IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
PRESENT: 
Mr. Justice Qazi Faez Isa 
Mr. Justice Sajjad Ali Shah 
 
 
Civil Appeal No. 383 of 2013. 
(Against the order dated 10.6.2011 passed by the 
Lahore High Court Rawalpindi Bench in WP 1436/2011) 
 
 
Muhammad Miskeen 
  
 
… Appellant(s)  
Versus 
 
District Judge Attock, etc. 
  
 
 
… Respondent (s) 
 
For the Appellant (s) 
: 
Mr. Mazhar Masood Khan, ASC 
Mr. Mehmood A. Sheikh, AOR 
 
 
For the Respondent-3 
: 
Sh. Ahsan ud Din, ASC 
Ch. Akhtar Ali, AOR 
 
 
 
 
For the Respondent-4 
: 
Sh. Azmat Ali Bukhari, ASC 
 
 
 
 
Date of Hearing 
: 
26.11.2019 
 
Judgment 
 
Sajjad Ali Shah, J. Briefly, the respondent Firdos Khan on 1st 
November, 1999 entered into an agreement to purchase six marlas of land 
situated in Kamilpur Syedan Tehsil and District Attock from one Abdul 
Rehman. The agreement neither provided the description of land by metes 
and bounds nor identified it through specifying Khasra numbers, khewat 
numbers etc. The agreement even did not mention the sale consideration 
agreed between the parties but only narrated that an advance of Rs.50000/- 
was paid to the said Abdul Rehman. It appears that this agreement could 
not be materialized and consequently the respondent Firdos Khan, on 
28.2.2000, filed a suit seeking specific performance of the stated agreement 
but somehow the other he, on his own, described in the plaint Khewat No. 
255, Khasra Nos. 853, 854 & 855. That on being summoned, Abdul Rehman 
filed his written statement wherein he has categorically stated that since 
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2
Firdos Khan had failed to pay the balance sale consideration in terms of the 
agreement, therefore, he has sold his land and confiscated the advance in 
terms of the agreement.  
2. 
 
Firdos Khan adduced evidence in support of his claim his 
witnesses were cross examined and it was suggested that the price was 
orally agreed at Rs.50,000/- per marla and Abdul Rehman repeatedly asked 
Firdos Khan to pay the balance sale consideration of Rs.250,000/- and get 
the sale deed executed in his favour but Firdos Khan avoided as he had no 
money. The defendant Abdul Rehman had no interest in the lis as he had 
already sold the land, therefore, he choose not to appear in the witness box 
and consequently the suit was decreed on 1.6.2001. It is very interesting 
that neither the agreement nor the plaint stated the total sale price but the 
Court on its own determined the total sale price as Rs.78,000/- i.e. 
Rs.13000/- Per Marla.   
3. 
 
On the other hand, the record reflects that on 1.3.2000 the 
present appellant Muhammad Miskeen purchased six marlas of land bearing 
Khewat No. 198/326, Khasra Nos. 851 & 852 and Khewat No. 255, Khasra 
Nos. 854 & 855 situated in the revenue estate of Kamilpur Syedan Tehsil 
and District Attock through registered sale deed dated 1.3.2000 carrying 
mutation No.3200 from Mst. Razia Begum and Mst. Shabana who happened 
to be the real mother and sister of said Abdul Rehman. The possession of 
land was handed over to the present appellant Muhammad Miskeen who on 
9.7.2001 got the construction plan sanctioned from Municipal Corporation 
Attock and excavated a well, raised boundary wall and installed gate 
thereon.  
4. 
 
It appears that on 4.9.2001 respondent Firdos Khan, after 
depositing Rs.28000/- (the balance sale price in terms of decree) in 
government treasury, initiated execution proceedings, seeking execution of 
the conveyance deed. This was the first time appellant Muhammad Miskeen 
entered appearance in Court and on 8.10.2001 filed objections to the 
CA 383 of 2013  
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execution proceedings in which he categorically disclosed that the subject 
property was owned by Mst. Razia Sultana and Shabana Bibi from whom he 
has purchased on 1.3.2000 through a registered conveyance deed. The trial 
Court vide its order dated 12.4.2002 dismissed the objection on the ground 
that the suit was filed on 28th February, 2000 and the conveyance deed was 
executed in favour of objector on 1.3.2000, therefore, the transaction was hit 
by principle of lis pendens.  
5. 
 
