' FAZAL KARIM, J.---By this petition under section 115 of the C.P.C., the petitioners, Muhammad Mushtaq and Muhammad Bashir, seek the revision of the judgment and decree of the learned Additional District Judge, Lahore, dated 6-2-1986, whereby the judgment and decree of the learned Civil Judge Ist Class, Lahore, dated 9-10-1984, were set aside and the suit of the petitioners was dismissed. The learned Civil Judge had, by his judgment dated 9-10-1984, decreed le petitioners' suit.
2. The dispute sought to be resolved in this litigation relates to House No, SXX 32-S-I (SXX-5 S-48) situate in Canal Park Gulberg, Lahore. The house belonged to the second defendant, Mst. Shahzadi Gul. On 7-1-1977, she executed an agreement of sale in favour of the plaintiffs, Muhammad Mushtaq and Muhammad Bashir, petitioners herein, agreeing to sell the house to them for a sum of Rs,1,31,000, the share contributed by the first plaintiff, Muhammad Mushtaq, being Rs, 65,000 and the share contributed by the second plaintiff, Muhammad Bashir being Rs, 66,000. According to the agreement of sale dated 7-1-1977 (Exh.P1), the entire sale consideration of Rs,1,31,000 had been paid.
On 19-5-1979, Mst. Shahzadi Gul executed two sale-deeds Exhs. P2 and P3 in favour of the plaintiffs; those deeds were presented before the Sub-Registrar, Lahore City, on 20-5-1979 and were registered. There were three deeds in favour of the first defendant, Bashir Ahmad Chaudhry. The first was an agreement of sale dated 12-1-1977 (Exh.D2), the second was a receipt Exh. D1 dated 30- 12-1976 and the third was a sale-deed dated 30-4-1977 and registered on 24-6-1979 (Exh. D3). They were all said to have been executed by Mst. Shahzadi Gul. The sale-deed Exh. D3 was presented for registration before the Sub-Registrar, Lahore Cantonment. Mst. Shahzadi Gul appeared before the Sub-Registrar to say that she had executed the first deed, agreement of sale dated 12-1-1977 (Exh.
D2), in favour of the first defendant but had not executed the deeds Exh. Dl and Exh. D3. The Sub- Registrar declined to register the document by his order dated 4-3-1978. The first defendant, Bashir Ahmad Chaudhry, appealed against the Sub-Registrar's order and the Registrar, by his order dated 18-6-1979, accepted the appeal and directed it to be registered.
3. In this judgment, the plaintiffs, Muhammad Mushtaq and Muhammad Bashir, will be referred to as the petitioners, Bashir Ahmad Chaudhry, defendant, will be -referred to as the first respondent and 'the owner Mst. Shahzdi Gul, defendant, will be referred to as the second respondent.
4. Two suits were brought; one by the petitioners, Muhammad Mushtaq and Muhammad Bashir, and the other by the defendant, Bashir Ahmad Chaudhry. The first suit, the one by the petitioners, was instituted on 23-6-1979 and the second was instituted on 12-7-1979.
5. The petitioners' case as laid down in the plaint shortly stated was that the second respondent had received a sum of Rs, 1,31,000 from them and had agreed, vide agreement of sale dated 7-1- 1977 (Exh. P1), to transfer the house in their favour. Later, however, the second respondent "changed her mind and entered into an agreement to sell with defendant No, 1 and also received a sum of Rs,33,000 approximately, as an earnest money and promised to execute a sale-deed in favour of defendant No, 1 qua the property in dispute. All these things were done secretly by defendant No,2 and without the knowledge and information of the plaintiffs". As the second respondent had agreed to sell the house to the petitioners, so contended the petitioners, she was not entitled to enter into any bargain with the first defendant. The second respondent, it was said, had on the plea that "the prices of the properties were following upward trend" demanded more money from the petitioners and the petitioners had met that demand by paying another sum of Rs, 69,000.And the second respondent had executed the sale-deed dated 19-5-1979 and had it registered in their favour on 20-5-1979. They, therefore, sought a declaration that the sale-deed dated 30-4-1977 in favour of the first respondent "alleged to have been executed by defendant No, 2 in favour of defendant No,1 is all forged, fictitious and bogus one and as such of no legal consequence against the rights of the plaintiffs;" as a consequential relief, they sought a perpetual injunction "restraining defendant No,1 from claiming any right under the sale-deed or interfering with the constructive or actual possession of the plaintiffs qua the property "
' The suit of the first respondent was a suit for the possession of the house in suit; it was founded upon the sale-deed Exh. D3.
