' MUNIR A. SHEIKH, J.---This appeal by -leave of the Court has arisen from a suit filed by respondent Muhammad Akram for specific performance of agreement of sale, dated 7-5-1962 in respect of property in dispute which was decreed by the trial Court through judgment, dated 17-12-1984 which judgment and decree was set aside in appeal by the learned District Judge through judgment, dated 12-11-1986 and the suit dismissed which has now been set aside by the learned Judge in Chamber of the Lahore High Court through the impugned judgment, dated 16-1-1991 and the judgment and decree of the trial Court restored.
2. Leave was granted to consider mainly the question whether the High Court was justified in exercising revisional jurisdiction under section 115, C.P.C. To interfere with the findings of facts recorded by the First Appellate Court.
3. Learned counsel for the parties has been heard. The execution of agreement of sale, dated 7-5- 1962 as alleged by the respondent - plaintiff in his favour by the present appellant was categorically denied in the written statement by the appellant by stating that the same was a forged and fake document. The case of the respondent-plaintiff was that prior to that said written agreement of sale, the appellant agreed to sell his 1/2 share in the property in dispute in his favour through an oral understanding in pursuance of which subsequently Account No,1283 in the Habib Bank Limited, Anarkali Branch was opened in the name of the appellant on 5-5-1962 and out of the total amount of consideration of Rs,12,000, Rs,10,000 was deposited in the said account by the plaintiff in favour of the present appellant and the remaining amount of Rs,2,000 was agreed to be paid at the time of registration of formal document of sale in favour of the respondent-plaintiff.
According to the terms of the agreement, dated 7-5-1962 which was reduced into writing no time was fixed for the registration of the sale-deed.
3. There is no dispute between the parties about the correctness of the following facts emerging from the material produced in this case by the parties:--
(a) The property in dispute was purchased by both the parties jointly from its previous owner in the year 1956.
(b) The site-plan for the construction of the building thereon was sanctioned in the name of both the parties jointly.
(c) Account No,1283 was opened in the Habib Bank Limited, Anarkali Branch with the deposit of Rs,10,000 and there was no existence of such an account before 5-5-1962.
(d) No further amount was deposited by the appellant in the said account; rather he withdrew a sum of Rs,9,500 from the said account at some stage.
(e) That the receipt for the deposit of the said amount was in possession of the respondent- plaintiff and not the present appellant.
4. Since the execution of the agreement of sale had been denied by the appellant, therefore, the respondent in order to prove the same examined Sheikh Muhammad Hussain as P.W.1 who was the marginal witness of the document. He stated that the present appellant put his signatures on the said document and agreed to sell his 172 share in the property to the respondent. It may be mentioned here that a mention has also been made in this agreement of the deposit of an amount of Rs,10,000 by the respondent-plaintiff out of the total sale consideration of Rs,12,000 in Account No,1283 which was in the name of the appellant. The appellant did not make attempt to lead expert evidence in order to prove that the signatures on this document were not his or that the statement of Sheikh Muhammad Hussain marginal witness (P.W.1) that he signed the said document was incorrect. He relied upon his bald statement of mere denial of execution of the document.
