PLJ 2022 SC 233
Specific Relief Act, 1877 (I of 1877)--
----S. 12--Constitution of Pakistan, 1973, Art. 185(3)--Suit for specific performance--Concurrent findings--Agreement to sale--Non-proving of sale consideration by performance respondent--Subsequent purchaser--Filing of suit by performa respondent after transfer of suit plot--Time-barred--No cause of action--No locus standi--Challenge to--Judge without application of his judicial and independent mind dismissed both appeals in a cursory manner, specially appeal of Respondent No. 1 as payment of sale consideration was not proved by proforma respondent in accordance with Law and despite this important fact burdened Respondent No. 1 to pay back double amount of sale consideration to porforma respondent--When suit is dismissed in toto, penalty of double payment also get buried with suit--Such findings of High Court, visibly against proforma respondent, have not been challenged by him which means that same have attained finality between parties--He bitterly failed to prove proper execution of agreement and payment of sale consideration and this very fact has also been admitted by him in his cross examination--Trial Court and Appellate was absolutely wrong in their perception by holding that agreement of sale and payment of sale consideration has been proved by proforma respondent--Suit plot was lawfully transferred in name of Respondent No. 2 and same was accordingly incorporated in his name in record of Respondent No. 3--Present petitioner, falling in steps of proforma respondent, cannot question allotment or its sale to Respondent No. 2 and she, as such, has no cause of action and locus standi in this regard--Petition was dismissed. [Pp. 235 & 236] A, B, C & D
Mr. Zaheer Bashir Ansari, ASC for Petitioner.
N.R. for Respondents.
Date of hearing: 21.2.2022.
PLJ 2022 SC 233
[Appellate Jurisdiction]
Present: Sardar Tariq Masood, Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ.
versus
NOOR MAHI and others--Respondents
C.P. No. 3367 of 2018, decided on 21.2.2022.
(Against the order dated 23.05.2018 passed by the Islamabad High Court, Islamabad in C.R. No. 401/ 16)
Judgment
Mazhar Alam Khan Miankhel, J.--The petitioner, being Plaintiff No. 1A in the main suit, through instant petition under article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has questioned the impugned order dated 23rd April, 2018 of the learned Judge-in-Chambers of the Islamabad High Court, Islamabad whereby the civil revision, filed by the petitioner and Respondent No. 4 ('Proforma Respondent'), was dismissed by upholding the concurrent findings of dismissal of their suit for specific performance.
2. We have heard the learned counsel for the petitioner and have gone through the available record.
The record of the case would reveal that initially the proforma respondent filed a suit for specific performance of an agreement to sell dated 19th June, 1997 and subsequently, the present petitioner was also impleaded as Plaintiff No. 1A being an alleged purchaser of the suit plot from proforma respondent. The claim of the proforma respondent was categorically denied by Respondent No. 1 being the allottee of the suit plot by Respondent No. 3. The Respondent No. 1 further alleged that he had sold away the plot in favour of Respondent No. 2 (Abdul Ghaffar Khan). The said transfer was accordingly incorporated in the name of Respondent No. 2 in the record of Respondent No. 3. It is not out of place to mention here that the suit of the proforma respondent was filed after the transfer of the suit plot in the name of Respondent No. 2. After recording pro and contra evidence, the suit of the plaintiff was dismissed by the trial Court vide judgment and decree dated 24.11.2010 by holding that the agreement of sale by Respondent No. 1 with the plaintiff/proforma respondent was proved and established on the record and the payment of sale consideration by proforma respondent to Respondent No. 1 was also proved, so, burdened the Respondent No. 1 to pay the double amount of sale consideration to proforma respondent for the reason that the suit plot was sold to Respondent No. 2, prior to the institution of suit. Both the plaintiffs (petitioner and the proforma respondent) and Respondent No. 1 filed two separate appeals. The plaintiffs were aggrieved from dismissal of their suit despite the fact that agreement of sale and payment of sale consideration was held to be proved whereas the Respondent No. 1 was aggrieved of fixation of amount of Rs. 1,000,000/- (the double amount of actual sale consideration allegedly received by Respondent No. 1).
4. Both the plaintiffs filed civil revision before the Islamabad High Court by questioning the dismissal of their suit for specific performance whereas the Respondent No. 1 did not question the findings of the Appellate Court though the same were against the facts and the record of the case. Perusal of the impugned judgment would reflect that the learned Judge-in-Chambers of the High Court has fully scanned the entire material and the evidence on the record in presence of both the plaintiffs (plaintiff lA and proforma respondent) and has very rightly observed and held that the proforma respondent has failed to prove the execution of sale agreement with Respondent No. 1 and has also failed to prove the payment of sale consideration to Respondent No. 1 and the suit of proforma respondent was also held to be hopelessly time barred. The learned Judge has dismissed the suit for specific performance in toto. When the suit is held to fail for want of proof and also being barred by time then burdening the Respondent No. 1 with payment, double the sale consideration actually paid, stands automatically set aside. Though such observations and findings are missing specifically in the judgment impugned herein but it is manifest that when the suit is dismissed in toto, the penalty of double payment also get buried with the suit. Such findings of the High Court, visibly against the proforma respondent, have not been challenged by him which means that the same have attained finality between the parties. So, the proforma respondent, after the findings of the High Court, cannot claim the payment of double sale consideration from Respondent No. 1. If already received, he is bound to repay the same to Respondent No. 1. We, in the peculiar circumstances of the case can clarify the judgment impugned before us just to do complete justice between the parties within the contemplation of Article 187 of the Constitution.
regard. Hence, this petition being meritless is dismissed as such and leave refused.
(Y.A.) Petition dismissed
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