MAULVI ANWARUL HAQ, J.- This judgment shall decide R.F.A. 56/1988 and C.R. 1239/1989 as both these matters were ordered to be heard together and some common questions are also involved.
2. Since the two proceedings are inter wingled facts are stated as the several events occurred in these cases. On 29.4.1984 the appellant filed a suit against the respondent No. 1. In the plaint it was stated that the respondent No. 1 agreed to set the suit land measuring 190 Kanals. 11 Marlas mentioned in para one of the said plaint (Civil Suit No. 383/1984) to the appellant for a consideration of Rs.4,00,000/- received Rs.2,00,000/- by way of earnest and executed agreement dated 8.7.1981, and authorise him to recover the products of the land. Under the said agreement the respondent No. 1 promised that he will execute a sale-deed in favour of the appellant after getting N.O.C, from the GHQ and shall receive the balance amount; that the respondent No. 1 has not done the needful. A decree for specific performance was accordingly prayed for. The suit remained pending for sometime when on 14.5.1985 the general attorney of the respondent No. 1 made a statement admitting the suit of the appellant, It was accordingly decreed on the same date with the condition that the balance of Rs.2,00,000/- will be deposited by the appellant within 30 days.
The said amount was deposited and thereafter, the sale-deed was executed by the Court on 26.4.1986 and was registered on 27.4.1986 in favour of the appellant.
3. On 29.5.85 the respondent No. 2 (Ghulam Farid) filed an application under Section 12(2), C.P.C, In this application it was stated that the agreement between the appellant and the respondent No. 1 is illegal as the respondent No. 1 has not obtained a prior permission from the competent officers for selling the land, It was then stated that the respondent No. 1 has also entered into an agreement with the respondent No. 2 on 5.2.84 for the sale of land and has received a sum of Rs.2,00,000/- in the manner stated in para 4 of the said application, that the respondent No. 2 has also filed a suit for cancellation of the said agreement in favour of the appellant on 10.9.1984 which is pending; that the attorney of the respondent No. 1 has proceeded to concede the suit without the consent of respondent No. 1; that the said power-of-attorney has been cancelled by respondent No. 1 on 22.5.1985. With these averments it was stated that the decree has been obtained by fraud and be set aside. The application was contested by the appellant who objected that the respondent No. 2 has no locus standi to file the said application and that no fraud stand made out upon the reading of the application, It was further pointed out that the agreement in favour of the appellant was prior in time. The learned Trial Court vide order dated 21.9.1987 allowed the said application and set aside the decree. The suit was directed to be heard and decided on its merits.
4. Against this order the appellant filed a civil revision which was returned by a learned ADJ, Narowal on 14.3.1989 consequently it was presented in this Court as C.R. 1239/1989.
5. On 16.9.1985 the respondent No. 2 filed the said suit referred to above, In the plaint it was stated that the said suit land was allotted to the respondent No. 1 under MLR 9 of 1959; that the land can be transferred only after obtaining an NOC from GHQ; that the appellant is not a military person and that the respondent No. 2 has learnt that respondent No. 1 had agreed to sell the land to the appellant vide agreement dated 8.7.1981; that term of the agreement was that within two months NOC will be obtained from the GHQ and if for some reason the NOC could not be attained the earnest money will be returned; that the appellant himself cancelled the agreement later on; that vide agreement dated 5.2.1984 the respondent No. 1 agreed to sell the land to the respondent No. 2 for a consideration of Rs.3,35,000/- and received a sum of Rs.1,50,000/- as detailed in para-4 of the plaint; that under terms of the agreement since the respondent No. 1 has not complied with the terms thereof he is liable to pay damages to the respondent No. 2 in the sum of Rs.50,000/-; that the respondent No. 1 had also obtained NOC for selling the land to the respondent No. 2; that on 9.5.1984 the respondent No. 1 got scribed a sale-deed but the appellant filed a suit and obtained a stay order and as such the sale was not completed that another sum of Rs.50,000/- was also received by the respondent No. 1 from respondent No. 2 as detailed in para 8 of the plaint making a total of Rs.2,00,000/-. There is then a strange statement in this plaint in para 9 that the respondent No. 1 while filing written statement in the Court received another amount -of Rs.35,000/- from the respondent No. 2 and acknowledged the same in his written statement; that on 12.9.1984 the respondent No. 2 had filed a suit for cancellation of agreement wherein a written statement was filed by the defendants in the case and the date was fixed on 27.5.1985 and on 14.5.1985 the suit filed by the appellant was got decreed by consent; that petition under Section 12(2), C.P.C, was filed which is pending; that the agreement and the decree dated 14.5.1985 are liable to be set aside and cancelled as the agreement was made without approval of the GHQ. With these averments a decree for cancellation of agreement dated 8.7.1981, consent decree dated 14.5.1985 was prayed for and a decree for specific performance of agreement dated 5.2.1984 was sought, It was further prayed that damages in the sum of Rs.50,000/- be also awarded against the respondent No. 1. The respondent No. 2 contested the suit by filing written statement, It was stated that the appellant himself is an army personnel and is exempt from the said condition of getting prior approval of GHQ.
6. Now after setting aside the said decree dated 14.5.1985 under Section 12(2)., C.P.C., both the suit were consolidated and following issues were framed:-
(1) Whether this suit is not within time? OPD
(2) Whether the plaintiff is estopped to file this suit by his words and conduct? OPD 1-2
(3) Whether the defendant No. 1 was not competent to enter into an agreement dated 8.7.1981 with the plaintiff, to sell the suit land without prior permission of the G.H.Q.? OPD-2
(4) Whether the agreement dated 8.7.1981 is enforced according to its terms and conditions?
