Haji Muhammad Boota Vs Muhammad Ashraf Cheema etc

Stereo. H C J D A 38

JUDGMENT SHEET

LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

C. R. No. 15349 / 2020

Haji Muhammad Boota

Versus

Muhammad Ashraf Cheema & another

JUDGMENT

Date of Hearing: 20.12.2022 Petitioners By: Mr. Ghulam Hussain Awan, Advocate Ch. Zeeshan-ur-Rehman, Advocate Respondent No. 1 By: Mr. Muhammad Mahmood Chaudhary, Advocate Respondent No. 2 By: Mr. Zaeem Mumtaz Bhatti, Advocate ABID HUSSAIN CHATTHA, J: This Civil Revision is directed against the impugned Judgment dated 12.02.2020 passed by the Additional District Judge, Daska.

2.Succinctly, Respondent No. 1 was owner of suit property measuring 10-Kanals and 11 Marlas who entered into an agreement to sell dated 07.12.2011 with the Petitioner against consideration of Rs. 9,917,000/-. It was alleged that an amount of Rs. 6,165,000/- was paid as earnest money followed by another amount of Rs. 1,000,000/- through cheque on 10.01.2012 and twenty days before the target date, another amount of Rs. 100,000/- was also paid. The remaining amount of Rs. 2,652,000/- was liable to be paid by the target date i.e. 15.02.2012. Respondent No. 1 did not contact the Petitioner on the target date which constrained the Petitioner to send him a notice of execution of sale deed, whereafter, the Petitioner came to know that Respondent No. 1 had sold the suit property to Respondent No. 2 through registered sale deed No. 780 dated 16.02.2012 followed by attestation of mutation No. 1444 in compliance thereof which led the Petitioner to file a suit for specific

performance of the agreement to sell along with cancellation of sale deed No. 780 and Mutation No. 1444 with consequential relief.

3.Respondent No. 1 was proceeded ex-parte on 13.09.2012. Respondent No. 2, the subsequent purchaser contested the suit by filing his written statement. The Trial Court framed the following issues arising out of the divergent pleadings of the parties:-

“1. Whether plaintiff is entitled to a decree for possession through specific performance of contract with cancellation of registered sale deed No. 780 dated 16.02.2012 as well as mutation no.1444 and permanent injunction on the averments as made in the paint? OPP 2. Whether defendant No. 2 is not party to the alleged agreement to sell and as such suit is not competent against defendant No. 2? OPD

3.Whether suit is collusive and has been filed to damage the rights of defendant No. 2? OPD

4.Relief.”

4.The Petitioner and Respondent No. 2 recorded their respective evidence, whereafter, the Trial Court decreed the suit vide Judgment and Decree dated 19.07.2014. Respondent No. 2 preferred an appeal which was accepted vide Judgment dated 26.09.2017 and the Appellate Court remanded the case to the Trial Court after framing issues for decision afresh after recording of evidence of the parties. The Appellate Court was primarily swayed to remand the case for the reason that no specific issues were framed regarding plea of Respondent No. 2 that the agreement to sell dated 05.11.2011 executed by Respondent No. 1 in his favour is anti-dated and that the latter is bona fide purchaser with consideration without notice firstly on the strength of his own agreement to sell dated 05.11.2011 and subsequently, on the strength of registered sale deed No. 780. Moreover, it was specifically pleaded that the Petitioner was never put in possession with respect to his alleged agreement to sell but was in possession being tenant of Respondent No. 1. As such, the Appellate Court did not give any findings on merits and framed the following additional issues:-

5.Whether the impugned agreement amongst the plaintiff and defendant No. 1 dated 07.12.2011 is antedated, so as the same might be used against the defendant No. 2

and the defendants No. 2 was not in the knowledge of the alleged agreement? OPD-2

6.Whether the impugned agreement is in existence and without consideration? OPD-2

7.Whether the defendant No.2 is bona-fide purchaser without consideration on the strength of Registered Sale Deed No.786 dated 16.02.2012, founded upon the agreement between the defendants No.1 & 2 dated

05.11.2011? OPD-2

8.Whether the suit is not maintainable and competent against the defendant No 2? OPD-2

9.Whether the possession was not delivered under the agreement but was already with the plaintiff as tenant?

