' These two revisions bearing number C.R. 2306/86 by Mst. Mehmuda Sultana and C.R. 1983/86 by Muhammad Aslam arise out of judgment and decree passed by the learned District Judge, Lahore dated 12-3-1986 by which the learned District Judge dismissed the appeal filed by Muhammad.
Aslam and cross-objections filed by Mst. Mehmuda Sultana. Both the cases involve the examination of common questions of law and facts, therefore, both these petitions are being disposed by this single judgment.
2. The material pertinent facts in the background of these petitions are; that Mst. Mehmuda Sultana (herein petitioner) was the owner of disputed property--house bearing No, F/1106 in Kucha Kothi- Daran, Kashmiri Bazar, Lahore. Mst. Tasnim Mumtaz (herein respondent No,1) is the first vendee while Muhammad Aslam is the subsequent vendee.
3. On 16-12-1970 Mst. Tasnim Mumtaz filed a suit for specific performance in respect of disputed property on the basis of agreement to sell dated 26-7-1970 executed by Mst. Mehmuda Sultana in her favour. It was claimed in the plaint that vendor executed an agreement to sell in respect of disputed house in consideration of Rs, 24,000 in her favour received Rs, 5,000 as earnest money, delivered the possession to her and agreed to get the sale-deed registered within 30 days of agreement to sell. On her refusal to complete the agreement to sell, suit was filed.
4. On 9-5-1971 one Muzammal Hussain, Advocate appeared on behalf of Mst. Mehmuda Sultana, filed the power of attorney and submitted written statement on her behalf on 3-7-1971. In this written statement the agreement to sell was admitted but objection was taken that Mst. Tasnim Mumtaz failed to comply with the terms of the contract and so the vendor made the sale of disputed house to Muhammad Aslam through registered sale-deed. Muhammad Aslam was impleaded as a party. The said Muhammad Aslam subsequent vendee filed written statement on 25-4-1972 wherein the objections were taken to the effect that he was a bona fide purchaser under registered sale-deed dated 17-9-1970 and was protected under clause (2) of section 27 of the Specific Relief Act. On the pleadings of the parties the learned trial Court framed the followng issues:--
(1) Whether the plaintiff failed to perform her part of the contract dated 26-7-1970 ? OPD .1
(2) Whether the defendant failed to carry out her obligation under the agreement dated 26-7-1970 ? OPP.
(3) Whether the defendant No,2 was a bona fide purchaser of the property with value and without notice of the prior agreement to sell ? OPD.
Additional Issues:
(1) Whether the plaintiff entered into a valid agreement with defendant No,1 in respect of the disputed property ? If so, its effect ? OPP.
(2) Whether the plaintiff has no cause of action against the defendant No,2 ? OPD.2
(3) Relief.
5. The proceedings in the suit continued till 16-3-1983 when Mr. Saqib Nisar, Advocate entered appearance on behalf of Mst. Mehmuda Sultana, filed an application to the effect that the power of attorney and written statement filed by Muzammal Hussain, Advocate on behalf of her client were without any authority and were therefore, of no legal effect. The learned Civil Judge who was seized of the case dismissed the application without making any inquiry by holding that he had compared the signatures of Mst. Mehmuda Sultana on this application with those signatures which were present on written statement as well as the power of attorney filed by Mr. Muzammal Hussain, Advocate and was of the view that the signatures were same. The learned Civil Judge by his judgment and decree dated, 5-5-1983 decreed the suit of Mst. Tasnim Mumtaz subject to the payment of Rs, 19,000 to Mst. Mehmuda Sultana.
6. Mst. Mehmuda Sultana did not file any appeal. On the appeal of Muham1nad Aslam, she entered appearance and filed cross-objections through Mr. Najam-ul-Hassan Kazmi, Advocate. In the cross-objections grievance was made that impugned decision of the first Court was bad in law because of being in violation of principle of natural justice "Nobody shall be condemned unheard".
It was urged that neither she was served in the suit nor she authorized Mr. Muzammal Hussain, Advocate to enter appearance on her behalf or file the written statement.
7. The Learned District Judge by his order dated 5-11-1984 accepted the appeal and cross- objections, remanded the case back to the learned Civil Judge for deciding the application of Mst.
Mehrnuda Sultana in accordance with law. The learned Civil Judge was directed to record fmding on the evidence adduced by the parties and return the finding alongwith the record to the first Court of appeal. Consequent to this order of remand the learned Civil Judge framed following issues:--
(1) Whether the petitioner Mehmuda Sultana did not execute impugned Vakalatnama in favour of Mr. Muzammal Hussain, Advocate ? OPA.