The appellant Muhammad Miskeen filed an appeal against the 
said order and the learned Additional District Judge Attock vide its order 
dated 11.7.2002 set-aside the said impugned order of Civil Judge by holding 
that principle of lis pendens is inapplicable and directed to decide the 
application after framing of issues and recording of evidence. The trial Court 
after recording evidence of both the sides again vide its order dated 
18.10.2006 dismissed the objection petition. The appellant again filed an 
appeal and the learned Additional District Judge vide its order dated 
30.1.2008 this time dismissed the appeal on the ground that the appropriate 
remedy for the appellant was to file an application under section 12(2) CPC. 
6. 
 
Soon after dismissal of the appeal, the executing Court issued 
a writ of possession in respect of the subject property in favour of Firdos 
Khan and consequently the Bailiff, on 4th February, 2008, in presence of 
Abdul Rehman handed over the peaceful vacant possession of the subject 
plot to Firdos Khan.   
7. 
 
The appellant Muhammad Miskeen, in consequence to the 
observations of the Additional District Judge, on 26.2.2008 moved an 
application under Section 12(2) CPC. The Court framed issues on 26.7.2008 
and thereafter two witnesses were examined one from Building Department 
of TMA Attock who produced the plan which was got approved by 
Muhammad Miskeen appellant for the construction of his house on the 
subject property whereas the other witness Razia Begum stated that her 
earlier statement recorded on the application resisting the execution may be 
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treated as her statement. It appears that thereafter on 27.1.2010 the 
respondent Firdos Khan moved an application seeking rejection of 
application under Section 12(2) CPC on the ground that it was barred by 
time and the Court after hearing the parties vide its order dated 25.2.2010 
rejected the application by holding the application to be barred by time. The 
appellant thereafter filed a revision petition before the learned District Judge 
who vide its order dated 3.5.2011 dismissed the same by affirming the view 
of the Civil Judge. The appellant thereafter approached the Lahore High 
Court by invoking its writ jurisdiction and the High Court too, vide its 
impugned order, maintained the concurrent findings that the application 
under Section 12(2) CPC was barred by time.  
8. 
 
Leave was granted by this Court on 9.10.2017 in terms of order 
dated 7.9.2011 to examine that since the appellant, who had purchased the 
subject property through registered sale deed, had been diligently pursuing 
his remedy and thus as to whether his application under Section 12(2) CPC 
could have been dismissed on the ground of limitation. We, while hearing 
this appeal, on 20.11.2019 added the following additional points in the leave 
granting order not only to put the counsel on notice of the points which 
during their submission had come to our attention but to solicit their 
assistance:- 
i) 
 Whether the agreement of sale deed dated 11th April, 
1999, which did not mention the particulars of the 
property and consideration, is compliant with section 
29 of the Contract Act, 1872; 
ii)  
Whether the plaint complied with the provisions of 
Order VII Rule 3 of the Code of Civil Procedure; and 
iii)  
The consequences in respect of error or mistake 
committed by a court”.  
 
9. 
 
Counsel for the appellant contended that since the sale 
agreement neither provided the description of the property nor the sale 
consideration, therefore, it was void and could not have been enforced 
CA 383 of 2013  
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through a suit for specific performance. It was next contended that the 
executing Court without determining the title/entitlement of Abdul Rehman 
to sell and without giving finding on the registered conveyance deed in 
favour of the appellant Muhammad Miskeen, could not have executed the 
decree by issuance of writ of possession as Abdul Rehman was not the 
owner of the property. It was further contended that the appellant has 
suffered on account of the mistake committed by the Court by enforcing a 
void agreement which needed to be corrected. It was lastly contended that 
the plaint did not specify the subject property by metes and bounds in terms 
of Order VII Rule 3 CPC, therefore, was in-executable in itself but the Court 
without there being anything on record dispossessed the appellant and 
handed over the possession of his property to respondent Firdos Khan.  
10. 
 
