Case laws on Tameel e mukhtas ya specific performance ka dawa
Specific performance ya Tameel e Mukhtas kia hai.
Specific performance ya Tameel e Mukhtas kia hai.
Jab koi party makan ,dukan ya koi property sale purchase karti ha tu us ko aik mahda karna hota hai jiss mahde ko Agreement to sell ya Biana ka istam kehte hain juss main raqam likhi jati ha ke total raqam ye hu gi itna advance le lia or itna flan date tak pay karna hu ga iss main property ki detail or gawah dalne bhi zaroori hote hain.
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| Case laws on specific performance |
Law deal Specific performance cases
Specific Relief act 1877
After agreement agar koi party iss agreement ki khalaf warzi karti ha tu iss ke ke khalaf ju dawa kia jata ha us ko specific performance ya Tameel e mukhtas ka dawa kehte hain.jiss main court ke through us party ko majboor karte hain ke aap se ju mahda kia tha wo poora kare
Specific relief how given
5. Specific relief is given-
(a) by taking possession of certain property and delivering it to a claimant;
(b) by ordering a party to do the very act which he is under an obligation to
do;
(c) by preventing a party from doing that which he is under an obligation not
to do;
(d) by determining and declaring the rights of parties otherwise than by an
award of compensation; or
(e) by appointing a receiver
Case laws on specific performance
Dawa Tameel e mukhtas main Mudai ka baqaya raqam court ma jama karwana iss ki naik neeti ko sabat karna hai.2021-SCMR-7
Dawa main mudai ne tamam saboot pesh kiye dawa ki taid ke liye magar muda ele koi esa saboot pesh na kar saka jiss se court ye qias kar sakti ke muda eleh se qabza zabardasti cheena gia hai ya mahda farzi ha ya jaali ha 2022 SCMR-SC-616
Jab kisi mahda bai ki takmeel ke liye koi date maqarar kar di jai tu waha lazmi toor per artical 181 qanoon miad samat ka atlaq hu ga jiss ki limit 3 saal hai. 4 saal baad tameel mukhtas ka dawa time bared hai dawa pesh rafat nahi hu sakta 2022-YLR-93-Lahore
Mahda bai main na tu jaidad ki detail daraj thi na hadood darba na hi khewat number khasra number or na hi total zar bai ki detail iss sorat e hall main matahat court ne mahda bai decree kar ke sangeen ghalti ki hai. 2020-SCMR-SC-616
Dawa Tameel e mukhtas main Mudai agar pehli date per ya court ki taraf se die gai waqat pe agreement ki baqaya raqam jama na karwai tu dawa kharaj samjha jai ga ya decree hu jai ga agar dosri taraf se dair kia gia hu. 2017-SCMR-SC-2022
Agar farookhat kannada ki jaidad main namakaml hu tu tu wo specific performance ka dawa section 18 ke tehat file nahi kar sakta. 2020-YLR-1408
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Specific performance se inkar karne per double raqam ada karne or bank rates ke mutabaq profit ada karne ka hukam dia gia trial court ki taraf se jiss ko district court
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Judgement
ne or High court ne barqar rakha
Stereo. H C J D A 38.
Judgment Sheet
IN THE LAHORE HIGH COURT LAHORE
JUDICIAL DEPARTMENT
R.S.A. No.64508 of 2022
Asim Jamshaid
Versus
Shahzad Iqbal Malik, etc.
J U D G M E N T
Date of Hearing
28.03.2023
For the appellant
Sh. Naveed Shahryar, Advocate
For Respondent
No.1
Nemo
For Respondents
No.2 & 3
Mr. Wasim Ahmad, Advocate
Raheel Kamran J:- The appellant/
plaintiff has assailed the judgments and decrees dated
18.11.2021 and 02.09.2022 passed by the learned Civil Judge 1st
Class, Lahore and learned Additional District Judge, Lahore
respectively whereby specific performance of agreement to sell
dated 22.03.2013 was refused, however, defendant No.1 was
directed to pay double the earnest money to the plaintiff
alongwith profit at bank rate since 22.03.2013 when the earnest
money was paid alongwith return of the remaining amount of
consideration deposited in the Court by the appellant.
2.
The facts giving rise to this appeal are that the appellant
entered into an agreement to sell with respondent No.1 on
22.03.2013 in respect of plot No.436 measuring 10 Marlas,
Block-D, Army Welfare Trust Phase-II, Lahore for a
R.S.A. No.64508 of 2022
consideration of Rs.1,250,000/-. The appellant paid a sum of
Rs.100,000/- in cash as earnest money and the balance of sale
consideration was agreed to be paid on or before 27.03.2013.
The plaintiff allegedly made several requests to defendant No.1
to perform his part of the contract as he was ready to pay him
the remaining sale consideration, however, he delayed the matter
on one pretext or the other. It was further averred in the plaint
that the plaintiff also deposited all the dues required for transfer
of the suit property with defendant No.2 and requested
defendant No.1 to come to the office of defendant No.2 but he
did not turn up constraining the plaintiff to file the suit. The suit
was instituted on 18.09.2014, which was contested by the
defendant No.1 who filed his written statement. It was during
pendency of the suit, that the plaintiff deposited the remaining
sale consideration on 17.10.2014 on direction of the trial Court.
