Specific performance of time barrd contract and none prove of possession.

Specific performance time barre

Specific performance when time barrd

Petitioner filed the suit of specific performance which was filed after delay of many years and time limit of the case is three years. And petitioner claimed that he have the possession but could not show any prove of possession. Not khasra gardawari was on his name.

The case dismissed by trial court and 1st Appeal and High court upheld the decision and revision was dismissed.

Detail decision of High court.

FORM No. HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

C.R. No.20075 of 2023

Mazhar Hussain and others Versus Mst. Jantan Bibi and others

Sr. No. of order/

proceeding

Date of order/

Proceeding

Order with signature of Judge, and that of parties of counsel, where 

necessary

27.3.2023

Mian Tariq Ahmad, Advocate for petitioners.

Through the instant revision petition judgments and

decree dated 13.4.2022 and 04.3.2023 of the courts below 

have been called into question whereby the suit of the 

petitioners was dismissed by the trial court and appeal 

thereagainst was also dismissed.

2.

Petitioner No.1 and predecessors-in-interest of 

petitioner Nos. 2 to 9 and 10 to 15 instituted a suit for 

declaration against the respondents alleging that the 

predecessor-in-interest of the respondents, namely, Sadiq 

son of Saee had executed a sale agreement dated 

15.7.2002 in their favour with respect to suit property 

measuring 31 acres, 7 kanals and 16 marlas in khewat 

No.201/190 situated at Estate Qazian, Tehsil and District 

Chiniot for consideration of Rs.7,10,000/- out of which 

Rs.6,60,000/- was received at the time of execution of the 

agreement and that it was stipulated that the remaining 

sale consideration of Rs.50,000/- shall be paid at the time 

of attestation of mutation or execution of registered sale 

deed. Case built up was that the predecessor-in-interest of 

the respondents during his lifetime had transferred 

possession to them and neither denied the agreement nor 

refused to perform under it but kept on postponing to 

receive the balance sale consideration of Rs.50,000/- from 

them or executing the sale deed in their favour until his 

death and that after his death when the legal heirs were 

C.R. No.20075 of 2023

-2-

approached they initially did not refuse to perform the 

agreement either but thereafter they declined to do so and 

mutation of inheritance was entered in their name and that 

in such circumstances the said vendees were compelled to 

file the suit. Declaration was claimed from the court to the 

effect that the petitioners were owners-in-possession of the 

suit property under the agreement dated 15.7.2002 and 

decree was liable to be accordingly passed in their favour 

and against the respondents or in the alternate a decree for 

specific enforcement of contract dated 15.7.2002 may be 

passed by the court and further that the respondents may 

be permanently restrained from forcibly dispossessing 

them or alienating the suit property to any third party. In 

their written statement the respondents denied the 

existence of the agreement which was claimed to be a 

product of fraud, forgery and fabrication. Issues were 

framed, evidence was led by both sides whereafter the suit 

of the petitioners was dismissed by the learned Civil Judge 

vide judgment dated 13.4.2022. The petitioners filed an 

appeal thereagainst which too was dismissed vide 

judgment dated 04.3.2023 by the learned Addl. District 

Judge, Chiniot. Through the instant revision petition these 

decisions of the courts below have been called into 

question.

3.

Learned counsel for the petitioners inter alia 

contended that the findings of the courts below were

untenable, that suit was within time from the date of actual 

refusal to perform the contract, that execution of the 

agreement was proved and that evidence was not properly 

considered and construed.

4.

Submissions made in support of the instant petition 

have been given due consideration in the light of the oral 

and documentary evidence on record as also the reasoning 

C.R. No.20075 of 2023

-3-

as prevailed upon the courts below for dismissing the suit 

and also the appeal of the petitioners. Perusal of the 

available documents shows that the suit for declaration or 

in the alternative for possession through specific 

performance was instituted on 30.7.2008 to enforce an 

agreement dated 15.7.2002. In terms of the purported sale 

agreement, plea taken in the suit was that the respondents’ 

predecessor-in-interest agreed to sell the suit land in 

consideration of Rs. 7,10,000/- and allegedly received 

earnest money of Rs. 6,60,000/- and that the possession 

was also transferred to petitioner No.1 and the 

predecessors of the rest of the petitioners who were 

alleged intending buyers. Execution of sale agreement was 

denied by the respondents who took the stance that no 

such transaction was ever entered into nor any payment 

was ever remitted by late Sadiq, their predecessor, nor the 

possession of land was transferred and that the suit was 

otherwise barred by time having been filed after more than 

six years from the date for completion of sale under 

alleged agreement. Main reason which prevailed with the 

courts below was that a specific date for the completion of 

the deal was mentioned in the disputed agreement; 

therefore, the suit would fall in the first part of Article 113 

of Limitation Act, 1908 which provides a period of three 

years from the date mentioned in the agreement for the 

completion of the transaction and that in terms of the 

document Exh.P-1 claimed by the petitioner, the 

transaction was to conclude by 15.10.2002 while the suit 

was filed on 30.7.2008 after six years and as such it was 

barred by time. 

5.

Perusal of the alleged agreement dated 15.7.2002 

Exh.P-1 reveals that in terms thereof, the vendor had 

allegedly agreed to receive the balance sale consideration 

C.R. No.20075 of 2023

-4-

and transfer the suit land in favour of the petitioners’ 

predecessor through sale deed or mutation till 15.10.2002 

and in case the vendor fails to complete the transaction by 

the stipulated date, the purported vendee will be entitled 

to enforce the same through suit for specific performance 

and that in the event the purchaser failed to get the land 

transferred, the earnest money will stand forfeited. Perusal 

of the document provides in clear terms the cut-off date for 

the completion of transaction as 15.10.2002. Time was 

essence of the contract as the document indicates that the 

default would result in forfeiture of earnest money as per 

Exh.P-1, the transfer was to take effect either through 

attestation of mutation or sale deed on payment of balance 

consideration. 

6.

The provision of Article 113 of the Limitation Act, 

1908 mandates that in the cases where date is fixed for the 

performance of the contract in the agreement itself then 

three years period will commence from the date so 

mentioned therein and if no such date is fixed then from 

the date the buyer had noticed that the performance was 

refused. There was no issue of title, the seller was 

considered to be owner of the property and competent to 

sell the same and as per terms the transaction was to be 

completed through mutation or sale deed till 15.10.2002. 

Being so the case would fall in the first part of Article 113 

of the Limitation Act, 1908 in terms thereof suit could be 

filed till 14.10.2005 which was filed on 30.7.2008. The 

arguments that the case would fall in the second part of the 

Article is devoid of any legal reason.

7.

