MUNIR A. SHEIKH, J.-- Leave to appeal is sought against the judgment dated 31-1-2000 of a Division Bench of the Lahore High Court through which R.F.A. No. 157 of 1994 tiled by the petitioner against the judgment dated 28.6.1994 of the trial Court by which his suit for specific performance of agreement of sale was dismissed, has been dismissed.
2. The facts of the case briefly stated are that the petitioner tiled a suit for specific performance of the agreement of sale of land in dispute measuring 192 kanals alleging that Azizullah, predecessor- in-interest of the respondents through agreement of sale dated 4-9-1988 agreed to sell the same to him for a consideration of an amount of Rs.7,92,000/- out of which an amount of Rs.1,15,000/- as mentioned in the said agreement was paid. The legal representatives of Azizullah alleged vendor denied the execution of the said agreement of sale by. Deceased Azizullah whereas the other respondents claimed to he bona .Fide purchasers of land measuring 92 Kanals out of the total land allegedly agreed to he sold through the said agreement.
3. The trial Court on the issues framed by it recorded evidence of the parties and returned a finding that the petitioner had failed to prove the execution of the agreement of sale in his favour by Azizullah deceased, therefore, it proceeded to dismiss the suit through judgment dated 28.6.1994 against which appeal filed by him has been dismissed through the impugned judgment dated 31.1.2000 by upholding the said finding of fact recorded against him.
4. Learned counsel for the petitioner submitted that C.M. No. 2/1988 was moved by the petitioner for allowing him to examine Hidayatullah as witness as additional evidence in which notice was issued to the respondents but the same was not decided, as such, it is a case of remand to the High Court for disposal of the appeal afresh after considering the said application on merits. He 'relies upon judgment reported as Muhammad timer v. Muhammad Qasim and another (1991 SCM R 1232) in which it was held that the first Appellate Court having not disposed of the application made by a party for permission to produce additional evidence, the decision of the appeal on merits was adversely affected, therefore, the case was remanded for disposal afresh.
5. We have considered the arguments addressed by the learned counsel for the petitioner on this point and find that no mention has been made in the impugned judgment by the learned Judges of the High Court that the petitioner at the time of final hearing of the appeal pressed the said application and insisted for grant of permission to produce additional evidence as prayed for therein. Learned counsel for the petitioner today tiled an affidavit of Mr. Irfan Masood Sheikh, Advocate, who conducted the appeal in the High Court on behalf of the petitioner in which it has been stated that he pointed out to the learned Judges of the High Court that the said application had been moved and should be decided. Learned counsel for the respondents on the other hand submitted that he appeared before the High Court and at the time of hearing of the appeal, no such request was made rather learned counsel for the petitioner started arguments on merits.
6. We need not dilate upon this controversy. We have gone through the application (C.M.
No.2/1998) moved by the petitioner in the High Court in which it was stated that one of the marginal witnesses, namely, Hidayatullah, appeared before the trial Court as his witness on 1011- 1993 on which date his evidence could not be recorded but thereafter, he was never available and due to the direction of the higher Court, he had to rush through his evidence. It has also been stated that only a few days ago, the petitioner came to know that respondents Nos. 2 to 5 in the appeal -had approached the said Hidayatullah and threatened him that if he would appear for recording the statement before the Court, they would involve him in a criminal case for forging the document and if he would join hands with them, he would be compensated with two acres out of the suit land.
7. Even if the said application had been allowed and Hidayatullah had been examined as one of the witnesses of the petitioner, in our view, it would not have made any difference for the following reasons:-
(a) On 20-9-1990 before the trial Court, Irshad Ahmad in the presence of learned counsel for the petitioner-plaintiff and the other defendants made a statement on the basis of a compromise that they were ready to sell the land measuring 100 Kanals, 8 Marlas to the petitioner and to that extent, they had no objection if the petitioner is granted decree;
(b) The petitioner did not admittedly make any request to the trial Court for passing decree to the extent of land measuring 100 Kanals, 8 Marlas as it was permissible under Order XII, Rule 6, CPC and press the suit for the remaining land; rather he got the land sold through two separate sale-deeds out of the Court. Land measuring about 84 Kanals was sold through sale-deed dated 2.11.1991 in favour of Muhammad Sadiq, present petitioner and Muhammad Nazir jointly whereas through another sale-deed dated 27.1.1993, land measuring 16 Kanals was sold in favour of one Muhammad Maqbool. In both the sale-deeds, the amount of consideration was fixed separately afresh and the petitioner amended the plaint and after excluding the said land measuring 100 Kanals, 8 Marlas, he wanted the specific performance of agreement of sale in dispute for the remaining land measuring 92 Kanals.
8. The act of the petitioner of not pressing his case for the land measuring 100 Kanals, 8 Marlas on the basis of the agreement in dispute and getting the sale of the said land through two sale-deeds independently in favour of Muhammad Maqbool and alongwith him Muhammad Nazir both not party in the suit was sufficient to establish that he had abandoned his claim of whole of the land under the said agreement of sale. This conduct of the petitioner in our view was sufficient to disentitle him to press the suit for the remaining land and seek partial performance of the agreement of sale which was barred under Section 17 of the Specific Relief Act apart from the fact that the execution of the same had not been established through cogent evidence as held by the Courts below. Nothing turns on the failure of the High Court to decide the application for permission to produce additional evidence.
9. For the foregoing reasons, we do not find any merits in this petition which is accordingly dismissed and leave to .