6. Both the respondents filed written statements. In her written statement, the second respondent admitted the execution of the petitioners' documents, namely, agreement of sale dated 7-1-1977 (Exh.P1) and the sale-deeds Exh, P2 and P3; she also admitted that she had received full consideration from the petitioners and had placed them in vacant possession of the portion in her occupation and had asked her tenants to attorn to the petitioners. She, however, denied to have entered into any agreement of sale in favour of the first respondent; according to her, if any such document existed, it was a forged document. She also denied the execution of the sale-deed Exh.D3 in favour of the first respondent.
7. The second respondent absented herself after filing the written statement and was ex parte in the trial Court. She is ex parte here also. She did not give evidence as a witness either.
8. The first respondent, in his written statement pleaded that the registration of the sale-deed in favour of the petitioners was void, for the deed was registered by the Sub-Registrar Lahore City, whereas the house in suit was situated within the territorial jurisdiction of the Sub-Registrar Lahore Cantonment. According to him, the petitioners' suit was a result of collusion between the petitioners and the second respondent. He also asserted that the agreement of sale dated 7-1-1977 was a forged document. He asserted that the second respondent had obtained a sum of Rs,5,000 from him on 30-12-1976 and-had executed the receipt (Exh. Dl). Later, she had received another sum of Rs,13,000 on 12-1-1977 and had executed the agreement of sale (Exh.D2). He affirmed that the sale-deed Exh. D3 had been executed by the second respondent and was duly registered on 24-6-1979.
9. On the parties' pleadings, the learned Civil Judge formulated and tried the following issues:
(1) Whether the impugned sale-deed dated 30-4-1977 executed by defendant No,2 in favour of defendant No,1 is a forged, fictitious document are of no legal consequence against the rights of the plaintiffs? OPP.
(2) Whether the suit is incorrectly valued for purposes of court-fee jurisdiction? If so what is its correct valuation? OPD.
(3) Whether the suit of the plaintiffs is collusive with the defendant No OPD.
(4) Whether the plaint is not properly verified and attested? If so, to v effect? OPD.
(5) Whether the plaintiffs have come to the Court under unclean has OPD.
(6) Whether the suit is not maintainable in its present form? OPD.
(7) Whether the plaintiffs have no locus standi to file the suit? OPD.
(8) Relief.
10. To prove the execution of the agreement of sale Exh. P1, the petitior called its scribe Ghulam Naqshband (P.W.1) and its marginal witness Muhammad Saeed (P.W.2) and Muhammad Ramzan (P.W.3). According Muhammad Saeed and Muhammad. Ramzan P.Ws., the agreement of sale P1 had been executed by the second respondent and she had received the consideration. In proof of the execution of the sale-deeds Exh. P2 and P3, petitioners examined two witnesses, namely, Barkat All (P.W.4) and Fazal (P.W.5). One of the petitioners, Muhammad Mushtaq appeared in the with box as P.W.B. The first respondent was content to examine himself as D.W.; tendered in evidence a number of documents, including the receipt da 30-12-1976 (Exh.D1), a copy of agreement dated 12- 1-1977 (Exh. D2) and copy of the sale-deed (Exh. D3). He did not think it necessary to call any wits to prove the execution of these deeds by the second respondent.
