decreed her other suit ; further, as respondent No, I had not preferred any appeal against the dismissal of her suit for mandatory if unction her other suit for specific performance should also be dismissed by invoking the doctrine of res judicata. This argument has no merit except perhaps that off ingenuity. As stated earlier, with the obtaining of permanent rights in the property in dispute by the appellants the suit for mandatory injunction became infructuous; therefore, there was no contradiction in the judgment of the trial Court when it dismissed it while decreeing the suit for specific performance. Since the appellants had already done what respondent No, 1 was asking them to do through a fiat of the Court she could not be regarded as an aggrieved person so as to file an appeal against the dismissal of her suit for mandatory injunction. As no issues were tried nor any finding recorded separately in the suit for mandatory injunction there was no question of invoking the doctrine of res judicata to throw out the suit for specific performance. It may perhaps also be mentioned that the suit for mandatory injunction could not be treated as a `former, suit' within the meaning of section 11 of the Code of Civil Procedure as this suit was decided at the same time as the suit for specific performance.
Reference in this context is invited to Explanation t to the said section. Accordingly, we would repel the contention of the learned counsel.
11. Sometimes after the execution of the agreement to sell, the Lahore Development Authority acquired the land in dispute: Consequently, respondent No, 1 impleaded the Authority as defendant No, 4 in the suit. The Authority not only declined 'to file a written-statement but it also refused to defend the suit presumably on the ground that it was a matter entirely between respondent No, 1 and the appellants. Subsequently, when the suit of respondent No, I was decreed it did not even care to file an appeal. It is to be noticed that respondent No, had not challenged the legality of the acquisition proceedings or the right of the Authority to acquire the land.
12. It is contended on behalf of the appellants that since they are no longer the owners of the land in dispute no decree for the specific per-D formance of the agreement can be passed. This contention is in substance one of frustration of contract on account of the statutory acquisition of the subject-matter of the contract by a Local Authority. A similar argument was considered and rejected in Hillingdon Estates Co. v. Stonefield Estates Ltd. (I) albiet, in this case it was the purchaser who wanted to renege on the agreement. In Joydeb Agarwala v. Baitulma! Karkhana Ltd. (2) the Supreme Court approved of the view expressed in that case. In any event we see no justification for not making the appellants abide by the agreement for which they had received a substantial amount of Rs, 15,000 by way of consideration and which they have not cared to refund so far even though the position they now take is that the agreement has become incapable of fulfilment. As regards what benefits respondent No, 1 may reap on account of the acquisition of land by the Authority that will be a matter between her and the Authority and we are not called upon here to make any observations on this matter.
13. For the reasons stated above we find no merit in this appeal which is hereby dismissed with costs.
(I) 1952 Ch. D. 627 (2) PLD 1965 SC 37