P L D 2015 Balochistan 143
Before Muhammad Noor Meskanzai, C.J.
MUHAMMAD SIDDIQUE SHERANI ---Petitioner
versus
SHAHJAHAN and 3 others ---Respondents
Civil Reference No.270 of 2007, decided on 24th April, 2015.
(a) Specific Relief Act (I of 1877) ----
----Ss. 12, 42 & 55 ----Transfer of Property Act (IV of 1882), S.53 -A---Stamp Act (II of 1899),
Ss. 33, 35, 36 & 61 ---Registration Act (XVI of 1908), S.50 proviso 1 ---Specific performance of
agreement ---Essentials ---Part performance ---Suit for declaration ---Maintainability ---
Examination and impounding of instrument ---Instrument not duly stamped ---Admissibility ---
Possession under unregistered agreement ---Effect ---Admission of instrument not duly stamped ---
Bar as to o bjection ---Rejection of plaint ---Requirements ---Plaintiff filed suit for declaration,
specific performance and injunction claiming that defendants executed agreement to sell in his
favour to sell suit property and thereunder not only received possession of suit property but also
raised construction over the same, and defendant refused to enter mutation in name of plaintiff ---
Trial court decreed the suit, but appellate court dismissed the same ---Validity ---Contract had
been duly executed and signed by predec essor of defendants, and the same was produced and
exhibited in evidence without any objection and remained undisputed ---Possession had been
delivered to plaintiff as part performance of contract, which was an admitted fact ---Plaintiff had
not only remaine d in possession of suit property but also raised construction over the same to the
notice of defendants ---Plaintiff was bona fide purchaser and had been in possession against valid
consideration right from the day of transaction ---Admitted characteristics of contract attracted
provisions of S.53 -A of Transfer of Property Act, 1882, which was illegally withheld by
appellate court ---Appellate court while dealing with objection as to non - registration of
document was ignorant of provisions of S.53 -A of Transfe r of Property Act, 1882 and remained
oblivious of proviso (1) of S. 50 of Registration Act, 1908, which provided that person in
possession of property under unregistered documents prior in date, would be entitled to rights
under S.53 -A of Transfer of Prope rty Act, 1882 ---Trial court had neither impounded the
instrument under Ss.33 & 35 of Stamp Act, 1899 nor refused to admit the same in evidence ---No
objection was raised during admission of contract in evidence ---Once contract had been admitted
in evidence, legality and validity of such admission with reference to provisions of Stamp Act,
1899 was beyond competence of appellate court ---Appellate court failed to visualize S.36 of
Stamp Act, 1899 which prima facie barred, restrained and prohibited appellate co urt to question
admission of instrument even if the same had been admitted erroneously ---Appellate court had
no option but to endorse the admission of contract ---Document, either understamped or
unstamped once admitted in evidence, appellate court was not supposed to entertain any
controversy except to the extent as permitted under S.61 of Stamp Act, 1899 ---Since trial court
had not passed any specific order regarding sufficiency or otherwise of stamp of instrument, the
appellate court could not pass any or der under S.61 of Stamp Act, 1899 ---Suit to sustain under
S.42 of Specific Relief Act, 1877 and remain competent and maintainable was required to reveal
and reflect claim of right to or interest in subject matter, and denial or interest to deny the same
by defendant ---Present suit was competent and maintainable ---Findings of appellate court
regarding maintainability of suit were absolutely unwarranted and unjustified ---Plaintiff's suit
was not hit by provision of O.VII, R.11, C.P.C. ---To attract penal provi sions of O.VII, R.11,
C.P.C., contents of plaint must have been accepted as the same were and thereafter it was to be
ascertained as to whether plaint was hit by any provision of clauses of O.VII, R.11, C.P.C. ---If
suit was liable to be rejected in view of any clause of O.VII, R.11, C.P.C., then appellate court
should have rejected the same without discussing merits of the case, which course was not
adopted by appellate court ---No counter -claim for possession and cancellation of agreement was
filed by defen dants ---Evidence produced by plaintiff was consistent, coherent and
straightforward ---Relief on undisputed claims could be refused ---Attorney of defendants had
admitted plaintiff's right to mutation regarding suit property, which was sufficient for a decre e in
favour of plaintiff ---High Court by setting aside judgment and decree of appellate court, upheld
decree of trial court ---Revision petition was allowed in circumstances.
