2015 M L D 1627
[Balochistan]
Before Naeem Akhtar Afghan and Shakeel Ahmed Baloch, JJ
JUMA GUL ---Appellant
versus
GUL BIBI and others ---Respondents
R.F.A. No.51 of 2011, decided on 6th July, 2015.
(a) Civil Procedure Code (V of 1908) ---
----O. XIV, R. 1 ---Specific Relief Act (I of 1877), S. 12 ---Suit for specific performance of
contract ---Issues, framing of ---Scope ---Parties were bound to point out the framing of necessary
issues, Trial Court was equally bound to frame necessary issues fo r determining the real
controversy between the parties ---Merely because parties had not pointed out about the issues
would not absolve the Trial Court to perform its legal and statutory duty ---Trial Court, in the
present case, had not properly framed issue s of facts as well as law arising out of the pleadings of
the parties ---Action or inaction on the part of the court could not prejudice a party to litigation ---
Impugned judgment and decree passed by the Trial Court was set aside ---Suit was remanded
with th e direction to frame all the necessary issues of facts as well as law arising out of pleadings
of the parties and decide the same afresh on merits in accordance with law within a specified
period ---Appeal was accepted in circumstances.
(b) Administratio n of justice ---
----Action or inaction on the part of the court could not prejudice a party to litigation.
Syed Manzoor Shah for Appellant.
Miss Fatima Khilji for Respondents.
Date of hearing: 19th March, 2015.
JUDGMENT
NAEEM AKHTAR AFGHAN, J.---This judgment disposes of R.F.A. No.51 of 2011
filed by the appellant (defendant No.1) against the judgment and decree dated 28 -6-2011
(hereafter "the impugned judgment") passed by learned Civil Judge -VI Quetta (hereinafter "the
trial Court"), whereb y the suit for Specific Performance, Possession, Recovery of Rs.11 -Lakhs
and Permanent Injunction filed by respondents Nos.1 to 23 (plaintiffs ) has been decreed.
2. Facts of the case are that initially respondent Nos.1 and 2 filed suit for specific
performance, possession, recovery of Rs.11 -Lakhs and permanent injunction against the
appellant and respondent No.24 (Tehsildar Quetta), but subsequently, by way of amendment,
respondents Nos.3 to 23 were also arrayed as plaintiffs and amended suit was filed.
3. As per contents of the amended plaint, the predecessor of the respondents namely Shah
Wazir had purchased house falling under Khasra No.601, 484, Mohal Karez Saleh Mohammad,
Mouza Khezi, Tappa Baleli Tehsil and District Quetta Samungli Road Quetta (he reinafter "the
disputed property") from the appellant against consideration of Rs.34 -Lakhs; that in this regard
agreement dated 12 -5-2006 was also executed between the parties in presence of witnesses and
the same was attested; that at the time of transact ion, the predecessor of respondents paid
Rs.28,50,000 to the appellant through Cheque dated 12 -5-2006 of Habib Bank Limited, which
was encashed by the appellant; that the predecessor of the respondents had paid Rs.50,000 as
advance to the appellant at the time of transaction; that total amount of Rs.29 -Lakhs was paid by
the predecessor of the respondents to the appellant, while the balance amount of Rs.5 -Lakhs was
to be paid to the appellant at the time of transfer of the house in question; that in the mean while,
the predecessor of the respondents was murdered, in respect whereof, FIR was registered; that
the respondents being legal heirs of the deceased approached the appellant several times to
transfer the disputed property in their names and to hand over possession of the same to them,
but the appellant used delaying tactics and ultimately refused to transfer the disputed property in
the name of the respondents or to deliver the possession of the same to them despite receiving
sale price of the same; that the appellant has violated the terms and conditions of the agreement
executed between him and the predecessor of the respondents.
It has further been contended in the plaint by the respondents that the respondents had
given Rs.11 -Lakhs to the appellant for dealing in the business of fruit; that the respondents have
half share in the business, but the appellant has neither provided the benefits of the business to
the respondents nor has returned the actual amount of Rs.11 -Lakhs to the respondents; that on
approach by the respondent No.1 for return of Rs.11 -Lakhs, the appellant refused to return the
same. The following relief was claimed by the respondents:
"(i) To declare the plaintiffs as owners of the house in question bearing Mutation No.79,
Khasra No .601/484 situated at Samungli Road, Quetta.
