This case has a chequered history. In order to seek specific performance of an agreement to sell, dated 23-1-1968 stated to have been executed by the petitioner in his favour, the respondent filed a suit on 19-1-1974. The suit was resisted by the petitioner with a denial of execution of the said agreement. Following issues were framed by the learned Civil Judge seized of the suit:--
(1) Whether the defendant agreed to sell the suit land to the plaintiff?
(2) Whether defendant received Rs.1,700 as part payment?
(3) How much amount the plaintiff has paid towards the total payment?
(4) Whether the suit is not competent in the present form?
(4-A) Whether the suit contravenes M. L. R 115?
(5) Whether the suit bears deficient court-fee?
(6) Relief.
Evidence of the parties was recorded. Learned Civil Judge recorded findings on all the issues in favour of the respondent and decreed his suit vide judgment and decree, dated 30-1-1980. The petitioner filed an appeal which was heard by a learned Additional District Judge, Vehari. The learned Additional District Judge upheld the findings of the learned trial Court on the above reproduced Issues Nos. l, 2, 3 and 5 refused to decide Issue No.4-A. However, he upset the findings of learned trial Court on Issue No.4 and found that the suit was premature inasmuch as the petitioner and not acquired proprietary rights in the said land by then. As a result of said findings the appeal was allowed and suit was dismissed vide judgment and decree, dated 24-6-1981. The respondent challenged the said judgment and decree of the learned Additional District Judge by filing of Civil Revision No.423 of 1981 in this Court which was dismissed on 10-4-1983. In C.P.S.L.A.
No.910 of 1983 leave was refused by the Supreme Court of Pakistan vide order, dated 8-4-1987. Civil Review Petition No.9 of 1987 was dismissed on 25-5-1987. The present suit was filed by the respondents on 17-10-1989, wherein he narrated the history of the previous litigation and averred that proprietary rights have been conferred on the petitioner vide conveyance deed, dated 15-1- 1989. He sought specific performance of the said agreement, dated 23-1-1968. The petitioner filed a written statement objecting that whereas the agreement is in respect of 73 Kanals, 4 Marlas of land suit was filed for 64 Kanals of land and as such was bad for partial specific performance which could not be allowed. On merits he denied the execution of the agreement and averred that the agreement being relied upon is result of fraud and fabrication. Following issues were framed by the learned trial Court:--
(1) Whether the agreement to sell is void being uncertain and is enforceable?
(2) Whether the suit is liable to dismiss in view of preliminary objection No.2 of the written statement?
(3) Whether the agreement to sell is void under section 20 of Contract Act?
(4) Whether the consideration is without authority and is not binding upon the defendant?
(5) Whether the agreement to sell is enforceable and void under section 24 of Contract Act?
(6) Whether the valuation for the purposes of court-fee and jurisdiction is incorrect if so its effect?
(7) Whether the agreement is void under sections 32 and 35 of the Contract Act?
(8) Whether the plaintiff is estopped by his words and conduct?
(9) Whether the plaintiff has no cause of action and locus standi?
(10) Whether the defendant is entitled to special cost under section 35-A, C.P.C.?
(11) Whether the plaintiff is entitled to decree of specific performance on the basis of agreement to sell, dated 23-1-1968?
(12) Relief.
Evidence of the parties was recorded. The learned trial Court dismissed the suit of the respondent vide judgment and decree, dated 31-7-1991. I may point out here that issues Nos.2, 3, 5, 6, 7, 8, 9 and 10 were answered against the petitioner. However, issue No. l l was answered in his favour and consequently Issues Nos.4 and 1 were so answered against the respondent. Feeling aggrieved the respondent filed an appeal. The petitioner also filed cross-objections regarding findings on the issues decided against him. Both matters were taken up by learned District Judge, Vehari together who proceeded to allow the appeal, dismiss cross-objections and as a result decreed the suit of the respondent vide judgment and decree, dated 19-12-1992.
2. Syed Kabeer Mehmood, learned counsel for the petitioner contends that as the respondent had sought partial specific performance the suit could not have been decreed by the learned District Judge. Further contends that neither the execution of the agreement nor payment of consideration had been proved. Complains that since the earlier suit was in the ultimate` analysis dismissed as premature no reference could have been made to the said judgment and the proceedings of the said suit while dealing with the present suit. Mr. Muhammad Khalid Alvi, learned counsel for the respondent on the other hand, District Judge.