(b) Stamp Act (II of 1899) ----
----Ss.33, 35, 36 & 61 ---Examination and impoun ding of instruments ---Instrument not duly
stamped ---Admissibility ---Admission of instrument not duly stamped ---Bar as to objection ---
Trial court had neither impounded the instrument under Ss.33 & 35 of Stamp Act, 1899 nor
refused to admit the same in evide nce---No objection was raised during admission of contract in
evidence ---Once contract had been admitted in evidence, legality and validity of such admission
with reference to provisions of Stamp Act, 1899 was beyond competence of appellate court ---
Appella te court, in the present case, failed to visualize S.36 of Stamp Act, 1899 which had prima
facie barred, restrained and prohibited appellate court to question admission of instrument even if
the same had been admitted erroneously ---Appellate court had no o ption but to endorse the
admission of contract ---Document either under -stamped or unstamped once admitted in
evidence, appellate court was not supposed to entertain any controversy except to the extent as
permitted under S.61 of Stamp Act, 1899 --Since Tria l Court had not passed any specific order
regarding sufficiency or otherwise of stamp of instrument, the appellate court could not pass any
order under S.61 of Stamp Act, 1899 ---Object of S. 35 of Stamp Act, 1899 was not to invalidate
the document and play mischief with commercial life rather the aim and theme thereof was just
to collect public revenue ---Section 36 of Stamp Act, 1899 had prevailing effect as the same came
after Ss.12 to 33 of the Act --- Findings of appellate court regarding registration of agreement
were contrary to law.
(c) Stamp Act (II of 1899) ----
----S. 35 ---Object ---Object of S.35 of Stamp Act, 1899 was not to invalidate the document and
play mischief with commercial life rather the aim and theme thereof was just to collect public
revenue.
(d) Stamp Act (II of 1899) ----
----S. 36 ---Scope ---Section 36 of Stamp Act. 1899 had prevailing effect as the same came after
Ss.12 to 33 of the Act.
(e) Specific Relief Act (I of 1877) ----
----S. 42 ----Suit for declaration -Maintainability ---Suit to sustain under S.42 of Specific Relief
Act, 1877 and remain competent and maintainable requires to reveal and reflect claim of right to
or interest in subject matter, and denial or interest to deny the same by defendant .
(f) Civil Procedure Code (V of 1908) --
----O. VII, R.11 ---Rejection of plaint ---Requirements ---To attract penal provisions of O.VII,
R.11, C.P.C., contents of plaint must be accepted as the same are and thereafter to ascertain as to
whether plaint is hit by any provisions of clauses of O.VII, R.11, C.P.C. ---If suit is liable to be
rejected in view of any clause of O.VII, R.11, C.P.C. then court should reject the same without
discussing merits of the case.
(g) Registration Act (XVI of 1908) ---
----S. 50, proviso, (1) ---Transfer of Property Act (IV of 1882), S.53 -A---Possession under
unregistered agreement ---Validity ---Part performance of unregistered agreement ---Effect ---
Admitted characteristics of contract, in the present case, attracted provision s of S.53 -A of
Transfer of Property Act, 1882, which was illegally withheld by appellate court ---Validity ---
Appellate court while dealing with objection as to non -registration of document was ignorant of
provisions of S.53 -A of Transfer of Property Act, 18 82 and remained oblivious of proviso, (1) to
S.50 of Registration Act, 1908, which provided that person in possession of property under
unregistered documents prior in date, would be entitled to rights under S.53 -A of Transfer of
Property Act, 1882.
Abdul Ghani v. Abrar Hussain 1999 SCMR 348; Fazla v. Mehr Din 1997 SCMR
837;Union Insurance Company of Pakistan Ltd. v. Hafiz Muhammad Siddique PLD 1978 SC
279 and Muhammad Ashiq v. Niaz Ahmed PLD 2004 Lah. 95 rel.
Muhammad Riaz Ahmed for Petitioner.
Ex Parte: Respondents Nos. 1 and 2.
Muhammad Jamil Khan Lodhi for Respondents Nos.3 and 4.