Out of the divergent pleading of the parties, issues were framed
and evidence was recorded. After consideration of the record,
learned trial Court, while declining specific performance of the
agreement, directed defendant No.1 to pay an amount of
Rs.214,000/- to the plaintiff with 10% annual mark up from the
date of this judgment till the payment or realization of the
amount. Feeling aggrieved, the plaintiff preferred appeal before
the learned Additional District Judge, Lahore, which was partly
accepted and by modifying the judgment and decree of the
learned trial Court directed defendant No.1/respondent No.1 to
pay double the earnest money of Rs.100,000/- to the plaintiff
alongwith profit at the bank rate since 22.03.2013 when the said
amount was paid.
3.
Learned counsel for the appellant contends that the
learned Courts below were bound to decree the suit qua specific
performance inter se the appellant and respondent No.1
notwithstanding clause-8 in Ex.P-1 providing for payment of
double the earnest money in case of refusal of respondent No.1
3
R.S.A. No.64508 of 2022
to transfer the property, subject matter of the sale. In support of
his contention, he has placed reliance on the case of Muhammad
Latif Khokhar vs. Abdul Latif Khan and another (2018 CLC
Note 40) and Mrs. Mussarat Shaukat Ali vs. Mst. Safia Khatoon
and others (1994 SCMR 2189).
4.
Conversely, learned counsel for respondents No.2 & 3
states that there is no stipulation in the agreement to sell to the
effect that in case of failure of respondent No.1 to perform the
contract, the same would be specifically enforceable. Reliance
in this respect is placed on the case of Muhammad Siddique and
6 others vs. Abdul Aziz Ratalvi and 7 others (2016 YLR 612)
(Supreme Court AJ&K). Respondent No.1 has already been
proceeded against ex-parte vide order dated 13.02.2023.
5.
Heard. Record perused.
6.
The parties entered into an agreement to sell on
13.03.2013 with respect to a plot measuring 10 marlas against a
consideration of Rs.1,250,000/- out of which an amount of
Rs.100,000/- was paid as earnest money and the remaining
consideration was to be paid on or before 27.03.2013. There
was a condition specified in clause-8 of the agreement that the
seller shall pay double the earnest money if he backs out from
the sale and likewise if the purchaser backs out, his advance
money was not to be refunded. Section 19 of the Specific Relief
Act, 1877 gives right to claim compensation to the person suing
for specific performance of contract in addition to or in
substitution for its breach. The said section is reproduced
hereunder for ready reference: -
“19.
Power to award compensation in certain cases.
Any person suing for the specific performance of a
contract may also ask for compensation for its breach,
either in addition to, or in substitution for, such
performance.
If in any such suit the Court decides that specific
performance ought not to be granted, but that there is a
contract between the parties which has been broken by the
defendant and that the plaintiff is entitled to compensation
4
R.S.A. No.64508 of 2022
for that breach, it shall award him compensation
accordingly.
If in any such suit the Court decides that specific
performance out to be granted, but that it is not sufficient
to satisfy the justice of the case, and that some
compensation for breach of the contract should also be
made to the plaintiff, it shall award him such
compensation accordingly.
Compensation awarded under this section may be
assessed in such manner as the Court may direct.
Explanation.-The circumstance that the contract
has become incapable of specific performance does not
preclude the Court from exercising the jurisdiction
conferred by this section.”
The relinquishment of right to seek specific performance of
contract is to be decided keeping in view the conduct of the
parties and evidence led in this respect. Reliance in this regard
is placed on the case of Mrs. Mussarat Shaukat Ali vs. Mst. Safia
Khatoon and others (1994 SCMR 2189).
7.
The learned trial Court arrived at the conclusion that it
was the plaintiff who remained fail to perform his part of the
contract within time whereas the learned Appellate Court put
this responsibility on the shoulder of the defendant and
maintained that the plaintiff was only entitled to recover double
the earnest money with profit at the bank rate keeping in view
the condition No.8 of the agreement.
8.
It is well settled that the grant of relief of specific
performance of contract is discretionary in nature which cannot
be exercised arbitrarily. The Courts are not bound to grant relief
of specific performance of contract merely because it is lawful
to do so. It is essentially an equitable relief and can be declined
if the Court reaches the conclusion that it is unjust and
inequitable to do so. This principle has been provided in section
22 of the Specific Relief Act, 1877, which is reproduced as
under: -
“22.
Discretion as to decreeing specific performance.
The jurisdiction to decree specific performance is
discretionary, and the Court is not bound to grant such
relief merely because it is lawful to do so; but the
5
R.S.A. No.64508 of 2022
discretion of the Court is not arbitrary but sound and
reasonable, guided by judicial principles and capable of
correction by a Court of appeal.
The following are cases in which the Court may
properly exercise a discretion not to decree specific
performance.
I.
Where the circumstances under which the
contract is made are such as to give the plaintiff an unfair
advantage over the defendant, though there may be no
fraud or misrepresentation on the plaintiff’s part.
