Pervaiz Ahmad VS Muhammad Khursheed Khan

JUDGMENT SHEET

IN TIIE PESIIAWAR HIGH COURT,

MTNGORA BENCH @AR-UL-QAZA), SWAT

(Judicial Department)

R.F.A. No.64-M/2016

JUDGMENT

Date of hearing: 26.01.2018

Aooellant:-(Pervaiz. Ahmeil bv Mr. Hazrat Rehman, Advocate.

Resoondenl:- Khurshid Khad bv Mn Avaz Muhammad, Advocate.

MOHAMMAD IBRAEIM KHAN. J.- This is a

Regular First Appeal under section 96/Order XLI Rule 1 of the Civil Procedure Code 1908 read with Paragraph 10 (8) of Shariah Nizam-e-Adl Regulation 2009 against order/judgment/decree dated22.10.20l6 passed by the learned Senior Civil Judge/A'ala Illaqa Qazi Dir Lower at Timergara, whereby suit of the Plaintiff (herein the Appellant) was dismissed.

) It was regarding obtaining a decree for declaration in respect of a house the boundaries of which are given in the head-note of the plaint being $;- purchased on the strength ofdeed dated 05.11.2010. There is another prayer for obtaining its possession together with grant of decree for the permanent injunction restraining Muhammad Khurshid Khan Nawab (S.8.) Hon'bl6 Mi Ju.tlc. Uohrmmad lbrahlm Khan

the Defendant (herein the Respondent) from all types of interference.

3 The parties had struck the Bargain by the deed dated 05.11.2010 for sale consideration of Rs, 25 lacs which were paid in lump sum. There was a term for a condition that the house will be given in possession of the Plaintiff (herein the Appellant) by a date 04.12.2010 and after that in view of the further conditions under the deed the said Muhammad Khurshid Khan wiil have no concem with the house. As and when the Defendant (herein the Respondent) was contacted for handing over possession of the suit house he further demanded one month time but subsequently on one pretext or the other he refused to vacate the house. Thereafter numerous requests were forwarded but even then possession of the suit house was not given to the Plaintiff (herein the Appellant), hence, the present suit has been instituted,

r__t P) 4 This claim was contested through written statement raising various legal and factual objections, the leamed Civil Court was pleased to frame the following issues on the basis of averments taken in the pleadings ofthe parties:-

.ISSUES:-

n.w.b (S.4.) Hon'bl. Mr. Ju.tic. Uoh.mmtd lbrtham Kh.n

l. lYhether Plaintiff has got cause of action? OPP

2.Whether sale deed dated 05.11.2010 is genuinely made? if so its effect? OPP

3.Whether Plaintiff has performed his duty according to sale deed dated 05.11.2010? if so its effect? OPP

4.I|hether Plaintiff has affixed proper Court fee? OPP

5.Market value of suit property? OPP 6. Wether the Plaintiff is entitled to the deoee as prayedfor? OPP

Relief.

5.Thereafter both the parties were given ample opportunities to adduce their respective evidence in support of their view-point. Accordingly, the Plaintiff (herein the Appellant) examined Muhammad Saeed petition writer as PW- 1, Imran-ud-Din Advocate Oath Commissioner as PW-2, the Appellant (hereinbefore called the Plaintiff) himself appeared in the witness-box as PW-3 and one Rasool Zada was examined as PW-4 Likewise, on the other hand, the Defendant (herein ,n" Respondents) recorded his statement as DW-l (r- @ and produced Muhammad Israr as DW-2.

