With the consent of the parties this appeal is being disposed of as a notice case.
2. This first appeal is directed against the order dated 22-12-2001, passed by the learned trial Court, seized of respondent's suit for specific performance vide which respondent/plaintiff's application under Order XXXIX, rules 1 and 2 was allowed and the application of the appellant/defendant for appoint rent of commission to report as to who was in possession of the suit property, was dismissed as infructuous.
3. Facts in brief are that respondent/plaintiff filed a suit for specific performance contending therein that appellant/defendant had agreed to sell the house subject-matter of this appeal for a sum of Rs.17,00,000 out of which Rs.13,00,000 were paid (at the time of execution of agreement to sell dated 24-2-2001) and out of remaining amount of Rs.4,00,000 Rs.2,00,000 were to be paid at the time of execution of registered sale-deed and the balance amount of Rs.2,00,000 would be paid only in case appellant/defendant hand over possession to the respondent/plaintiff after obtaining the same from the then occupant. In the written statement filed by the appellant/defendant, the averments made in the plaint were controverted. The appellant/defendant's case was that the suit was collusive; that appellant/defendant had rented out the house in question to one Javed Iqbal who through a forged agreement to sell filed a suit for specific performance in 1993 but the same was dismissed vide judgment and decree dated 24-3- 1997. The appeal of the said Javed Iqbal met the same fate as R.F.A. No.34 of 2000 was dismissed by a Division Bench of this Court and holding that the suit was frivolous and vexatious, the said Javed Iqbal was burdened with a cost of Rs.1,00,000. The judgment of this Court was challenged in C.P. For Leave to Appeal No.2713 of 2000 and the august Supreme Court vide judgment dated 21-12- 2000, dismissed the same but only reduced the quantum of cost Rs.25,000. It was further alleged in the written statement filed by the appellant/defendant that the afore-referred Javed Iqbal has got filed the suit through the respondent/plaintiff with a view to prolong his possession of the suit property. While replying to respondent/plaintiff's application under Order XXXIX, rules 1 and 2 appellant/ defendant also filed an application for appointment of a Commission, wherein it was prayed that the Court may depute the Commission to visit the spot on 5-10-2001. And report as to who was in possession of the house in question. Learned trial Court vide the impugned order allowed respondent/ plaintiff's application under Order XXXIX, rules 1 and 2 but dismissed appellant/ defendant's application for appointment of Commission as having become infructuous by afflux of time.
4. Learned counsel for the appellant/ defendant in support of this appeal has made the following submissions:-- (I)That the alleged agreement to sell dated 24-2-2001 is a forged document; that the Special General Attorney namely Abdul Razzaq is in attendance in Court and is prepared to take an oath that he never executed any such agreement and that the fate of this appeal may be decided by having the signatures of the said Special General Attorney compared with the one on the so-called agreement to sell from the Handwriting Expert if the report is against the appellant/defendant, this Court may dismiss the appeal.
(II)That mere agreement to sell does not create any title.
(III)That during course of arguments before the learned trial Court respondent/plaintiff took up the plea that the payment of Rs.13,00,000 was made to the appellant's Special General Attorney through a cheque bearing No. 0692055, dated 24-2-2001. On appellant's application the concerned Manager of the Bank has reported that the afore-referred cheque was encashed by the respondent/plaintiff himself.
(IV)That it is repellant to common sense that appellant who after protracted litigation won the case up to the level of the august Supreme Court would again sell the same house through an agreement to sell with the respondent/plaintiff.
(V)That the bona fides of the alleged agreement to sell becomes further doubtful by the fact that admittedly there was no transfer of possession through the said alleged agreement to sell and it is not even respondent/plaintiff's case in the plaint. The respondent/plaintiff's plea of possession as a collusive arrangement with Javed Iqbal referred to above.
5. Learned counsel for the respondent/plaintiff, on the other hand, defended the impugned order and submitted as under:-- (I)That the agreement to sell was executed in Court premises on a stamp paper and was witnessed by two persons. The very fact that respondent/plaintiff is in the possession of the house in question shows that the agreement to sell was executed and he had come into possession bona fidely.