5. As to conduct of the parties as regards dealing with the property in the construction of building and renting out portions of the same, it may be mentioned that P.W.4 Muhammad Siddique examined by the respondent-plaintiff stated that the same has been constructed by Muhammad Akram plaintiff which consisted of ten to twelve shops out of which two shops were taken on rent by this witness from Muhammad Arkam, respondent. He stated that the present appellant filed a suit against him stating that he was his tenant and the rent should be paid to him but the same was dismissed. He stated that the all other occupants were the tenants of Muhammad Akram, plaintiff. The correctness of his statement as to dismissal of suit of the appellant as regards claim of rent from this person appears to have not been disputed in the cross-examination as no question was put to him with regard thereto. P.W.5 Miraj Din also supported the plaintiff by stating that the building had been constructed by respondent Muhammad Akram and the said Muhammad Akram had given on rent two shops to him to whom he had been paying the rent. He also stated that the other occupants were also the tenants of Muhammad Akram and denied the suggestion that the building had been constructed jointly by both the parties with their joint resources. The appellant when appeared as his witness as P.W.9 admitted that his suits seeking ejectment of Muhammad Siddique and Miraj Din as his tenants had been dismissed and also clearly admitted that all the jenants had been paying rent to Muhammad Akram plaintiff by stating that though they were not his tenants. He could not produce any receipt for the payment of property tax of the property in dispute. The evidence of the appellant mainly consisted of statement of Arif Mehmood, D.W.1. He attempted to produce evidence about the manner in which disputed Account No,1283 was opened in order to prove that the opening of the same had no connection with the agreement of sale but this witness does not help him. He stated that he did not know as to who was the Manager/Officer of the Habib Bank when the said account was opened and denied that the record of pay slip of the deposit of Rs,10,000 had been removed. He stated that he did not know as to who introduced the opener of the account and as to who had signed the relevant document. He, however, acknowledged the signatures of Ahmad, Manager in respect of opening of the said account. Appellant also produced Muhammad Sadiq, D.W.3 who claimed to have worked as Munshi during the period of construction and verbally stated that Haji Shafi and Muhammad Siddique used to pay and the plaintiff also used to pay. He did not produce any documentary evidence about the payment of any amount to the labourers or the other persons employed for if he was acting as Munshi, he should have been in possession of the record. Sadiq Ali was examined as D.W.4 who stated that he was employed by respondent Muhammad Akram and Muhammad Siddique present appellant with whom he worked three and a half months and Munshi Sadiq used to pay him the salary.
6. After considering his evidence, the trial Court came to the conclusion that execution of agreement of sale, dated 7-5-1962 had been established in favour of the respondent by the appellant and that the suit was not barred by time as there was not time fixed for the execution of the sale-deed and the time had to run from the date when the promisee had denied or refused to perform his part of the agreement when called upon and the present suit having been filed within the period of limitation from the date of demand made by the respondent-plaintiff from the appellant to execute sale-deed as such, was within limitation. The suit was decreed through judgment, dated 17-12-1984 as noted above which was, however, set aside through judgment, dated 12-11-1986 by the learned District Judge. The main consideration which weighed with the learned District Judge was that it had been admitted by Hassan Raza, Bank Officer, examined by the Appellate Court that at the time of opening of any account, the account-holder normally should be present and the presence of the appellant had not been proved, therefore, it appears as if an impression was gathered that the very existence or opening of the said account in the name of the appellant was in dispute. It was ignored that in the written statement filed by the appellant, he had admitted that opening of the said account in his name though stated that the same had been opened by him and not by Muhammad Akram, therefore, the main question was as to who deposited the amount of Rs,10,000 in the said account which was relevant in connection with the present controversy and the attending circumstances as noted above do lend support to the case of the appellant that he was the person who deposited the said amount. Hasan Raza who was the officer of the Bank at the relevant time categorically stated that the said amount was deposited by Muhammad Akram. Muhammad Akram was admittedly in possession of the deposit slip which he produced in evidence as Exh.P.W.8/1. The appellant had not given any cogent explanation as to how the said receipt could have been in possession of the respondent-plaintiff if he himself had deposited the said amount which should have been in his possession and control. When faced with this difficulty, he attempted to make out a case that since both the parties were related to each other, the respondent took over the said receipt which explanation is neither plausible nor reasonable. Sufficient evidence has been produced on record that it was Muhammad Akram, respondent who had constructed the building and had been renting out different portions of the same to the exclusion of the appellant and receiving the rent. There is no evidence that the appellant ever raised any objection to the receipt of rent by Muhammad Akram, respondent exclusively for the property in dispute from the tenant or that he ever filed any suit for rendition of accounts if his case was that he continued to be the joint owner of the property with the respondent-plaintiff. So much so, no evidence has been led that even after the dismissal of his ejectment petition against the tenants, the appellant took any step for establishment of his rights as joint owner in the property though he had become aware of the fact that Muhammad Akram, respondent had been dealing with the property as owner to his exclusion.
7. Learned counsel for the appellant submitted that inaction on behalf of the appellant as to raising of further construction on the property by the respondent/plaintiff and renting out of different portions of the property to tenants by him and receipt of rent from them should not be considered as adverse to the ownership rights of the appellant in the property as under the law one of the joint owners could perform these acts and supported his contention with reference to-reported judgments cited by him which need not be mentioned here holding that one of the joint owners even if improves upon the property could not raise any claim of exclusive ownership. There can possibly be no cavil with the proposition of law as canvassed that one of the joint owners if deals with the property in the ordinary circumstances, would not adversely affect the other joint owners rights in the property but in the facts and circumstances of this case, this plea is not available to the appellant, for it has been established on the record that the relations between both the parties were not cordial as disputes between them were once referred for arbitration and the appellant himself filed ejectment petitions against the tenants from the property to the exclusion of the respondent/ plaintiff in which he failed in particular when the respondent/ plaintiff was claiming ownership rights in the property as regards share of the appellant on the basis of disputed agreement of sale, therefore, the act of the respondent of dealing with the property in that manner without any objection as discussed above to the exclusion of the appellant was a matter which furnished strong evidence in favour of the execution of agreement of sale in his favour.
