SYED DEEDAR HUSSAIN SHAH, J. -- By this common judgment we purpose to dispose of Civil Petitions Nos. 2368-L and 2376-L of 2001, as both of them have arisen out of the same judgment passed in two suits, ,one for specific performance of the agreement of sale and the other for a declaration to the effect that the said agreement was quite a forged document.
2. Briefly stated the facts of the matter are that respondents Nos. 1 and 2 filed a suit for specific performance of agreements of sale, dated 6.3.1984 and 11.6.1984, whereas in April, 1986 the present petitioners also filed a suit for declaration that the said documents of agreements were forged and they did not agree to sell their land to the respondents. Though the suits were consolidated by the Trial Court and evidence was recorded in one of them, but through a common judgment dated 2.2.1993 the suit filed by the respondents for specific performance was decreed to the extent of 1080 kanals of land and the one filed by the petitioners for declaration was dismissed.
3. The petitioners filed two separate appeals before the High Court for the reasons that the value of the suit of the respondents was more than 2 lac whereas value of the suit of the petitioners for declaration was less than the amount against which appeal was maintainable before the District Judge, but the same was also filed alongwith the said appeal in the suit for specific performance of sale agreements with the bona fide plea that since both the suits have been decided through consolidated judgment, appeals in both would be maintainable before the High Court.
4. The High Court admitted both the appeals for full hearing and notices were issued. These appeals remained pending for about 6 years and stay order issued. No objection either oral or in writing was raised by the respondents' against the maintainability of the appeal of the petitioner arising out of the suit for declaration, when ultimately on 4.6.1998 the High Court passed an order for return of the Memo. Of Appeal arising from the suit for declaration to the petitioner for presentation of the same to the District Court, which was the competent Court to entertain the said appeal. It was presented before the District Judge on 22.6.1998 from where it was transferred to the High Court to be decided alongwith the appeal of the respondents arising from the suit for specific performance of agreements of sale.
5. Both the appeals have been decided through impugned judgments dated 6.6.2001 passed in RFA No. 27/1992 and RFA No. 441/2000. The appeal filed by the petitioners has been dismissed as barred by time and the application moved by them for condonation of delay has also been dismissed, and the other appeal filed by them against the judgment and decree in suit for specific performance of agreement has also been dismissed on the basis of evidence of the scribe, namely Ghulam Rasool PW-5 and non-impleading of Shookar Din, one of the plaintiffs, as party, before the Trial Court.
6. Learned counsel for the petitioners submitted that it was eminently fit case for condonation of delay of filing appeal arising out of the suit for declaration; that for about 6 years the High Court kept the said appeal pending, and after admission without any objection from the respondents the same was ordered to be placed before the District Judge. The said appeal when presented before the District Judge, it was transferred to the High Court considering that both should be decided by one consolidated judgment in order to avoid contradiction that the petitioners have been pursuing the matter in good faith before the High Court; that the learned High Court has committed error of law in ignoring that the discretionary jurisdiction could not be exercised in a case, where a party is found guilty of making false representation or where the factual pleas raised by such party stand contradicted and shaken in evidence. Learned counsel further submitted that in appeal against the judgment and decree passed in the suit for specific performance of agreements the defence evidence should also have been considered and the same appear to have not been considered by the learned Judge considering that the appeal filed by the petitioners against the judgment passed in the suit for declaration had been dismissed, assuming as if evidence produced by the petitioners in the circumstances could be considered though the same evidence was a matter of fact related to the defence version raised in the suit for specific performance of sale. It was also argued that if two suits were consolidated and disposed of by one judgment, even one appeal was maintainable to challenge the judgment in both the suits. The only requirement was that by filing one appeal the copy of judgment and decree passed in other suit was not to be appended in memorandum of appeal, therefore, dismissal of the appeal of the petitioners as time-barred was also not sustainable on this score and the case of the petitioner should have been given full consideration by deciding whether the respondents succeeded in establishing execution of agreement of sale. He maintained that it was not considered at all by the learned Judges that if the respondents were in a position to pay amount of Rs. 4,24,300/- at the time of execution of alleged agreement of sate out of total consideration of Rs. 500,000/- there was, no reason that they could not get the sale-deed directly executed and registered which circumstance was itself very material in order to arrive at a conclusion whether the very agreement by the respondents was genuine one. The other evidence of the petitioners has also been ignored and he impugned judgment is based on non-reading of this piece of evidence.
7. The above contentions raised by the learned counsel for the petitioners require examination, therefore, we grant leave' to appeal.
8. Till the disposal of the appeals, execution of the decree shall remain stayed.