Briefly stated the facts are that Mst. Sughra Haq plaintiff/respondent, on 6-1-1983 entered into an agreement to purchase suit property, with Sh. Abdur Rehman, predecessor-in-interest of petitioners No,1 and 2 through his general attorney Sh. Fazal-ur-Rehman for a sum of Rs,90,000. She paid Is.10,000 was earnest money. It was agreed that the remaining amount shall be paid at the time of execution of sale deed up to 30-6-1983. It was further stipulated that if the remaining amount is not paid till due date, the amount of earnest money shall stand forfeited. Later on the time for execution of sale deed was extended up to 31-8-1983 when she further paid a sum of Rs,15,000 to the vendor through a cheque which was also got encashed. As the defendant/ predecessor-in-interest of petitioners No,1 and 2 (Sh. Abdur Rehman) failed to perform his part of contract and through sale deed dated 8-9-1983 alienated the suit property to defendant/petitioner No,3, so the plaintiff/respondent. was constrained to file a suit for specific performance against the defendants/petitioners on 20-10-1983. After the death of Sh. Abdur Rehman his legal heirs (petitioners No,1 and 2) were impleaded and as such amended plaint was fired on 20-5-1989. The suit was resisted by the defendants/petitioners who filed written statements on 17-12-1983. Wherein they raised various preliminary objections and also controverted the contention of the plaintiff/respondent on merits.
2. From the divergent pleadings of the parties the trial Court framed the following issues:-
(1) Whether the suit is not maintainable in the present form? OPD
(2) Whether the plaintiff has no cause of action to file this suit? OPD
(3) Whether the suit is mala fide? OPD
(4) Whether the plaintiff has come in this Court with unclean hands ? OPD
(5) Whether the plaintiff performed his part of the contract ? OPD
(6) If Issue No,5 above is proved then whether the plaintiff is entitled for specific performance of agreement to sell in. question? OPP
(7) Whether the defendant No,2 is a bonafide purchaser for consideration of the suit property and without notice of the previous agreement to sell? OPD-2. If so, to what effect?
(8) Relief.
3. In support of her stand the plaintiff/respondent examined P. W.1 Muhammad Usman Khan Record-keeper, P.W.2 Muhammad Younas Advocate, P.W.3 Munawar Hussain, P.W.4 Aftab Ahmad Record-keeper, and P.W.5 Ata-ul-Haq as her general attorney. In rebuttal the defendant/petitioner No,3 Masood. Ranjha recorded his own statement as D.W.1 and also examined D.W.2 Rafey Ahmad Khan. the defendant/petitioner Fazal-ur-Rehman General Attorney of Sh. Abdur Rehman) recorded his own statement as D.W.3. Thereafter the plaintiff/respondent examined Zia-ul-Haq as P.W.6 and then closed her evidence.
4. After going through the evidence produced by the parties, the trial Court decreed the suit of the plaintiff/respondent vide judgment and decree dated 19-3-1990, which was upheld in appeal vide judgment and decree dated 14-6-1994. Hence the instant civil revision.
5. Arguments have been heard and record perused.
6. It is submitted by the learned counsel for the petitioners that the very suit for specific performance was not maintainable as the so-called agreement dated 6-1-1983 was not subsisting at the time of filing suit. While explaining his contention he submitted that initially the agreement was executed on 6-1-1983 and the sale deed was to be executed till 30-6-1983, that later on the said period was extended up to 31-8-1983, that initially agreement was to be executed in favour of Mst. Sughra Haq whereas later on it was sought to be executed in favour of her son Fayyaz-ul-Haq.
He thus argued that as the original contract stood substituted, so the original contract could not be got specifically enforced as per section 62 of the Contract Act. In support of his contention he placed reliance upon Banque Indosuez v. Banking Tribunal for Singh and Baluchistan and others (1994 .L.C. 2272), Bhabhuti Prasad and others v. Parbati Kuar and others (A .I.R 1935 Oudh 366), Baldeo and others v. B.Sher Bahadur Singh (A.I.R 1924 Oudh 169) and Pujari Narasappa and another v. Shaik Hazrat and others (AIR 1960 Mysore 59). He further contended that judgments and decrees are not sustainable, as even correct issues have not been framed by the trial Court as no issue regarding novation of contract was framed by the trial Court as such suit be remanded. In support of his contention he placed reliance upon Mansab Ali v. Nawab and others (1994 CLC 2208-Lahore).