8. There is no explanation much less reasonable explanation:--
(i) As to why a new Bank Account No,1283 was opened with the amount of Rs,10,000 in the name of the appellant in which no further amount was ever deposited, the said account remained confined to the said amount and the amount of interest accrued thereon, the same was closed in 1990 from which the appellant at some stage withdrew Rs,9,500. It can safely be concluded that the said account was in fact opened in pursuance of the oral agreement between the parties for the sale of 1/2 share of the appellant to the respondent for the purpose of depositing this amount of Rs,10,000 in order to secure the interest of the respondent and to create credible evidence to establish that the said amount had been paid.
(ii) The First Appellate Court while recording findings of facts of its own for the reversal of findings recorded by the trial Court does not appear to have taken into consideration the above mentioned material aspects of the case emerging from the circumstances and the evidence produced by the respondent, therefore, it was eminently a fit case to hold that the judgment, dated 12-11-1986 of the said Court was based not only on misreading but on non-consideration of material piece of evidence which was liable to be interfered with under sub-clause (c) of section 115, C.P.C. And learned Single Judge of the High Court was justified in setting aside the same through the impugned judgment. No doubt, the learned Judge did not use the expression misreading or non- consideration of the material evidence by the First Appellate Court but from his judgment if read as a whole, it can safely by construed that the findings of the First Appellate Court were set aside on these grounds as he elaborately scrutinized and examined the evidence, therefore, this appeal is liable to be dismissed as the impugned judgment does not suffer from any illegality.
(iii) Learned counsel for the appellant stressed that deposit of an amount of Rs,10,000 as part of consideration two days prior to the formal agreement of sale as alleged by the respondent/plaintiff is sufficient to question the genuineness of the agreement itself as no amount could be paid in connection with an agreement which was yet to be executed.
' This contention has been adequately dealt with and disposed of by the learned Judge of the High Court and the reasons given by him are perfectly valid and we are disposed to agree with him on this aspect of the case. No objection could possibly be raised as to the adjustment of the said amount towards the sale price under the agreement of sale in the facts and circumstances of this case particularly when it has been established that the said amount was deposited by the respondent.
9. It has engaged our serious consideration as to what should be the amount of remaining consideration subject to which the suit was to be decreed. Although technically the suit was not barred by time but the fact remains that there is also slackness on the part of the respondent to approach the Court after a period of about nine years after the execution of the agreement of sale.
Had he approached earlier, the respondent/ plaintiff would have been benefited by the deposit of the amount of Rs,2,000 at the relevant time, as with the passage of time there was inflation in the value of the currency. The grant of decree for specific performance of agreement being a discretionary and equitable relief under the law, therefore, we would like to exercise discretion in the interest of justice in favour of the appellant for raising the amount of remaining consideration from Rs,2,000 to Rs,1,00,000.
10. For the foregoing reasons, the appeal fails which is hereby dismissed with the modification that the suit stands decreed subject to payment of an amount of Rs,1,00,000 as remaining amount of consideration which shall be deposited within one month after deduction of any amount if already deposited under the original decree passed by the trial Court failing which the suit shall stand dismissed.
11. There will be, however, no order as to costs.
Order accordingly.
2000 SCMR 540 [Supreme Court of Pakistan] Preseht: Muhammad Bashir Jehangiri and Mamoon Kazi, JJ MASJID INTIZAMIA COMMITTEE and others---Petitioners versus ANJUMAN-E-FALAH-O-BAHBOOD and others---Respondents Civil Petition No,359 of 1999, decided on 13th January, 2000.
(On appeal from the judgment of the Lahore High Court, dated 1-2-1999 passed in S.A.O. No,160 of 1998).