Date of hearing: 13th March, 2015.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, C.J. ---The present petition calls in question the
legality and validity of the judgment and decree dated 28th May, 2007 passed by the learned
Additional District Judge -V, Quetta in Civil Appeal No.240/2006, whereby the judgment and
decree dated 11th October, 2006 passed by the learned Senior Civil Judge -II. Quetta was
reversed and th e suit filed by the plaintiff was dismissed.
2. Facts, of the case in brief, are that the petitioner filed a suit for "Declaration, Specific
Performance, Transfer of Revenue Entry and Injunction" in the court of Civil Judge, Quetta with
the averments tha t the petitioner/plaintiff had purchased a piece of land from the
respondent/defendant No.1, measuring 9000 square feet bearing Khewat No.9, Khatooni No.10,
vide mutation No.68 against sale consideration of Rs.5,13,000/ - (Rs.57/ - per square feet) situated
in Mohal Karez Adam, Mouza Ahmed Khanzai, Tappa Kaichi Baig, Tehsil and District Quetta
(herein -after called the disputed property). The plaintiff paid a sum of Rs.473,000/ - to the
defendant No.1 in installments within six months, while the remaining amoun t of Rs.40.000/ -
were agreed to be paid at the time of mutation. An agreement in this regard was executed
between the parties on 5th May, 1998 and possession of the disputed property was delivered to
the plaintiff. Thereafter. the plaintiff started constru ction of houses over the plot; the defendants
Nos.3, 4 and 5 posed themselves to be the owners of the said plot and with the intervention of
defendant No.1, the plaintiff constructed two houses by spending an amount of Rs.350,000/ -.
The houses are in posse ssion of the plaintiff. Later -on, it transpired that the disputed property, as
per mutation No.68 is in the name of one late Mst. Murad Bibi and others i.e. the mother of
defendant No.2, while the defendant No.1 had purchased the same from defendant No.3 i n the
year 1996 -1997. Nevertheless, he could not transfer the property for the reasons best known to
the defendant No.1, however, the agreement pertaining to sale transaction was shown by the
defendant No.1, which was executed between the defendants Nos.3 and 1, thus the plaintiff on
the basis of a valid agreement started raising construction on the disputed property without any
objection from any corner. After few months the defendant No.3 again started interference and
tried to grab the disputed property by posing himself as well as defendants Nos.4 and 5, to be the
owners of the disputed property. It was averred that at the time of sale agreement, the defendant
No.1 had agreed to transfer the mutation on receipt of remaining amount of Rs.40,000/ -, who
after receiving the amount started playing delayed tactics on one or the other pretext. The
plaintiff issued a legal notice to the defendant No.1 calling upon him to transfer the mutation in
favour of the plaintiff, which was returned un -served.
3. The defe ndant No. 1 while filing written statement admitted the sale agreement executed
by him in favour of the plaintiff, receipt of payment and the delivery of possession to plaintiff
and urged his earlier purchase of disputed property from the defendant No.3, w hereas, the
defendants Nos.3 to 5 contested the suit and claimed ownership. However, the purchase of the
disputed property by the plaintiff, construction of houses and possession of the plaintiff were not
denied and disputed.
4. The learned trial court o ut of the pleadings of parties, framed following issues:
"1. Whether suit is liable to be dismissed in view of legal objections 'A', 'B', 'C'. 'D', 'F' of
the written statement?
2. Whether the plaintiff and defendant No.1 entered into
agreement dated 5-5-1998?
3. Whether the plaintiff is in possession of the property in question and has raised
construction upon the same sending (sic) Rs.350,000/ -?
4. Whether the plaintiff is entitled for relief (sic) claimed?
5. The relief?"
5. To substanti ate his claim, the petitioner/plaintiff produced five PWs and exhibited the
sale agreement as Ex:P/1 -A. The respondent No.1 did not produce any evidence, however; the
defendants Nos.2 to 5 examined DW -1 Ali Muhammad and their attorney Raz Muhammad also
entered the witness box.