OPD-2

5.In addition thereto, issues No. 2 & 3 already framed by the Trial Court were re-casted for being vague and the onus to prove was re- fixed after considering that only Respondent No. 2 was contesting the suit. The re-casted issues No. 2 & 3 are reproduced as under:-

2.Whether defendant No. 2 is not party to the alleged agreement to sell and as such, suit is not competent against defendant No. 2? OPD-2

3.Whether the suit is collusive between the plaintiff and defendant No. 1 and has been filed just to cause damage to the rights of defendant No. 2? OPD-2

Accordingly, the Appellate Court remanded the case to the Trial Court with the direction to conduct de novo trial after providing opportunity to the Petitioner and contesting Respondent No. 2 to lead evidence for and against the issues with the observation that any of the parties may place reliance on the evidence already recorded. The Appeal was accordingly partially allowed and the impugned Judgment and Decree dated 19.07.2014 passed by the Trial Court was set aside.

6.The Petitioner challenged the aforesaid remand order before this Court in FAO No. 109156/ 2017 which was allowed on 24.09.2019 with the consent of the parties. The said order is reproduced below:- “With the concurrence of learned counsels for the parties, instant appeal is accepted and the judgment & decree dated

26.09.2017 is set aside with the direction to learned Appellate Court to decide the appeal on merits. All the contesting parties are directed to appear before learned Senior Additional District Judge, Daska on 30.09.2019 who shall either entertain or adjudicate upon the appeal himself or will entrust the same to any other competent Court of jurisdiction.”

The Appellate Court again accepted the appeal while framing the following additional issues and remanded the case to the Trial Court for its decision afresh after recording evidence of the parties vide Judgment dated 12.02.2020 which is impugned in this Civil Revision:- 3-A. Whether the impugned agreement amongst the plaintiff & defendant No.1 dated 07.12.2011 is ante-dated and without consideration? OPD-2 3-B. Whether the defendant No.2 is purchaser of the suit property vide agreement to sell dated 05.11.2011 & later on, vide sale deed registered on 16.02.2012 in compliance with the agreement to sell above mentioned? OPD-2 3-C. Whether the possession of disputed property was not delivered to plaintiff under the impugned agreement to sell and was lying with plaintiff under tenancy prior to the impugned agreement between plaintiff & defendant No.1? OPD-2

7.Learned counsel for the Petitioner submitted that full fledged trial had taken place before the Trial Court and there was no occasion for the Appellate Court to remand the case by framing issues No. 3-A to 3-C and in fact, this was violation of the consent order passed by this Court referred above which mandated that the Appellate Court ought to have decided the pending appeal on its own merits. In this behalf, the Appellate Court had erred to accept the application for additional evidence of Respondent No. 1, framing issues thereon and remanding the matter to the Trial Court. He stressed that remand order is in violation of specific rules governing remand incorporated in the Code of Civil Procedure, 1908. He relied upon cases titled, “Amjad Ikram v. Mst. Asiya Kausar and 2 others” (2015 SCMR 1); and “Muhammad Ibrahim (deceased) through LRs and another v. Taza Gul and others” (2020 SCMR 2033) to substantiate that the order of remand was unlawful.