As observed supra, the terms of the alleged 

agreement Exh.P-1 clearly provides for the performance of 

the contract till 15.10.2002 and any breach thereof, could 

entail the consequences of either recission of contract, 

C.R. No.20075 of 2023

-5-

forfeiture of the money or in the alternative, in the event of 

default on vendor’s part a right to seek specific 

performance to enforce the agreement before the court of 

law. Provision on the face of it being specific and provided 

for time limit and cut-off date for the completion of the 

deal, the plea of the petitioner that their case would fall in 

second category of the cases covered by Article 113 of the 

Limitation Act, 1908 is devoid of substance. Petitioner’s 

plea that the possession of the property was delivered in 

pursuance of the agreement and as such section 53-A of 

Transfer of Property Act, 1882 was attracted, is untenable 

in view of the evidence on record. While considering the

plea of delivery of possession under the sale agreement, it 

was observed by the court of first instance that the 

petitioner produced khasra girdawari Exh.P-6 since 2009 

wherein their names were mentioned as tenants and not as 

owners and that the khasra girdawari from July 2002 till 

2009 were not produced which was material in this regard 

and was relevant to verify if transfer of possession had 

ever taken place under any alleged agreement to sell on 

15.7.2002. 

8.

In any case the petitioner was not mentioned in the 

column of possession in khasra girdawari for the year 

2009-10 Exh.P-6 as in possession under the sale rather 

they were described as tenants which obviously belies the 

stance of the petitioners as to the alleged delivery of 

possession under the sale agreement. In the course of 

hearing learned counsel could not point out any 

misreading in the entries of revenue record nor could show 

from the record any entry of possession “under the sale” 

i.e. “ba-tasawar baee”. The petitioner was also required to 

produce khasra girdawari from 15.10.2002 till 2008 to 

support his plea that the possession under sale was 

C.R. No.20075 of 2023

-6-

transferred but no such document was produced which 

obviously raised adverse inference against the petitioner. 

The courts below, therefore, rightly observed that the 

petitioner had failed to prove not only the agreement of 

sale but also transfer of possession under any alleged 

agreement and that the suit could be filed within three 

years from the date mentioned in the disputed agreement 

to sell which having not been filed, it was hopelessly 

barred by time. Learned counsel’s reliance on the case of 

“Syed Hakeem Shah (deceased) through L.Rs. and others

v. Muhammad Idrees and others” (2017 SCMR 316) is 

not helpful in supporting the petitioner’s plea inasmuch as 

in the said case it was observed that where the sale 

consideration was totally paid, possession was delivered to 

transferee and only on account of ban on the registration of 

lease their transfer document was not executed the 

transferee was well within his right to seek execution of 

sub-lease in his favour when the ban got lifted. 

9.

The rule in this case does not apply to the 

petitioner’s suit as there was no ban on transfer of land in 

the case of the petitioner nor was there any legal or factual 

impediment in the transfer of the property by the 

predecessor of the respondents. As per petitioner’s own 

evidence the alleged vendor remained alive for six years 

who allegedly entered the agreement with full title, the 

only thing which was to be done was to transfer the 

ownership right by mutation or sale deed on receiving 

balance sale consideration till 15.10.2002. This being so, 

the suit ought to have been filed within three years from 

the date claimed in Exh.P-1 for the completion of 

transaction as there was no such restriction to the 

alienation of the property. In “Syed Athar Hussain Shah v. 

Haji Muhammad Riaz and another” (2022 SCMR 778) it 

C.R. No.20075 of 2023

-7-

was observed to the effect that suit for specific 

performance of an agreement could be filed within three 

years as provided by Article 113 of the Limitation Act, 

1908 and that the alleged agreement of sale even if proved 

could not give any title in favour of the intending buyer as 

under:

“11…

The first suit had sought the specific performance 

of the agreement and the second suit also the cancellation 

of the sale deed. For both these causes of action the 

prescribed period of limitation is three years as respectively 

provided under Article 113 and Article 91 of the First 

Schedule of the Limitation Act, 1908. The petitioner’s third 

suit had sought the specific performance of the agreement, 

the cancellation of the sale deed, which was executed 

when there was no suit pending, and a declaration with 

regard to the ownership of the land. The third suit was filed 

after three years and was time barred with regard to 

seeking the specific performance of the agreement and for 

the cancellation of the sale deed. We are now left to 

consider whether the third suit was saved because it had 

also sought a declaration of ownership of the land as 

submitted by the petitioner’s learned counsel for which 

Article 120 prescribes six years period of limitation… An 

examination of the petitioner’s plaint makes it clear that the 

petitioner had primarily sought the specific performance of 

the agreement, then the cancellation of the sale deed and 

had added the declaratory relief to primarily save the third 

suit from the consequence of having been filed, beyond the 

period of limitation.

12.

The petitioner’s reliance on section 53-A of the 

Transfer of Property Act would also not save him from the 

vicissitude of the period of limitation. Section 53-A does not 

confer or creates a right, and its use is defensive as has 

been continuously held by this Court … The linking or 

combining of section 53-A of the Transfer of Property Act 

with the petitioner’s suit will not benefit him by extending 

the period of limitation and save the third suit.”

It may be observed from the rule supra that petitioners’

reliance on the provisions of section 53-A of Transfer of 

Property Act, 1882 would not render any assistance for 

enlarging the period of limitation so as to allow the 

petitioner to file the suit after the alleged refusal. The facts 

C.R. No.20075 of 2023

-8-

of the petitioners’ case are clearly distinguishable as in the 

petitioners’ case, they could not prove transfer of 

possession under the sale and entries in the revenue record 

reflect their status as tenant and not as intending buyer 

and, being so, the provisions of section 53-A, Transfer Of 

Property Act, 1882 would otherwise not lend any support 

for helping hand to the petitioner to save them from the 

rigour of limitation. The findings of courts below on the 

question of limitation could not be shown to be either 

perverse or based on any misreading of the evidence nor 

any ground could be made out for interference therein. 

Suit being barred by time was liable to be dismissed and 

was rightly dismissed as such.

10.

Another important aspect of the matter is that in the 

instant case the execution of Exh.P-1 and existence of any 

intending sale transaction was disputed by the respondents 

who had categorically stated that neither any agreement 

was made nor any payment was received nor the 

possession was ever transferred in favour of the petitioner. 

The findings recorded by the court of first instance were 

that the pleadings of the petitioner did not show any 

negotiation of oral sale if made prior to the written 

agreement to sell dated 15.7.2002 Exh.P-1 but all the PWs 

attempted to take different stands by claiming different 

dates of negotiation of sale prior to the sale agreement. 

The oral assertion being not founded in the pleadings, the 

evidence in this regard was rightly overlooked. It is also 

observed that from the evidence it was discernible that the 

deceased Sadiq predecessor of the respondents was 90 

years old when he died. The agreement Exh.P-1 was not 

claimed to have been made or executed in the presence of 

any of the male member of the family though he was 

stated to have an elder son. It is also observed that from 

C.R. No.20075 of 2023

-9-

15.7.2002 till the filing of the suit on 30.7.2008 the 

petitioner did not claim to have ever issued notice to the 

deceased Sadiq though he remained alive for six years. It 

is in the evidence that Sadiq died on 20.7.2008 i.e., after 

more than seven years from the date of alleged sale 

agreement dated 15.7.2002 but no evidence was produced 

to show that any notice whatsoever was given to him for 

transfer of property nor any suit was filed despite the 

expiry of limitation. The inaction on the part of the 

petitioner was quite conspicuous and raised serious 

suspicious as to the execution of document. The entire oral 

evidence was minutely scrutinized by the courts below 

whereafter the findings were recorded to the effect that 

execution of Exh.P-1 could not be proved nor any payment 

of alleged earnest money through Exh.P-2 could be 

established . No misreading or non-reading of any material 

part of evidence could be referred or shown in the course 

of hearing nor any error of law could be pointed out so as 

to warrant interference. 