He next argued that plea of novation of contract is a question of law and as such can be agitated at any time and place reliance upon Safdar Ali through his legal heirs and 3 others v. Muhammad Malik and 4 others (1995 CLC 1751). He next argued that the question of the proper legal effect of a document or of a proved fact is always a question of law and can be seen by this Court and placed reliance upon Malik Muhammad Hayat Khan v. Subedar Yar Muhammad Khan (PLD 1966 S.C. 612), Gulzar Khan v. Mst. Shahzad Bibi and another (PLD 1974 S.C. 204) and Amir Abdullah Khan through legal heirs and others v. Col. Muhammad Attaullah Khan (PLD 1990 S.C. 972). He further argued that Ata ul Haq P.W.5 examined himself as general attorney of the plaintiff/respondent on the basis of a power of attorney executed in his favour but that power of attorney did not authorize him to make the statement in the Court. He argued that strict construction of power of attorney is required and place reliance upon Muhammad Mchrban v. Sadrud Din and another (1995 CLC 1541- (Supreme Court(AJ & K). He further submitted that subsequent vendee has to prove that he had purchased the property in good faith and without notice of the original contract as contemplated by section 27(b) of Specific Reliet Act, that defendant/petitioner No,3 has brought on record sufficient evidence to prove that he had purchased the property in good faith and without notice of original contract having been entered into by the vendor with the plaintiff! respondent and placed reliane upon Muhammad Ashraf v. Ali Zaman and others (1992 SCM R 1442), Mst. Khair ul Nisa and 6 others v. Malik Muhammad Ishaque and 2 others (PLD 1972 S.C. 25), Muhammad Ishaq v. Lt. Cdr.
(Retd.) M.A.H. Bokhari and another (1995 CLC 676-Karachi) and Messrs Raees Amrohvi Foundation (Regd.) v. Muhammad Moosa and others (1999 CLC 296-Karachi). He further contended that time was the essence of the contract and as the contract was not specifically enforced within the prescribed period, so the suit could not be decreed and placed reliance upon Muhammad Sharif v.
Mst. Faji and others (1996 CLC 883). He finally argued that all these points can be considered in a revision petition and placed reliance upon Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others (1992 SCM R 241), Karamat Hussain and others v. Muhammad Zaman and others (PLD 1987 S.C. 139) and Haji Illahi Baldish v. Noor Muhammad and others (PLD 1985 S.C. 41). He thus submitted that impugned judgments and decrees are not sustainable in the eyes of law as such instant civil revision be accepted and the hiipugned judgments be set aside.
7. Conversely, the impugned judgments and decrees have been supported by the learned counsel for the plaintiff/respondent. To further supplement his contention he submitted that appeal is a vested and substantive right which accrues to a litigant as soon as the litigation begins and such right is not effected by change in law unless the amending law gives an indication to that effect either by making an express provision or by necessary intendment. He pressed the said point to urge that appeal under section 102(b) C.P.C. was maintainable and the said right has not been exercised by the petitioners, as such the instant civil revision is not a maintainable and placed reliance upon Governor N.W.F.P v. Gul Naras Khan (1987 SCMR 1709). He further contended that ordinarily time is not essence of the contract and same is case in hand as initially contract was to be executed till 30-6-1983 which time was extended up to 31-8-1983. Had the time been essence of the contract it would not be enhanced and placed reliance upon Haji Abdullah Khan and others v.
Nisar Muhammad Khan and others (PLD 1965 SC 690). He further contended that a party cannot be allowed to raise a plea even before the appellate Court, if not raised either before the trial Court or there is no trace of it in the pleadings of the party or upon which an issue has not been framed and placed reliance upon Shankarlal Narayandas Mundade v. The New Mofussil Co. Ltd. and others (A.I.R 1946 Privy Council 97). He further .contended that in order to seek specific performance of an agreement under section 27 of Specific Relief Act and section 41 of the Transfer of Property Act the subsequent vendee has not only to prove that he acted in good faith and had no notice of the .original contract but he had to prove that in the above two aspects he took reasonable care and placed reliance upon Haji Abdul Rehman and 3 others v. Noor Ahmad and 3 others (PLD 1974 Baghdad-ul-Jadid 25). He further argued that revisional power can only be exercised if some material irregularity has been committed by the Courts below either in the exercise of jurisdiction not vested in it or in refusing to exercise jurisdiction vested in it and placed reliance upon N.S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras (A.I.R (36)
1949 Privy Council 156 and Muhammad Jallah Fazal Akbar v. Mst. Hussain Pari (1982 SCM R 738). He further argued that non-framing of issue as alleged by the other side is not fatal as the parties were fully aware what was the subject-matter of controversy and what evidence was to be led by each side and placed reliance upon Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others (1993 SCM R 2018). He also argued that question of novation of contract as contemplated under section 62 of the Contract Act does not rise as novation can only be with the consent of both the parties and it cannot be unilateral. He submitted that in the instant case even if it was desired by Mst. Sughra Haq that sale deed be executed in the name of her son Fayyaz ul Haq it does not mean that contract stood novated as there was no consent on that score on behalf of the other party and parties to contract had not agreed to substitute original contract by a new contract and placed reliance upon Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon, etc. (1994 SCM R 2189), Banque Indosuez v. Banking Tribunal for Sindh and Baluchistan and others (1994 CLC 2272) and Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others (1994 SCM R 2189). He further argued that question of construction of power of attorney is immaterial as no such objection was raised when statement of P.W.5 was being recorded. He thus submitted that there is no force in the civil revision and the same be dismissed.
