' The plaintiffs/respondents had instituted a suit against the defendant, Muhammad Nawaz, in the Court of Civil Judge, Lakki Marwat, for declaration that they are owners-in-possession through purchase of the property described in the heading of the plaint for a sum of Rs,80,000 and the order of the Revenue Officer dated 25-3-1981 in respect of cancellation of Mutation No,10163 is wrong, hence liable to correction as ineffective on their rights. A decree for the recovery of Rs,80,000 was also prayed as an alternate relief. The defendant contested the suit by filing the written statement. The divergent pleadings of the arties gave birth to the following issues:---
(1) Whether the plaintiffs have got a cause of action?
(2) Whether the suit is within time? OPP
(3) Whether the Mutation No,10163 has been entered at the instance of the defendant and Rs,80,000 were received as the sale consideration by the defendant? OPP
(4) Whether the plaintiff is entitled to recover Rs,80,000 in the alternative from the defendant? OPD
(5) Whether the suit is bad for non-joinder of necessary parties? OPD
(6) Whether the plaintiff has estopped to sue? OPD
(7) Whether the Civil Court has got jurisdiction to entertain the present suit? OPD
(8) Whether the suit is bad for want of court-fee? OPD
(9) Whether the land mentioned in the impugned mutation has not been sold to the plaintiffs and the sale consideration has not been received? OPD
(10) What is the effect of exchange of the suit land by the defendant No,1 with defendants Nos.2 and 3? OPD
(11) Relief.
2. The learned trial Court after recording the evidence of the parties ranted a declaratory decree in favour of the plaintiffs on 22-10-1985.
3. Dissatisfied with the judgment and decree of the lower Court, Muhammad Nawaz defendant lodged Appeal No,60/13 in the Court of additional District Judge, Bannu at Lakhi. Vide judgment dated 27-1-1987, the earned Appellate Court accepted the appeal and set aside the findings of the trial court and remanded the case with the direction that the issue of payment of sale price of the suit land be decided afresh. On receipt of the file, the plaintiffs/respondents produced further evidence, while the petitioner/defendant lied on the evidence already adduced by him. During pendency of the case, the plaintiffs were asked to pay the court-fee according to the value of Rs,80,000, e sale amount vide order, dated 6-4-1979 within one month. The plaint of e plaintiffs was rejected on 16-10-1979 for non-compliance of the orders of the court. However, Regular First Appeal No,12 of 1979 against the judgment and decree of the trial Court was preferred in the High Court and a Division Bench vide order dated 12-1-1992 accepted the appeal, set aside the judgment and decree, dated 16-10-1979 and directed the plaintiffs to make up the deficiency in the court-fee within thirty days. The plaintiffs thereupon affixed the requisite court-fee and the trial Court proceeded in the matter. After recording evidence of the plaintiffs, the learned trial Court vide judgment and decree dated 26-5-1992 decreed the suit of the plaintiffs against the defendant for a sum of Rs,20,000. The defendant, aggrieved from the said judgment and decree preferred an appeal in the Court of District Judge, Lakki bearing No,137 of 1993. The learned Appellate Court vide its judgment dated 8-1-1994 dismissed the appeal. Hence the present revision petition.
4. I have heard the learned counsel for the parties and perused the record.
5. In the first instance, the plaintiffs had prayed in their plaint that they have purchased the suit property for a sum of Rs,80,000 and the sale mutation bearing No,10163 was rejected by the Revenue Officer when the vendor appeared before him and stated that the bargain has been cancelled, however, they are entitled to a declaratory decree and for recovery of Rs,80,000, the sale consideration. It transpires from the order sheet No,4 dated 3-6-1981 that the counsel for the plaintiffs informed the Court that the defendant had transferred the suit property in favour of Muhammad Yusuf Khan and Abdul Bari Khan, sons of Muhammad Akbar Khan, therefore, they may be arrayed as defendants to the proceedings. The Court ordered that: {{URDU TEXT}} ' It is in the evidence that the suit property was transferred in the names of the said Yusuf Khan and Abdul Bari Khan, added defendants Nos.2 and 3, through exchange Mutation No,10203 attested on 1-7-1981.
6. The learned counsel appearing for the respondents at the very outset opined that the Appellate Court while delivering judgment on 27-1-1987 had only disturbed the findings of the trial Court on issue pertaining to the payment of sale price and the rest of the findings of the lower Court were maintained. After the remand, the learned trial Court while delivering judgment on 26-5-1992 was also impressed by the same assertion and the same was found valid with the Appellate Court in its judgment dated 8-1-1994.