11.

An argument was raised by the learned counsel 

that the appellate court could have exercised the powers 

under Order XLI, Rule 27, C.P.C. to seek additional 

evidence by way of referring the matter to expert for 

forensic examination and report as to the genuineness of 

thumb-impression of Sadiq and that in not doing so an 

error of law was committed. The argument is 

misconceived. It is discernible from the file that the suit 

was instituted on 30.7.2008, it was dismissed on 

13.4.2022 during this period no application was filed for 

any comparison of thumb impression through the expert 

on the part of the petitioner. Under Rule 27 of Order XLI,

C.P.C. the appellate court had jurisdiction to consider the 

permission for additional evidence provided the evidence 

C.R. No.20075 of 2023

-9-

15.7.2002 till the filing of the suit on 30.7.2008 the 

petitioner did not claim to have ever issued notice to the 

deceased Sadiq though he remained alive for six years. It 

is in the evidence that Sadiq died on 20.7.2008 i.e., after 

more than seven years from the date of alleged sale 

agreement dated 15.7.2002 but no evidence was produced 

to show that any notice whatsoever was given to him for 

transfer of property nor any suit was filed despite the 

expiry of limitation. The inaction on the part of the 

petitioner was quite conspicuous and raised serious 

suspicious as to the execution of document. The entire oral 

evidence was minutely scrutinized by the courts below 

whereafter the findings were recorded to the effect that 

execution of Exh.P-1 could not be proved nor any payment 

of alleged earnest money through Exh.P-2 could be 

established . No misreading or non-reading of any material 

part of evidence could be referred or shown in the course 

of hearing nor any error of law could be pointed out so as 

to warrant interference. 

11.

An argument was raised by the learned counsel 

that the appellate court could have exercised the powers 

under Order XLI, Rule 27, C.P.C. to seek additional 

evidence by way of referring the matter to expert for 

forensic examination and report as to the genuineness of 

thumb-impression of Sadiq and that in not doing so an 

error of law was committed. The argument is 

misconceived. It is discernible from the file that the suit 

was instituted on 30.7.2008, it was dismissed on 

13.4.2022 during this period no application was filed for 

any comparison of thumb impression through the expert 

on the part of the petitioner. Under Rule 27 of Order XLI,

C.P.C. the appellate court had jurisdiction to consider the 

permission for additional evidence provided the evidence 

C.R. No.20075 of 2023

-10-

was refused by the court below illegally or the appellate 

court while considering the evidence on record reaches 

the conclusion that additional evidence is necessary for the 

correct determination of the case or that the existing 

evidence is not sufficient to reach the conclusion one way 

or the other. None of these circumstances existed as the 

petitioner had never applied for additional evidence before 

the trial court nor it was a case of refusal to grant 

permission of additional evidence; nor the court ever 

observed that the evidence was not sufficient to decide the 

case rather the circumstances noted in the reasoning of the 

court of first instance shows beyond doubt that number of 

reasons were given to disbelieve the plea of the petitioner 

as to the execution of document. Even otherwise the 

evidence on record was sufficient to conclude that the 

petitioner had failed to prove the existence of sale 

transaction with the deceased Muhammad Sadiq nor the 

agreement could prove the purported agreement by any 

credible evidence. No misreading or non-reading of 

evidence could be shown in the findings of the trial court 

and as such same were rightly not interfered with in 

appeal by the learned Addl. District Judge. 

12.

As to the argument that issue-wise findings were 

not recorded, the same is also untenable. Order XX, Rule 

5, C.P.C. applies to the suit and to the judgment of the trial 

court, the trial court decided the case issue-wise and 

recorded independent findings for rendering decision on 

all the issues. In appeal under Rule 31 of Order XLI, 

C.P.C. the court was required to consider the points raised 

in appeal at the time of hearing, the reasons recorded by 

the trial court and to decide the same by recording the 

reasons thereof. Appellate court is not required to decide 

the appeal by recording issue-wise findings but only the

C.R. No.20075 of 2023

-11-

points raised at the time of hearing were to be looked into. 

Reference can be made to the case of “Kareem Bux v. P.O. 

Sindh and others” (1998 CLC 27). In the instant case the 

learned Addl. District Judge took note of the entire 

evidence, the reasoning recorded by the court below and 

after considering the same on the touchstone of law 

recorded findings to the effect that the suit was barred by 

time; which as also findings of the court on other points 

did not suffer from any misreading of record nor any error 

of law could be pointed out as to warrant interference. For 

the reasons above there is no substance in this revision 

petition which is accordingly dismissed.

(RASAAL HASAN SYED)

JUDGE

APPROVED FOR REPORTING

JUD

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Specific performance ki dosri judgements  

IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction) 

PRESENT: 

MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL 

MR. JUSTICE MUNIB AKHTAR 

Civil Petition No. 84/2016

(On appeal from the judgment dated 26.10.2015 passed by the Peshawar High 

Court, Mingora Bench (Dar-ul-Qaza), Swat in C.R.No.902-M/2012).

Sajjad Ahmad Khan 

…Petitioner 

VERSUS

Mohammad Saleem Alvi & others

…Respondents

For the petitioner:

Mr. Naveed Akhtar, ASC

Respondents:

Mr. Muhammad Ilyas Siddiqui, ASC

(No.2-3)

Date of hearing:

20.10.2020

JUDGMENT 

MAZHAR ALAM KHAN MIANKHEL, J-. 

Petitioner being plaintiff of a suit for specific performance 

through instant Petition for Leave to Appeal, has questioned the 

impugned judgment dated 26th October, 2015 rendered by learned 

single Judge in Chambers of the Peshawar High Court, Mingora 

Bench (Dar-ul-Qaza), Swat, whereby the learned Judge while 

dismissing the civil revision upheld the concurrent findings of the two 

courts below regarding dismissal of suit of the petitioner. 

2.

Learned counsel for the parties were heard and record of 

the case was peruse

C.P.84/2016

2

3.