8. It is evident from the facts narrated above that initially an agreement was executed between Sh.
Abdur Rehman through his General Attorney Sh. Fazal-ur-Rehman and Mst. Sughra Haq for the purchase of property a subject-matter of the instant lis. As the vendor failed to execute the sale deed in favour of the plaintiff/respondent so she was constrained to tile a suit for specific performance of the said agreement. IX is fact that the suit was resisted by the defendants/petitioners and finally the suit was decreed in favour of the plaintiff/respondent vide judgment and decree dated 19-3-1990. The said findings were assailed and were upheld by the appellate Court vide judgment and ,decree dated 14-6-1994. The said judgments and decrees have been assailed through the instant civil revision.
9. The main contention of the learned counsel for the defendants/petitioners is that original agreement stood novated as such it could not be got specifically enforced. To support his contention he submitted that initially the agreement was to be executed in favour of Mst. Sughra Haq but later on she desired that the sale deed be executed in favour of her son. The stand of Mst.
Sughra Haq, it is alleged, changed the original contract I am afraid there is no force in this contention of the learned counsel for the petitioners. Admittedly Mst. Sughra Haq did not change original complexion of the contract and simply desired that the sale deed be executed in favour of her son Fayaz-ul-Hag. By no stretch of imagination this desire of Mst. Sughra Haq/respondent can be termed as novation of contract. The other contention of the learned counsel for the petitioners that time was essence of contract and as the original contract had to be executed by 30-6-1983 so it could not be specifically enforced after that period. This plea is also devoid of any force, as the vendor extended the period of sale deed up to 31-8-1983 after receiving a sum of Rs,15,000 besides the amount of Rs,10,000 which he had initially received. The extension in time clearly shows that time was not essence of the contract and as such this plea of the learned counsel for the petitioners also looses its force. The learned counsel for the petitioners has also raised question of framing correct issues by the trial Court. There is no cavil to the proposition that issues are to be framed by the Court which arise out of the divergent pleadings of the parties. In the instant case the issues were framed about more than a decade ago and no objection was either raised at the time of framing issues or even at the time of arguing' the matter before the trial Court as well as before the Court of first appeal.- Even otherwise the issues framed by the trial Court encompass the matter in issue and it cannot be said that correct issues have not been framed. Thus this limb of the argument advanced by the learned counsel for the petitioners also looses its force. Another objection raised by the learned counsel for .the petitioners is that the general attorney of the plaintiff/ respondent was not competent to record his statement as her general attorney.
Admittedly no such objection was raised when the statement of P.W.5 was being recorded and as such it does not lie in the mouth of learned counsel for the petitioners to raise this objection at this belated stage.
10. The upshot' of above discussion is that both the Courts below have taken into consideration evidence which has come on record in its true perspective. Each and every point raised by the learned counsel for the petitioners has been taken into consideration while returning findings on the issues referred above.
11. Be that as it may, section 115 of the Civil Procedure Code. applies to cases, involving illegal assumption, non exercise or irregular exercise of jurisdiction. It cannot be invoked against conclusions of law or fact, which do not, in any way, effect the jurisdiction of this Court, no matter, however, erroneous, wrong or perverse, the decision might be either on a question of fact or law, unless the decision involved a matter of jurisdiction. As erroneous conclusion of law or tact is liable to be corrected in appeal, but revision will not be competent on such a ground, unless in arriving at such conclusion, an error of law is manifestly shown to have been committed.
12.Neither any such aspect has been put forth. or highlighted, nor is seemingly available, so as, to attract or entail provisions of Section 115 Civil Procedure Code, which thus, can, neither, come into play nor press into service. Judgment and decree, now sought to be impeached and set at naught is accordingly unexceptionable as the same neither appears to suffer from any infirmity or any irregularity, what to speak of material irregularity, nor perversity or arbitrariness.
13. Hence viewed from any angle, revision petition merits dismissal and is hereby dismissed with no order as to costs.