On the other hand, counsel for responded Firdos Khan fairly 
and frankly conceded that the agreement of sale neither specifies khasra 
numbers or khewat numbers etc. nor describe the property by metes and 
bounds. He also admits that there was no sale consideration fixed but 
contends that since this dispute has already been adjudicated rightly or 
wrongly and this Court has only to consider as to whether the application 
under Section 12(2) CPC was rightly dismissed on account of being barred 
by time or not. However, he further states his no objection for condoning the 
delay in filing application under Section 12(2) CPC and submits that the trial 
Court may be directed to record the evidence on the appellant’s application 
under section 12(2) CPC and then to pass appropriate orders in accordance 
with law.   
11. 
 
We have heard the arguments of learned counsel for the 
respective parties and have minutely perused the record.  
12. 
 
Section 22 of the Specific Relief Act clearly lays down that the 
jurisdiction to decree a suit for specific performance is purely discretionary 
and the Court is not bound to grant such relief merely because its lawful to 
do so and further that such discretion of the Court is not arbitrary but is 
CA 383 of 2013  
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based on sound and reasonable judicial principles. In our opinion the 
Courts below have totally ignored the law on the subject while decreeing the 
suit on the basis of an agreement which neither specified the property under 
sale by metes and bounds nor provided for the sale consideration. The 
agreement merely states that a sum of Rs.50,000/- was paid in advance 
towards an unspecified sale price in respect of six marlas of land situated in 
Kamilpur Syedan Tehsil and District Attock without specifying Khasra 
numbers, khewat numbers etc. The plaint filed by the respondent Firdos 
Khan though has prescribed the khasra numbers (without any supporting 
documentary evidence showing the ownership of the seller in respect of land 
claimed) but is totally silent regarding the agreed sale consideration. The 
trial Court without framing any issue to find out the veracity of the plaintiff’s 
claim regarding the claimed land or the title of the seller believed the 
statement of plaintiff/respondent No.1 and decreed the suit. The other 
failure on the part of the trial Court was to fix the total sale price of the plot 
on its own ignoring the fact that neither the agreement nor the plaint 
prescribed the sale price. The trial Court allowed the plaintiff/respondent 
Firdos Khan to build a case which was even not pleaded in the plaint. The 
Court even did not feel it necessary to frame an issue to find out the sale 
price and placed reliance on totally extraneous documents. In these 
circumstances, the trial Court ought to have given convincing reasons for 
decreeing the suit by allowing specific performance and for ignoring all the 
deficiencies in the agreement as well as in the plaint specially when the relief 
was discretionary.  
13. 
 
The other important fact which was not taken care by the trial 
Court or the respondent Firdos Khan was that Abdul Rehman in his written 
statement had clearly mentioned that he had sold the subject property 
despite no efforts were made to implead the purchaser before decreeing the 
suit. 
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14. 
 
The matter does not end here. It appears that when the 
respondent Firdos Khan filed execution application on 4.9.2001, the 
appellant Muhammad Miskeen filed objections which in the first round were 
dismissed on the ground of lis pendens and on remand by the appellate 
Court to decide the objection after framing issues. It appear that the Court 
thereafter framed issues and allowed the parties to lead evidence and even 
one of the issues was:- 
 “Whether decree has not passed by fraud and collusion” 
15. 
 
Thereafter the objection petition was dismissed and in appeal 
the appellate Court without looking into this aspect that the trial Court has 
already allowed the parties to adduce evidence and giving his finding on this 
particular issue, rejected the appeal by making an observation that the 
proper remedy was to file an application under section 12(2) ignoring the 
fact that the trial as well as the executing Court were one and the same. The 
appellant Muhammad Miskeen, thereafter filed another application under 
Section 12(2) CPC which till the High Court was dismissed being barred by 
time. Though Mr. Sheikh has conceded that the delay in filing of application 
under section 12(2) could be condoned and the matter may be remanded to 
the trial Court so that the parties could adduce evidence. However, we have 
found that such plea of fraud and misrepresentation was taken in the first 
application on which an issue was framed regarding fraud and 
misrepresentation and thereafter parties were allowed to lead evidence. 
Therefore, it would be totally unfair to again throw the parties at the mercy 
of litigation for another 20 years as the present round of litigation has 
almost consumed two decades.  
16. 
 
