MUHAMMAD AFZAL SOOMRO, J.--- This Revision is directed against the concurrent findings of two Courts below viz. 1st Senior Civil Judge, Khairpur who dismissed the F.C. Suit No. 91/1995, Re: Saghir Ahmad v. Mst. Zakria by judgment and decree dated 29.5.1995 and learned 1st Additional District Judge, Khairpur who dismissed the Civil Appeal No. 15/1995 Re: Saghir Ahmed v. Mst. Zakria vide judgment and decree dated 15.2.2000 and 22.2.2000 respectively. The applicant through the present revision has challenged the legality, propriety and correctness of the abovesaid judgments and decrees.
2. The brief facts giving rise to this revision are that the respondent is owner of house bearing C.S. No. II-B-12 situated near Hussain! Chowk Mohalla Luqman Khairpur., which was rented out to applicant about 20 years ago at the monthly rent of Rs.35/- subsequently the respondent agreed to sale the suit premises to the applicant in the sum of Rs.18,000/- and such agreement was reduced in writing on 21.12.1987 between the parties in presence of witnesses and the respondent promised to execute the registered sale-deed within one year and the applicant paid Rs.8000/- to the respondent at the time of execution of sale agreement so also paid Rs.2000/- to him after two months of the agreement of sale. As per agreement of sale, Rs.8000/- was to be paid to the respondent at the time of registration of sale-deed. It was settled that the applicant will pay rent of the suit premises regularly till the execution of the registered sale-deed and the applicant approached the respondent to execute sale-deed within one year but the respondent kept him on procrastination and subsequently in the month of July, 1988 the respondent refused to accept the rent of the suit premises and started negotiation for sale to others, therefore the applicant filed the suit in the lower Court. Thereafter in the faisla the rent was enhanced from Rs.35/- to Rs.50/- per month. The applicant also requested the respondent after two years to execute the registered sale-deed in his favour and as per compromise the applicant was paying rent at the rate of Rs.50/- per month. The applicant did not pursue the suit and the same was dismissed in default, thereafter the respondent refused to receive the rent and started moving applications before D.C.
And S.P. Khairpur for dispossessing the applicant. The respondent also refused to execute sale- deed In favour of the applicant, as such the applicant filed the suit with the prayer that the respondent be directed to pay balance amount to him. He further prayed that the permanent injunction be issued restraining the respondent and or any other person from acting on her behalf not to dispossess the applicant from the suit property.
3. The respondent contested the matter and filed written statement, in which she stated that she is still owner of the suit property and she rented out the said premises to the applicant. She had denied the execution of sale agreement in favour of the applicant and the said agreement of sale is forged and fabricated document.- She further stated that the applicant had filed another suit in which the applicant did not mention the fact of execution of said sale agreement, and that suit was also dismissed by the learned lower Court. She has also challenged the maintainability of the suit from various corners.
4. On the pleadings of the parties learned Trial Court framed the following issues:- "(1) Whether the suit is not maintainable according to law?
(2) Whether the defendant has executed the agreement of sale-deed dated 21.2.1987 and has received part payment of consideration?
(3) Whether the plaintiff is entitled to the relief claimed?
(4) What should the decree be?
The learned Trial Court after recording the evidence of both the parties and hearing the learned counsel for the respective parties dismissed the suit as mentioned above.
5. The applicant being aggrieved and dissatisfied with the judgment and decree of the learned Trial Court went in appeal which was also dismissed by the learned Ist Additional District Judge, Khairpur vide his judgment and decree as referred above.
6. I have heard the learned counsel for the respective parties and perused the record.
7. It has been contended by the learned counsel for the applicant that the judgment and decree passed by the learned 1st Additional District Judge, Khairpur is not a speaking judgment but a carbon copy of the judgment of the Trial Court. It has further been contended by him that the lower Appellate Court has not applied its judicial mind when written the judgment as no independent reasons were given while dismissing the appeal and announced a sterio typed judgment. It has also been contended that the learned Appellate Court while discussing point No. 1 of his judgment, he discussed the suet No. 169 of 1998 and observed that the suit is not maintainable though in fact there was no existence of suit No. 169 of 1998 and it is not known that how this point is discussed and suit in hand was bearing No. 91 of 1990 is converted in suit No. 169/1998. The learned counsel argued that application u/O. 7, Rule 11, CPC was filed on 25.4.1999 by the respondent, the counter-affidavit was also filed and the learned Trial Court dismissed the said application in which point No. 1 of Appellate Court and issue No. 1 of learned Civil Court was decided, therefore both the Courts below have failed to apply their judicial mind to this effect that once a chapter has been closed and decided, it cannot be re- opened again. It has also been argued by him that both the Courts below while deciding point No. 1 and issue No. 1 respectively in favour of respondent have violated the principle of natural justice.