II. Where the performance of the contract would
involve some hardship on the defendant which he did not
foresee, whereas its non-performance would involve no
such hardship on the plaintiff.”
9.
In the instant case, the agreement between the parties
contained a specific date i.e. 27.03.2023 for its performance with
consequences of delay in clause-8 to the effect that in case of
failure of the seller to perform his part of the agreement, he
would pay double the earnest money and if the purchaser failed
to perform his obligation, his earnest money would be
confiscated. No procedure was provided in the agreement for
extension of time for performance of the contract. The
agreement was executed on 22.03.2013 and remaining sale
consideration was to be paid on 27.03.2013. A short date was
fixed for performance of the contract meaning thereby that time
was essence of the contract. Now it is to be seen whether the
plaintiff proved that he had offered payment of remaining sale
consideration to the defendant. One of the plaintiff’s witnesses
namely Muhammad Ilyas (PW-2) stated that on 27.03.2013 he
and the plaintiff went to the society’s office with the remaining
sale consideration where the plaintiff contacted defendant
through telephone whereas the plaintiff (PW-1) stated that
Muhammad Ilyas did not accompany him to the society’s office.
The other witness Muhammad Zeeshan (PW-3) deposed that on
27.03.2013 he was in his house and could not meet the plaintiff.
Although the witnesses stated that the plaintiff had offered
balance amount to the defendant yet keeping in view the
R.S.A. No.64508 of 2022
contradiction mentioned above, the same cannot be given any
weight. Moreover, no bank statement showing balance to pay
the remaining consideration was produced in evidence. The suit
was instituted on 18.09.2014 (after 18 months of the date
specified for performance of the contract) whereas the remaining
sale consideration was deposited in the Court on 17.10.2014 and
that too on direction of the Court. Having the balance money in
hand on 17.10.2014 does not mean that the appellant had it on
27.03.2013.
10.
The learned Appellate Court has relied on the admission
of defence witnesses in their cross-examination regarding
availability of defendant at Kashmir on the fateful day for
declaring him liable for non-performance of the contract,
however, the primary responsibility to show readiness and
willingness to perform his part of the reciprocal obligation was
that of the appellant who was seeking the relief of specific
performance of the contract, which he clearly failed to establish
in this case.
11.
While relying on cross-examination of DW-1, the learned
trial Court noted that the suit plot was purchased by respondent
No.1 for Rs.900,000/- in October, 2012 and after five months he
bargained to sell it for Rs.1,250,000/-. Only a few days time
was provided to the appellant for payment of the balance sale
consideration on 27.03.2013 in the agreement to sell dated
22.03.2013 for the sale of suit property, which was deposited in
the Court by the appellant on 17.04.2014. In the given facts and
circumstances, the agreement dated 22.03.2013 could not be
construed to infer consent of respondent No.1 to sell the suit
property with all its potential for rapid increase in value for the
payment of consideration of Rs.1,250,000/- to be paid on
17.10.2014. Such a construction would give an unfair advantage
to the appellant over his rival which cannot be countenanced in
law. Reliance in this regard is placed on the case of Muhammad
7
R.S.A. No.64508 of 2022
Abdur Rehman Qureshi vs. Sagheer Ahmad (2017 SCMR
1696). The case law relied upon by the appellant is
distinguishable on facts. Accordingly, this Court is of the
considered opinion that in the facts and circumstances of the
instant case, discretionary relief of specific performance cannot
be extended in favour of the appellant. As regards the relief
granted to the appellant by the Appellate Court qua payment of
double the earnest money of Rs.100,000/- alongwith profit at the
bank rate since 22.03.2013 when the amount was paid, since the
impugned decree has not been assailed by respondent No.1
before this Court, therefore, the same is not liable to any
interference.
12.
For the foregoing reasons, this appeal is dismissed.
There shall be no order as to costs.
(RAHEEL KAMRAN)
JUDGE
How to prove oral agreement.
Zubani agreement ko prove karne ke liye gawahan ki zaroorat hoti ha jinn ke samne agreement hoa or kis jaga per hoa or kis time per hoa. Har point ko clearly prove karna hota hai ju ke respondent no 1 and 2 nahi kar sake. High court ne lower courts ke orders or judgement setaside kar diye.
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Judgement
Stereo. HCJDA 38
JUDGMENT SHEET
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
Civil Revision No.265 of 2012
Ghulam Muhammad
Versus
Muhammad Hayat (Late) through Legal Heirs and others
J U D G M E N T
Date of hearing: 11.04.2023
Petitioner(s) by:
Mr. Mubeen Ud Din Qazi, Advocate
Respondent(s) by: Rana Rashid Akram Khan, Advocate for
legal heirs of respondents No.1 and
2/applicant in CM No.1-C of 2019.
Respondents No.3, 4(1) to 4(3) ex parte on
03.04.2019
SHAHID BILAL HASSAN-J:
C.M.No.1-C of 2019
Through this application, the applicants seek
permission to bring on record certain documents. Relying upon
contents of the application supported by an affidavit, the same
is allowed subject to all just and legal exceptions.