(2) Whether the written statement of defendant No,1 dated 3-7-1971 filed on 7-7-1971 was not executed and filed by petitioner Mehmuda Sultin. a ? OPA.
(3) Whether the petitioner is estopped to file the present application ? OPR (Mr. Muzarnmal Hussain, the plaintiff and defendant No,2)
(4) (4) Whether this application is not maintainable in law? OPP (Mr. Muzammal Hussain, the plaintiff and defendant No,2)
8. The learned Civil Judge after carefully considering the evidence adduced by the parties recorded finding, wherein it was held that the application of vendor was based upon false facts and baseless grounds. The learned District Judge after hearing both the parties dismissed the appeal of both Muhammad Aslam and cross-objections filed by Mst. Mehmuda Sultana. The judgment and decree of the learned District Judge, Lahore as well as the judgment and decree passed by the learned Civil Judge are impugned in these revision petitions.
9. The contentions of the parties can be summarized as follows:--
10. To begin with the contentions of the learned counsel for Mehmuda Sultana may be noted as under:-
(i) It was submitted that Mst. Tasnim Mumtaz in his plaint with dishonest intentions gave wrong address of the petitioner. The summons issued by the Court were, therefore, sent to the place where the petitioner was not residing. Therefore, according to him no service was effected on Mst.
Mehmuda Sultana within the framework of Rule 2 of Order 5 of the Code of Civil Procedure. With enough emphasis he suggested that suit filed against Mst. Mehmuda Sultana was still pending meriting adjudication after hearing both the parties. All these proceedings in the suit are nullity in the eyes of law and are non-existent. Reliance was placed on Muhammad Aslam v. Additional District Judge, Rawalpindi etc. 1979 SCMR 85 and M. Yasin Siddiqui and 7 others v. Ch. Muhammad Boota 1983 CLC 1462.
(ii) It was represented that substituted service was also resorted to without satisfying as to whether the personal service was effected or not. Any order for substituted service without existence of pre- condition is bad in law and therefore is a nullity. Reliance was placed on Shahbaz v. Additional District Judge etc. 1983 CLC 2392; Ibrahim Khan and 3 others v. Ch. Iqbal Ahmad Mahmud Settlement Officer and another 1982 CLC 2094; Mst. Afzal Begum and others v. Y.M.CA. Through its General Secretary PLD 1979 SC 18; Muhammad Nasir v. Sadiq Muhammad 1982 CLC 856; Malik Muhammad Nazir v. Mian Abdur Rahim and another PLD 1968 Lah. 792; Siraj Din v. Mst. Iqbal Begum PLD 1968 Lah.
639.
(iii) On the strength of assertions made in point No, (i) it was contended that the appearance of Muzammal Hussain as an Advocate of the petitioner did not cure the illegality having been committed in mode of service on the petitioner. It was contended that since the hearing was a foundation of dispensation of justice, appearance by Muzammal Hussain, Advocate was of least help in resolving the controversy.
(iv) It was finally contended that Mst. Mehmuda Sultana was a parda masheen lady and the agreement to sell in favour of Mst. Tasnim Mumtaz and registered sale-deed in favour of Muhammad Aslam had to be scrutinized with great caution under section 16 of the Contract Act, 1872.
11. Learned counsel for Muhammad Aslam submitted that Muhammad Aslam was a bona fide purchaser without notice. The sale in his favour was protected under section 27 of the Specific Relief Act. He vehemently argued that his petition be accepted and the judgment and decree in favour of Mst. Tasnim Mumtaz be set aside.
12. Learned counsel for Mst. Tasnim Mumtaz supported both the impugned decisions. While replying the contentions of the petitioners, he submitted that the question raised could not be looked into revisional jurisdiction of this Court which is intended to correct the errors of jurisdiction or any finding which is vitiated by misreading of evidence, non-reading of evidence or misapplication of law. In this case according to him both the learned counsel for the petitioner have not pointed out such defence. It was urged with vehemence that the question relating to the credibility of witnesses or findings of fact cannot be raised in revisional jurisdiction. It was submitted that both the Courts below have disbelieved the evidence of Mst. Mehmuda Sultana and his daughter Mst. Muhsna Ahmad on cogent grounds and so this finding cannot be upset in this Court.
13. I have heard the submissions made by the parties and perused the record of the case with the able assistance of both the learned counsel and hereon proceed to determine the respective contentions.