8.Learned counsel for Respondent No. 1 submitted that Respondent No. 1 was proceeded ex-parte by the Trial Court who came to know the proceedings of pending appeal and had joined the lis. He has a right to produce evidence as the alleged agreement to sell by the Petitioner was not executed by Respondent No. 1 and he did not receive any consideration in this behalf. He argued that grave injustice would be caused if the lis is decided without providing an opportunity to Respondent No. 1 to produce evidence as in that eventuality he would have to return the sale consideration received from Respondent No. 2. In these circumstances, the order of remand was necessary which was passed by the Appellate Court twice after reaching to an independent conclusion that facts and circumstances of the case required re-casting of issues and recording of fresh evidence. Further stated that when the matter was remanded with the consent of the parties, no embargo was placed on the power of Appellate Court to record additional evidence or to decide the matter independently after applying judicial mind. Hence, the order of remand is just and proper which is liable to be maintained. Learned counsel for Respondent No. 2 added that Respondent No. 2 is a bona fide purchaser of the suit property without notice of alleged agreement to sell of the Petitioner and that the agreement to sell executed by Respondent No. 1 in his favour was anti-dated, thereafter, the impugned order of remand passed by the Appellate Court after re-casting the issues and correcting the onus to prove is in consonance with law. Reliance was placed on cases titled, “Mst. Sughran Bibi and others v. Mst. Jameela Begum and others” (2001 SCMR 772); “Mansab Ali v. Hafizan and 5 others” (PLD 1993 Lahore 1); and a recent Judgment of this Court in case titled, “Chanan alias Channu and others v. Hassan Raza and others” (Civil Revision No. 3471 / 2016) decided on 27.09.2022.

9.Arguments heard. Record perused.

10.There is no cavil to the proposition that while remanding the lis to the Appellate Court vide Order dated 24.09.2019 with the consent of the parties, this Court had placed no embargo on the Appellate Court to decide the pending appeal on its own merits. In post remand proceedings, Respondent No. 1 filed an application for framing of additional issues

which after due contest by the Petitioner was accepted on its own merits. The Appellate Court reached to a conclusive finding to the effect that the agreement to sell between Respondent No. 1 and Respondent No. 2 was allegedly executed on 05.11.2011 culminating into registered sale deed dated 16.02.2012 which was prima facie prior in time than the agreement to sell dated 07.12.2011 allegedly executed between the Petitioner and Respondent No. 1. Further, as per pleadings, possession was not delivered to the Petitioner in pursuance of his alleged agreement to sell but the same was with him as tenant of Respondent No. 1. In this background, through conscious application of mind, the Appellate Court found that the issues were not properly framed by the Trial Court as well as the Appellate Court in the first round of litigation. In addition to this, onus to prove issues No. 2 & 3 as originally framed was also corrected and placed on Respondent No. 2. Whereafter, the case was remanded to the Trial Court with direction to incorporate the above mentioned issues in the record, correct onus as observed above and re-cast all the issues to avoid any ambiguity. It was further directed to invite evidence from the parties on the re-casted issues, hear arguments and decide the case afresh in accordance with law.

11.It is noted that under the peculiar facts and circumstances of the case, the impugned Order of remand passed by the Appellate Court is fully justified and in consonance with law. The additional issues as reproduced above reflect that the same were never covered in the composite issue No. 1 originally framed by the Trial Court. The Appellate Court has twice reached an independent conclusion that the issues were originally not rightly framed by the Trial Court and sufficient opportunity was not provided to record evidence which does not call for any interference by this Court as there is no illegality or irregularity with respect to the impugned Judgment. Needless to observe that it is the duty of the Court to frame issues correctly primarily on the basis of pleadings of the parties and the issues framed by the Court should correctly reflect the controversies arising from the pleadings of the parties. This enables the parties to know the precise evidence required to be recorded and helps the Courts to render effective Judgments on disputed facts. Each case has to be decided on its own peculiar facts and circumstances. The case law referred

by learned counsel for the Petitioner is distinguishable. No prejudice is caused to the Petitioner through the impugned Judgment since the matter will be decided on merits in accordance with the directions given by the Appellate Court.

12.In view of the above, there is no merit in the instant Revision Petition and the same is dismissed. No order as to costs.

(Abid Hussain Chattha) Judge *WaqaR*