IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
MR. JUSTICE SARDAR TARIQ MASOOD
MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL
MR. JUSTICE QAZI MUHAMMAD AMIN AHMED
(,4FI2)
Civil Petition No.336712018
(Against 
the 
order 
dated
23.05.2018 passed by the
Islamabad High Court, Islamabad
in C.R. No.401/16)
Mah Jabeen Ashfaq
.Petitioner
VERSUS
Noor Mahi and others
Respondents
For the petitioner: 
Mr. Zaheer Bashir Ansari, ASC
For the respondents: 
N.R.
Date of hearing: 
21.02.2022
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 
I
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.
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C.P.3367/1 S
 
PA
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 respondenf 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
C.P,3367/18 
3
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).
3.
The perusal of the judgment and decree dated
11.6.2016 of the Appellate Court would reflect that the
learned Judge without application of his judicial and
independent mind dismissed both the appeals in a cursory
manner, specially the appeal of respondent No.1 as the
payment of sale consideration was not proved by proforma
respondent in accordance with the law and despite this
important fact burdened the respondent No.1 to pay back the
double amount of the sale consideration to porforma
respondent.
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 1A 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
pecific performance in toto. When the suit is held to fail for
C.P.3367/18 
4
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.
5. The status, as apparent from the record, of the
present petitioner is the subsequent purchaser of the suit
plot from proforma respondent and the success of the
petitioner is dependent on the success of proforma
respondent. Evidence on the record, led by the proforma
respondent, reflects that he bitterly failed to prove the proper
execution of the agreement and payment of sale consideration
and this very fact has also been admitted by him in his cross-
examination. The trial Court and the Appellate was absolutely
wrong in their perception by holding that the agreement of
sale and payment of sale consideration has been proved by
the proforma respondent. Besides the above, the proforma
0
C.P.3367fl8 
5
respondent filed his suit on 1st September, 2006 against an
alleged sale agreement dated 19.6. l997 after more than
nine years which was hopelessly barred by time and he failed
to give any plausible reason for this delay in filing his suit.
The Courts below, the trial Court and the Appellate Court
failed to give any finding on issue No.5 regarding limitation
and dealt with this issue in a cursory manner. The record
further reflects that the suit plot was lawfully transferred in
the name of respondent No.2 and the same was accordingly
incorporated in his name in the record of respondent No.3.
The present petitioner, falling in the steps of proforma
respondent, cannot question the allotment or its sale to
respondent No.2 and she, as such, has no cause of action
and locus staridi in this regard. Hence, this petition being
meritless is dismissed as such and leave refused.
1sIaznabad
21st February, 2022
Nasir Khari I.
approved for reporting'