3. I have gone through the copies of the record appended with this civil revision, with the assistance of the learned counsel for the parties. The factual history of the case narrated by me above is borne out from the same. In support of his first contention learned counsel for the petitioner refers to section 17 read with sections 14 and 15 of the Specific Relief Act, 1877. Learned counsel argues that since the respondent refused to relinquish his claim to further performance, the contract could not have been specifically enforced. The argument of the learned counsel loses 'sight of the fact that the agreement was in respect of 73 Kanals, 4 Marlas, whereas the suit was filed for 64 Kanals on the allegation that it was only to the said extent that proprietary rights were conferred on the petitioner. The matter to my mind is covered by section 14 of the Specific Relief Act, 1877 which lays down that where a part of the contract that must be left unperformed bears only a small proportion to the whole in value, and admits of compensation in money, the Court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency. A bare look on the agreement and the plaint would show that the part that must be left unperformed because of the non-conferment of proprietary rights upon the petitioner in respect of. The same bears a small proportion to the whole in value and as such can be specially enforced at the instance of the respondent.
4. So far as the second contention is concerned, I have gone through the earlier judgments and decrees. The judgment and decree, dated 30-11-1980 of learned Civil Judge are Exhs.P.16 and P.17 and that of learned Additional District Judge, dated 24-6-1981 is Exh.P.18 and that of this Court, dated 10-4-1983 in Civil Revision is Exh.P.2 while the order, dated 8-4-1987 refusing leave to appeal is Exh.P.20 and the order ejecting the review application, dated 25-5-1987 is Exh.P.19. I have already reproduced the issues that were decided in the course of said litigation. Issues Nos. l, 2, 3 and 5 were found in favour of the respondent. It was held as a fact after a trial that the argument in question was in fact executed by the petitioner; that he had received Rs.1,700 at the time of execution of the agreement and that he had received a sum of Rs.3,300 as also another sum of Rs.9,210.87 by cheques which were encashed and the amount was remitted in the Bank Account of the petitioner. These findings of the learned Civil Judge were upheld by the learned Additional District Judge as also this Court. The suit was dismissed on the basis of findings recorded on Issue No.4 to the effect that the proprietary rights had not been conferred on the petitioner and the suit as such was found to be premature. Learned counsel, however, contends that the suit having been dismissed as premature it shall be deemed that it was sans cause of action and the further presumption would be that it was never filed and had no legal existence. In support of the said rather unusual plea he cites the case of Habibullah v. Mehmood 1984 CLC 309, a case decided by the Supreme Court of Azad Jammu and Kashmir. I have examined the said judgment. It does support the contention of the learned counsel to the extent that in a premature suit the plaint can be rejected under Order VII, Rule 11, C.P.C but I have not been able to find anything in the said judgment to support the contention of the learned counsel that such a suit shall never be deemed to have been filed.
5. Now what happened in the course of previous suit was that issues of facts as also issues of law were framed and were finally decided by the Courts of competent jurisdiction. It is true that an issue of law i.e. Issue No.4 was decided against the respondent and the suit was held to be incompetent being premature, but the said finding would not wash away the findings recorded on other issues and concurrently upheld up to the Supreme Court of Pakistan.
6. By virtue of section 11, C. P. C a Court is debarred from trying any suit or issue in which the matter directly and substantially in issue in a former suit between the same parties in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised which has been heard and finally decided by such Court. A bare reading of section 11, C.P.C. Would show that the issues finally decided in the former suit which was of course between the same parties regarding the same subject-matter could not have even been tried what to speak of ignoring the earlier findings altogether as being sought to be stressed by the learned counsel for the petitioner.
Besides I find that the respondent did make an endeavour to produce all available evidence once again in the present suit. He produced P.W.1 Muhammad Ismail, the scribe as also Muhammad Ibrahim, a marginal witness as P.W.2. Payment of consideration was proved through Sarfraz Hussain, P.W.3 who produced the bank record pertaining to the various cheques, and respondent himself appeared as P.W.4. This evidence was recorded in the year 1991.1 do agree with the learned District Judge that some minor discrepancies in the statements of the P.W. Had to be ignored in view of the fact that they were made to testify in respect of a transaction which had taken place in the year 1968, 23 years thereafter. However, an overall reading of the evidence recorded in the present suit also to my mind supports the conclusion arrived at by the learned District Judge.
7. I have noted that the respondent entered the witness-box as P.W.4 and made a statement in line with his plaint. He was cross-examined. One of the suggestions given to him and denied by him was that he had failed to abide by the terms, of the agreement. It has to be presumed that the cross-examination was conducted under the instructions of the petitioner. The said suggestion leads only to one inference that the agreement in fact was executed by the petitioner but he complained of its non-compliance by the respondent. This suggestion in a way also constituted admission of the execution of the agreement on the part of the petitioner. Reference be made to the case of A.I Nawaz Gardezi v. Muhammad Yousaf PLD 1963 SC 51.
8. In view of the above discussion this Civil Revision has no force. No grounds within the meaning of section 115, C. P. C. Have been made out so as to enable this Court to interfere with the impugned judgment and decree of the learned District Judge, Vehari, dated 19-12-1992. The Civil Revision is accordingly dismissed with costs.