6. On conclusion of trial, the trial court vide judgment and decree dated 11th October, 2006
decreed the suit. Feeling aggrieved of the above referred to judgment and decree the defendants
Nos.3 to 5 filed an appeal before the learn ed District Judge, Quetta which was later on
transferred to the file of learned Additional District Judge -V, Quetta. The appellate court vide
judgment and decree dated 28th May, 2007, set aside the judgment and decree passed by the trial
court and dismisse d the suit, hence the instant revision petition.
7. The process issued to the respondents Nos. 1 and 2 was returned with the report that the
said respondents have lost interest in proceeding with the matter, as such, vide order dated 13th
March, 2015 the y were proceeded against ex partee.
8. The learned counsel for the petitioner reiterating the grounds mentioned in the petition
stated that the petitioner established his case by producing tangible and confidence inspiring
evidence. The learned trial cou rt after proper appraisal of the material available on record rightly
decreed the suit. The findings of the appellate court are based on mis -reading of evidence and
mis-appreciating the facts. The appellate court illegally, unlawfully and without any plaus ible
justification reversed the finding drawn by the trial court.
On the other hand, learned counsel for the defendants/ respondents Nos. 3 and 4 while
refuting the contentions of learned counsel for the petitioner, stated that the appellate court
rightly set aside the Judgment/Decree passed by the trial court because the petitioner failed to
prove his case.
9. I have considered the contentions advanced by the learned counsel for the parties and
perused the record of the case. The perusal of recor d reflects that the judgment passed by the trial
court was not available, therefore, the record of appellate court was requisitioned. Admittedly,
there is conflict of opinion between the lower forums and reversal of the decree mainly revolves
around P.L.Os , therefore, I would like to discuss, dilate upon legal objection some what
exhaustingly and each issue would also be dealt with separately. Issue No.1 pertains to a couple
of P.L.O. i.e. A, B, C, D & F.
10. The objection 'A' which pertains to registrati on of document has been dealt with by the
appellate court contrary to law for a couple of reasons. Firstly. because there was a contract duly
executed and signed by the transferor i.e. predecessor -in-interest of respondents Nos.1 and 2.
Secondly, this docu ment was produced and exhibited as Exh:P/1 -A without any objection and
remained undisputed so far as the petitioner and predecessor -in-interest of respondents Nos.1 and
2 is concerned. The document Exh:P/1 -A unequivocally provides for transfer of property by
specifically mentioning Khewat Khatooni, Khasra number and measurement thereby the transfer
of the property is reasonably ascertainable. Thirdly, the possession was delivered as part
performance of the contract by the transferor to the transferee and th is aspect is not only
undisputed rather admitted. Fourthly, the petitioner continues to be in possession and has done
something more in furtherance of contract i.e. raised construction to the notice of respondents.
Fifthly, the petitioner has performed his part of contract and has paid a sum of Rs.4,73,000/ - as
valid consideration and even now is ready to make the payment of the remaining amount i.e.
Rs.40,000/ -. Sixthly, the petitioner is a bona fide purchaser and in peaceful possession against
valid consi deration right from the day of transaction. The above stated admitted characteristics of
the document inevitably attract the provisions of section 53 -A of the Transfer of Property Act.
1882 and, therefore, the petitioner was/is legally entitled to the bene fits of section 53 -A of
Transfer of Property Act, 1882 which was illegally withheld by the appellate court. The
prerequisites of a document warranting attraction and applicability of section 53 -A of the
Transfer of Property Act, 1882 has been enumerated by the Hon'ble Supreme Court in the
judgment titled as Abdul Ghani v. Abrar Hussain reported in 1999 SCMR 348 which applies on
all fours to the facts of the instant case.
In the first case, this Court held that in order to apply section 53 -A of the Transf er of
Property Act, 1882, the following ingredients are necessary:
(i) There is a -contract in writing signed by the transferor in respect of an immovable
property;
(ii) from the writing, transfer can be ascertained with reasonable certainty;
(iii) in part performance of the contract, the transferee has taken possession of the
property or any part thereof or if he was in possession, he continues to be in possession in part
performance of the contract and has done some act in furtherance of the contr act; and
(iv) the transferee has performed or is willing to perform his part of the contract;
(v) if all these conditions are satisfied, then even if the contract is not registered, the
transferor or any person claiming under him cannot enforce any r ight in respect of the property
of which the transferee has taken possession except such right, which a transferor is entitled to
enforce by virtue of the contract.