Main Revision Petition
Succinctly, deceased respondents No.1 and 2
namely Muhammad Hayat and Khan Muhammad instituted a
suit for specific performance against the present respondent
No.3 Muhammad Hayat, respondent No.4 Muhammad Azam
and the present petitioner, contending therein that the
C.R.No.265 of 2012
2
respondents No.3 and 4 were owners of the disputed property;
that a criminal case was lodged against the present respondent
No.4/Muhammad Azam and the respondent No.3 was in need
of money; that the respondent No.3 entered into oral agreement
dated 06.06.1989 with the respondents No.1 and 2 and sold out
the disputed land to them in lieu of Rs.18,000/- per acre; that a
stamp paper was also purchased by the respondent No.3 on
05.11.989 for the execution of agreement; that the respondent
No.4 was in jail, therefore, the execution of agreement was
postponed with the consent of the parties; that at the time of
alleged oral agreement the disputed land was mortgaged with
agricultural bank; that the respondents No.1 and 2 got deposited
Rs.17,824/- in the account of the respondents No.3 and 4 on
06.06.1989; that the possession of the disputed land was handed
over to the respondents No.1 and 2; that the respondents No.1
and 2 made improvement over the disputed land; that the
respondent No.4 executed a power of attorney No.309 in favour
of respondent No.3 on 09.09.1990; that the respondent No.3
executed agreement to sell relating to the disputed land with the
respondents No.1 and 2 and received Rs.180,000/- from them;
that according to the terms and conditions of the said
agreement, the respondents No.3 & 4 had to complete the
alleged sale in favour of the respondents No.1 and 2 in the
shape of registered sale deed/oral mutation, etc.; that he
respondents No.1 and 2 also deposited Rs.10,000/- in the loan
C.R.No.265 of 2012
3
account of the respondents No.3 & 4 on 28.06.1992; that they
paid Rs.220,068/- to the respondents No.3 & 4 out of total
amount of Rs.223,313/-; that on 10.09.1992 the respondents
No.3 and 4 were asked to complete the registered sale deed in
favour of the respondents No.1 and 2 after receipt of
outstanding amount but they refused; hence, the suit with the
prayer that a decree for specific performance may be passed in
favour of the respondents No.1 and 2/plaintiffs. They also
sought relief in the alternative for recovery of Rs.220,068/- as
sale consideration and Rs.75,000/- for improvement made over
the suit land as respondents No.3 and 4 had alienated the suit
land to the present petitioner/defendant No.3 vide mutation
No.330 dated 31.10.1992.
2.
The petitioner and respondents No.3 and 4
contested the suit by filing written statement and controverted
the averments of the plaint, fully negated the stance taken up by
the respondents No.1 and 2. The petitioner also filed a suit for
recovery of possession against the respondents No.1 and 2,
which was duly contested by them. Both the suits were
consolidated and out of the divergent pleadings of the parties,
the learned trial Court framed consolidated issues. Both the
parties adduced their oral as well as documentary evidence. On
conclusion of trial, the learned trial Court vide consolidated
judgment and decree dated 21.03.2001 decree suit of the
C.R.No.265 of 2012
4
respondents No.1 and 2, whereas dismissed suit of the
petitioner.
3.
Feeling aggrieved by the same, the present
petitioner preferred appeal, which was allowed and case was
remanded to the learned trial Court for decision afresh by
giving findings on all issues on the basis of evidence on record.
After remand, the learned trial Court vide impugned
consolidated judgment and decrees dated 11.04.2007 again
decreed suit of the respondents No.1 and 2 and dismissed suit
of the present petitioner. The petitioner being aggrieved of the
same preferred appeal. The learned appellate Court vide
impugned judgment and decree dated 08.10.2011 maintained
the above said consolidated judgment and decree and dismissed
the appeal; hence, the instant revision petition.
4.
Heard.
5.
The parameters, in respect of oral agreement, have
been settled by the Apex Court of the country in a celebrated
judgment reported as Muhammad Nawaz through L.Rs. v. Haji
Muhammad BaranKhan through L.Rs. and others (2013 SCMR
1300) and it has invariably been held that:-
‘…………………………........ We also hold that
although it is not the requirement of law that an
agreement or contact of sale of immovable
property should only be in writing, however, in a
case where party comes forward to seek a decree
for specific performance of contract of sale of
C.R.No.265 of 2012
5
immovable property on the basis of an oral
agreement alone, heavy burden lies on the party to
prove that there was consensus ad idem between
both the parties for a concluded oral agreement.
An oral agreement by which the parties intended to
be bound is valid and enforceable, however, it
requires for it prove clearest and most satisfactory
evidence.’
The said esteemed judgment was followed by this Court in
Karamdad v. Manzoor Ahmad and 2 others (2015 CLC 157-
Lahore) and it was further observed that:-
‘6.
The perusal of plaint reveals that
respondent/plaintiff did not disclose the name of
witnesses before whom the alleged oral sale was
struck between the parties. Even no period has
been mentioned by the respondent/plaintiff in his
plaint for completion of oral agreement to sell. No
doubt, an oral agreement to sell is permissible in
law, but it has to be proved through credible and
un-impeachable evidence.’