(ii) To direct the defendant No.1 to transfer the mutation of the house of question and also
hand over the possession of the same to plaintiffs as per agreement.
(iii) To direct the defendant No.2 to transfer the house in question in the name of plaintiffs in
the Revenue record.
(iv) To direct the defendant to implement on the terms and conditions of the agreement dated
12-5-2006.
(v) To direct the defendant No. 1 to return Rs.11,00,000 and benefits of bus iness to plaintiff.
(vi) Any other relief which may deem fit and proper under the circumstances of the case may
also be awarded to plaintiff. "
3. The suit was contested by the appellant by filing written statement. While raising
preliminary legal obje ctions, it was agitated by the appellant that no cause of action has accrued
to the respondents for filing the suit, as the agreement dated 12 -5-2006 was cancelled; that the
suit is not maintainable under section 42 of the Specific Relief Act; that the sui t has been filed by
the respondents with mala fide and ulterior motives to blackmail the appellant; that the suit is bad
for misjoinder and non -joinder of necessary parties as the deceased predecessor of the
respondents has left other legal heirs as well w ho have not been made party to the suit; that the
respondents have relied on the document which has been executed with fraud and mis -
representation; that the agreement should have been registered under section 17 of the
Registration Act; that the responden ts have not valued the suit according to the Suits Valuation
Act.
While denying the contents of the plaint on merits, it was stated that the predecessor of
the respondents executed agreement dated 12 -5-2006 to play fraud and for some of his personal
requirements; that the predecessor of the respondents personally backed out and cancelled the
said agreement after one month of its execution, in pursuance whereof, a cancellation deed was
also executed between the appellant and predecessor of the responde nts.
The contents of para -3 of the plaint with regard to the transaction of the disputed property
was admitted by the appellant with the statements that said transaction was not completed as
during the period the predecessor of the respondents himself r equested for cancellation of the
agreement dated 12 -5-2006 and with mutual consent of the parties, the said agreement was
cancelled, that the earnest money of Rs.50,000 paid to the appellant by the predecessor of the
respondents was forfeited; that total a mount of Rs.1 -Lakh was given by the predecessor of the
respondents to the appellant; that the agreement dated 12 -5-2006 having been cancelled has no
force of law.
It was further contended by the appellant that when the respondent No.2 was informed by
the appellant about the factual position, the respondents wrongly involved the appellant in the
murder case of their predecessor; that after completion of investigation, the appellant was
released by the police; that few days prior to filing of the suit, the respondents again filed a
complaint against the appellant to pressurize and blackmail the appellant; that after cancellation
of the agreement, the respondents have no concern or connection with the disputed property of
the appellant.
The contention of the respondents about giving Rs.11 -Lakhs to the appellant for business
of fruit and their partnership with the appellant was strongly denied. It was prayed that the suit
being false and frivolous be dismissed.
4. Out of the pleadings of the parties the trial Court framed the following issues;
(1) Whether the predecessor -in-interest of plaintiffs late Shah Wazir has purchased the house
in question Karez Saleh Muhammad, Mouza Khezai, Tappa Baleli, Tehsil and District Quetta
from the defendant No.1 for co nsideration of Rs.34,00,000 through an agreement dated 12 -5-
2006?
(2) Whether at the time of transaction the predecessor -in-interest of plaintiff late Shah Wazir
has paid Rs.28,50,000 to defendant No.1 through cheque bearing No. T09154155 dated 12 -5-
2006 through Habib Bank Limited, along with advance money of Rs.50,000?
(3) Whether the predecessor -in-interest of plaintiffs late Shah Wazir personally cancelled the
agreement dated 12 -5-2006 after a month? OPD.
5. After framing of issues, the respondents produced P.W.1 Sher Muhammad, P.W.2 Musa
Khan, P.W.3 Zahoor Ahmed Bank Manager, HBL, P.W.4 Abdul Rehman Notary Public and
thereafter, respondent No.2 got recorded his statement also as attorney for the remaining
respondents.