11. Similarly, the proviso (1) to section 50 of the Registration Act, 1908 apply with ful l force
in the instant case and it can safely be concluded that the appellate Court while dealing with this
objection was ignorant of the provisions of section 53 -A of the Transfer of Property Act, 1882
and remained oblivious of the proviso (1) to section 50 of the Registration Act, 1908 which reads
as under:
"Proved that the person in possession of the property under an unregistered documents
prior in date, would be entitled to the rights under Section 53 -A of the Transfer of Property Act,
1882 (IV of 1 882) if the conditions of that section are fulfilled."
Likewise in the judgment titled as Fazla v. Mehr Din reported in 1997 SCMR 837. it was
held as under:
"From the above observation it is clear that if any document requiring registration under
section 17 of the Registration Act has not been registered, it cannot bar or deprive a purchaser
from claiming benefit under section 53 -A of the Transfer of Property Act provided he satisfies
the requirement of the said section.
All these cases are distinguishable because there section 50 of the Registration Act as
amended was not under consideration. It was not even referred. It may be noted that first proviso
to section 50(1) of the Registration Act gives protection to person in possession of the p roperly
under an unregistered document be it an agreement for sale or a contract of sale. It does not make
any such distinction. The only condition is that it should be an unregistered document by a
person in possession of the property under it and that he fulfils the conditions laid down in
section 53 -A of the Transfer of Property Act. Applying this principle on the facts of the case, it is
clear that the receipt/contract was a document of sale of the disputed property which was
unregistered. The appellant was, therefore, entitled to the protection and rights under section 53 -
A of the Transfer of Property Act."
12. In my considered view the petitioner/plaintiff stands fully benefited with the provisions
of section 53 -A of the Transfer of Property Act, 188 2 and thereby protected by the proviso (1) to
the Section 50(i) of the Registration Act, 1908.
As discussed herein above, the nature of transaction in the wake of admitted position and
on account of the satisfaction of requirements of section 53 -A of Tr ansfer of Property Act, 1882
the first proviso to section 50 of the Registration Act, 1908 is fully attracted, hence; the finding
on PLO 'A' are hereby reversed.
13. So far as PLO 'B' is concerned, of course, the constraints, limitations and restraints o f
sections 33 and 35 of the Stamp Act, 1899 were not adhered to by the trial court as neither the
instrument was impounded nor the instrument was refused to be admitted in evidence. So much
so, even no objection was raised during the course of admission of the instrument. So with this
backdrop, the appellate court dealt with the P.L.O. 'B' illegally and contrary to relevant
provisions of the Stamp Act, 1899. Once a document is admitted in evidence the legality and
validity of the admission with reference to provisions of Stamp Act is beyond the competence of
the appellate court. The appellate court referred to sections 33 and 35 of Stamp Act, 1899 but
failed to visualize section 36 of the Stamp Act, 1899 which prima facie bars, restrains and
prohibits the ap pellate court to question the admission of an instrument even if the document has
been admitted erroneously. The appellate court had no other option except to have had endorsed
the admission of document. Document either under stamped or unstamped once admi tted in
evidence, the appellate court is not supposed to entertain any controversy except to the extent
permitted under Section 61 of Stamp Act, 1899. Since trial court did not pass any specific order
regarding sufficiency or otherwise of stamp on the inst rument, therefore, the appellate court
could not pass any order under section 61 of Stamp Act. Admittedly, Section 36 comes after
sections 12 -33 and 35 of the Act, therefore, has got prevailing effect. Further the obvious object
of section 35 of Stamp Act is not to invalidate the document and play mischief with the
commercial life rather the aim, object and theme is just to collect the public revenue. The
appellate court remained oblivious of this philosophy; therefore, the findings are bound to be set
at naught. I am supported in my view by the dictum laid down by the Apex Court in the
judgment titled as 'Union Insurance Company of Pakistan Ltd. v. Hafiz Muhammad Sadique'
reported in PLD 1978 SC page 279 it was held as under: --
"I would now examine secti on 35 in some detail. It prescribes that no instrument, which
is not properly stamped, shall be admitted in evidence for any purpose . . . or shall be acted upon.