Now, when the facts of the instant case are considered on the
touchstone of the two judgments ibid it appears that the
respondents No.1 and 2 while instituting suit for specific
performance have failed to plead time, place and names of
witnesses in whose presence the purported oral agreement was
reached at between them and the respondent No.3 (Muhammad
Hayat). For ready reference, paragraphs No.1 and 2 of the plaint
of suit titled “Muhammad Hayat, etc. v. Muhammad Hayat,
C.R.No.265 of 2012
6
etc.”, because whole the case stance of the respondents No.1
and 2 rests on these paragraphs, are reproduced infra:-
1۔ ہی ہک ارایض انتمزہع ےک اماکلن دماع مہیلع ےھت۔ دماع ہیلع ربمن2اکی وفدجاری دقمہم
رجبم 302ںیم زسا ایہتف اھت۔ اور دماع مہیلع وک وفدجاری دقمہم ذموکر ےک دافع ےک ےئل
رمق یک رضورت یھت۔ دماع ہیلع ربمن 1ےن اینپ یتیکلم ارایض اور ارایض یتیکلم دماع ہیلع ربمن 2
اک وسدا عیب ربوےئارقار انہم اعمدہہ عیب زابین ومرہخ89۔6۔6 وک ابوعلض غلبم
180000روےپ یف اڑکی )8انکل( رمہاہ دمایعن ایک۔ اور اعمدہہ ارقارانہم عیب زابین
ومرہخ89۔6۔6 وک روینش ںیم دماع ہیلع ربمن 1ےن اکی ااٹشم امیتیل 4 روےپ ومرہخ
89۔11۔5قحب دمایعن رغبض ریرو و ا لیم ارقارانہم اعمدہہ عیب ریرو ی دیک ایک۔
وچہکناُسوتقدماعہیلعربمن2لیج ںیم اھت۔ اور ااٹشم ذموکرہ ابال یک رضوری ریرو و ا لیم
دماع ہیلع ربمن 2یک احرضی ےک ریغب نکمم ہن یھت۔ اس ےئل ااٹشم ذموکرہ ابال یک ریرو و ا لیم
وک ام دمایعن اور دماع ہیلع ربمن 1ےنابیمہراضدنمیےساُسوتقکتوتلمیرکدایبج
کت دماع ہیلع ربمن1دماع ہیلع ربمن2ےس اتخمر انہم اعم ابتب ارایض دماع ہیلع ربمن2احلص ہن
رکے۔
2۔ ہی ہک ارایض دتموعہی وبتق ارقارانہم اعمدہہ عیب زابین ومرہخ89۔6۔6زریع رتایقیت
کنب رباچن السونایل ےک اپس ڈ ر ن یھت ام دمایعن ےن بس ءاشن دماع ہیلع ربمن 1ےط
دشہ ہلمج زر نمث انتمزہع غلبم2230313 روےپ ںیم ےس غلبم 170824روےپ
ومرہخ89۔6۔6وک دماع ہیلع ربمن1ےکولنااکؤٹنںیموطبراعیبہنعمجرکاد ئےی۔'
The above reproduced paragraphs are sufficient to reach to a
conclusion that the case of the respondents No.1 and 2 has not
been pleaded as per requirement of law, because in case of oral
agreement not only strong and unimpeachable evidence is
required to be produced on each and every incident of such a
transaction has to be pleaded, which is lacking in the case of the
respondents No.1 and 2 as has been referred above. Therefore,
the evidence of P.W.4 and P.W.5, the alleged witnesses of oral
agreement, produced by the respondents No.1 and 2, is nothing
but beyond pleadings, which cannot be considered as has been
C.R.No.265 of 2012
7
held in judgments reported as Sh. Fateh Muhammad v.
Muhammad Adil and others (PLD 2008 SC 82), Hyder Ali
Bhimji v. Additional District Judge Karachi South and another
(PLD 2012 SC 279), Muhammad Wali Khan and another v.
Gul Sarwar Khan and another (PLD 2010 Supreme Court
965). In another case reported as Mubarak Ali and others v.
Khushi Muhammad and others (PLD 2011 Supreme Court
155), it has been held that no one can be allowed to plead and
seek relief from the Courts on a plea not founded and embedded
in his pleadings. Another judgment reported as Combined
Investment (Pvt.) Ltd. V. Wali Bhai and others (PLD 2016
Supreme Court 730), can also be referred, which pronounces
that none of the parties to a judicial proceeding can be allowed
to adduce evidence in support of a contention not pleaded by it
and the decision of a case cannot rest on such evidence.
Pleading and proving of each and every link and chain of oral
transaction is necessary and sine qua non. In judgment reported
as Moiz Abbas v. Mrs. Latifa and others (2019 SCMR 74), the
Apex Court of the country has held:-
8.
We find that no date, time, place or names of
witnesses of the alleged oral agreement has been
mentioned in the reply to the legal notice, the
written statement, or the suit filed by the
respondent. The learned counsel attempted to
argue that the said gaps had been filled by the
witnesses of the respondent in their affidavits in
evidence. We are not impressed by this argument.
