CH. IJAZ AHMAD, J.--- We intend to decide the R.F.As. Nos. 436 and 437 of 2000 by one consolidated judgment having similar facts and law arising out of same judgment.
2. The brief facts out of which aforesaid appeals arise_ are that Ghulam Haider and Altaf Hussain respondents in R.F.A. No. 437/2000 executed an agreement to sell on 17.1.1996 with Malik Muhammad' Ismail son of Malik Muhammad Din qua the land in- question measuring 12 kanal, 4 marlas situated in Revenue Estate of Hanjranwala, Tehsil and District Sheikhupura for consideration of Rs.4,00,000/-. Malik Muhammad. Ismail had received Rs.1,00,000/- as earnest money. The contents of agreement also reveals that the appeal had been preferred before the apex Court of 'Pakistan by Maula-dad, etc. Against the judgment or the Hon'ble High Court qua the land in-question. The contents of the agreement further reveal that after decision of said appeal and after receiving remaining sale price i.e. Rs.3,00,00O/-, Malik Muhammad Ismail would execute sale-deed in favour of the respondents Nos. 6 and 7/plaintiffs.
The case was finally decided by the Hon'ble Supreme Court on 11.10.1992. Respondents Nos. 6 and 7 remained ready to perform their parts of contract but the legal heirs of Malik Muhammad Ismail refused to implement the agreement executed between respondents Nos. 6 and 7 with original owner of land in-question (Malik Muhammad Ismail). Respondents Nos. 6 and 7 filed a suit for specific performance of the agreement to sell dated 17.1.1990 against the legal heirs of Malik Muhammad Ismail (respondents Nos. 1 to 5). Respondents Nos. 1 to 5 filed written statement through their General Attorney Mr. Sanaullah and controverted the allegations levelled in the plaint.
Out of pleadings of the parties, the learned Trial Court framed the following issues:- Issues:-
(i) Whether Malik Muhammad Ismail, predecessor-ininterest of the defendants was not owner of the disputed land, if so, what its effect on the suit? OPD
(ii) Whether the plaintiffs are entitled for a decree of Specific Performance of Contract dated 17.1.1990? OPP (i.e) If above issues proved, whether the plaintiffs are entitled for possession of the disputed property? OPP
(iv) Relief. ,3. Respondents Nos. 1 to 5 subsequently cancelled the deed of general power-of-attorney in favour of aforesaid Sanaullah vide deed of revocation dated 19.12.1997. Respondents Nos. 6 and 7/plaintiffs filed an application under Order VI, Rule 17, CPC for amendment in the plaint to the extent that in agreement to sell due to pen-slip, instead Of square 53, square 83 was written which was allowed by the learned Trial Court vide order dated 29.5.1999. Respondents Nos. 1 to 5 filed consenting written statement In the amended plaint on 6.3.1998. Ex parte order was also passed against respondents Nos. 1 to 5 by the learned Trial Court on 25.6.1998 and ex parte evidence was also recorded by the learned Trial Court.
4. During the pendency of aforesaid suit, an agreement to sell was also executed by the land owner in favour of present appellants on 2.6.1994. The appellants also filed a suit for specific performance of the agreement to sell dated 2.6.1994 before the Civil Judge 1st Class, Sheikhupura.
5. Respondents Nos. 6 and 7 filed an application before the learned Trial Court for consolidation of aforesaid suits but the learned Trial Court rejected the application vide order dated 23.6.1998 and another application was also made before the learned Trial Court to-recall the order dated 23.6.1998 which was also dismissed by the learned Trial Court. The learned Trial Court decided both the suits through the impugned judgment and decree dated 4.10.2000.
6. The learned counsel of the appellants submits that the suit of the appellants was dismissed; whereas suit of respondents Nos. 6 and 7 in Appeal No. 437/2000 was decreed through the impugned judgment and decree. He further .Submits that the learned Trial Court was erred in law to read evidence of the suit filed by Ghulam Haider and Altaf Hussain the suit_filed by the appellants before the learned Trial Court, coupled with the fact when the present appellants were not party in the suit filed by the aforesaid Ghulam Haider and Altaf Hussain. He further submits that the learned Trial Court was influenced by the consenting written statement filed by the respondents Nos. 1 to 5 in the suit filed by Ghulam Haider and Altaf Hussain against them. The consenting written statement was filed by respondents Nos. 1 to 5 without. Permission of the Court; whereas espondents Nos. 1 to 5 had earlier filed written statement through their general attorney and controverted the allegations levelled in the plaint. He further submits that agreement executed between the aforesaid respondents Nos. 6 and 7 with Malik Muhammad Ismail, was not proved on record in terms of Article 17 and Article 79 of Qanoon-e-Shahadat, 1984. He further submits that the learned Trial Court was erred in law to decide both the suits by one consolidated impugned judgment. In support of his contention, he relied upon the case "Muhammad Mehbran v. Sada, Din, etc." (1992 P.S.C.
1550). The appellants also filed C.M. No. 2/2000 under Order I, Rule 10, CPC in R.F.A. No. 437/2000 to be impleaded the appellant as party in the original suit filed by the aforesaid respondents Nos. 6 and 7.