7. I am afraid to take it as a correct position. The judgment in Appeal No,60/13 in its para. No,4 is clear that the appeal was accepted and the findings of the Appellate Court were set aside and the case was remanded with the directions contained therein. I am further supported by the judgment of the Division Bench in R.F.A. No,12/79 dated 12-1-1992. In the seventh line of para. 5 of the said judgment, it was observed as follows:- "He has, however, set aside the judgment and decree of the learned Additional Civil Judge and remanded the case for decision afresh the The judgment and decree of the trial Court dated 25-6- 1992 is liable to be quashed on the sole ground that the trial Court has bypassed the provisions contained in Order 20, Rule 5 of the Civil Procedure Code which, for ready reference, are reproduced as under:--- ' Court to state its decision on each issue.---In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit."
' The learned lower Court has not given issue-wise findings as desired by law.
8. It was incumbent upon the learned trial Court to have asked for the amended plaint when it was brought to its notice that the property has been transferred in the names of defendants Nos.2 and 3 in order to pray for the relief against the such transfer which affects the rights of the plaintiffs.
9. There appears to be an agreement to sell as alleged by the plaintiffs in the plaint and the same can only be implemented if a suit for specific performance of the agreement is brought to the Court. The present transaction does not fall within the ambit of section 42 of the Specific Relief Act (hereinafter to be called as the Act), particularly when the plaintiffs being able to ask for further relief and wished to do so. The relevant section 42 of the Act ibid is reproduced as under:-- "42. Discretion of Court as to declaration of status or right.---Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief.
' Bar to such declaration.---Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than mere declaration of title, omits to do so."
' It has been laid down in 1982 SCM R 1178 as under:--- (c) Specific Relief Act (II of 1877)--- ' Section 42---Declaration---Suit for---Prayer---Petitioner was required under law to ask for all other reliefs which were open to him in suit for declaration---Relevant prayer for consequential in present case was prayer for specific performance of agreement---Prayer not at agree made--- No relief could be granted.
(d) Remedy---Party had a case on basis of agreement---Correct remedy asked for due to lack to proper legal advice---No relief could granted.
10. The learned counsel appearing for the plaintiffs/respondents scheme contended that the Court is competent to grant a relief which is not specific asked in the plaint but the plaintiffs are otherwise entitled to it. He placed reliance on PLD 1986 SC 35 citation 'C' at page 36 wherein it has been down as under:--- "Court is empowered to grant such relief as justice of case may demand for determining relief asked for, whole of the plaint must be look into, so that substance rather than form should be examined."
' When he was confronted with the contents of the plaint as to whether the s. Contains even an iota pertaining to the subsequent transfer through Exchange Mutation No,10163. He was unable to render satisfactory reply. He was ask to go through the judgment of the Supreme Court which reflects in PLD 197 SC 242 citations e' and 'f' wherein it was held that the plaintiff claiming large relief than one to which entitled cannot be granted such larger relief without firm amending his plaint. In such situations, it is very difficult to proceed with the plaint as available on the file.
10. The learned trial Court has decided the present case as if it was pre emotion suit. The plaintiffs in their own plaint state that they have purchased the suit property for a sum of Rs,80,000, so in order to prove the bargain of sale was incumbent upon the plaintiffs to have proved with cogent evidence the payment of sale consideration of Rs,80,000, but according to the judgment o1 the lower Court they were able to prove a sum of Rs,20,000 and, therefore, according to the wisdom of the trial Court, he decreed the suit for Rs,20,000. Ii is very surprising and it shows the interest on part of the Court that how he put: indulgence in the merits of the case.
11. Resultantly, I am constrained to accept this revision petition and, therefore, set aside the judgments and decrees of both the Courts below and remand the case to the trial Court with the directions to decide the case arrest after obtaining the better statements or amended pleadings of the parties and tc decide it on merits in accordance with law, preferably within a period of six months. It shall record the evidence of the parties de novo and give findings or each and every issues as desired by Order 20, Rule 5 of the C.P.C. In peculiar circumstances of the case, the parties are left to bear their own costs. Since the plaintiffs want to press into service the copies of the Revenue Record, therefore. C.M. No,125 of 1995 is allowed.