C.R.No.265 of 2012
8
These improvements are clearly beyond the
pleadings and constitute an attempt to improve the
case of the respondents as an afterthought. Such
course of action is not permitted by law. These
requirements are sine qua non to prove an oral
agreement to sell which have been settled by this
Court in numerous judgments time and again.
These are clearly missing in this case. Suits
involving sales based on oral agreement are more
susceptible to improvements made by the parties in
the evidence and pleadings in order to succeed. It
is imperative that all of these requirements spelt
out by Courts with a view that only bona fide oral
agreement lead to grant of decree, need to be
strictly enforced and Courts must insist that these
be fulfilled at the earliest so as to ensure that an
oral agreement is fully proved and the device of
oral agreement is not abused unscrupulous and
devious litigants to get decrees by fraud, deceit,
skillfully made improvements at different stages
the trial.’
Moreover, in judgment reported as Sheikh Akhtar Aziz v. Mst.
Shabnam Begum and others (2019 SCMR 524), it has been
held that:-
‘The law relating to oral agreement is quite clear,
the terms and conditions which were orally agreed
have to be stated in detail in the pleadings and
have to be established through independent
evidence which is neither the case of the appellant
nor was it so set up before the lower fora.
C.R.No.265 of 2012
9
Similar view was reiterated and adopted in judgments reported
as Muhammad Riaz and others v. Mst. Badshah Begum and
others (2021 SCMR 605) and Saddaruddin v. Sultan Khan
(2021 SCMR 642).
6.
Moreover, as is evident from paragraph No.2 of
the plaint, that the respondents No.1 and 2 pleaded that they
deposited Rs.17,824/- in the account of respondent No.3/
defendant No.1 on 06.06.1989 but during evidence it has been
deposed that the same was deposited by one Wali Muhammad,
son of respondent No.1; when this factum has not been pleaded
in the plaint, the evidence in this regard will also be considered
beyond pleadings and cannot be relied upon while rendering
judgment, as has been held in the above said judgments.
Moreover, it is not clear that for what purpose Wali Muhammad
deposited the amounts on different times in the loan account of
the respondent No.3.
7.
In view of the above, when the basic and initial
oral agreement has not been proved, which was necessary to be
pleaded and proved independently, the subsequent events in the
shape of purported agreement to sell dated 10.09.1990 Ex.P4
has no value in the eye of law especially when the respondents
No.3 and 4 have specifically negated the same while submitting
written statement and their non-appearance in the witness box
in peculiar facts and circumstances of the case would not harm
the case of the present petitioner, because the respondents No.1
C.R.No.265 of 2012
10
and 2 have to stand on their own legs and any shortcomings or
lacunae in the evidence of the petitioner would not be helpful to
them and they have to prove their case on the strength of their
evidence. In this regard reliance is placed on judgments
reported as Sultan Muhammad and another v. Muhammad
Qasim and other (2010 SCMR 1630), Anwar Sajid v. Abdul
Rashid Khan (2011 SCMR 958) and Sultan v. Noor Asghar
(2020 SCMR 682). In addition to this, it is not proved on
record that Ex.P4 was ever read over and explained to the
parties of the same and no certification in this regard was given
by the P.W.6, the alleged scribe of the Ex.P4, disputed
agreement. Moreover, the same does not bear the NICs
numbers of the witnesses.
8.
Besides, the alleged general power of attorney is
also dubious because in evidence it has been stated that Deputy
Superintendent Jail identified the executant i.e. Muhammad
Azam but in the end of the said general power of attorney name
of Ch. Muhammad Anwar, Assistant Superintendent Central
Jail Mianwali is written whereas the stamp of Deputy
Superintendent Central Jail, Mianwali is pasted with signatures
as witness of identification, which casts aspersion and doubt.
Original record of the said general power of attorney from the
concerned Revenue Office has been summoned and gone
through, which has been sealed again. Moreover, it is a settled
principle of law that an agreement to sell does not create a title
C.R.No.265 of 2012
11
rather the same can be used in order to sue and until & unless
the same is proved before a Court of competent jurisdiction, the
same cannot be considered a title document.
9.
As against the above, the petitioner has purchased
the disputed property from the respondents No.3 and 4 through
the mutation No.330 dated 31.10.1992 against consideration
and the stance of the petitioner has been accepted and acceded
to by the respondents No.3 and 4; therefore, he has every right
to get possession of the same from the respondents No.1 and 2,
whose possession is nothing but that of illegal occupants.
10.
Pursuant to the above discussion it is observed that
the learned Courts below have failed to adjudicate upon the
matter in hand by appreciating law on the subject in a judicious
manner; therefore, the Courts below have misread evidence of
the parties and when the position is as such, this Court is vested
with authority to undo the concurrent findings as has been held
in Sultan Muhammad and another v. Muhammad Qasim and
others (2010 SCMR 1630) and Ghulam Muhammad and 3
others v. Ghulam Ali (2004 SCMR 1001).
11.