It appears from the record that there was an oral sale

agreement between Petitioner and Defendant/Respondent No.1

probably on or before 6th August, 1991 when first receipt of earnest 

money was executed between them and later on an agreement to sell 

(which itself does not bear any date of execution). (Agreement),

Ex-PW-2/1, was executed between parties ibid and Petitioner signed 

the agreement on 16th February, 1992. The agreement, Ex-PW-2/1,

refers to a sale, in lieu of Rs.3,37,500/- (Rupees three lac thirty seven 

thousand five hundred) with Respondent No.1 regarding suit property 

fully described in the agreement and the plaint. Certain amounts of 

sale consideration were paid in advance and proper receipts were 

duly executed by Respondent No.1 and Rs.200,000/- (Rupees two 

lac) was paid to Respondent No.1 on 24th January, 1992. The entire 

amount of Rs.2,71,000/- (Rupees two lac seventy one thousand) paid 

to Respondent No.1 as earnest/advance at different times was duly 

reflected in the agreement Ex-PW-2/1 alongwith the dates. It was 

also agreed upon between the parties that the balance sale 

consideration of Rs.66,500/- (Rupees sixty six thousand five 

hundred) would be paid at the time of registration of sale deed. We 

may observe that no specific date for completion of the agreement 

was given. The physical possession of the suit property was also 

handed over to the petitioner before the execution of agreement and 

this very fact has also been reflected in the agreement Ex-PW-2/1

besides being established from the record. When Respondent No.1 

failed to execute a proper sale deed in favour of petitioner, a suit for 

specific performance was filed by the petitioner and the same was 

decreed ex-parte vide judgment and decree dated 18th December,

1997 in favour of petit

C.P.84/2016

3

4.

The other part of the story which appears from the record 

is that Defendant/Respondent No.2 (subsequent vendee) (Respondent 

No.2) filed an application under Section 12(2) of the Code of Civil 

Procedure, 1908 (C.P.C.) which was accepted vide order dated 25th

November, 2004 and the said order was upheld in appeal. 

Resultantly, ex-parte judgment and decree dated 18th December, 

1997 ibid was set aside and an amended plaint was accordingly filed 

wherein Respondent No.2 was also impleaded as Defendant No.2.

Respondent No.1 being vendor and Respondent No.2 being 

subsequent vendee, filed their joint written statement by alleging an 

agreement to sell dated 11th February, 1992 (subsequent agreement) 

by Respondent No.1 in favour of Respondent No.2. Record of the case 

further reveals that Respondent No.1 and Respondent No.2 were also 

locked in a litigation due to this subsequent agreement and 

ultimately a fresh agreement dated 16th September, 1997 followed by 

a compromise between them was effected. Accordingly, a decree on 

the basis of said compromise in favour of Respondent No.2 was 

passed in the Civil Court of District Rawalpindi (leaving aside the 

question of territorial jurisdiction and cause of action). Thereafter, 

Respondent No.1 executed a registered deed of general power of 

attorney in favour of Respondent No.2. Respondent No.2 then 

transferred the suit property as an attorney in favour of Respondent 

No.3 (His Son) through a registered deed bearing No.38 dated 15th

January, 2005.

The Respondent No.3 after becoming owner of the 

property filed a suit for possession and permanent injunction against 

the petitioner and his wife. This suit by Respondent No.3 itself 

establishes the factum of possession of the suit property with the 

C.P.84/2016

4

petitioner. Both the suits (suit for specific performance filed by petitioner 

and suit for possession filed by Respondent No.3), pending trial were 

consolidated. After a full-fledged trial, the trial court dismissed both 

the suits vide its judgment and decree dated 18th August, 2011. Two 

separate appeals filed by plaintiffs of both the suits, were also 

dismissed by the appellate court vide its judgment and decree dated 

14th September, 2012. The issues regarding alleged subsequent sale 

in favour of Respondent No.2 and then to Respondent No.3 were 

decided against Respondents No.2 & 3. Though Respondent No.3 

challenged said findings by way of an appeal but that too was 

dismissed by upholding the findings of Trial Court and did not 

question the same before High Court. So, the findings regarding 

subsequent sale attained finality against Respondents No.2 & 3. The 

High Court maintained and upheld the concurrent findings of 

dismissal of suits and appeals by dismissing the civil revision filed by 

present petitioner vide impugned judgment. Respondent No.3 did not 

question the findings of dismissal of his appeal which attained 

finality. 

5.

The main reason which prevailed with the learned Judge 

of the High Court in Chambers was that payment of sale 

consideration reflected in three different receipts was not proved 

according to law and witnesses mentioned in the receipts were also 

not produced and similarly the very agreement (Ex-PW-2/1) was also 

not proved in accordance with the provisions of Article 79 of the 

Qanun-e-Shahadat Order, 1984 (Q.S.O.,1984) as out of the two 

attesting witnesses only one witness was produced. 

6.

As far as the payment of part of sale consideration 

through three different receipts ibid is concerned, the same as well as 

C.P.84/2016

5

further payment of Rs.200,000/- (Rupees two lac) on 24th January, 

1992 has been reflected in the agreement alongwith their respective 

dates and thereby an amount of Rs.2,71,000/- (Rupees two lac

seventy one thousand) out of total sale consideration of 

Rs.3,37,500/- (Rupees three lac thirty seven thousand five hundred) 

was admitted to have been received. Respondent No.1 himself was 

the author of the agreement. Record reflects that it was an oral 

agreement to sell when first part payment was paid on 6th August, 

1991. Needless to mention here that it is a settled law that a 

sale/agreement to sell can be oral or offer and acceptance of sale can 

also be inferred from the acts of the parties to the sale agreement. We 

may refer to a judgment dated 9.7.2020 of this court titled Abdul 

Hameed v. Jahangir Khan passed in Civil Petition No.3097/2015 & 

Civil Appeal No.1074/2015) and Muhammad Sattar v. Tariq Javaid

(2017 SCMR 98) and this question has very well been dealt with in 

the above judgments. Respondent No.1 though in his joint written 

statement has alleged the agreement and his signatures over the 

same as fake and fictitious but has not specifically challenged the 

agreement in question either by way of criminal proceedings or 

through a civil suit. Simple denial of a document being fake and 

fictitious is not legally sufficient unless the same facts are proved and 

established on the record. Possession of the petitioner at the site has 

also been admitted even by Respondent No.3, in his suit, in the 

shape of some sort of constructions made by the petitioner. 

Respondent No.1 even disappeared from the scene and left the 

Respondents No.2 & 3 to contest the suit with petitioner. He even did 

not appear as a witness to rebut the material brought against him

what to talk of proving his allegations against the petitioner

C.P.84/2016

6

7.

As far as non-appearance of the second attesting witness 

of the agreement, Ex-PW-2/1, is concerned, that has undisputedly 

been brought on the record that the other witness, Dr. Fazal Sher 

Khan was not available and was residing in America. The provisions 

of Article 79 (Q.S.O.,1984), are applicable only in those cases where 

execution of a document is disputed between maker of document and 

the person in whose favour purportedly the same is executed. Here in 

this case, execution of the agreement Ex-PW-2/1, though has been 

denied and disputed by Respondent No.1 by filing his joint written 

statement but mere denial would not be sufficient in presence of 

plethora of overwhelming evidence on the record. Such an evidence 

cannot be discarded merely for non-production/appearance of 

second marginal witness. The prime and foremost requirement of 

Article 79 (Q.S.O.,1984) is to prove execution of a document in case 

of a denial of execution by producing two marginal witnesses. When

the allegation goes un-rebutted that Respondent No.1 himself was 

the author/scribe of the document. When again un-rebutted fact is 

there on the record that the other witness being abroad was not 

capable of giving evidence, when the stance of Notary Public regarding 

attestation of agreement goes un-shattered, when PW-1, Hamayoon 

Shinwari not only confirms the execution rather gives each and every 

detail of the transaction between petitioner and Respondent No.1 and 

PW-4 is also the witness of execution and the entire evidence 

supported by the petitioner himself then in the given circumstances 

mere non-production of other attesting witness of Ex-PW-2/1 being 

not available would be nothing much less a hyper technicality and 

not the violation of Article 79 ibid. We may observe that concurrent 

findings of dismissal of suit by the three courts are a bitter and

C.P.84/2016

7

distressing example of misreading and non-reading of material 

evidence available on the record and misapplication of law. 