The learned counsel further argued that during the pendency of appeal the applicant expired on 18.9.1996 and on 13.3.1999 application for impleading legal heirs of applicant was moved but they were not impleaded as parties, which is gross illegality on the face of record as no proceedings can be initiated against or in favour of dead person. The learned counsel lastly argued that gross illegality and material irregularity have been committed by the learned lower Courts. The learned counsel for the applicant has referred to the cases reported as Razi Khan and others v. Nasir and others (PLD 1.997 S.C. 2084), Malik Muhammad Khan v. Naseemullah (PLD 2000 Quetta 66), 200!
SCMP, 424, 2001 MID 1969 and PLD 2002 S.C. 46 in support of his contentions.
8. As against the arguments of learned counsel for the applicants it has been contended by Mr. Bashir, Ahmad Dargahi learned counsel appearing on behalf of the respondent that no error has been committed by both the learned lower Courts. It has also been contended by him that no decree shall be reserved on mis-joinder of the parties. The learned counsel also argued that previously the applicant filed a suit bearing No. 169/1988 for permanent injunction, in para No. 6 of that suit it was mentioned therein that the defendant/respondent had promised to sale the suit premises to the applicant which is same as mentioned in the later suit as the respondent and her mother Mst. Anis Fatima had received Rs.8000/- and again Rs.2000/- and promised to sale the same premises to the applicant. The said suit was admitted on 28.2.1988. Since it was verbal agreement between the parties but suit for Specific Performance of Contract could be filed but the applicant has failed to seek such relief, therefore he cannot subsequently claim the relief which he has omitted at the time of tiling of such suit for Permanent Injunction. Learned counsel argued that Provisions of Order 2, Rule 2(2), C.P.C. Are to the effect that where plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of that portion so omitted or relinquished. The learned counsel for respondent has referred to the cases reported as Ch. Nazar Muhammad and others v. Shafiq Ahmad Khan and others (PLD 1963 (W.P.)
Lah. 23), Ramzan A.I Shah v. Mst. Razia Sultana and others (PLD 1968 Baghdad-ul-Jadid 1), Qurban Hussain v. Haji Ch. Manzoor-ul-Hassan (1983 CLC 201), Ghulam Muhammad v. Muhammad Jan and 4 others (PLD 1987 AJ&K 62), P.O. Punjab and 3 others v. Gul Muhammad Khan through his L.Rs.
(1988 MLD 2110), Abdul Latif v. Mst. Zainab Bibi and others (1992 CLC 515), Alain Khan and 3 others v.
Fir Ghulam Nabi Shah and Company (1992 SCMR 2375), Shaikh Muhammad Bashir A.I and others v.
Sufi Ghulam Mohiuddin (1996 SCMR 813), Muhammad Sarwar and 6 others v. Mst. Ghulam Bi and 2 others (1997 CLC 1800), Anwar Zaman and 5 others v. Bahadur Sher and others (2000 SCMR 431) = (2000 CLR 575), Sirajuddin v. Najamuddin (2000 CLC 467), Talib Din v. Muhammad Bashir Ahmed (2000 MLD 1124), Khadim Hussain and others v. Fazal Din (2000 CLC 1359), Azizullah Khan and others v. Gul Muhammad Khan (2000 SCMR 1647), Muhammad Ayyaz v. Faizullah Khan and 21 others (2000 MLD 1890) = (PLR 2000 (D.I. Khan) 819) in support of his contentions.
9. I have given my anxious consideration to the arguments of learned counsel for the respective parties and perused the record which reveals that the applicant could not prove his case with regard to the part payment in respect of disputed premises. The suit of the applicant for Specific Performance of Contract is based upon a sale agreement dated 21.12.1987 which was allegedly executed between the parties and was written by petition writer namely Syed Muhammad Hassan.
Said Syed Muhammad Hassan expired after writing the alleged sale agreement. The Trial Court in order to ascertain the truthness of sale agreement examined one Manzar Hussain, the son of petition writer S. Muhammad Hassan who in examination-in-chief stated that he is well conversant with the hand-writing of his father S. Muhammad Hassan, when he was shown the said agreement, he apprised the Trial Court that signature appearing thereon is not of his father. In cross- examination Mr. Manzar Hussain admitted that his father used to write in Urdu and not in Sindhi, whereas the alleged agreement was written in indhi as such it is crystal clear that the alleged sale agreement is a forged document. The record further reveals that the applicant filed previous suit bearing No. 169/1985 only for permanent injunction and in that suit he did not make prayer for Specific Performance of Contract. Moreover the applicant enhanced rent from Rs.35/- per month to Rs.50/- per month which means that no sale agreement was written between the parties.
10. In view of the above circumstances, both the Courts below have rightly dismissed the suit and appeal of the applicant and no material illegality or irregularity have been pointed by the learned counsel for the applicant in the judgments and decrees of both the Courts below. Consequently this revision is dismissed.
Civil Revision No. 26/2000 stands disposed of.