MAULVI ANWARUL HAQ, J.--- On 13.5.1987 the petitioners filed a suit against respondent No. 1. In the plaint it was stated that the suit property mentioned in para 1 of the plaint stood transferred to the father of respondent No. 1 but before the PTD could be issued he died and that the respondent No. 1 is his sole heir; that respondent No. 1 agreed to sell the suit property to the petitioner vide a registered agreement dated 14.4.1987 for a consideration of Rs.20,000/-. A sum of Rs.2,000/- was paid as earnest while the remaining amount was to be paid at the time of registration of the deed; that respondent No. 1 did not do the needful and the suit was filed. In his written statement filed in Court on 16.6.1987, respondent No. 1 denied having entered into any agreement with the petitioners or to have received any money from them.
He stated that on 6.3.1987 he had agreed to sell the property to respondent No. 2 for a consideration of Rs.18,000/- and had received Rs.13,000/- as earnest. Regarding execution of the agreement in favour of the petitioners he took the plea that the father of the petitioners asked respondent No. 1 to resile from the said agreement and when he resisted, the said person asked him to appoint him as a general attorney and acting as such he will get the said agreement cancelled. Respondent No. 1 accordingly executed a power-of-attorney in favour of the father of the petitioners and in that connection his thumb impressions were obtained on several documents; that the power-of-attorney was got cancelled on 12.5.1987. In view of the said averments of respondent No. 1, respondent No. 2 was impleaded as a party and an amended plaint was filed in Court on 23.11.1988. In this amended plaint it was stated that the respondents have colluded with each other and obtained a consent decree on 7.1.1988. Respondent No. 2 stated that the petitioners were fully aware of the said agreement in his favour as also the said decree whereas he was not aware of any agreement between the petitioners and respondent No. I and that the decree has been validly passed. Following issues were framed by the learned Trial Court:-
(2) Whether the plaintiffs have not come with clean
(1) Whether the plaintiffs entered into agreement to sell dated 14.4.1987 and they are entitled for the specific performance after payment of Rs.18000/-. OPP. hands and the suit is not maintainable in its present form? OPD.
(3) Whether the alleged agreement to sell dated 14.4.1987 is result of fraud, misrepresentation, without consideration, void and is ineffective upon the rights of the defendants? OPD.
(4) Whether the plaintiffs have no cause of action or locus standi to bring this suit? OPD.
(5) 'Whether the suit is not correctly valued for the. Purpose of Court and jurisdiction? OPD.
(6) Whether the defendant is entitled for special costs? OPD.
(6-A) Whether the decree dated 7.1.1989 passed by the Civil Court regarding the disputed property in favour of defendant No. 2 is collusive and inoperative upon the rights of the plaintiff? OPP.
(6-B) Whether the plaintiff is estopped by his words and conduct to institute this suit? OPD.
(7) Relief.
Evidence of the parties was recorded. The suit was dismissed vide judgment and decree dated 3.3.1990. A first appeal filed by the petitioners was dismissed by a learned Additional District Judge- II, Okara on 21.4.1993. .
2. Learned counsel for the petitioners contends that the learned Courts below have misread the evidence on record while passing the impugned judgments and decrees. According to the learned counsel the impugned judgments are not supported by the evidence on record. No one has turned up for the respondents who are represented by Ch. Muhammad Salim, Advocate whose name stands listed in the cause list for today. Apart from this registered P.C. Notices have also been issued to the respondents for today. No one, however, has turned for them despite several calls.
They are, however, accordingly proceeded against ex parte.
3. I have gone through the copies of the records appended with this Civil Revision, with the assistance of the learned counsel. I haye already referred to the pleadings of the parties' in some details above. The agreement being relied upon by the petitioners is on record as Ex.P.1. It is a registered document. The respondents produced Muhammad Ramzan Bhatti, Advocate as P.W.2 who states that Ex.P.1 was scribed by him on the instructions of respondent No. 1 and that he had put his thumb impressions in his presence and he had entered his NIC No. The witness further states that he also identified respondent No. 1 before the Registrar. Nothing material has come out in the cross-examination. P.W.3 is. Ashiq A.I who has made a statement in line with the plaint. In rebuttal Lal Muhammad, respondent No. 1 appeared as D.W.1. He stated that he had not agreed to sell the land to the petitioners rather had agreed to sell the land to Azhar Iqbal who brought a suit which was decreed; that the father of the petitioners asked him to appoint him as a attorney and he will get the PTD issued. He took him to Mr. Ramzan Bhatti, Advocate but instead of power-of- attorney an agreement was got fabricated. Thereafter he cancelled the power-of-attorney. He admitted that he had not mentioned the factum of pendency of the said other suit in his written statement. He does not remember as to which of the two suits was filed earlier. He admitted that Ramzan Bhatti, Advocate had been his counsel and they know each other. D.W.3 is respondent No.