11. The finding returned by the learned Civil Judge on issue No,1, which the principal issue in the suit, was that the execution of the agreement of dated 7-1-1977 (Exh. P1) and the sale-deeds Exh. P2 and P3 was proved. Regards the first respondent's documents, the learned Civil Judge observed t he had produced "certified copies of these documents obtainable from the suit Serial No,2. According to the settled principle of law of evidence, when a cert document is called in question, its validity and execution must be proved by of producing direct evidence, namely, marginal witnesses, etc. Etc. But defendant No,1 has confined himself to putting the certified copies of the documents, which are not admitted in evidence ". As to the question of "admissibility or non-admissibility" of these documents, he referred to his c order dated 2-9-1984, "through which certain documents placed on record h. Been de-exhibited". In the view of the learned Civil Judge, the method adopted first respondent to prove these documents was "not at all permissible. No witness or scribe to the alleged agreement dated 30-12-1977 or -7-1977 in sale-deed dated 30-4-1977 has been produced in evidence". In his the 'second respondent having denied the execution of these cements, "the burden of proof to some extent shifted and the defendant No,1 is bound to discharge the same by producing the unrequited evidence". He, therefore, concluded that the first respondent's documents were not proved; he so held that the first respondent had failed "to examine the witness to the legged receipts of money stated to have been paid by him to the defendant No,2 time to time". The learned Civil Judge also held that the agreement of sale Exh.P1 was "prior in time to that of agreement to sell dated 12-1-1977 stated to we been executed by the defendant No,2". As to the alleged receipt dated 12-1976 (Exh.D1), the learned Civil Judge noticed that "the sale agreement dated 12-1-1977 does not speak about the alleged agreement to :11 dated 30-12-1977, but the perusal of the sale agreement dated a-1-1977 reveals that what was paid by the defendant No,1 as earnest money as paid under same agreement and nothing prior to it".
12. The conclusion, thus, come to by the learned Civil Judge was that "the sale-deeds in favour of the plaintiffs would supersede the sale-deed in dispute the former will hold the field as against the latter, being the genuine and valid documents proved in evidence over the in genuine and invalid document unproved evidence during the contest between the plaintiffs and the defendant No,1."
13. In the result, the learned Civil Judge decreed the petitioners' suit against he first respondent. The effect of that decree was that the suit of the first respondent "'which was stayed under section 10 of the C.P.C", stood dismissed.
14. The learned Additional District Judge appears to have found that the execution of the agreement of sale Exh. P1 and the sale-deeds Exh. P2 & P3 in petitioners' favour was proved. As to the sale-deed Exh. D3 in favour of the rest respondent, the learned Additional District Judge held that that deed "has of only been executed but also been registered and there is force in the arguments of the learned counsel for the appellant that the sale-deed dated 0-4-1977 being executed earlier is to hold the field despite its being registered as against the Exh. P2 and Exh. P3 which were executed later but registered earlier". The learned Additional District Judge was also of the view that the registration of the petitioners' sale-deeds (Exhs. P2 and P3) by the Sub-Registrar Lahore City was of no legal effect "and the sale-deed of the respondents is void" because the house in suit was situated in the territorial jurisdiction of the Sub-registrar, Lahore Cantonment and the Sub-Registrar Lahore City had no to register it. In this connection, the learned Additional District Judge also referred to the joint Registrar's order dated 10-6-1978 made in the appeal against the refusal to register the deed dated 30-4-1977 and held that the registration of the deeds (Exhs. P2 and P3) "during the continuity of the stay rder was illegal and of no effect". The learned Additional District Judge, therefore, reversed the finding of the learned Civil Judge on issue No, 1 and held that the petitioners had failed to prove that issue. Accordingly, he set aside the judgment and decree of the learned Civil Judge dated 9-10-1984 and dismissed the petitioners' suit; he also awarded "the special costs of Rs,5,000 to the appellant to be paid by the respondents, under section 35-A, C.P.C."
15. It ought to be mentioned here that the appeal before the learned Additional District Judge was an appeal against the judgment and decree dated 9-10-1984 in the petitioners' suit. The jurisdictional value of the first respondent's suit being beyond the pecuniary jurisdiction of the District Court, the first respondent had preferred an appeal against the dismissal of his suit in this Court. Later, that appeal was sent to the District Court for disposal. I am informed that it is pending decision.