7. Learned counsel of the respondents submits that the agreement to sell dated 17.1.1990 was executed between Malik Muhammad Ismail in favour of respondents Nos. 6 and 7. Respondents Nos. 6 and 7 filed a suit for specific performance against the legal heirs of Malik Muhammad Ismail on 20.12.1993; whereas agreement to sell was allegedly executed between the appellants and respondents on 2.6.1994. The appellant was not necessary party before the learned Trial Court and appeals filed by the present appellants are also not maintainable in view of Section 52 of the Transfer of Property Act. In support of his contention, he relied upon the following judgments:- "Mukhtar Baig, etc. v. Sardar Baig, etc." (2000 S.C.M.R. 45) + (2000 PSC (Pak) 528); "Industrial Development Bank of Pakistan v. Mst. Saadia Azmatullah, etc. (1999 SCMR 2874).
He further submits that respondents Nos. 1 to 5 filed accepted agreement executed by their father with respondents Nos. 6 and 7 in written statement filed before the learned Trial Court on 3.6.1998, therefore, the learned Trial Court was justified to decree the suit of respondents Nos. 6 and 7 in their favour. He further submits that it is the duty and obligation of the appellants to prove that the decree was obtained by respondents Nos. 6 and 7 by collusion with respondents Nos. 1 to 5 i.e. Legal heirs of original owner; whereas the appellants failed to bring on record any sufficient evidence to this aspect. In support of his contention, he relied upon the following judgment:- "(Haji Ghulam Rasool v. Sh. Imdad Hussain, etc." (PLD 1968 Lah. 501).
8. Learned counsel of the appellants in rebuttal submits that the principle of Section 52 of the Transfer of Property Act, is not applicable in the present case as respondents Nos. 6 and 7 secured the decree in collusion with legal heirs of original owner Malik Muhammad Ismail.
9. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record ourselves.
10. It is admitted fact that appellant was not a party in the suit filed by Ghulam Haider and -Altaf Hussain against the legal heirs of original owner Malik Muhammad Ismail. It is also admitted fact that predecessor-in-interest of original owner Malik Muhammad Ismail filed written statement in the suit filed by Ghulam Haider and Altaf Hussain controverted the allegations levelled in the suit.
The present appellant executed agreement to sell with them. On 2.6.1994. It is also admitted fact that respondents Ghulam Haider and and Altaf Hussain/plaintiffs filed an application for amendment of the plaint to the extent that in agreement to sell due to slip of pen instead of Square No. 53 Square No. 83 was written which was accepted by the Trial Court vide order dated 29.5.1995.
The legal heirs of the original owner was directed to file amended plaint on 12.6.1995. Legal heirs of original owner filed consenting written statement on 6.3.1998 before the Trial Court. Thereafter, legal heirs of original owner did not enter appearance before the Trial Court and ex parte order was passed against them by the Trial Court on 25.6.1998. Ex parte .Evidence or respondents Nos. 6 and 7/plaintiffs was recorded by the Trial Court and the suit of Ghulam Haider and Altaf Hussain was decreed whereas the suit of the present appellant was dismissed. It is pertinent to mention here that suit of the appellant was dismissed on the basis of the evidence adduced in the suit filed by Ghulam Haider and Altaf Hussain in which present appellant was not a party. In case the aforesaid facts are put in a juxta position then it brings the case in the area that respondents Nos. 6 and 7/plaintiffs secured a decree with collusion of legal heirs of original owner Malik Muhammad Ismail coupled with the fact that aforesaid respondents/plaintiffs submitted two applications to consolidate both the suits which were rejected by the Trial .Court vide order dated 23.6.1998 and 12.10.1998. In arriving to this conclusion, we are fortified by the following judgments:- Mst. Jahana Bibi v. Iqbal (1991 C.L.C. 553); M.A. Khan v. Khan (PLD 1984 Lah. 396).
It is pertinent to mention here that both the suits were pending adjudication before the same Presiding Officer. The appellant is a necessary and proper party as per principle laid down by the Hon'ble Supreme Court in Rashid Ahmad's case (NLR 1997 S. C. Judgments 139). The Trial Court has ample power under Order 1, Rule 10, C.P.C. To transport or implead any property party in the proceedings. Similarly this Court has ample power to implead any party in view of Order 41, Rule 33, C.P.C. In arriving to this conclusion we are fortified by the judgment of the Honourable Supreme Court in Suleman Khan's case (PLD 1992 S.C. 590). It is also admitted fact that Malik Muhammad Farooq and others legal heirs of original owner Malik Muhammad Ismail filed consenting written statement without permission of the Court, therefore, learned Trial Court was erred in law to decide the case on the basis of the consenting written statement which was filed without the permission of the Court as is envisaged by Order 6, Rule 17 read with Order 8, Rule 9, CPC as per principle laid down by the Karachi High Court in Haji Suleman Ali Muhammad's case (PLD 1982 Kar. 111). The principle of Section 42 of the Transfer of Property Act in view of the aforesaid circumstances is not applicable in the present case. In arriving to this conclusion, we are fortified by the following judgments:- Raam Narain and others v. Nawab Sajad Ali Khan (AIR 1946/1999)
Himavan v. Basson (AIR 1943 Calcutta 227).
It is also settled principle of law that reading of evidence recorded in another case as evidence in case in hand is not permissible by virtue of Article 57 of the Qanun-e-Shahadat Order, 1984. In arriving to this conclusion, we are fortified by the following judgments:- Noor Elahi v. The State-(PLD 1966 S.C. 708).