(5) Whether the plaintiff is entitled to the decree prayed for? OPP
(6) Whether the suit of the defendant No. 2 is bad for misjoinder of causes of action? OPD-2
(7) Whether the defendant No. 2 is entitled to the specific performance of contract dated 5.2.84, if so, on what terms and conditions? OPD
(8) Whether the defendant No. 2 is entitled to recover damages of Rs.50,000/- vide agreement dated 5.2.1984.
(9) Relief.
Evidence of the parties was recorded. Issues 1 and 2 were found in favour of the appellant. Under issues 3 to 5 it was found that since the prior permission of G. H.Q, was required the agreement dated 8.7.1981 as such is not enforceable. Issue No. 6 was found in favour of the respondent No. 2.
Issue No. 8 was answered in negative. Issue No. 7 was decided in favour of respondent No. 2.
Resultantly the suit filed by the respondent No. 2 was decreed subject to payment of Rs.1,00,000/- the balance in Court upto 31.1.1988. This was done vide consolidated judgment and decree dated 23.12.1987.
7. Learned counsel for the appellant contends that in the almost admitted factual back ground, his client could not have been non-suited on the sole- ground that NOC has not been obtained from the GHQ. According to the learned counsel a valid agreement between his client and the respondent No. 1 had been proved rather admitted and his client had performed his part of. The contract and was further ready and willing to perform the said part. Presses the C.R. By arguing vehemently that no case within Section 12(2), C.P.C, stood made out for setting aside of the decree dated 14.5.1985 in favour of his client. Learned counsel for respondent No. 2 on the other hand argues that the agreement between the appellant and respondent No. 1 was void because of absence of the NOC and as such the suit has been rightly decreed by the learned Trial Court after setting aside the decreed dated 14.5.1985 under Section 12(2), C.P.C.
8. We have examined the Trial Court records with the assistance of the learned counsel for the parties, It stands admitted on all hands that the respondent No. 1 agreed to sell the land to the appellant vide agreement dated 8.7.81. There is no denial of the receipt of Rs.2,00,000/- under the same. The finding recorded by the learned Trial Court that the appellant never backed out from the agreement (issue No. 2) has not at all been questioned by the respondents. Similarly there is no dispute that the respondent No. 1 proceeded to agree to sell the same land to the respondent No. 2 vide an agreement dated 5.2.1984. However, nothing turns on this fact when it stands admitted even by the respondent No. 2 in the course of his statement as DW- 3 that he was aware of the agreement in favour of the appellant before he entered into the said agreement.
9. Now the only ground on which the appellant has been non-suited is that under para 6-B of the Border Area Scheme framed under MLR 9 a certificate is required from the Deputy Commissioner that the vendee is a fit person from defence point of view and that an army personnel is not available to purchase the land. Thereafter GHQ is to give the approval. However, in case the vendee is an army person then a certificate of D.C. Is not required.
10. To our mind the said condition is relatable to the point of time when agreement dated 8.7.1981 was entered into, It is an admitted position on record that the respondent No. 2 came in contact with respondent No. 1 in February, 1983. Thus, it can be safely said that at the relevant time no army person wanted to purchase the land. Now the said condition has been imposed with a defence point of view and to our mind if at any time the appellant is found to be a person not fit to hold the land from defence point of view appropriate proceedings can be taken of course after notice to the appellant and giving him a chance to explain. So far as the present proceedings are concerned there is no plea and there is no evidence at all on the record that either the appellant is not a fit person to hold the land from defence point of view and or that any competent authority has so held otherwise.
11. Learned counsel for the appellant has drawn our attention to the case of Rajab AH v. Mst. Aisha and others (1989 SCM R 135) and Ghulam Muhammad alias Ghulamoon v. Maula Dad and 6 others (PLD 1980 SCM R 314).
12. The dictum laid down is that where a valid contract stands entered into and performed then the vendee cannot be allowed to resile with reference to any prohibition contained in law. The Hon'ble Apex Court delivered the judgments with reference to prohibition contained in Section 1 9 of the Colonization of Government Lands (Punjab) Act, (V of 1912) as well as para 25 of MLD 64 of 1959. In our humble opinion the said dictum fully applies to the present case with reference to the said condition continued in the said scheme. As stated by us the land as well as the vendee i. e. The appellant is very much there and if at any time in any proceedings to be conducted in accordance with law it is found that the appellant constitutes a danger or is otherwise found to be unfit with reference to defence exigencies, appropriate action can be taken. However, the vendor the respondent No. 1, and respondent No. 2 claiming under him cannot make that a ground for refusing the otherwise the lawful claim of the appellant.
13. We therefore, reverse the finding of the learned Trial Court on issues Nos. 3, 4, 5 and 7.
14. Coming to the said civil revision. We do find ourselves in agreement with the learned counsel that the decree could have been set aside only on the ground stated in Section 12(2), C.P.C, no case of fraud or misrepresentation stood made out on the reading of the said application. So far as the ground for setting aside the decree is concerned, it is not at all a ground envisaged by Section 12(2), C.P.C, but pertained to the merits of the case, In any case since both the matters have been re-heard, tried and decided the said order impugned in C.R. No. 1239/1987 loses significance.
However, since the sale-deed had been executed and registered in favour of the appellant we will dispose of the C.R. With the observation that the said sale-deed shall stand restored and shall be deemed to be valid and in operation.
15. For the reasons stated above the RFA is allowed, and the impugned judgment and decree passed by the learned Trial Court on 23.12.1987 are set aside. The result would be that the suit filed by the appellant as against the respondent No. 1 shall stand decreed and suit filed by respondent No. 2 stands dismissed. He has already paid the price and the sale deed stands executed and registered in his favour. C.R. Is disposed of as stated above. Parties are left to bear their own costs.