6, In a Suit No.27211 of the year 2012 upon delivery of findings on each and every issue, the suit was dismissed mainly under the findings on issues N.wrb (S.B.) Hon'bl. ur. Ju.ucs Mohammad lbr.hlm Khln

No. ,6 which is reproduced as under for ready reference:-

$l{ t 7ff )."1,t,4r L -c,r ) Aft)b vt,.c,t ) * ,t r t

-Crr)r -(t/ g +rjZSale of Good s Act 1930 4.,t:! -(9i g, t, er + -c, ) q - n.t u {15,r, t i,.,, :'./r 7U t r

o! Z-U 4.rl;', [,r 7r t-r at i t' L $ " -79,r ) tJ r

,lchapter 6, Chapter I Pafi \ ! t 7 r! i,, t V, { $r,t r:;r;t r,tl, -8 1lN/cnupt", e Specific Relief Act -{ tgv{ .,t.v L * p li 6, t, /t -7 : *e tf tJ

-;*i*t! {t"t The Plaintiff (herein the Appellant) was also put under the directives to fumish court fee within one month, failing which the suit would deem to be rejected under Order VII Rule 11 (C) of the Civil Procedure Code.

7 Having heard arguments of leamed

counsel for the parties record with their valuable assistance gone through,

8.There are applications bearing Civil Miscellaneous No. 1078-M of 2016 under the subject "Aoolication for endment of suit t ,)_ {- resardins addition of s ific oerformance of the deed dated 05.11.2010 in relief "tJ'with the words:

x.,c, 622,1f470s- I I -20I 0 -> t"t-.ta,/,&1.r, I b,t j tL,z.t dt t/ 7 lr2 d b c1. 4lb dllv t I -r r/ N.wab (S.4.) Hon'bl. Mr. Ju.lic. Moh.mmad lbrahlm (h.^

Besides there is another Civil Miscellaneous application No. 1079-M of 2016 under the subject or

9 Consequent to filing of these sepaxate applications for amendment of the suit regarding addition of specific performance of the deed and application for framing of additional issues when were taken up for arguments. The thrust of the arguments at first instance is mainly on the ground that the issues framed by the leamed lower Court are deficient in view ofthe legal and factual objections taken in the written statement and thereby it is imperative for the Court to frame additional issues, failing which the object behind grant of the decree would not be achieved. Learned counsel for the Appellant has referred the following issues:- t 7:[t 4]v,r d u,,r / rP. 6'6 f '( tl 7tJ t,dt, i'f li a t r g,r/ :2

7 $ $ | : fi2t:. l,o g(,,.>t: : *t f :3

I

a / (6: !*'tir ) os.t t.zoto,/ z'9,r/ r+ ra rjrbuiu SEstop peUv L $'r! :s S 7,r>,.,f)41,)'xut 1ri i2t:;lo5.l L2010) t/Z:9:{:6 cr^ I t;- tc-1.d6)tu!lE r z- :* + ri ;v t! ) $ t't l :t "rJ

?,:/-/' dE itV $ " I'rrl :z tJ

)t/ )1:9: 1.,; L itS .ot $': !f: L 6 t c- ! 0 r.l :e tTlf ,>{t4os.t1.2oto f ., 1ft o t,, -'i al!L 4, * $r, ; t1-,,j.,rt t L lb t, tr $ .t : t o t gf

tti ) 4 *b * lr., tr L,ts!

t t N

N.w.b(4.8.) Hon'bl. Mr. Ju.!lc. Moh.mmrd lbEhlm Kh.n

-K_

10.With the help of leamed counsel for the parties it is as evident that certain objections have not been reduced into issues. Yet when the requirement has already been met by adducing the evidence to that effect it would be not even necessary to frame issues which have already been given much significance under the findings on the issues already framed, In such scenario in support of his stance, learned counsel for the Appellant placed reliance on 2008 SCMR 1384 "Mst, Rasheeda Bibi and others V/S Mukhttar Ahmad and others" citation (h) in particular regarding framing ofissues.