14. It is appropriate to record that the learned counsel for the petitioner Mehmuda Sultana did not seriously question the finding of the first appellate Court as well as first Court that a statement of Mst. Mehmuda Sultana as well as her daughter was not worth credence in respect of her assertion; that she had not appointed Muzammal Hussain as her attorney and authorized him to file power of attorney. It will be advantageous to examine the finding of the first Court of appeal on this circumstance which is as follows:-- "In support of her application Mst. Mehmuda Sultana examined herself and her daughter Mst.
Mohsana Ahmad. Mst. Mehmuda Sultana stated that she was an old invalid lady; that she had a weak eye-sight and was unable to move about and unable to see. She had never received any notice from any Court and had never entered a lawyer's office. She had not engaged Mr. Muzammal Hussain, Advocate as her counsel and had not signed the written statement in this suit.
She in fact went so far as to say that she had never engaged any counsel in any case. According to her, she had deposited Rs, 24,000 in Court but the dispute about the mortgage was still pending.
She had gone to take possession in Kashmiri Bazar, and it was there that she was told that one Pehlwan and Muhammad Aslam had instituted a suit against her. It was thus that she came to know of the suit. She admitted that Ahmad Batalvi was his son-in-law. He was the husband of her daughter Mst. Mohsana and his marriage with Mst. Mohsana had taken place in 1968. Ahmad Batalvi had died a year before her statement (which was recorded in December, 1984). In her cross-examination, however, she vacillated and changed positions. She said that she had never engaged any counsel other than Mr. Muhammad Taqi, Advocate in this case. This was untrue because as had been seen above, she had first engaged Mr. Saqib Nisar and then Mr. Najmul Hassan Kazi and then Mr. Muhammad Taqi. As has been seen above, in her application dated 16-3- 1983 her case was that before the Deputy Settlement Commissioner, Muhammad Yousuf (who is a brother and attorney of the plaintiff) had appeared and disclosed sometime in March, 1983 that a suit about this property was pending in the Civil Court. As has been seen above, here she said that she had come to know of the suit in Kashmiri Bazar from an unnamed person; according to him, the suit had been filed by Pehlwan and Muhammad Aslam. She was expressly asked if she had engaged Mr. Kazmi as her counsel, during this appeal, she denied having done so. She also denied that at one stage she had engaged Mr. Sharif Hussain Bokhari as her counsel. She also denid that she had engaged Mr. Saqib Nisar, Advocate as her counsel. Thus she did not hesitate even to deny such patent facts as the engagement of these counsel. The vakalatnamas of all these Advocates are on the file and the fact that she chose to deny such patent facts must seriously affect her credibility. As to the engagement of Mr. Taqi as her counsel she said that her daughter Mst.
Mohsana had visited his office; she had signed his vakalatnama and given it to her for being handed it over at his office. Later she again changed her position and admitted that Mr. Saqib Nisar had been her counsel. As regards Mst. Mohsana Ahmad she said that her marriage with Ahmad Batalvi had taken place on 5th of November, 1972 and that her mother had no knowledge of the suit and had not engaged Mr. Muzmal Hussain, Advocate as he counsel. She did not place any documentary evidence on the record to show that her marriage with Ahmad Batalvi had taken place in November, 1972 and not in 1968, as stated by her mother. As her marriage with Ahmad Batalvi had taken place in 1968, it lay heavily both upon Mst. Mehmuda Sultana and Mst. Mohsana Ahmad to produce the best evidence. That they failed to do so must, as was held by the learned Civil Judge, give rise to an adverse inference against them. I, therefore, agree with the learned Civil Judge that the credit-worthiness of both Mst. Mehmuda Sultana and Mst. Mohsana was open to serious question. Mr. Muzammal Hussain, Advocate swore to the fact that he had been engaged by Mst. Mehmuda Sultana as her counsel in the suit; that Ahmad Batalvi and his wife Mst. Mohsana had been visiting him from time to time in connection with the defence of the suit and that it was according to the instructions received by him from Mst. Mehmuda Sultana and Mst. Mohsana that he had been pleading and acting on behalf of Mst. Mehmuda Sultana. There is no reason, whatever, to doubt his veracity. He is an Advocate of some standing at the Bar and there is no evidence whatever even remotely suggesting that he had anything to do with the plaintiff or with Muhammad Aslam defendant or that he had any reason to join hands with them. In point of fact the record of the case bears testimony to his having defended the suit in the possible way. His testimony received further support from the documents placed by him on the record. They were a visiting card of Ahmad Batalvi and a copy of the agreement in question which go a long way to show that he had been acting on the instructions of Mst. Mehmuda Sultana and Ahmad Batalvi. In the circumstances of the case, the fact that the application was made by Mst. Mehmuda Sultana after the death of Ahmad Batalvi also assumes significance."