2. He stated that he had entered into an agreement on 6.3.1987 with respondent No. 1 and had paid him Rs.13,000/- and he has got a decree which has not been challenged by the petitioners. He denied the suggestion that there was no agreement and that the decree was obtained collusively .
4. Now the learned Trial Court has proceeded to hold that since the agreement Ex.P.1 is without consideration it is void. Issue No. 1 has been answered against the petitioners for the said reason recorded under issue No. 3. Under issue No. 6-A it was held that the petitioners may file an application under Section 12(2), CPC to get the decree in favour of respondent No. 2 set aside.
5. Learned A.D.J., on the other hand, has proceeded to reject the testimony of Muhammad Ramzan Bhatti, Advocate, P.W.2 on the ground that Lal Khan was not known to him previously. Much stress has been laid on the stamp paper issued by Haji Muhammad Tufail Chohan on 14.4.1987, for execution of a power-of-attorney and the learned Additional District Judge has wondered as to how the agreement to sell has been executed on the same. He has also endorsed the view of the learned Trial Court that the agreement was without consideration. He has also endorsed the findings of the learned Trial Court on issue No. 6-A for the reasons stated therein.
6. A bare reading of the agreement would show that the findings of the learned Courts below that the agreement was without consideration, is wholly without any basis. The agreement clearly narrates that the consideration has been settled at Rs.20,000/- out of which Rs.2,000/- have been paid as earnest money. The reason for rejecting the testimony of Muhammad Ramzan Bhatti, Advocate, P.W.2 is negated in the statement of Lal respondent No. 1 as D.W. 1 where he has admitted that the said Advocate and the witness know each other. The learned Courts below while directing the petitioners to file an application under Section 12(2), CPC completely failed to read Ex.P.4 which is the judgment dated 26.5.1988 of learned District Judge, Okara. Against the said decree dated 7.1.1988 the petitioners had filed an appeal. To this appeal both the respondents were party. The learned District Judge has observed that although the petitioners have a right to file an appeal yet since they have already filed a suit for specific performance of the contract of the same property, according to law the said decree is not binding upon them because they are not party to these proceedings. The learned District Judge further held that the proper remedy is that they should implead respondent No. 2 as a party in their on suit and amend pleadings accordingly. It was because of the said findings of the learned District Judge that the appeal was withdrawn. Now this judgment was not challenged by any of the respondents anywhere. This being so, there was no question of the suit being barred by Section 12(2), CPC. There is no gain saying the fact that the petitioners were not party to the said suit filed by respondent No. 2 against respondent No. 1 and conceded by the latter on 7.1.1988 vide Ex.P.2.
7. It will be pertinent to note here that no attempt was made by the respondents to prove, in fact, to produce the so-called agreement dated 6.3.1987 which was made the basis of the said decree dated 7.1.1988. Another aspect completely lost sight of by the learned Courts below was that it was suggested to the said Advocate P.W. 2 by the respondents that on the date when the agreement was executed and registered he had also scribed a power-of attorney which was registered. Now according to respondent No. 1, he had only given a power-of-attorney which was converted into an agreement. At the same time it was pleaded that the power-of-attorney was cancelled later on.
Neither a copy of the said power-of-attorney nor the copy of the said cancellation deed was produced.
8. Having thus examined the file I find that whereas the petitioners did prove their version in the plaint by producing the necessary evidence, the respondents, on the other hand, did not produce any evidence at all in support of their respective pleas. This being so, I find myself in agreement with the learned counsel for the petitioner that there is nothing on the record to support the impugned judgments and decrees passed by the learned Courts below. This Civil Revision accordingly is allowed. Judgments and decrees of both the learned Courts are set aside.
Resultantly the suit filed by the petitioners against the respondents, is decreed without any orders as to costs.