8.

We in the circumstances are left with no option but to 

convert this petition into appeal and allow the same with costs. The 

concurrent findings of the three courts below dismissing the suit of 

petitioner are set-aside. 

9.

By keeping in mind the conduct of Respondent No.1, we 

hereby decree the suit of petitioner for specific performance of 

agreement to sell Ex-PW-2/1 in lieu of Rs.3,37,500/- (Rupees three 

lac thirty seven thousand five hundred) out of which Rs.2,71,000/-

(Rupees two lac seventy one thousand) have already been paid to the 

Respondent No.1. Balance of Rs.66,500/- (Rupees sixty six thousand 

five hundred) be deposited in the trial court within sixty (60) days 

from today. Needless to mention that the alleged subsequent sale of 

suit property in favour of respondent No.2 and then in favour of 

respondent No.3 being sham transactions are hereby cancelled and 

the same will have no adverse effects on the rights of the petitioner. 

Judge

Judge 

Islamabad, 

20th October, 2020

Sarfraz /-

‘’APPROVED FOR REPORTING

 

• Women and their legal rights
• Affidavit ya bian e halfi بیا ن حلفی
• Court marriage ka Procedure In Pakistan
• Taqsim e Jaidad ka Dawa (Partition ) Punjab Parti...
• dosri Shadi ka Tareeka
• Stay Order Hasil karna
• Bachon Ka Kharcha Lena After separation
• police station main istamal hone wale 25 register ...
• FIR darj karwane ka tareeka
• FIR darj karwane ka tareeka
• Zamanat Karwane ka Tareeka
• Court staff and their duties

  
  

  Statement of 164

  
  

  Information about cases

  
  

  Cases ko jaldi kese nibtaya jai

Police station main application dene ka tareeka

FIR darj karwane ka tareeka

FIR Through Session court under section 22A 22B

Court marriage procedure

Rights of overseas Pakistanis

Women legal rights

Mere khawand ne mere bache cheen liye hain

164 ke statement

Get the divorce online

Nadra divorce certificate

Court marriage fee

Bail karwane ka tareeka

Abori zamanat or pre arrest

Gumshuda nikah nama dubara hasil karna

Taqseem e jaidad ka dawa

warasat main warson ka hisa

Affidavit ya bian e halfi Kia hota hai

Police station main istamal hone wale register

Fir se le kar bari ya saza ka complete process

Bachu ka kharcha wasul karna

Bachu ki custody 

Dosri Shadi ka tareeka

Women and men ka jismani remand 

  Case transfer karwana aik city se dosre city

• Women and their legal rights
• Affidavit ya bian e halfi بیا ن حلفی
• Court marriage ka Procedure In Pakistan
• Taqsim e Jaidad ka Dawa (Partition ) Punjab Parti...
• dosri Shadi ka Tareeka
• Stay Order Hasil karna
• Bachon Ka Kharcha Lena After separation
• police station main istamal hone wale 25 register ...
• FIR darj karwane ka tareeka
• FIR darj karwane ka tareeka
• Zamanat Karwane ka Tareeka
• Court staff and their duties

  
  

  Statement of 164

  
  

  Information about cases

  
  

  Cases ko jaldi kese nibtaya jai

Police station main application dene ka tareeka

FIR darj karwane ka tareeka

FIR Through Session court under section 22A 22B

Court marriage procedure

Rights of overseas Pakistanis

Women legal rights

Mere khawand ne mere bache cheen liye hain

164 ke statement

Get the divorce online

Nadra divorce certificate

Banking court cases

Id card kese unblock karwaia ja sakta hai

Trade Mark registration

Dukandar, service providers, etc ke khalaf dawa

Sole proprietorship registration

Apna business register karwain

Registery karwana dukan makan plot

Biana ke baad agar buyer ya seller bhag jai

wasiat ya will kese ki jaati ha

decree ke baad decree ki tameel

warasat distribution against Housing societies

Mukhtar nama ya power of attorney

how to sale or buy property and complete other documents

notice of social security

No marriage ya bachelor certificate

Court marriage fee

Bail karwane ka tareeka

Abori zamanat or pre arrest

Gumshuda nikah nama dubara hasil karna

Taqseem e jaidad ka dawa

warasat main warson ka hisa

Affidavit ya bian e halfi Kia hota hai

Police station main istamal hone wale register

Fir se le kar bari ya saza ka complete process

Bachu ka kharcha wasul karna

Bachu ki custody 

Dosri Shadi ka tareeka

Women and men ka jismani remand 

  Case transfer karwana aik city se dosre city

• Court marriage ka Procedure In Pakistan
• Dosri Shadi ka tareeka

2nd judgement about specific performance.trial court dismiss the suit of the petitioner that petitioner submitted half payment of remaining amount and application for extension of time to submit other half payment.

Lahore high court setaside the orders of the trial court and remand the case.

StereoHCJDA 38

Judgment Sheet

IN THE LAHORE HIGH COURT LAHORE

JUDICIAL DEPARTMENT

Civil Revision No. 49002 of 2021.

(Nasir Mahmood. v. Zafar Iqbal and another.)

JUDGMENT

Dates of hearing:

18.05.2022.

Petitioner by:

Sh. Usman Karim-ud-Din, Advocate.

Respondents by:

Mr. Imran Raza Chadhar, Advocate for 

respondent No.1.

Mr. Imran Ahmad Malik, Advocate for 

respondent No.2.

Shujaat Ali Khan, J: - Succinctly, respondent No.1 filed 

suit for cancellation of agreement to sell, dated 14.06.2014, 

against respondent No.2 whereas the petitioner filed suit for 

possession through specific performance of agreement to sell, 

dated 16.06.2014, alongwith permanent injunction, against the 

respondents. The learned trial court consolidated both the suits. 

During pendency of suits, respondent No.1 filed an application 

for dismissal of the suit, filed by the petitioner, due to nondeposit of remaining sale consideration whereas the petitioner 

filed an application seeking permission to deposit 

Rs.6,35,00,000/- viz. the remaining sale consideration. Learned 

Civil Revision No.49002/2021

Nasir Mehmood v. Zafar Iqbal etc.