The Crux of the discussion above is that the
revision petition in hand succeeds, which is hereby allowed,
impugned judgments and decrees are set aside and suit of the
respondents No.1 and 2 for specific performance of agreement
to sell dated 10.09.1990 is dismissed whereby suit of the
C.R.No.265 of 2012
12
petitioner for recovery of possession is decreed. No order as to
the costs.
(Shahid Bilal Hassan)
Judge
Approved for reporting.
Judge
Following case law main apne hisaa ke sath sath sister or mother ka hissa bhi sale kar dia. 1550000 main. 50;000 advance lia or agreement to sell kar lia baad main performance se inkari hi gia . Kharidar ne dawa kia ju ke decree hu gia.
Jiss ke khalaf district court main order challenge hoe jiss ma soster or mother chonke agreement main party nahi thien un ki had tak case dismiss hu gia.
Iss case main aik point discuss hoa ha ke agar seller raqam wasool karta rahe or time excited karta rahe tu essence of time ka nahi keh sakta. High court ne lower court ke faisla ko upheld rakha.
For more information call or Whatsapp 03244010279
Judgement
R. No.3093 No: HCJD /A38
JUDGMENT SHEET
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
JUDGMENT
Civil Revision No.3093 of 2012
Naveed Ahmed etc.
Versus
Sheikh Amjad Saeed deceased through his legal heirs etc.
Date of Hearing:
01.03.2023
Petitioners by:
Mr. Zaheer Ud Din Babar and Agha Arshian
Khan, Advocates.
Respondents by:
Malik Muhammad Afzal Baloch, Advocate.
*********************
MASUD ABID NAQVI, J.
Brief facts of this civil revision are
that the plaintiffs namely Sheikh Amjad Saeed/predecessor in interest
of the respondent No.1 and Sheikh Maalik Saeed/respondent No.4
(hereinafter called the “plaintiffs”) filed a suit for specific
performance with permanent injunction with the averments that the
petitioners/defendants No.1&2 alongwith their brother namely
Mohammad Saeed, sister/defendant No.3 & mother/defendant No.4
were the owners of 11 Marlas land on which a shop also exists. The
three brothers i.e. petitioners/defendants No.1, 2 & Mohammad Saeed
agreed to sell the suit property on their behalf and on behalf of their
sister & mother for a sale consideration of Rs.15,50,000/- (Fifteen
Lacs and Fifty Thousand) vide agreement to sell dated 25.08.2004. An
amount of Rs.50,000/-(Fifty thousand only) was received as earnest of 2012
money and the balance consideration of Rs.15,00,000/- was agreed to
be paid on or before 28.11.2004 at the time, the sale deed would be
registered. When the plaintiffs asked the defendants to receive the
remaining balance sale consideration amount and to execute the sale
deed, only Mohammad Saeed performed his part of contract while the
defendants No. 1 to 4 plainly refused. Hence, the plaintiffs were
constrained to institute the instant suit for specific performance of
contract against defendants No. 1 to 4 about the property, described in
the headnote of plaint by deducting the already sold share of
Muhammad Saeed. The defendants contested the suit by way of filing
written statement and written reply and by raising certain legal as well
as factual objections. Out of divergent pleadings of the parties, issues
were framed by the learned trial Court. The parties produced their
respective evidence and after recording the same, the learned trial
Court decreed the suit only against defendants No.1 and 2 subject to
payment of Rs.10,00,000/- vide judgment and decree dated
23.09.2011. Feeling aggrieved, the defendants No.1 to 4 filed an
appeal challenging the said judgment and decree dated 23.09.2011
and the learned Additional District Judge, Sheikhupura dismissed the
appeal vide judgment and decree dated 07.07.2012 with slight
modification by specific finding that since the defendants No.3 and 4
were not party to the sale agreement, the suit as against them stood
dismissed. Being aggrieved, only the defendants No.1 & 2/petitioners
have filed the instant civil revision and challenged the validity of the
impugned judgments and decrees passed by the learned Courts below
C.R. No.3093 of 2012
while the plaintiffs also filed a Regular Second Appeal No.189/2012
against the sister/defendant No.3 & mother/defendant No.4.
2.
During the arguments, learned counsel for plaintiffs/
respondents wants to withdraw the connected Regular Second Appeal
No.189/2012 and same is dismissed as withdrawn vide separate order
of even date passed in connected appeal. The learned counsel for the
petitioners/defendants No.1 & 2 mainly argues that the time was the
essence of the contract as has been specifically pleaded in written
statement by the petitioners/ defendants No.1 & 2 on the failure of
the plaintiffs to pay the balance amount within the stipulated period.
However, the learned counsel for the plaintiffs fully supports the
impugned judgments and decrees of the leaned Courts below.
3.
I have heard the arguments of learned counsels for the parties
and minutely gone through the record as well as the impugned
judgments and decrees of the learned Courts below.
4.