Duty of the Court under O. XIV R. l, 1999 SCMR 786 " Bharoo and 2 others V/S Chief Seltlement Commissioner snd 2 others", 1999 SCMR 12229 " Bashir Ahmad and others V/S Ch Nawab and olhets", 1989 SCMR 1 719 " Bakht Zamin V/S Said Maiid", 1997 S 1849 " Roazi Khan and others V/S Nasir and others", 2014 CL 1117 (Peshawar) " Mubarak ll Shah V/S Muhammad Khan and 3 others" and 2009 scMR 1256 g- il)- Muhammad Bashir V/S Muhammad ussaln oncl 16o thers ." In respect of the same issue while controverting the arguments and dictums of the Hon'ble superior Courts as referred to above by leamed counsel for the Appellant in rebuttal leamed Nrw.b (3.B.)Hon bl. Mr. Juttlc. Moh.mm.d lbr.hlm (hin

counsel for the Respondent placed reliance on zUJ_ YLR Note 33 (Laho Abdul Maieed V/S Kishwar Nasim and olhers" with particular reference to citation (b) wherein it has been held:- llate court was not r ut vorl ln oitto i <ctto fi ndtngLurlike fti ct I C o ur t ".

11.Whereas application for amendment of suit regarding addition of specific performance of the deed dated 05.11.2010 in relief "c.,". Leamed counsel for the parties were also later heard with vehemence. Leamed counsel for the Appellant referred to PLD 2013 Supreme Court 239 " Abaid Ullah Malik V/S Additional District Judse Mianwali and otherstt. 1989 MLD 3495 (Lahord " Mushtaq Ahmad and others V/S Arlf Hussain and otherst?, 2017 CLC 378 (Peshawar) " Sher Shah V/S Alam Sher", PLD 2016 Supreme Court 712 " Ghulam Oadir and others V/S Sh, Abdul Wadood and others 2003 s 1493 " Sved Match Comoanv Ltd, throush Mana stns Director V/S Aulhoritv Under Pa t of ll/ases Act and s--I,4 others". PLD 2006 Suor eme Courl 66 " Javald Iabal V/S Abdul Aziz and anothertt, 2003 SCMR 18 " Mst, Ar thro h MsL Fatima

and others V/S Maula Baksh thro ush Mst. Gltulam Safoor and others' and PLJ 2003 Naw.b 1S.8.) Hon'bl. Mr, Ju.tlc. uoh.mm.d lbr.hlm Kh.n

Peshawar 39 " Gul Roze and another V/S Sareand and otherst.

In view of the dictums of the Hon'ble superior Courts as referred to by leamed counsel for the Appellant seeking amendment at the stage of appeal it has been held that amendment plea can be taken at any stage ofthe proceedings but it ought to be permitted where such amendment is required to reach to a correct conclusion and for determination of the real dispute in between the parties. The leamed appellate Court had same powers which were exercised by the Courl in its original jurisdiction with regard to suits as appeal was continuation of suit.

12, It is true that the present Appellant (hereinbefore called the Plaintiff) has been non- suited by the learned Judge of the trial Court mainly for the reason under findings on issue No. 6. According to section 4 of the Sale of Goods Act 1930 whenever there is any condition laid down ls uch an agreement would not at all be an agreement t/.- €-"-.. pertaining to sale, rather to enforce the right for obtaining the ownership the suit form would be under Specific Relief Act and thereby according to the findings under Chapter 12 (2) of the Specific ll.w.b (9.8.) Hon'bl. Mr. Juttrcr i ohrmmad lbnhlm (h.n

Relief Act, suit for specific performance would be competent.

