SARDAR MUHAMMAD RAZA, J.---The instant one, after leave of the Court, is appeal filed by ,Ahsanul Haq against the judgment dated 27-7-1995 of a learned Single Judge of High Court of Sindh, whereby judgment and decree of the First Appellate Court has been set aside and that of the trial Court restored.
2. The background of this protracted litigation is to the effect that Muhammad Shamim, Muhammad Taslim and Mst.Nasibunnisa owned 3 acres and 35 Ghuntas of land bearing Survey No,148/4 in Deh Chaim, Taluka Umerkot, District Tharparkar. Muhammad Shamim, in his capacity as co-owner as well as attorney of the other two (brother and sister) on 30-8-1967 entered into an agreement to sell with Sardar Muhammad and Muhammad Hussain, the present respondents, against a sum of Rs,9000 out of which Rs,4000 was paid and the balance was agreed to be paid on delivery of possession and the execution of sale deed to be registered before April.
1968.
3. The respondents, after the execution of agreement to sell came to know that Muhammad Shamim was negotiating some sale of the same land with Ahsanul Haq, the present appellant. The former served notice upon Muhammad Shamim who, in reply, not only denied any such negotiations but also the very existence of agreement to sell between the parties. A notice was also issued to Ahsanul Haq, the appellant, who avoided response, Sardar Muhammad and Muhammad Hussain were constrained to file Suit No,4 of 1968 against the owners aforesaid for specific performance of contract. The owners in their written statement admitted that they had sold the land to Ahsanul Haq. The suit was decreed on 9-12-1968.
4. When Sardar Muhammad etc. Succeeded in obtaining decree against Muhammad Shamim etc., present appellant Ahsanul Haq filed Suit No,3 of 1969 challenging the decree passed in Suit No,4 of 1968 and claiming title to the suit land. The declaration of title was refused by the trial Court, holding that as Ahsanul Haq was not a party to Suit No,4/68, any decree passed therein was not binding upon him.
5. Respondents Sardar Muhammad and Muhammad Hussain, who had also succeeded in obtaining a decree for specific performance of contract against the original owners Muhammad Shamim etc., now brought Suit No,32 of 1971 against Alisanul Haq, the alleged subsequent vendee, for possession as well as specific performance of the agreement claiming that their agreement with the original owners had been prior in time and that Ahsanul Haq had the knowledge of such previous agreement. Ahsanul Haq appellant (defendant in Suit No,32/71) based his claim on registered sale deed dated 27-1-1968. He also claimed to be a bona fide transferee for consideration and without knowledge, entitled to the benefit of section 25 subsection (2) of Specific Relief Act because the notice dated 31-1-1968 issued to him by Sardar Muhammad etc. Was received on 3-2-1968, whereas the sale already stood registered on 27-1-1968. He further pleaded that the respondents (plaintiffs of Suit No,32/71) were aware of the registered sale even at the time when they had instituted Suit No,4/68 but had dishonestly avoided to implead Ahsanul Haq in order to obtain a decree in his absence.
6. After framing as many as 11 issues in Suit No,32/71 and after recording of evidence the trial Court decreed the suit vide judgment dated 30-11-1972. Ahsanul Haq preferred appeal which was allowed by learned District Judge on 15-3-1978 and Sardar Muhammad etc. Were non-suited on the grounds, inter alia, that they in Suit No,4/68 had known the incident of 'registered sale in favour of Ahsanul Haq on 1-8-1968 through the written statement of the original owners but they never cared to implead the subsequent vendee. That they had not challenged the execution of registered sale deed, that the suit was not maintainable and that it was also barred by limitation. Sardar Muhammad etc. Filed Second Appeal before High Court of Sindh, which was allowed, the dismissal of suit by learned District Judge was set aside and the grant of decree in favour of Sardar Muhammad etc. By the trial Court was restored. Hence this appeal.
7. While bringing the suit for specific performance of contract, a plaintiff is bound to implead the subsequent vendee, in case such subsequent sale and the name of subsequent vendee are in his knowledge. This is not a mere formality or an exercise in routine but a dire requirement of the circumstances. All such three parties are supposed to have interacted among themselves with regard to the sale and purchase of one and the same property. Their action and conduct individually are most likely to give rise to certain facts which are co-related to the actions and conduct of all others. Some facts are alleged while others are withheld by all or some of the parties surrounding one pivotal question in dispute.
8. In these conditions, the conduct of all on factual side being directly co-related and interdependent, they all must face each other in one trial or proceeding. When the evidence of the parties is recorded, each must have opportunity to cross-examine the other. Such valuable opportunity is denied to the parties when they face each other separately in different trials where one of them is isolated in each of the proceedings. Facts which are suppressed in one suit for one's own convenience might not be easily! Suppressed when all at one time are available before the Court.
9. Keeping such principle in view, the conduct of Sardar Muhammad! Etc., the respondents (plaintiffs in Suit No,4/68) was not fair, wittingly or, unwittingly. Before instituting Suit No,4 of 1968 Sardar Muhammad etc., the plaintiffs, had knowledge of the fact that Muhammad Shamim etc., the real owners, are negotiating second sale in favour of Ahsanul Haq. They had served Ahsanul Haq with a notice as well which remained responded. In this situation, they ought to have had made Ahsanul Haq a party to the suit. The second omission for the needful had arisen when original owners in their written statement had categorically taken the plea that they had sold the land to one Ahsanul Haq. At this juncture, Sardar Muhammad etc., were bound to have had impleaded Ahsanul Haq as defendant. By resorting to such conduct the decree obtained by Sardar Muhammad never remained useful against Muhammad Shamim etc. Because it was never binding upon Ahsanul Haq appellant who was holding a registered sale-deed in his favour which also could not be challenged in that first suit. Had that grave omission been not done by Sardar Muhammad etc., they would not have been constrained to file a second Suit No,32/71, this time against Ahsanul Haq alone. This whole trouble and duplication was resorted to in spite of the fact that they had issued a notice dated 31-1-1968 to Ahsanul Haq which the latter I admitted to have received on 3-2-1968.
10. We, in the aforesaid circumstances, are therefore of the film view D that each party has been denied the opportunity to face the other or others at one and the same time. Though painstaking yet the better way to resolve the problem is to afford an opportunity to all the parties to join each other in one proceeding.
11. Consequently, the impugned judgment of the High Court as well as that of the Courts below are set aside. Suit No,32 of 1971 (re-numbered as 11 of 1972) is remanded to trial Court by impleading Ahsanul Haq as party to the suit and after recasting consolidated issues arising out of the pleadings, all the parties shall have reasonable opportunity of adducing evidence which may be necessary for them. Suit shall be decided within the shortest possible period under intimation to the Registrar of this Court quarterly. The trial Court is directed to avoid unnecessary adjournments as the parties are litigating for the last three decades. Costs to follow the event.