. . " Now merely because an instrument cannot be admitted in evidence for any purpose as
because it cannot be acted upon by the persons specified in the section does not mean that such
an instrument is invalid, and it is not irrelevant to observe here that the words which 1 have
quoted have to be construed strictly, because they are to be found in a provision of a penal
nature. Therefore, it would be against all canons of construction to enlarge the meaning of these
words, so as to render invalid instruments which fall within the mischief of the section. After all,
instruments, which are not duly s tamped, are executed every day, but I venture to think that most
persons, who incur obligations under such instruments, honour their liabilities under such
instruments, regardless of the provisions of section 35. In any event, this section is attracted onl y
when an instrument is produced before the persons specified in the section. But, for example, an
instrument would be produced in evidence only when there is a dispute about it, therefore, if the
intention of the Legislature had been to render invalid all instruments not properly stamped, it
would have made express provision in this respect, and it would also have provided some
machinery for enforcing its mandate in those cases in which the parties did not have occasion to
produce unstamped instruments bef ore the persons specified in the section.
Additionally, I find nothing in the section which would support the appellant's plea that
an instrument becomes invalid, if it falls within the mischief of the section. After all, if an
instrument is invalid, it must be invalid for all purposes, but proviso (d) to the section expressly
saves unstamped instruments in most criminal proceedings, whilst the other provisos to the
section enable the parties to overcome the disabilities attached to an instrument not pro perly
stamped by paying the requisite duty together with a penalty, therefore, this would suggest that
the object of the section is to protect public revenue. Again, if an instrument is invalid, it should
not be admissible in evidence, and it is so stated in section 35. But the next section prescribes
that if an instrument has been admitted in evidence, howsoever erroneously, its admissibility
cannot be questioned at any stage thereafter, and even the appellate Court's powers to entertain
an objection about the admissibility of documents have been removed by section 61, which
instead empowers the appellate Court to collect the duty payable on the unstamped instrument
together with a penalty. These provisions as well as other provisions in Chapter IV of the s aid
Act, such as sections 33, 38, 39 and 40, can only lead to the conclusion that the object of the
Legislature in enacting the said Act was to protect public revenues and not to interfere with
commercial life by invalidating instrument vital to the smooth flow of trade and commerce.
In this judgment the Hon'ble apex Court further held as under:
"I agree with the view taken in these judgments, which coincides with my own views,
and, I would hold that an arbitration agreement, which is unstamped or is n ot properly stamped is
subject only to the disabilities specified in section 35 and these disabilities can be removed in the
marine prescribed in sections 35 and 36. But such an agreement is not invalid.
Similarly, in the judgment titled as Muhammad Ash iq v. Niaz Ahmed reported in PLD
2004 Lahore page 95 (relevant at page 101) it was held as under:
"Mere reading of the aforesaid provisions of law reveals that objection about stamp
insufficiently affixed on document cannot be taken when a document is a lready admitted.
Section 35, no doubt, prohibits a Court from admitting, in evidence an instrument which in its
view is not duly stamped and also prohibits the Court from acting on such document, yet if the
Court wrongly admits such document, Appellate Cou rt is prevented by section 36 of the Act for
calling into question the admission in evidence of such an instrument, though it may have been
wrongly admitted, meaning thereby the Appellate Court is bound to hold that admission was
proper. The aforesaid sect ion was interpreted and laid down the aforesaid principle in Amin Jute
Bailing Company Ltd. v. Aminpur Union Cooperative Multi Purpose Society Ltd. PLD 1961
Dacca 102. The relevant observation is as follows:
"Now, section 35 of the Stamp Act prohibits a Court from admitting in evidence an
instrument which in its view is not duly stomped. This section also prohibits the Court from
acting on such document. If the Court, however, wrongly admits such document, the Appellate
Court is prevented by section 36 o f the Stamp Act from calling in question the admission in
evidence of such an instrument, though it may have been wrongly admitted. In other words, the
Appellate Court is bound to hold that admission was proper."