2

Trial Court, vide order, dated 15.07.2021, while dismissing the 

application filed by respondent No.1 for dismissal of suit of the 

petitioner, allowed that of the petitioner seeking permission to 

deposit the remaining sale consideration directing him to 

deposit remaining sale consideration within a period of fifteen 

days with the observation that in case of his failure to deposit 

said amount within the stipulated time the suit filed by him 

would stand dismissed on account of non-compliance of order 

of the court. The petitioner, in compliance with the order passed 

by learned Trial Court, deposited an amount of Rs.2,35,00,000/-

on 27.07.2021 and Rs.1,00,00,000/- on 28.07.2021 and to the 

extent of remaining amount of Rs.3,00,00,000/- he filed an 

application seeking extension of time fixed by the learned Trial 

Court. The learned Trial Court, vide order, dated 30.07.2021, 

while rejecting the application filed by the petitioner seeking 

extension in time, dismissed his suit due to non-compliance of 

order, dated 15.07.2021; hence this petition. 

2.

Learned counsel for the petitioner submits that bona fide

on the part of the petitioner is manifest from the fact that in 

compliance with order, dated 15.07.2021, passed by learned 

Trial Court, he deposited Rs.3,35,00,000/- and further moved 

application seeking extension of time to deposit the balance 

Civil Revision No.49002/2021

Nasir Mehmood v. Zafar Iqbal etc.

3

amount, hence, the observation of learned Trial Court that the 

petitioner was not serious to get enforced the subject agreement 

to sell is against the record; that according to Order XVII rule 3 

CPC decree was to be drawn pursuant to the order passed by 

the learned Trial Court but since no decree followed the 

impugned order, the same is not sustainable; that even while 

invoking the provisions of the Order XVII rule 3 CPC ibid

findings on every Issue are to be given by the court but the 

impugned decision being contrary to the said principle is not 

sustainable; that as per section 148 CPC learned Trial Court 

was fully empowered to extend time enabling the petitioner to 

deposit the balance amount but non-exercise of jurisdiction by 

learned Trial Court speaks volumes about its non-judicial 

approach; that since matter was fixed for recording evidence of 

plaintiff, the suit could not be dismissed at that stage and that 

since the petitioner deposited the balance amount on 

30.07.2021, lenient view was to be adopted by learned Trial 

Court. Relies on Muhammad Asif Awan v. Dawood Khan and 

others (2021 SCMR 1270). 

3.

Conversely, learned counsel appearing on behalf of 

respondent No.1, while defending the impugned decision, states 

that since the petitioner failed to deposit balance amount in my

Civil Revision No.49002/2021

Nasir Mehmood v. Zafar Iqbal etc.

4

court, despite the fact that agreement to sell between the parties 

was executed in the year 2014, no illegality has been committed 

by learned Trial Court while passing the impugned order; that 

the petitioner himself filed application in the year 2016 seeking 

permission to deposit the balance amount which was allowed 

but he did not deposit the same despite lapse of many years 

which shows his negligence to perform his part of the contract; 

that respondent No.1, who is an expatriate, on the one hand, has 

been deprived of his valuable land without payment of balance 

amount and on the other is being blackmailed by the petitioner 

and respondent No.2 by lodging criminal case against him and 

that a learned Division Bench of this Court, while discussing all 

the case-law on the subject, in the case of Irfan Rasheed v. 

Muhammad Muazim and others (PLD 2022 LHR 372), has 

held that in the event of failure of plaintiff to deposit balance 

consideration, in a suit for specific performance, his suit should 

be dismissed on that score alone. 

4.

Learned counsel representing respondent No.2, while 

supporting the petitioner, submits that technicalities apart, since 

the suit filed by respondent No.1 is also sub judice before 

learned Trial Court, it is in the fitness of things that while 

setting aside the impugned decision, matter be referred to the 

Civil Revision No.49002/2021

Nasir Mehmood v. Zafar Iqbal etc.

5

said forum as entire balance amount has already been deposited 

by the petitioner.

5.

In furtherance of his above arguments, learned counsel 

representing respondent No.1 contends that since the petitioner 

is a real estate developer he intends to usurp land of respondent 

No.1 without payment of balance amount, hence, no leniency 

can be shown to the petitioner. 

6.

While exercising his right of rebuttal, learned counsel for 

the petitioner submits that since the petitioner himself filed 

application seeking permission to deposit the balance amount 

and no direction was issued by the court in the year 2016, the 

order passed by learned Trial Court, on 21.12.2016, cannot be 

used to the disinterest of the petitioner; that though the 

petitioner deposited remaining amount of Rs.3,00,00,000/-, on 

28.07.2021, but its effect could not be incorporated in the 

relevant record till 30th July, 2021 and that since respondent 

No.1 denied execution of agreement to sell out-rightly, the 

petitioner could not be compelled to deposit the balance amount 

forthwith. 

7.

I have heard learned counsel for the parties at 

considerable length and have also gone through the documents, 

Civil Revision No.49002/2021

Nasir Mehmood v. Zafar Iqbal etc.

6

annexed with this petition as well as the case-law cited at the 

bar.

8.

Firstly, taking up the point raised by learned counsel for 

respondent No.1 that since the petitioner did not deposit the 

balance amount despite the fact that his application in that 

regard was allowed way back in the year 2016, I am of the view 

that when the learned Trial Court invoked the penal provisions 

of Order XVII rule 3 CPC ibid due to non-compliance of order, 

dated 15.07.2021, no reference can be made to any previous 

omission or commission, if any, on the part of the petitioner. 

Reliance in this regard is placed on Sultan Ahmad and others v. 

Khuda Bux and others (1986 SCMR 1005) wherein the august 

Supreme Court of Pakistan responded the query, under 

discussion, in the following manner: -

“7. The main contention in support of these petitions 

urged by the learned counsel is that the second order 

prescribing time for making up deficiency of court-fees 

and filing the statement of net profits, was passed without 

application of mind and ignorance of the orders passed 

earlier under which the time allowed had already 

expired. In other words the submission was that upon 

expiry of the period earlier fixed as the plaintiffs had 

failed to comply therewith the plaints were liable to be 

rejected under Order VII rule 11(d), C.P.C. It was 

further urged that the conduct of the plaintiffs in not 

complying with the first order by making up a proper 

application to the revenue authority for obtaining the 

statement of net profits the plaintiffs were guilty of 

contumacy and negligence and accordingly were not 

entitled to the exercise of discretion in their favour 

Civil Revision No.49002/2021

Nasir Mehmood v. Zafar Iqbal etc.

7

extending the time. The power of the Court to pass a 

fresh order after the expiry of the period prescribed 

under the first order was also challenged. We have 

carefully considered these contentions and find no 

substance therein. The plaints were not liable to be 

rejected under Order VII, rule 11 (d) , C . P . C . unless 

the Court had first made an order calling upon the 

plaintiffs to make up the deficiency in court-fees by 

specifying the amount thereof. In this case no such order 

was passed directing the plaintiffs to pay a specific 

amount by way of deficiency in the court-fees. In the 

circumstances the plaints originally filed by the plaintiffs 

were still before the Court' on the date of the subsequent 

order and the Court was amply empowered to extend the 

time for doing the needful as earlier ordered or even 

pass a fresh order to the same effect by a specified 

future date. It is well-settled that the power vesting in 

the Court under section 148, C.P.C. can be exercised

successively and even after the time under previous 

such order has expired. Therefore, nothing turns on the 

fact that there was a gap between the period covered by 

the two orders. So far as the justification for extension of 

time under section 149. C.P.C., the first appellate Court 

applied its mind and came to the conclusion that the 

plaintiffs in the two suits were entitled to the grant of 

time in the circumstances of the case. This is a 

discretionary order and there is nothing to hold that the 

discretion was perversely exercised. The Courts below 

have acted upon the rule laid down by this Court in 

Siddique Khan v. Abdul Shakur Khan PLD 1984 SC 289 

and there is no legal infirmity in the impugned orders in 

these two petitions. Both petitions are accordingly

dismissed.” (emphasis provided)

If the contention of learned counsel for respondent No.1, under 

discussion, is appreciated in the light of the afore-quoted 

judgement of Apex Court of the country it becomes vividly 

clear that since no direction was passed by the learned Trial 

Court asking the petitioner to deposit the balance amount within 

specified period, the order passed by the learned Trial Court on 

Civil Revision No.49002/2021

Nasir Mehmood v. Zafar Iqbal etc.