West Pakistan Urban Rent Restriction Ordinance (VI of 1959)--- ----S. 13---Civil Procedure Code (V of 1908), S. 24-A---Ex parte ejectment of tenant---Appearance of parties on transfer of proceedings under West Pakistan Urban Rent Restriction Ordinance, 1959-- -Applicability of S.24-A, C.P.C.---Application for setting aside ex parte ejectment order by Rent Controller was dismissed for non-prosecution and restoration application of said order was also dismissed---Additional District Judge, on appeal, set aside the ejectment order as the case had been transferred from the Court of one Rent Controller to another who had then passed the order of ejectment but no notice in that regard had been served on the tenants---Case was, therefore, remanded to the Rent Controller for hearing the same afresh---Tenants, though were being proceeded against ex parte but the proceedings arose from an ejectment application and not a suit---Provisions of S.24-A, C.P.C., therefore, could not be invoked in the case---Proceedings held by the transferee Rent Controller against the tenants without notice suffered from infirmity as same were opposed to the principles of natural justice. [p. 542] A & B S. Irshad Hussain v. Azizullah Khan 1987 SCM R 150 and Fehmida Begum v. Muhammad Khalid 1992 SCM R 1908 distinguished. Malik Muhammad Nawaz, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioners.
Nemo for Respondents.
Date of hearing: 13th January, 2000.
' MAMOON KAZI, J.---The petitioners' ejectment application against the respondents was accepted by the Rent Controller ex parte on 27-2-1998. Application for setting aside the ex parte order was dismissed for non-prosecution on 20-7-1998 and application filed for restoration of the same was also dismissed vide order dated 16-10-1998. On appeal filed by the respondent before the Additional District Judge the order of ejectment was set aside as the case had been transferred from the Court of one Rent Controller to another who had then passed the order of ejectment, but no notice in this regard had been served on the respondent. Therefore, the case was remanded to the Rent Controller for hearing afresh.
2. Feeling aggrieved by such order, the petitioners filed appeal before the High Court, but the order of the Additional District Judge has been upheld, and hence this petition for leave to appeal.
3. Malik Muhammad Nawaz, learned counsel for the petitioners has assailed the order of the learned Judge of the High Court on the ground that in view of section 24-A of the Civil Procedure Code, no fresh notice was required to be sent to the respondents by the transferee Court. Further, according to the learned counsel, the case had already proceeded ex parte after due service on the respondents. Reliance has been placed by the learned counsel upon S. Irshad Hussain v.
Azizullah Khan (1987 SCM R 150), wherein, while interpreting the provisions of section 24-A, C.P.C., it was held by this Court that the purpose which is sought to be achieved by subsection (2) of section 24-A is to make it obligatory on the parties to get themselves informed of the future date of hearing and the Court where the case has been transferred and the only duty placed on the Court is to inform them when they approached it for that purpose. This Court also did not agree with the reasoning of the High Court that because an ex parte defendant has a right to appear at any stage and join the proceedings prospectively, he must be informed of the transfer of the case.
4. No doubt, the judgment of the High Court in this case does not appear to be in consonance with the rule laid down in the aforesaid case, but the observations made in Irshad Hussain's case (supra) related to a suit. In the present case although the respondents were being proceeded against ex parte, but the proceedings arose from an ejectment application and not a suit.
Therefore, in our opinion, the provisions of section 24-A invoked by the learned counsel for the petitioners are not applicable in the present case. Learned counsel for the petitioners, however, argued that where the Rent Ordinance is silent the provisions of C.P.C. Can be invoked. Reliance in this regard has been placed on the case of Mst. Fehmida Begum v. Muhammad Khalid (1992 SCM R 1908), where it was observed that the Rent Controller, as a Tribunal of limited jurisdiction, could invoke equitable principles of Civil Procedure Code, 1908 and in this case the provisions of section 12(2), C.P.C. Were held to be applicable as the Rent Controller was required to set aside an order which had been secured by practicing fraud or misrepresentation. But reference to the observations made in this judgment appears to be clearly misplaced as only equitable principles of C.P.C. Can be invoked, if need arises in certain cases, but not every provision thereof. We are, therefore, inclined to agree with the observations made by the learned Judge in the High Court that proceedings held by the transferee Rent Controller against the respondent without notice suffered from infirmity as the same were opposed to the principles of natural justice. Therefore, interference with the judgment of the High Court is not called for.
5. In the result, the petition is dismissed and leave is refused.