16 Learned counsel for the petitioners referred to the findings of the Courts below that the execution of the petitioners' documents, Exhs. P1, P2 and P3, by the second respondent stood proved, and maintained that there was no proof of the execution of the first respondent's documents, Exhs. D2 and D3 and the receipt Exh. D1. While he conceded that the house in suit was situated within the territorial limits of the Sub-Registrar Lahore Cantonment, and the sale-deeds Exhs. P2 and P3 were presented for registration to and were registered by the Sub-Registrar Lahore City, yet that was in his opinion a simple irregularity, not going to the validity of the registration. In his view, the presentation of the deeds to the Sub-Registrar Lahore City was under a bona fide mistake; the Registrar was bound to return it for being presented to the Sub-Registrar Lahore Cantonment and the petitioners should not suffer on account of the Sub-Registrar's failure to return the deeds. In support of this contention, he referred to rules 116 and 119 of the Registration Rules, 1929. Even if the registration of the deeds Exhs. P2 and P3 was void and of no legal effect, the petitioners have in their favour the agreement of sale dated 7-1-1977 (Exh. P1) and the unregistered sale-deeds Exhs.
P2 and P3. As against these deeds, the first respondent has nothing to fall back upon, for none of his deeds was proved to have been executed by the second respondent. In any case, even if the agreement (Exh. D2) is taken to have been executed, the contest was, so contended the petitioners' counsel between the agreements of sale and not between the two registered deeds. The petitioners' agreement of sale being prior in time, they were, according to the petitioners' counsel, entitled to succeed. The petitioners, so contended their counsel, should not have been non-suited for if they were not entitled to the relief of declaration, their suit should have been treated as one for the specific performance of the agreement of sale dated 7-1-1977 and the sale-deeds Exhs. P2 and P3 as unregistered documents.
17. Learned counsel for the first respondent supported the judgment of the learned Additional District Judge. According to him, the sale-deeds Exhs. P2 and P3 were void; their registration was inffective being in violation of the stay order of the Joint Registrar and also because they were hit by the doctrine of lis pendens. For this contention, he referred to section 52 of the Transfer of Property Act. He also invited me to hold that the sale-deed Exh. D2 was proved to have been made by the second respondent and as it was written prior in point of time to the sale-deeds Exhs. P2 and P3, it operated from the date of execution and the sale deeds Exhs. P2 and P3 having been executed later had no legal effect. He opposed the petitioners' prayer to treat the suit as a suit for specific perfomance at this late stage.
18. There is no question that the petitioners' documents, agreement of sale dated 7-1-1977 (Exh. P1) and the sale-deeds Exhs.P2 andy P3 were proved to have been executed by the second respondent and that the learned Courts below were, therefore, right in so holding. Regarding the deeds, foundation of the first respondent's claim, namely, receipt dated 30-12-1976 Exh. Dl, agreement of sale dated 12-1-1977 (Exh. D2), and the sale deed dated 30-4-1977 (Exh. D3), the learned Civil Judge was, in my view, right in holding that they were not proved to have been executed by second respondent. None of these deeds was the original deed; they were copies of the original. Production of copies was violative of the provisions of Article 75 of the Qanun-e- Shahadat 1984, which enacts that documents must be proved by primary evidence except in the cases therein mentioned and Article 76, thereof, which says that evidence may be given of the existence, condition or contents of a document in the cases mentioned in clauses (a) to (i) thereof.
This case did not fall within any of those clauses. These copies were produced by the first respondent when he gave evidence as his own witness. Objection to their admissibility was duly raised; the objection was that they were copies and that the original had not been proved. The learned Civil Judge decided the objection by his order dated 2-9-1984. It has been seen that the second respondent had, in her written statement, denied to have executed the agreement Exh. D2 and the sale-deed Exh. D3. The petitioners were not parties to these deeds. They had successfully proved that the second respondent had, on 7-1-1977, executed the agreement of sale Exh. P1 in their favour and as the claim of the first respondent was founded upon the deeds Exhs. D2 and D3 the inexorable consequence was that the first respondent had to prove the due execution of these deeds. It has been seen that the second respondent had denied the execution of the sale-deed Exh. D3 even before the Registering Officer and that made the onus to prove it heavier. As has been seen above, except for his own statement, there was not a speck of evidence to support the execution of these deeds. The scribe of these deeds and the persons who might have witnessed their execution by the second respondent were not called as witnesses. It is obvious that in these circumstances, the first respondent's own statement could hardly be relied upon as, or considered sufficient, proof of the execution of the deeds by the second respondent.