8

the application of the petitioner, in the year 2016, cannot be 

used to his disinterest.

Considering from another angle, undeniably, the 

application filed by respondent No.1 seeking dismissal of the 

suit file by petitioner on account of non-compliance of order 

dated 21.12.2016 was dismissed by the learned trial court on 

15.07.2021 by holding that since no direction was issued by the 

court, non-compliance on the part of the petitioner did not entail 

any penal action and the said order having not been challenged 

by respondent No.1 has attained finality. In this background, 

respondent No.1 cannot be allowed to re-agitate the said ground 

before this Court. 

9.

It is admitted position that after filing of suit the 

petitioner himself filed an application seeking permission to 

deposit the balance amount wherein notices were issued but 

respondent No.1 did not opt to file reply to the said application. 

On the other hand, while filing written statement he denied the 

very execution of agreement to sell with the petitioner rather his 

stance was that he entered into an agreement to sell with Hassan 

Nazir (respondent No.2), on 14.06.2014, but due to nonfulfilment of the conditions stipulated therein, the said 

agreement to sell automatically stood rescinded, however, as a 

Civil Revision No.49002/2021

Nasir Mehmood v. Zafar Iqbal etc.

9

matter of abundant caution he filed a suit seeking cancellation 

of agreement to sell prior to filing of suit by the petitioner 

seeking specific performance of Agreement to Sell entered 

between the petitioner and respondent No.2. In the wake of 

such outright denial of execution of the agreement to sell, 

subject matter of the suit out of which present revision petition 

has stemmed, the petitioner could not be made to suffer 

especially when he has deposited the entire consideration 

amount.

10.

Admittedly, the petitioner filed application seeking 

extension of time to deposit the balance consideration amount, 

before expiry of the period stipulated by the learned trial court 

vide order, dated 15.07.2021. It is of common knowledge that 

established businesses stood toppled due to pandemic Covid-19 

and for that reason in addition to certain steps at government 

level, even the individuals at their own relaxed/deferred due 

payments just for the reason that all and sundry were adversely 

affected by the said disease. Undeniably, only one chance was 

given by the learned Trial Court to the petitioner to deposit the 

balance amount. While dealing with powers of the court to 

extend period for compliance of an order passed by a court, the 

Apex Court of the country in the case reported as Malik 

Civil Revision No.49002/2021

Nasir Mehmood v. Zafar Iqbal etc.

10

Hadayat Ullah and 2 others v. Murad Ali Khan (PLD 1972 SC 

69) has inter-alia held as under: -

“The Punjab Pre-emption Act does not prescribe 

any procedure for obtaining such extension of time but 

upon general principles a Court has normally to be 

moved by an application of some kind, either oral or 

written. This does not, however, mean that the Court has 

no jurisdiction, in the absence of any such application, to 

grant a discretionary relief where the justice of the case 

so requires. In the absence of any provision in the Statute 

or in the rules made under the Statute expressly 

providing that the Court shall act on the application: of a 

party it cannot be said that such an application is a 

condition precedent to the exercise of the power. The 

power does not become nugatory, if no application is 

made for invoking that power. If the Court could we-are

clearly of opinion that it could under subsection (4) of 

section 22 extend time, then it could do so either on the 

application, written or oral, of a party or even suo motu 

where the justice of the cause so demanded.

In the present case, the learned Judge of the High 

Court thought that there was no ground at all for 

granting such an extension although it was argued before 

him that in the present case the Court had made it 

practically impossible for the appellants, who were 

plaintiffs in the pre-emption suit, to comply with the 

order for making the deposit within the time originally 

fixed by the Court by its own action, namely, the 

adjournment of the application for furnishing security 

instead of making the deposit in cash from the 6th of 

December 1967, to the 6th of January 1968, on which 

date the pre-emption suit itself was fixed for hearing. If 

the Court had not done so but had disposed of the 

application soon after it was filed the present difficulty 

would not have arisen. The pre-emptors would have had 

sufficient time to make the deposit in cash.

The extension of time in the present case was 

granted before the time originally fixed for making the 

deposit had expired and before the disposal of the suit. 

No objection could, therefore, be taken on this ground 

either. If the Court had the power to extend time it 

could do so even after the expiry of the period originally 

Civil Revision No.49002/2021

Nasir Mehmood v. Zafar Iqbal etc.

11

fixed unless the statute prohibited this or unless the 

order had become final and rendered the Court functus 

officio. The general principle is that where by an order 

time is fixed by a Court for doing any act the Court can 

grant extensions from time to time till it ceases to have 

jurisdiction over the matter or loses seisin of the matter.

In the circumstances, we are clearly of the view 

that the High Court grievously erred in holding that the 

Civil Judge had no jurisdiction at all to grant the 

extension of time. At worst, all that could be said was 

that perhaps the Civil Judge had not exercised his 

discretion in a proper manner in granting the extension 

but then the matter would not have been revisable by 

the High Court under section 115 of the Civil 

Procedure Code. Before the High Court could interfere 

under this latter section, it had to be satisfied that the 

Court below had acted illegally or with material 

irregularity in the exercise of its jurisdiction or 

exercised a jurisdiction not vested in it by law or failed 

to exercise a jurisdiction so vested. 

Obviously, the learned Judge in the High Court 

was conscious of this difficulty and hence it appears to 

us, unnecessarily went out of his way to hold that in the 

present case the Civil Judge had no jurisdiction to extend 

the time, notwithstanding the provisions of subsection (4) 

of section 22 of the Punjab Pre-emption Act.

There was, as we have already pointed out, a very 

good and substantial reason for the extension of time, 

because, even assuming that no application was made by 

the appellants for such extension of time, the Court, in 

the interest of justice, was fully competent suo motu to 

extend the time when it had by its own act made it 

practically impossible for the appellants to comply with 

its original order by adjourning the application for 

furnishing security to the 6th of January 1968.

We are thus fully satisfied that this appeal must be 

allowed and we, accordingly, allow the same with costs, 

set aside the order of the High Court and restore that of 

the trial Court. The suit should now be taken up for 

hearing and disposed of as expeditiously as possible. Let 

the records be sent down immediately.” (emphasis 

provided)

Civil Revision No.49002/2021

Nasir Mehmood v. Zafar Iqbal etc.