(II)That the learned trial Court had rightly dismissed appellant's application for appointment of Commission to report about the question of possession as by 22-12-2001 when the impugned order was passed, the same had become infructuous. Appellant had prayed in the said application that the Commission should visit the spot that very day i.e. 5-10-2001.
(III)That the bona fides of petitioner's case is further strengthened by report of the Additional Sessions Judge, Sahiwal, who was appointed by this Court to visit the spot on 21-1-2002.
(IV)That if the agreement to sell was collusive affair with Javed Iqbal forged document then there was nothing to stop the respondent/plaintiff to add the factum of possession in the agreement to sell.
6. The question whether the three pre-- requisites for the grant of temporary injunction tilt in favour of respondent --plaintiff is a moot point in this appeal, while considering the most crucial pre- requisite i.e prima facie case. One has to see as to whether the case put up by the respondent/plaintiff is in accord with the normal human conduct. The agreement to sell dated 24- 2-2001 purported to have been executed by General-- Attorney of the appellant recites two reasons for such an agreement as under:-- Admittedly, the appellant/defendant had won the case before the trial Court, before the High Court and before the august Supreme Court. The judgment of the august Supreme Court is dated 21-12- 2000 whereafter immediately appellant filed an application before the Executing Court. It is against normal human conduct that having won her case against afore-referred Javed Iqbal who had filed a suit for specific performance on the basis of a forged agreement to sell, she would sell the same house again through an agreement to sell to the respondent/plaintiff and that too at a time when her application for execution of the judgment and decree was pending before the learned Executing Court. Again ex facie it is repellant to common sense that even respondent/plaintiff would agree to part with a huge amount of Rs.13,00,000 merely on the basis of an agreement to sell and without having been delivered possession of the house in question. The foregoing view is further strengthened by the fact that he alleged payment of Rs.13,00,000 was made through cheque bearing No.0692055 dated 24-2-2001, which as per the report of the concerned Manager of the Bank of Punjab, Main Branch, Sahiwal was encashed by the respondent/plaintiff himself.
Learned counsel for the respondent was specifically asked by this Court as to how he would explain this part of circumstance to which he replied that since on the back of the cheque there is no endorsement of the respondent/plaintiff, the possibility is that it must have been encashed by the General Attorney of the appellant. He also did not agree to the offer made by the General Attorney of the appellant appearing in Court to have his signatures compared with ones on the so-called agreement to sell from the Handwriting Expert and decide this appeal on the basis of the said repot. The appellant had right at the outset i.e. Before the learned trial Court prayed that a Commission be appointed to report as to who was in possession of the house on 5-10-2001. No order was passed by the learned trial Court on this application for more than 2 months. It was kept pending till 22-12-2001 when it was dismissed while accepting respondent/ plaintiff's application under Order XXXIX, rules 1 and 2. The operative part of the said application which is at page 20 of this appeal is instructive and reads as under:--
7. Notwithstanding the prayer made in the afore-referred application that a prompt spot inspection be carried out to decide the question of possession and bona fides of the respondent/plaintiff, the learned trial Court in its wisdom kept the application pending and allowed the respondent/plaintiff to have his way. On 21-1-2002, this Court directed the learned District and Sessions Judge, Sahiwal to depute an Additional District and Sessions Judge, to visit the spot and report about the factum of possession. The said report has since been received. It is dated 21-1- 2002 and according to the Additional Sessions Judge, he visited the spot and met one Nadeem Tufail son of Muhammad Tufail who was asked questions about the sale, the consideration paid and the period of occupation. He failed to answer these questions and consequently the Commission was of the view as under:-- "In my assessm ent the occupation of the house by the present occupier is not more than of 2/3 months. The house is newly white washed as appears from the drawing room where I remained sitting during my visit. The name plate's paint and writing looks fresh and not very old. "
Before parting with the order I am constrained to remark that the learned trial Judge, Malik Safdar Ali Jasra, Civil Judge, Sahiwal, in keeping the application of appellants for appointment of Commission pending for more than 2 months and in granting temporary injunction in favour of respondent/plaintiff despite the afore-referred factual background, has prima facie acted for considerations other than legal. A copy of this order should be placed before the Honourable Chief Justice, who may consider the desirability of initiating a departmental enquiry against the said Civil Judge. Disposed of.