19. Article 78 of the Qanun-e-Shahadat 1984 provides that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as was alleged to be in that person's handwriting must be proved to be in his handwriting. Article 79 thereof enacts that "if a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence". The proviso to this Article makes it unnecessary "to call an attesting witness in proof of the execution of any document... .. ...Which has been registered in accordance with the provisions of the Registration Act .Unless its execution by the person by whom it purports to have been executed is specifically denied."
20. Here, as has been observed above, the scribe and the persons who might have witnessed the execution of the deeds by the second respondent were not called as witnesses. True that the deed Exh. D3 was registered in accordance with the provisions of the Registration Act but this was not a document required by law to be attested, and even if it was, the proviso to Article 79 merely relieved the first respondent of the duty to call an attesting witness; it did not relieve him of the obligation to prove its execution.
21. The learned Additional District Judge was, therefore, wrong in holding that "the impugned sale- deed has not only been executed but has also been registered". What the first respondent had to prove was not that the sale-deed (Exh. D3) had been executed but that it had been executed by the second respondent. And as has been seen above, the registration of the deed did not absolve the first respondent of his legal duty to prove the execution of the deed by the second respondent.
22. I, however, concur in the view taken by the learned Additional District Judge that the registration of the sale-deeds, Exhs. P2 and P3, was void and of no legal effect. Section 28 of the Registration Act, 1908 provides: "(1) Save as in this Part otherwise provided, every document mentioned in section 17, subsection (1), clauses (a), (b), (c), (d) and (e), section 17, subsection (2), and section 18 in so far as such document affects immovable property shall be presented Nr registration in the office of a Sub- Registrar within whose sub-district the whole or some portion of the property to which such document relates is situate.
(2) Notwithstanding anything contained in subsection (1),----------
(a) after a document is registered, no party thereto shall be entitled to question the validity of its registration on the ground that the property which purported to give jurisdiction to the Sub- Registrar to register it either did not exist or was fictitious or insignificant or was not intended to be conveyed; and
(b) a document the registration of which is secured by the inclusion of a nonexistent, fictitious or insignificant portion or item shall not in any manner affect the rights of a person who was not a party thereto and acquired rights in the property without notice of the transaction to which such document relates".
23. That the provisions of this section are mandatory in character is made manifest by the use of the expression "shall be presented for registration" in subsection (1) read with rules 116 and 119 of the Registration Rules. Rule 116 requires the registering officer to examine the document to see "whether he has authority to register it". That rule divides documents into four classes 'for the purposes of jurisdiction.' Rule 119 ordains that the registering officer 'shall return it to the presenter......And inform the presenter at what office he can obtain registration', if he finds 'he has no jurisdiction to register a document presented to him'. Thus, both section 28 and rule 119 use the word 'shall; prima facie the expression "shall" when it appears in a Statute "is used as a term of art to impose a duty to do what is prescribed, not a discretion to do it or not according to whether it is reasonably practicable to do it or to do something like it instead". (Lord Diplock in Grunwick Processing v. ACAS -(1978) I All ER 338, 360, 361). Also, by providing that the 'validity' of a document by a party thereto shall not be questioned, subsection (2), clause (a), obviously proceeds on the basis that but for this provision, even a document mentioned in clause (a) would have been invalid. Therefore, by necessary implication also, registration of a document affecting immovable property not situate within the limits of a sub-district where it is registered is invalid.
24. On general principles also,- the same result follows. The section provides for the territorial jurisdiction for the Sub-Registrar. In the administrative law, jurisdiction means legal authority or power. And territorial jurisdiction is the power of a tribunal or authority considered with reference to the territory within which it is to be exercised. It means the geographical limits within which that authority must act. (Jurisdiction of Courts by Horace Hawes, section 52). The general principle is that a Court created within and for a particular territory is confined in the exercise of its powers to the limits of such territory. To quote from John D. Works' "Courts and their jurisdiction", "the authority of every judicial tribunal and the obligation to obey it are circumscribed by the limits of the territory in which it is established". That is Squally true of the power of an executive or administrative officer like a Sub-Registrar. It must necessarily follow, therefore, that a statutory authority created within and for a particular territory acts without jurisdiction if it exercises jurisdiction beyond the geographical limits set for it. In this behalf, Sind Employees' Social Security Inst. v. Mumtaz Ali Taj (PLD 1975 SC 450 at 456) may be referred to. There a Labour Court's territorial jurisdiction was confined to industrial disputes of Hyderabad and Khairpur Division but an application relating to an industrial dispute of the territory of Karachi Division was made to that Court, it was held that the decision of that Court was wholly without jurisdiction and therefore a nullity.
