' The present application under section 115, C.P.C. Is directed against the judgment and decree respectively passed on 26-11-1986 and 4-12-1986 in Civil Appeal No325/1984 (new Civil Appeal No,180/85) by the ex Officio Additional District Judge, Karachi.
2. The dispute, in this case, relates to a house bearing Old No,5/E-242 and new No,5/E-494, situated in Orangi Town, Karachi, owned by Abdus Salam, the respondent No,1 herein. The suit was filed for specific performance by Asghar Khan, the applicant herein impleading Abdus Salam and Saghir Ahmed as the defendants in the suit. The plaintiff Asghar Khan claimed that Abdus Salam, respondent No,1, had agreed to sell his house to him for a total consideration of Rs,7,000. In January, 1976, he paid him a sum of Rs,2,600 as the earnest money when respondent No,1 promised to execute a formal agreement in the due course of time. The respondent No,1 asked applicant Asghar Khan to pay him the additional amount of Rs,2,000 as the said amount was required by him to obtain lease-deed of the house from K.DA, after clearing certain dues. Additional amount of Rs,2,000 was therefore paid by the applicant Asghar Khan to respondent Abdus Salam. On 11-7- 1976 respondent Abdus-Salam executed an `Iqrarnama' in the presence of certain witnesses acknowledging the receipt of two payments. At the time of execution of such `Iqrarnama' the respondent Abdus Salam put applicant Asghar Khan in possession of the said house in part- performance of the sale. Subsequently, in spite of the lease having been executed by the KDA in favour of respondent Abdus Salam, he did not convey the property to applicant Asghar Khan and instead claimed payment of rent from him at the rate of Rs,40 per month. He even approached the respondent Abdus Salam with ready payment of balance amount of consideration but he did not agree to execute any conveyance deed. The applicant filed a suit for specific performance and his suit was registered in the Court of Civil Judge, Karachi, as Suit No,2059/79. Saghir Ahmad was also impleaded as a defendant in the suit and impleaded as respondent No,2 in the appeal but subsequently his name was deleted and the appeal was contested by Abdus Salam only as the sole respondent.
3. The averments made by plaintiff/applicant were all denied by respondent Abdus &dam and the trial Judge, on the basis of the pleadings of parties, settled the following issues:-
(I) Whether the plaintiffs suit is barred by res judicata ?
(2) Whether the plaintiff and defendant No,1 negotiated an agreement of sale and any consideration was passed?
(3) Whether the plaintiff and defendant No,2 are tenants of defendant No,1 and they are in collusion with each other?
(4) Whether the suit is maintainable?
(5) What should the decree be?
4. Both the parties led their evidence both oral ana documentary and XXXIIth Civil Judge, Karachi, decreed the suit by his judgment passed on 16-101984. It was followed by decree which was drawn on 27-10-1984.
5. Abdus Salam, respondent No,1, filed an appeal against the judgment and decree passed by the trial Judge and referred to in the preceding paragraph. The Appellate Judge, after hearing the parties, accepted the appeal and set aside the judgment and decree passed by the trial Judge.
The applicant has filed the present revision application against the judgments and decree mentioned hereinabove.
6. Mr. A.Q. Malik, advocate appearing for applicant mainly contended that the Appellate Judge accepted the appeal, on the ground that the applicant had failed to prove the execution of a concluded and valid contract between the parties and specific performance of the agreement to sell could not be granted. He was pursuaded to record such finding as the document that was the basis of the claim was a false document prepared to deprive the owner of his title to property. To support his contention he referred to a case reported in PLD 1979 Lah.
356.
7. Mr. Muhammad Latif Shaikh, Advocate appearing for the respondent, argued that the Appellate Court after hearing and appreciating the evidence produced by the parties, had recorded a finding of fact which cannot be distrubed by way of this revision application.
8.Out of five issues settled by the trial Judge, issue No,2 mentioned hereinabove, is an important issue for the purpose of decision of the suit. This issue was answered in affirmative by the trial Judge, while the Appellate Judge recorded his conclusion that a valid contract between the parties did not exist to entitle the plaintiff to seek a decree for specific performance. To support his such finding he also gave considerable weight to the allegation made by defendant No,1 that the plaintiff had based his suit on the basis of a false document to deprive him of his right and title in the disputed premises and to frustrate his efforts to recover rent from him through a rent application. The appellate Judge, however, failed to notice that no issue was settled in respect of the alleged validity or otherwise of the document. Neither of the parties had sought to re-cast the issue or frame an additional issue in the suit, covering such an important aspect of A the suit.
Framing of issue in respect of the document to be genuine or otherwise was essential before such decision could have been taken in the case. Both the Courts below have, therefore, exercised their jurisdiction illegally and with material irregularity. In view of my such finding and relying on the case referred to by the Advocate for applicant, I am inclined to accept this revision application.
Both the judgments and decrees passed by the lower Courts are set aside, application allowed and the case is remanded to the trial Judge to settle the issue relating to the document, record the evidence of the parties and decide the suit afresh on merits. "