14. So far as objections "C" is concerned , in my opinion the findings are absolutely
unwarranted and unjustified. Admittedly, the petitioner has purchased the property from
predecessor of respondents Nos.1 and 2 who entrusted the possession to petitioner. He raised
structure without reasonable ob jection by the defendants Nos.3 to 5. So in such state of affair,
how could it be observed that the petitioner lacks locus standi to file the suit. A suit to sustain
under section 42 of the Specific Relief Act, 1877 and remain competent and maintainable
requires to reveal and reflect the claim of a right to or interest in subject matter, and a denial or
an interest to deny the same by the defendant. Applying this analogy and analyzing on such
touchstone, I am fully satisfied that the present suit is compete nt and maintainable particularly
keeping in view the findings drawn on objections "A&B", hence the findings rendered on P.L.O
'C' are reversed.
15. Similarly, the findings drawn qua legal Objection "D" are also in flagrant violation of the
relevant provi sions of law. The principles for applicability of the provisions of Order VII, Rule
11, C.P.C. are set and settled. The suit was neither hit nor could be hit within the parameters
prescribed by any cause of the Order VII, Rule 11, C.P.C. To attract the pen al provision of Order
VII, Rule 11, C.P.C. the contents of plaint must be accepted as it is and thereafter to ascertain as
to whether the plaint stands hit by any provision of the clauses of Order VII, Rule 11, C.P.C.
Even otherwise, for the sake of argume nt, assuming but not conceding, if the suit was liable to be
rejected in view of any clause of the Order VII, Rule 11, C.P.C. then in that case the Court was
required to have had laid off its hand there and then should have rejected the suit without
discus sing the merits of the case which course was not adopted by the appellate forum, thus the
findings on objection "D" are hereby reversed.
16. So far as legal objection "E" is concerned, the appellate Court itself has observed that suit
could not be dismissed on mere technical ground, so it requires no discussion.
17. So far as issue No. 2 is concerned, the appellate court observed that the findings either
affirmative or negative would not have any impact on the case of the plaintiff, therefore the
findings drawn by the trial Court were not disturbed. However, Issue No. 2 is undisputed because
the marginal witnesses of the document were produced and the document was also exhibited but
the predecessor in interest of respondents Nos.1 and 2 filed writt en statement and owned the
contents of the agreement dated 15th May, 1998. So in such circumstances the findings of the
trial court on issue No. 2 are hereby re -affirmed.
18. As far as issue No. 3 is concerned, the learned appellate Court unjustifiably a nd for
unviable reasons reversed the findings. The perusal of written statement filed by the contesting
respondents reveals that the transaction has never been disputed. Besides, no counter claim for
possession and cancellation of agreement dated 15th May, 1998 was filed by the respondents
Nos.3 and 4. There is no cavil to the fact nor any dispute among the parties that the possession of
the petitioner/plaintiff is continuous since 1998 and therefore, now even a suit for possession by
contesting respondent may not have a good future. Similarly the structure raised by the petitioner
is also undisputed. The statement of attorney for contesting respondents is quite important and
significant. The relevant portion of the statement of the attorney for defendants N o. 2 and 5 is
reproduced herein below: --
In cross -examination, he stated that:
19. Apart from the evidence produced by the petitioner which is consistent, coherent, and
straight forward even the sole statement of the attorney for defendants is sufficie nt to prove issue
No.3. therefore, the findings drawn by the appellate court are hereby reversed.
20. As far as issues Nos.4 and 5 pertaining to relief are concerned, the petitioner in his plaint
has requested for a couple of relief, which prima facie an d as per the undisputed facts were liable
to have been granted. For instance relief "A, C, D, G, H and J" could not have been refused, as
were undisputed. Furthermore, in view of the evidence available on record and particularly the
statement/stance of the attorney for defendants Nos. 2 to 5 wherein the attorney not only
admitted the entitlement of the petitioner for the mutation of the disputed property, rather is not
aggrieved of the sale transaction and the grievance is confined only to the non -payment o f price.
At the cost of repetition, once again the admission is reproduced:
This admission itself is sufficient enough to entitle the petitioner for the relief(s) prayed
for and warrant the drawing of a decree in terms of the plaint.
In view of the a bove discussion, the petitioner is entitled for the relief as prayed for in the
suit. Resultantly the petition is accepted and the judgment/decree passed by the appellate court is
hereby set aside and the decree passed by the trial court is hereby up -held.
SL/62/Bal. Petition accepted.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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