25. Indeed a Statute may provide exceptions as does section 21 of the C.P.C. 1908, which section says that "no objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance". But the Registration Act makes no such exception in regard to a document like the one we are here concerned with.
26. The view that the Sub-Registrar Lahore City, had no territorial jurisdiction to register the deeds Exhs. P2 and P3 and, therefore, the registration was invalid and void is supported by authority. In Harendra Lal Roy Chowdhuri v. Sm. Haridasi Debi and others (AIR 1914 PC 67) no part of the property subject-matter of the deed was found to be situated in Calcutta and it was held that the deed could not be registered there; and in Kh. Muhammad Yousaf v. Kh. Abdur Rashid and others (PLD 1967 Karachi 508), it was held that the presentation of a deed to a Sub-Registrar within whose Sub- District the whole or some portion of the property to which such document related was not situated was not merely a defect of procedure. The learned Judge, therefore, proceeded on the assumption that despite its registration, the award in question had not been registered. Learned counsel for the petitioners referred to Muhammad Abdul Razack v. Syed Meera Ummal (AIR 1967 Madras 212) and Bhagabat Basudev and others v. Api Bewa and others (AIR 1974 Orissa 180). Both these cases had proceeded on the premises that the registration of a deed at a place where no part of the property subject-matter of the deed is situated is a fraud on the law of registration. In the Orissa case, a large portion of the property was situated at place 'A' and a small portion at place 'B' where the deed was registered. That case is, therefore, distinguishable on facts. In the Madras case, however, the entire property was situated outside the territorial limits of the Sub-Registrar in whose office the deed was registered. It was held that in order to hold that "the registration was effected by a fraud on the registration officer", it must be shown that "there was any collusion between the respondent's father and the appellant" and that if the deed was registered by mistake in a wrong office, that would not amount to fraud. In the view of the learned Judge, such a document is not void, because it has been registered in a wrong office; it is only voidable in character. If I may say so with great respect, while a question of fraud may arise where the registration of a deed is secured by including in the deed a property which does not exist, no question of fraud can arise in a case like this. The question in this case simply is a question of the jurisdiction of the Sub-Registrar to register or not to register. If he has the jurisdiction, the registration is valid and if he has not the jurisdiction, the registration is on the wording of section 28 itself invalid. Just as consent of the parties cannot confer jurisdiction where none exists, a mistake too cannot confer jurisdiction.
' It must, therefore, be held that the registration of the deeds, Exh. P2 and P3 was without jurisdiction and void.
27. Rule 116 of the Registration Rules provides that "when the Registering Officer is satisfied that the document presented to him for registration is duly stamped, he will examine it to see whether he has authority to register it" and lute 119 provides that "if the registering officer finds he has no jurisdiction to register a document presented to him, he shall return it to the presenter without recording any order of refusal, and inform the presenter at what office he and obtain registration".
Rather than supporting the petitioners' case, these uses emphasise the requirement that the Registering Officer must before to registers a document satisfy himself as to his territorial jurisdiction and only if he is so satisfied, can he entertain the deed for registration. If he ends that he has no jurisdiction, he must return the deed to the person who had presented it for being presented to the Registering Officer having jurisdiction.