We have also found from the record that on first objection 
petition, not only a challenge to decree on the ground of fraud was thrown 
but as observed a specific issue, to this effect, was framed. Appellant 
Muhammad Miskeen had appeared in the witness box, he was cross-
examined by the counsel for respondent Firdos Khan and thereafter 
CA 383 of 2013  
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respondent Firdos Khan appeared, adduced his evidence and was cross-
examined by counsel of appellant Muhammad Miskeen. Firdos Khan further 
produced Shabana Begum, Razia Begum and one Muhammad Safdar 
Qureshi as his witnesses and were duly cross examined and interestingly 
the trial as well as the executing Court were the same.  
17. 
 
We note with great concern that though both applications filed 
by the appellant first before the executing Court objecting the execution of 
decree against his property and second before the trial Court under section 
12(2) CPC challenging the decree by pleading fraud, misrepresentation and 
lack of jurisdiction, were competently filed and were wrongly dismissed. The 
first application was competent for the reason that the appellant had placed 
title documents before the executing Court in respect of Khewat No.198 
(326), Khasra Nos. 851 and 852 which did not form part of the decree and, 
therefore, could have been validly objected to under Order XXI Rule 58 or 
under other provisions of Code of Civil Procedure whereas the second 
application under Section 12(2) was also competent as the respondent 
Miskeen had obtained a decree in respect of Khewat No.255, Khasra Nos. 
854, 855 for which the appellant was holding registered conveyance deed 
and unless such conveyance deed would have been cancelled, no fresh 
decree regarding ownership of the said property could not have been 
passed. We have noticed that the sole defendant namely, Abdul Rehman in 
his written statement has disclosed the sale of the said property and it has 
come in evidence subsequently in execution proceedings that the parties 
were known to each other or there was a jirga, (the veracity whereas we 
cannot vouch) reflects that the respondent Firdos Khan was aware of the 
sale, therefore, he ought to have joined the appellant in the proceedings.  
18. 
 
Though it is a fit case where this Court could go beyond what 
was appealed in order to do a complete justice between the parties, however, 
while exercising restraint, we would set-aside all orders passed on 
appellant’s application under Section 12(2) CPC as we have noticed that the 
CA 383 of 2013  
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Courts below have not followed the rules or procedures provided in the Code 
of Civil Procedure by accepting stances and documents which did not form 
part of the pleadings and have conducted the proceedings as there are no 
rules which regulate the proceedings before the trial Court while exercising 
the civil original jurisdiction. The objection to the decree as well as to the 
execution proceedings would be deemed to be pending before both the 
Courts and the already recorded evidence as we have noticed in para 16 
above would be valid for the purposes of both the proceedings as we have 
found commonality in both the proceedings. None of the orders on record 
would come in the way of trial as well as executing Court to adjudge the 
dispute but strictly on the basis of pleadings. However, the parties would be 
at liberty to adduce any fresh evidence in support of their pleadings and the 
trial Court should ensure that the application under Section 12(2) CPC is 
decided within 60 days and in case the judgment and decree could not be 
sustained then restitution of property in terms of Section 144 should also be 
considered. In case any of the Court is fell vacant, the District Judge would 
ensure that the matter is transferred to the next nearest Court having the 
jurisdiction to try the matter.  
19. 
 
The appeal is allowed in the above terms leaving the parties to 
bear their own costs.                
 
 
 
 
Judge 
 
 
 
Islamabad, the 
 
 
Announced on 15.01.2020. 
A. Rehman 
 
Judge 
 
 
Approved for Reporting.  
 
 
