' This revision petition has been filed to call in question judgment dated 6-6-1981 passed by District Judge, D.G. Khan whereby order dated.8-6-1980 passed by Senior Civil Judge, D.G. Khan dismissing the application filed by the respondents under Order VII. Rule 11, C.P.C. Was set aside.
2. The facts giving rise to the present revision petition are that Rasool Bukhsh plaintiff/petitioner had instituted a suit for specific performance of contract in the Court of Senior Civil Judge. D.G.
Khan. Alleging therein, that Allah Dad predecessor-in-interest of the respondents had made an oral agreement to sell in respect of 138 Kanals, 15 Marlas agricultural land for a consideration of Rs,34, 688 at the rate of Rs,1,000 per Bhiga about one year prior to the institution of the suit, and that he had paid Rs,5,700 as earnest money to him and was willing to make the payment of the remaining amount. The suit was contested by Allah Dad alias Dadan defendant/predecessor-in- interest of the respondents who filed the written statement denying the averments of the plaint raising some preliminary objections and from the factual controversy appearing on the pleadings of the parties the following issues were framed:--
(1) Whether the suit is maintainable in present form?
(2) Whether the defendant has agreed to sell suit land to plaintiff in consideration of Rs,34,688 and has received Rs,5,700 as part payment towards sale amount'? OPP
(3) Whether the suit is unsulliciently valued for the purpose of court-fee and jurisdiction ? If so what is the correct valuation ? OPD
(4) Whether the plaintiff is entitled to decree for specific performance of contract in regard to suit land '? If so, on what terms '?
(5) Relief.
3. That during the pendency of the suit the respondent on 3-5-1980 filed an application for the rejection of the plaint under Order VII, Rule 11, C.P.C. The trial Court after obtaining the reply from the petitioners dismissed the same vide order dated 8-6-1990, Feeling aggrieved the respondents preferred a revision petition and the learned District Judge, D.G. Khan vide judgment and decree dated 6-6-1981 accepted the revision, set aside the order of the trial Court and rejected the plaint filed by the present petitioner.
4. The learned counsel for the petitioner contends that the revisional Court has committed an illegality in passing the impugned judgment and exercised the jurisdiction with material irregularity so vested in it. He further contends that the respondent had. Not made out a case under Order VII, Rule 11, C.P.C. The suit was quite competent which could not be rejected. 1k further contends that the parties can make an oral agreement to sell and the Civil Court could grant decree for specific performance of contract and no law had barred the suit.
5. On the other hand the learned counsel for the respondents has vehemently opposed the arguments of the learned counsel for the petitioner and supported the judgment and decree of the revisional Court.
6. I have heard the learned counsel for the parties and perused the record.
7. The question that boils down for determination in this case is that whether the defendant/respondent had made an agreement to sell of the suit for the consideration of Rs,34,688 and received Rs,5,700 as earnest money.
8. Section 54 of the Transfer of Property Act has defined the "sale" is transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Contract for sale.---A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. The essential elements of a sale are:---(1) The parties;
(2) the subject-matter: (3) the transfer of conveyance; (4) the price or consideration, The Courts in a contract for sale of immovable property will grant the decree for specific performance of contract unless special reasons to the contrary are shown. All agreements or contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. It has been held under section 12 of the Contract Act. 1872 that in order to constitute a legal contract the parties to the proceedings through the contract should be of sound mind and age and consideration or object of the agreement must be lawful and it should not be forbidden by law. The sale of an immovable property can be made orally or in writting and if property is of a value of Rs,100 or onwards than Rs,100 then such document or writing would be registered under the Registration Act. In the instant case the contract of sale was not reduced into writing, therefore, it was not compulsory to register the same.
9. The requirements of compulsory registration under section 54 of the Transfer of Property Act has been dispensed with vide a Notification No,3007-78/1511/LRI, dated 22-11-1978 whereby the application of the provisions of section 54 was restricted only to Municipalities and notified areas as declared and notified under section 214 of the Punjab Municipal Act, 1911. The area where the land in dispute is situated is under the latter notification and is immune from the application of section 54 of the Transfer of Property Act. In this respect reference can be made to Nazar Hussain Shah v. Noor Shah and others 1986 M LD 2856.
10. Another aspect of the case is that writing is not necessary to constitute a valid agreement to sell. Oral agreement can also be valid and legal and is binding on the parties. All the agreements or contracts whether oral or in writing if they are made by the free consent of the parties competent to contract for a lawful object and are not expressly declared to be void. In this context reference may be made to Ali Muhammad Khan v. Riazuddin Khera PLD 1981 Kar.
170.
11. The grant of decree for specific performance of immovable property is a matter of discretion of trial Court and capable for correction by the Appellate Court.
12. In view of the above discussion it is, therefore, held that the Civil Court would be competent to entertain and hear the suit for specific performance of contract on the basis of an oral agreement to sell, therefore, the suit was not barred by any law.
13. Another aspect of this case which has not been adverted to by the first Appellate Court that the trial Court had framed the issues on 13-7-1978 while the application for rejection of the plaint was filed on 3-5-1980 and the suit was rejected by the revisional Court on 6-6-1981 about two years after the framing of issues. The course adopted by the revisional Court was not proper on the ground, that if the suit was not competent the issue of law should have been treated as a preliminary issue and decided and this course was not adopted by the Court. Furthermore the defendant/respondent had not raised objection in his written statement which was pleaded by him in his application under Order VII, Rule 11, C.P.C. The reference can be made to this context on case of Muhammad Iqbal and 3 others v. Mst. Rehmat Bibi through Legal Heirs 1998 CLC 11.
' In view of the above discussion and supported by the dictum laid down in the cases (supra) this writ petition is accepted and the impugned judgment and decree passed by the revisional Court is declared to have been passed without lawful authority and of no legal effect and thus set aside and the order passed by the trial Court is maintained.
' The trial Court is directed to decide the suit within a period of 6 months positively.