28. The position, thus, boils down to this that the petitioners' sale-deeds Exhs. P2 and P3 were registered by a Registering Officer, who was not competent :o register them and their registration is, therefore, of no legal effect. In other words, they have to be treated as unregistered deeds. The first respondent's sale-deed dated 30-4-1977 (Exh. D3) was not proved to have been executed by the second -respondent and the first respondent could not, therefore, invoke the provisions of section 47 of the Registration Act to contend that that deed was registered earlier in point of time to the deeds of sale Exhs. P2 and P3 and had commenced to operate from 30-4-1977. Even if it be assumed that the agreement dated 12-1-1977 (Exh. D2) was executed by the second respondent in favour of the first respondent, the competition will be between the two agreements of sale viz. The petitioners' agreement of sale dated 7-1-1977 (Exh. P1) and the first respondent's agreement of sale dated 12-1-1977 (Exh. D2). The first respondent's receipt dated 30-12-1976 (Exh. Dl), apart from the fact that there was no proof of its execution, found mention neither in the agreement (Exh. D2) nor in the sale-deed (Exh. D3) and could not, therefore, be used as evidence of the agreement in favour of the first respondent having been entered into on 30-12-1976. By this receipt, a sum of Rs, 5,000 was paid as advance towards the sale price of Rs, 1,05,000 and if it was a genuine document and the payment had actually been made, then that sum must have been mentioned in the agreement of sale (Exh. D2). That agreement mentioned the payment of Rs,18,000 as "earnest money", but did not mention this sum of Rs,5,00Q.
29. It was in these circumstances that learned counsel for the petitioners prayed that the petitioners' suit should be treated as one for the specific performance of the agreement of sale dated 7-1-1977 (Exh. P1) and the unregistered sale-deeds Exhs. P2 and P3. As has been observed above, learned counsel' for the first respondent opposed this prayer. His only objection was that this is too late a stage to allow the suit to be treated as one for specific performance. {{PAGE CUTTING}}
30. It is well-settled that "a Court is empowered to grant such relief as the justice of the case may demand and for purposes of determining the relief asked for, the whole of the plaint must be looked into, so that the substance rather than the form should be examined". (See Samar Gul v.
Central Government a others PLD 1986 SC 35). In Ahmad Din v. Muhammad Shafi and others PI 1971 SC 762, the suit was for a declaration of title; the relief of possession v open to the plaintiff but he had not sought it as a consequential relief. It was 111 that "if his suit was otherwise maintainable and he was otherwise entitled to t relief it was open to the Courts to allow him to amend the plaint by adding prayer for possession and paying the appropriate ad valorem court-fees and the to grant him relief even though he had not specifically asked for it". In S. Fazli v. Star Film Distributors and Muhammad All Khan PLD 1964 SC 337, 3: the suit was for one for declaration and mandatory injunction. In view of t findings of fact, it was held that "the plaintiff would have to sue for specie performance and there is no difficulty in holding this suit to be one for specie performance". On behalf of the defendant, it was said that he had been prejudice by the form of the suit "because in a suit for specific performance the Court ha: discretion to refuse relief and to grant damages instead of specific and had the suit been in the proper form defendant No,1 could have equitable defence which may have persuaded the Court to exercise its against the plaintiff'. The contention, it was held, was without force. "The suit w one for injunction and the Court had a similar discretion in such a suit to refuel relief. Any equitable ground of refusal of relief which would have been open the defendant for resisting a suit for specific performance would also be open him in a suit for injunction".
31. Here, as in S. Sibtain's case, the suit was for a declaration and perpetual injunction. All the equitable defences which might have persuaded the Corn below not to exercise their discretion in the petitioner's favour in a suit f specific performance were open to the first defendant. It seems to me that possible defences, legal as well as equitable were taken by the first defendant by none of them, in my view, disentitles the petitioners to the relief of special performance. The suit was instituted timeously, well within three years of ti agreement of sale dated 7-1-1977. To deny this relief would amount to driving parties to yet another round of lengthy, and in view of the findings record( above, unnecessary litigation.
32. For these reasons, the petitioners are granted a decree for the special performance of the agreement of sale dated 7-1-1977 and the sale-deeds Exhs. I and P3 against the respondents. This will be subject to the condition that petitioners pay the requisite court-fee on the plaint of the suit and on tl memorandum of revision petition in this Court within a period of three months this judgment. If they pay the court-fee, the parties shall bear their own cost throughout but if they fail to do so, the petitioners' suit shall stand dismissed with costs throughout. {{PAGE CUTTING}}