15. It is apparent from the finding of the learned District Judge that he agreed with the finding of the trial Court that Mst. Mehmuda Sultana duly constituted Mr. Muzamal Hussain, Advocate who filed written statement in exercise of authority given to her by Mst. Mehmuda Sultana herself. This concurrent finding of fact by two Courts has not been assailed on the grounds contained in section 115 of the Code of Civil Procedure. Therefore, I am clear in my mind that there is no reason to re- examine this finding in revisional jurisdiction.
16. Having agreed with the concurrent finding of fact noted above now I will take up the remaining contentions of the parties from which the following questions emerge for consideration:--
(i) Whether Mst. Mehmuda Sultana is entitled to a finding that despite the appearance of Muzammal Hussain, Advocate she is entitled to hearing in the suit on account of defects in mode of service under Chapter V of the Code of Civil Procedure?
(ii) Whether there was a legal error in mode of service against Mst. Mehmuda Sultana?
(iii) Whether Muhammad Aslam is a bona fide transferee without notice of agreement to sell in favour of Mst. Tasnim Mumtaz and is so protected under section 27 subsection (2) of the Specific Relief Act (I of 1877)
17. Taking up the first and second points, it is to be noticed that the hearing is the foundation of dispensation of justice in civil cases. The Code of Civil Procedure provides elaborate procedure regulating the mode of trial in Civil Courts. Neither the word 'suit' nor the word 'trial' has been defined. However, it is amply clear from the scheme of the Code of Civil Procedure that the proceeding in a trial start with the presentation of a plaint which is duly registered and summonses are to be issimd to the defendant to appear and answer the claim in the plaint. The mode of effecting service of summons is provided in Order 5 ibid. Section 27 and Order 5, rule 1 ibid are as follows:- S.27 "Where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and may be served in manner prescribed.
0.5 R.1
(1) When a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim on a day to be therein specified: Provided that no such summons shall be issued when the defendant has appeared at the presentation of the plaint and admitted the plaintiffs claim.
(2) A defendant to whom a summons has been issued under sub-rule (1) may appear---
(a) in person, or
(b) by a pleader duly instructed and able to answer all material questions relating to the suit, or
(c) by a pleader accompanied by some person able to answer all such questions.
(3) Every such summons shall be signed by Judge or such officer as he appoints,and shall be sealed with the seal of the Court.
18. It is apparent from the bare reading of section 27 and Order 5 Rule 1 of the Code of Civil Procedure that the suit had to be decided after hearing the defendant in respect of claim contained in the plaint. The summonses are issued to inform the defendant of institution of suit in sufficient time before the date fixed for hearing and the procedure laid down for service of summons is aimed to guard against fraud and ensure that the proper person has been served and apprised of claim against him contained in the liz instituted in the Court. Whenever and wherever the defendant appears in Court in person or through his recognized agent, files his written defence, he is precluded to raise any objection with respect to the mode of service. The ultimate object of the procedure And rules relating to summons is to facilitate the hearing of the suit and adjudication on merits. It is not aimed to prolong agony of the people in Court and are not meant for technical compliance. The objection to mode of, service was taken in a case in Nathu Ram v.
Salim Abdul Karim AIR 1933 All.
165. In this case revision was filed against the order of Small Cause Court Judge, All Garh who had rejected an application for restoration of suit filed by defendant/applicant on the ground that the substituted service effected against him was incorrect and illegal. The learned revisional Court came to the conclusion that the substituted service was effected in illegal manner, was in fact no service. Nevertheless High Court refused to set aside the order of subordinate Courts on the ground that the petitioner had the knowledge of the hearing of the suit and so irregularity in the service of summons amounted to mere irregularity which was not vitiative of the proceedings. Therefore, I am clear in my mind that any defect in the mode of service which has not prevented the defendant from appearing in the Court and filing his defence is a mere irregularity and has no vitiative consequence. Accordingly the argument of the learned counsel for the petitioner is repelled and is found to be without any substance.
19. As far as the merits are concerned Mr. Muzammal Hussain, Advocate appeard in the Court and filed a defence in which it was admitted that agreement to sell in favour of Mst. Tasnim Mumtaz was correct but defence was taken that she has failed to comply with the terms of the contract so Mst. Mehmuda Sultana was justified in entering into the registered sale-deed in favour of Muhammad Aslam. Not a single sentence in respect of alleged defence was uttered. Therefore, the learned Civil Judge as well as the first Court of appeal were completely justified to decree the claim of Mst. Tasnim Mumtaz.