An agreement to sell with respect to shop was allegedly
executed between the plaintiffs namely Sheikh Amjad Saeed/
predecessor in interest of the respondent No.1 & Sheikh Maalik
Saeed/ respondent No.4 & Mohammad Yousaf /predecessor in interest
of the petitioners/ defendants on 31.08.1998 after receiving an amount
of 100,000/- as earnest money out of a total sale consideration of
Rs.500,000/- (Five Lacs). After the death of Mohammad Yousaf
/predecessors in interest of the petitioners/defendants, all the
defendants filed an ejectment petition against the plaintiffs on
27.06.2003 but during the pendency of that ejectment petition, three
C.R. No.3093 of 2012
brothers i.e. petitioners/defendants No.1, 2 & Mohammad Saeed
agreed to sell the suit property on their behalf and on behalf of their
sister & mother to the plaintiffs for a sale consideration of
Rs.15,50,000/- (Fifteen Lacs and Fifty Thousand) vide agreement to
sell dated 25.08.2004, after receiving the earnest money of
Rs.50,000/- (Fifty thousand only). Muhammad Saeed, brother of the
petitioners/defendants No.1 & 2 performed his part of contract and
was not impleaded in instant suit and the petitioners/defendants No.1
& 2 although conceded the execution of agreement to sell dated
25.08.2004 but refused to execute sale deed on the ground of alleged
failure of the plaintiffs to pay the balance amount within specified
time i.e. 28.11.2004. During the pendency of ejectment petition, an
amount of Rs.4,00,000/- was paid by the plaintiffs to Mohammad
Saeed on 29.03.2005 before the learned Rent Controller and he
executed the sale deed in favour of plaintiffs to the extent of his share
in suit property while time of execution of sale deed was extended by
the rest of executants of agreement to sell, after recording the
statements before the learned Rent Controller. The learned counsels
for the contesting parties also recorded second statements on
09.05.2006 before the learned Rent Controller, Sheikhupura, wherein
the defendants No.1 & 2 / petitioners acknowledged the receipt of
another amount of Rs.1,00,000/-. Hence, after the receipt of additional
two payments of Rs.5,00,000/- (Five Lacs) by the executants of
agreement to sell and extending time of execution of sale deed twice,
the defendants No.1 & 2/petitioners cannot agitate the legal
C.R. No.3093 of 2012
proposition that the time was the essence of the contract. By receiving
above said amount(s), defendants No.1 & 2/petitioners No.1 & 2
mutually agreed with the plaintiffs to extend time in agreement to sell
therefore time does not remain as an essence of the contract. The
Hon’ble Supreme Court of Pakistan in a case reported as Hafiz Shaikh
ANWAR-UL-HAQUE through L.Rs Vs JEHAN KHAN and others
(PLD 2011 SC 540) held that:-
“…….In law, if time is extended for performance of a
contract pertaining to immovable property, then time can
never be enforced as of contract…….”
The Hon’ble Supreme Court of Pakistan in a case reported as
GHULAM NABI and others Vs Seth MUHAMMAD YAQUB and
others (PLD 1983 SC 78) also held that:-
“…….Though time is not ordinarily considered as being
of the essence of the contract involving transaction of
immovable property but the true intention of the parties
can be gathered from the terms of contract and facts and
circumstances of the case and mere mention of time in
the contract for its performance does not necessarily
mean that time was the essence of contract…..”
In a case reported as Faryad Ali Vs Rehmat Ali (PLD 2015
Lahore 75), it has been held that:-
“……In this contract as I have noticed that the
defendant/respondent himself is receiving the money and
extending the period and further that the
defendant/respondent has never given any notice for
C.R. No.3093 of 2012
termination of the contract on the basis that the time was
essence of the contract and the plaintiff/petitioner could
not perform his part of the contract…...”
5.
It is important to mention here that even after execution of
agreement to sell and receipt of amount(s) before the learned Rent
Controller, the petitioners not only failed to withdraw the ejectment
petition as is specifically agreed in agreement to sell between the
plaintiffs and defendants No.1 and 2/petitioners which was dismissed
by the learned Rent Controller after discussing all the questions of
facts and law vide judgment dated 22.02.2007 but also filed an appeal
against the judgment which was also dismissed. The learned Courts
below have granted relief by considering the conduct of the parties,
the principles of equity, fairness and good conscious by appreciating
the pleadings of the parties as well as oral and documentary evidence
of the parties and thereafter reached at the conclusion regarding the
controversy, therefore, findings of learned Courts below are hereby
maintained/ upheld.
6.
Even otherwise, with respect to interference in concurrent
findings of the Courts below, the Hon’ble Supreme Court of Pakistan
in a case reported as Administrator, Thal Development through EACO
Bhakkar and others Vs Ali Muhammad (2012 SCMR 730) held that:-
“Concurrent findings of the trial court and
appellate court in favour of appellants were based
on proper appreciation of evidence therefore, the
same were not open to interference by the
revisional court in exercise of its jurisdiction
under section 115, C.P.C. which is primarily
C.R. No.3093 of 2012
meant for correction of jurisdictional defect/error
and material illegalities/irregularities, resulting in
miscarriage of justice to a party.”
7.
Neither any misreading or non-reading of evidence on record
nor any infirmity, legal or factual, has been pointed out in the
impugned judgments and decrees passed by the learned Courts below,
therefore, this civil revision is hereby dismissed.
(MASUD ABID NAQVI)
JUDGE
Approved for reporting.
JUDGE
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