13.Learned counsel for the Appellant has candidly admitted that the hndings of the learned Civil Court are absolutely correct to the extent that the Plaintiff (herein the Appellant) was under an obligation to have brought a suit for specific performance on the basis of deed dated 05.11.2010 which has allegedly been executed in between the parties and for this reason he has annexed an application for seeking amendment in the plaint to this effect. Whereas the judgment of the Hon'ble Sindh High Court (Karachi) 2010 YLR 297 " Fazal Hussain Shah throush Helrs and others V/S Rustam throush Legal Heirs'? and other judgment of the Hon'ble Lahore High Court reported as zUJ- MLD 96 " Muhammad Bashir and 2 others V/S Abdul Rauf and another". When such documents creating title has not been proved in accordance with production of truthful witnesses 2 in numbers then it d- would deem to have not been proved. Leamed counsel for the Respondent has referred to the statement of the Defendant (herein the Respondent) recorded as DW-l Muhammad Khurshid Khan in the very opening line of his cross-examination he has admitted:-

Nrwrb (3.4.)Hon bl. Mr. Ju.tlc. Uoh.mm.d lbrahim (h.n

lQi.,n u ilQb it {Jr 7l4J t, Sv r, d t /,.1 L ^, I p OC i v z- 7 L $ t, -(7 *, tt. -7 ?,t 4-l -*{ t/ e*. tw -t I t uN tr ) ;t +l, r

But at the same breath this witness categorically denied to have received an amount of Rs. 25 lacs as entered in the sale deed.

14.Leaving aside the findings upon the evidence adduced by the parties, it is ofparamount importance to dispose of the application for seeking amendment in the plaint regarding addition of specific performance of the deed dated 05.11.2010 in relief "+" which is in total negation of the ratio decidendi settled by the Hon'ble Supreme Court in its judgment cited as 2008 SCMR 515 " Khair Muhammad and others V/S Nawab Bibi and otherstl, wherein the application for amendment has been dismissed as the proposed amendment would change complexion and character of suit for declaration. The relevant citation speaks of:- "Suil for declaralion, Agreemenl t ,-)- by venrlor lo sell land in favour of q^ Plaintiff, Subsequent sale of land through mutation by attorney of vendor in favour defendant. Suil

for declaration by plaintiff that he was owner in possession of suit- land and such mutation was void.

Dismissal of suit by Trial Court

N.w.b (S.8.) Hon'bl. ur. Ju.llc. uoh.mrfl.d lbr.hlm xh..

af/irmed by Appellate Court and lhen in revision by High Court, Application by plainttff before Supreme Court lor allowing him to amend plaint and treat suit fot declaration as suit for specific performance. Validity, Conc uruent findings of fact of three courts werc thot sach mutation was valid and plaintiff was not owner of land. Proposed amendment would change complexion snd character of suit for decloration, Partied hod been litigating for last 37 years, Plaintiff had called in question mululion of sale aftet 6 years.

Supreme Court dismissed amendment applicalion ond main p elitio n in circ umstances, "

15.Altogether this is a stage for seeking amendment of suit regarding addition of specific performance of the deed dated 05.11.2010, where this is a suit for declaration and the proposed amendment would certainly change the complexion and character of the suit then such amendment cannot be allowed, though the application for tl) <- amendment can be presented at any stage. This application is decided accordingly.

16.In the event when the Court is of the opinion that the form of suit is defective for want of that on the basis of an agreement in between the N.w.b (S.8.) Hon bl. Mr. Jut(lc. tloh.mm.d lbr.hlm (h.n

-t2-

parties surely in this case the suit for declaration would not be incompetent, rather suit for specific performance is required to be instituted. Thus, findings on all the rest issues would be bootless exercise and discussion and disposal on the strength of evidence adduced by the parties would further complicate the situation and prejudice the subsequent suit, if any, under the ambit of specific performance. Thereby the plaint is hereby returned to the Plaintiff (herein the Appellant) under Order VII Rule 10 of the Civil Procedure Code. The Plaintiff/Appellant may file a fresh suit for obtaining specihc performance on the strength of the agreement dated 05.1 1.2010 within the ambit of its limitation and legal framework.

17.In such terms, this appeal ls disposed of accordingly.

Announced.

Dt: 26. I .2018 g- L/

JUDGE

ltyzlts ^i(

N.wab (S.8.)Hon'bl. Mr