20. Having dealt with the case of Mst. Mehmuda Sultana, I proceed on to examine the submissions of the learned counsel for Muhammad Aslam. It will be appropriate to examine the relevant law on the question of claim of bona fide by a subsequent transferee. Section 27 of the Specific Relief Act is as follows:-- "Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against:--
(a) Either party thereto;
(b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract;
(c) ..
(d) ..
(e) ..
21. A bare reading of section 27 of the Specific Relief Act makes abundantly clear that a subsequent transferee is entitled to protection if he establishes by unimpeachable evidence that he entered into a subsequent transaction in good faith and without notice on earlier transaction. This provision of the law came into consideration before the Privy Council in Bhup Narain Singh v. Gokul Chand Mahton and others AIR 1934 Privy Council 68 and Shankarlal Narayandas Mundade v. The New Mofussil Co. Ltd. AIR 1946 Privy Council 97.
22. In Varden Seth Ram v. Luckpathy Royjee Lallah 9 Moore I.A. 307 the Privy Council laid down the following law:-- "In their Lordships opinion, the section lays down a general rule that the original contract may be specifically enforced against a subsequent transferee, but allows an exception to that general rule, not to the transferror, but to the transferee, and, in their Lordship's opinion, it is clearly for the transferee to establish the circumstances which will allow him to retain the benefit of transfer which prima facie he had no right to get. Further the subsequent transferee is the person within whose knowledge the facts as to whether he has paid and whether he had notice of the original contract lie, and the provisions of sections 103 and 106, Evidence Act, 1872, have a bearing on the question."
23. The same *rule was re-affirmed in Shankarlal Naryandas Mundade v. The New Mofussil Co. Ltd.
AIR 1946 Privy Council 97 in following words -- "Their Lordships have found it unnecessary to examine the evidence which was called, on behalf of the plaintiff to show that these defendants in fact had notice of the earlier contract, since a decision of this Board is clear authority for the proposition that the burden of proving good faith and lack of notice lay upon the defendants.
' It is thus quite clear that in a suit for specific performance of contract the onus lies heavily on the person whose title arises subsequently to the contract to sell and he must prove that he is a transferee for value and has paid the money in good faith and without notice of the original contract."
24. This rule was followed in Ramdeni Singh and another v. Gumani Raut and another AIR 1929 Patna 300, Vinayak Moreshwar Natu v. Gyanoba Hariba Navale and others AIR 1923 Bom. 13, Malik Muhammad Ishaque and another v. Mirza Almas Ali Beg and others PLD 1969 Lah. 762 and Haji Abdul Rehman and 3 others v. Noor Ahmad and 3 others PLD 1974 Baghdad-ul-Jadid 25.
25. The ratio emerging from all these cases is that a subsequent vendee in order to succeed in getting protection under section 27 of the Specific Relief Act is bound to establish:--
(i) That he acted in good faith; (ii That he had no notice of the original contract:
(iii) and that he made reasonable inquiries to ascertain in respect of the first agreement to sell.
26. It is quite clear from the evidence that Muhammad Aslam at the time of entering into transaction of sale did not make any inquiry from Mst. Tasnim Mumtaz the first vendee or from the persons who were in possession of the disputed house. Muhammad Aslam himself admitted that at the time of execution of sale-deed Mst. Mehmuda Sultana was not in possession of the disputed house; that the real brother, sister and father of Mst. Tasnim Mumtaz were in possession of the property in dispute. It is a settled law that possession of the vendee constitutes a notice to the subsequent vendee who is required to make an honest inquiry in respect of prior transaction.
27. In this case as noted above the real brothers, sister and father of Mst. Tasnim Mumtaz were in possession of the property in dispute at the time of sale in his favour. He did not make any attempt to make any inquiry in respect of the previous sale. So, how can the Court come to the conclusion that he has made the sale in pursuance of honest inquiry. As a matter of fact his own statement discloses that he did not make any inquiry at all. There is no doubt left in my mind that Muhammad Aslam entered into transaction of sale with Mst. Mehmuda Sultana without making any inquiry and is not protected under section 27 of the Specific Relief Act. Revision petition filed by him therefore has no force. I accordingly affirm the decisions of both the Courts below.
28. In result both the revision petitions filed by Mst. Mehmuda Sultana as well as filed by Muhammad Aslam fail and are dismissed with costs throughout.