In rebuttal, the appellant produced DW -1 Haji Muhammad Anwar, DW -2 Hashmatullah
Qambrani Notary Public, DW -3 Shahab -ud-Din, DW -4 Arif Jamal, Stamp vender and thereafter,
the appellant got recorded his statement on oath.
6. After concluding evidence and hearing arguments the trial Court has decreed the suit vide
impugned judgment in the following terms: --
"In the light of above discussion the suit of plaintiff is decreed in their favour and it is
declared that the plaintiffs are owners of the house in question bearing Mutation No . 79, Khasra
No. 601/484 situated at Samungli Road, Quetta and defendant No.1 directed to transfer the
mutation of the house in question and also hand over the possession of the same to plaintiffs as
per agreement. Further defendant No.2 is directed to tra nsfer the house in question in the name of
plaintiffs in the Revenue record. Further the defendant No.1 is directed to return Rs.11,00,000
and benefits of business to plaintiffs. No order as to cost. A decree sheet be drawn. After
completion and compilatio n the case be consigned to record".
7. Feeling aggrieved of the impugned judgment, the appellant has filed the instant appeal.
8. Learned counsel for the appellant stated that the trial Court omitted to frame issues on the
basis of preliminary legal objections raised by the appellant in his written statement; that the trial
Court badly ignored the point of limitation as well as relevant provisions of the Specific Relief
Act pertaining to specific performance of the agreement; that even proper issues a rising out of
the pleadings of the parties in respect of factual controversy have not been framed by the trial
Court; that the trial Court has failed to appreciate that suit for declaration was not maintainable
for specific performance/enforcement of an ag reement.
Learned counsel prayed for remanding the matter to the trial Court to frame necessary
issues of facts as well as law arising out of the pleadings of the parties, to afford opportunity to
both the parties to lead further evidence and thereafter to decide the suit afresh on merits in
accordance with law.
9. Learned counsel for the respondents while contesting the appeal stated that the trial Court
has properly framed the necessary issues arising out of the pleadings of the parties; that there is
no occasion for reframing of the issues; that the trial court after proper appreciation of oral as
well as documentary evidence has rightly decreed the suit in favour of the respondents; that the
impugned judgment is not suffering from any illegality or i rregularity, warranting interference by
this Court.
Learned counsel for the respondents strongly opposed the remand of the matter to the
trial Court for reframing of issues and decision afresh.
10. Heard the learned counsel and perused the available r ecord. Perusal of record reveals that
the appellant has raised number of preliminary legal objections in his written statement, but the
trial Court has not framed any issue of law on the basis of preliminary legal objections raised by
the appellant in his written statement. Perusal of record reveals that the agreement dated 12 -5-
2006 relied upon by the respondents is an unregistered document, in respect whereof, the
appellant has raised objection that same was compulsorily registerable under section 17 of t he
Registration Act, but in this regard no issue has been framed by the trial court.
Record further transpires that the assertion made by the respondents about giving Rs.11 -
Lakhs to the appellant for the joint business of fruit has specifically been den ied by the appellant
in his written statement, but without putting this factual controversy in issue, the trial Court has
passed decree for Rs.11 -Lakhs in favour of the respondents.
11. The careful perusal of the pleadings of the parties and the issues f ramed reveal that the
trial Court has not properly framed the issues of facts as well as law arising out of the pleadings
of the parties.
12. No doubt it is duty of the parties to the suit to point out the framing of necessary issues,
but it is equally t he duty of the trial Court to frame necessary issues for determining the real
controversy between the parties. Merely because the parties have not pointed out, does not
absolve the trial Court to perform its legal and statutory duty. Action or inaction on the part of
the Court cannot prejudice a party to litigation.
13. For the above reasons, without touching the merits of the case, the appeal is accepted
with no order as to costs, the impugned judgment and decree dated 28 -6-2011 passed by the
learned Civ il Judge -VI, Quetta is set aside, the suit is remanded to the trial Court with directions
to avail proposed issues from both the parties and thereafter to frame all the necessary issues of
facts as well as law arising out of the pleadings of the parties, t o afford fair opportunity to both
the parties to the suit to lead further evidence and to get their statements recorded, if opted, and
thereafter to decide the suit afresh on merits in accordance with law within a period of six
months of receipt of this ju dgment.
ZC/80/Bal Case remanded.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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