12

A similar view was taken by Hon’ble Supreme Court of 

Pakistan in the case reported as Sultan Ahmad and others

(Supra) by inter-alia observing as under: -

“7.

*****In this case no such order was passed 

directing the plaintiffs to pay a specific amount by way of 

deficiency in the court-fees. In the circumstances the 

plaints originally filed by the plaintiffs were still before 

the Court' on the date of the subsequent order and the 

Court was amply empowered to extend the time for doing 

the needful as earlier ordered or even pass a fresh order 

to the same effect by a specified future date. It is 

well-settled that the power vesting in the Court under 

section 148, C.P.C. can be exercised successively and 

even after the time under previous such order has 

expired……” (emphasis provided) 

Likewise, the Apex Court of the country in the case reported as 

Muhammad Nawaz and others v. Muhammad Sadiq and 

another (1995 SCMR 105) has dealt with the proposition of 

law, under discussion, in the following manner: -

“10. From the above-referred case, inter alia, it is 

evident that the consistent view of this Court is that an 

appellate Court is competent to extend time for deposit of 

the pre-emption money either during the pendency of an 

appeal before it or at the time of disposing of the same 

notwithstanding that the time mentioned in the 

pre-emption decree for the said purposes may have 

expired. Furthermore, an appellate Court may extend 

time for the above purpose at the stage when an appeal is 

not admitted for regular hearing by it or a petition for 

leave to appeal is not granted and such an extension of 

time will not be nullified by the factum that the appeal or 

the petition for leave to appeal is subsequently dismissed 

summarily. However, neither a trial Court nor an 

appellate Court can extend time for deposit of 

pre-emption money once the matter stands disposed of 

and it is no-longer pending before it. In such an event, 

Civil Revision No.49002/2021

Nasir Mehmood v. Zafar Iqbal etc.

13

the direction contained in the original decree to the effect 

that in case of failure to deposit the pre-emption money 

the suit shall stand dismissed. becomes effective. 

However, the above rule seems to be subject to one 

exception, namely, that if an appellate Court varies the 

finding of the Court below on the quantum of the 

pre-emption money, in other words it either increases or 

reduces the same, in that event, it should fix fresh 

reasonable time for deposit of the pre-emption money 

and in the absence of any such fixation, the pre-emptor 

may deposit the same within reasonable time as has been 

held by Cornelius, C.J. and Hamoodur Rahman, J. in the 

case of Shah Wali v. Ghulam Din alias Gaman and 

another (supra). It is also evident from the above reports 

that an appellate Court is not bound to grant extension of 

time in every case: The conduct on the part of a 

pre-emptor may disentitle him from pressing into service 

exercise of the above discretionary power by an 

appellate Court in his favour. It may be observed that it 

is difficult to categorize all the cases in which a 

pre-emptor will not be entitled to seek exercise of the 

above discretionary power in his favour by an appellate 

Court. It will depend on the facts of each case. If the sole 

object of a pre emptor in filing of an appeal is to delay 

deposit of the pre-emption money, about the correctness 

of which, there cannot be any reasonable doubt, to a 

reasonable man, in such a case an appellate Court may 

decline to extend the time.”

Following the above verdicts of the Apex Court of the country, 

a learned Division Bench of this Court in the case of 

Muhammad Asghar v. Mian Muhammad Hussain (2010 CLC 

22) has resolved as under: -

“12. *****The provisions of section 148, C.P.C. were 

consciously invoked by the learned trial Court whereby 

delay was condoned on the application of the 

defendant/respondent. The said provisions could be 

brought into consideration either suo motu by the Court 

in the interest of justice or on the application of the party 

concerned……

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The aforesaid view was also authenticated by the Supreme 

Court of Azad Jammu & Kashmir, in the case of Ghulam 

Rabani v. Muhammad Fiaz and another (2016 CLC 1547) in 

the following manner: -

“8.

The right of appeal is a statutory right of a party. 

Under the provision of section 107, C.P.C., the powers 

vested in the Courts of original jurisdiction are also 

available with the appellate Courts. The time for 

depositing the decretal amount is fixed by the Court 

under the provisions of Order XX, Rule 14 of Civil 

Procedure Code, whereas according to the provisions of 

section 148, C.P.C., any period fixed or granted by the 

Court for doing of any act prescribed or allowed by this 

Code including the period for depositing the decretal 

amount can be enlarged from time to time. On the legal 

proposition of enlargement of time, we have benefited 

from an authoritative judgment of the apex Court of 

Pakistan in the case reported as Muhammad Nawaz and 

others v. Muhammad Sadiq and another [1995 SCMR 

105], wherein the comprehensive appreciation of the 

statutory provision of section 148, C.P.C. has been made 

in the following terms:-

"10. From the above referred case, inter alia, it 

is evident that the consistent view of this Court is 

that an appellate Court is competent to extend time 

for deposit of the pre-emption money either during 

the pendency of an appeal before it or at the time 

of disposing of the same notwithstanding that the 

time mentioned in the pre-emption decree for the 

said purpose may have expired. Furthermore, an 

appellate Court may extend time for the above 

purpose at the stage when an appeal is not

admitted for regular hearing by it or a petition for 

leave to appeal is not granted and such an 

extension of time will not be nullified by the factum 

that appeal or the petition for leave to appeal is 

subsequently dismissed summarily. However 

neither a trial Court nor an appellate Court can 

extend time for matter stands disposed of and it is 

no longer pending before it. In such an event, the 

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direction contained in the original decree to the 

effect that in case of failure to deposit the preemption money the suit shall stand dismissed, 

become effective. However, the above rule seems 

to be subject to one exception, namely, that if an 

appellate Court varies the finding of the Court 

below on the quantum of the pre-emption money, 

in other words it either increases or reduces the 

same, in that event, it should fix fresh reasonable 

time for deposit of the pre-emption money and in 

the absence of any such fixation the pre-emptor 

may deposit the same within reasonable time as 

has been held by Cornelius C.J. and Hamoodur 

Rahman , J., in the case of Shah Wali v. Ghulam 

Din alias Gaman and another (supra). It is also 

evident from the above reports that an appellate 

Court is not bound to grant extension of time in 

every case. The conduct on the part of a preemptor may disentitle him from pressing into 

service exercise of the above discretionary power 

by an appellate Court in his favour. It may be 

observed that it is difficult to categorize all the 

cases in which a pre-emptor will not be entitled to 

seek exercise of the above discretionary power in 

his favour by the appellate Court. It will depend on 

the facts of each case. If the sole object of a preemptor in filing of an appeal is to delay deposit of 

the pre-emption money, about the correctness of 

which, there cannot be any reasonable doubt, to a 

reasonable man, in such a case an appellate Court 

may decline to extend the time." 

In the referred case, the apex Court of Pakistan has also 

held that the application for extension of time can even 

be entertained by the appellate Court after expiry of the 

time allowed by the trial Court. 

9.

The case law referred to and relied upon by the 

learned counsel for the appellant being based upon 

distinguishable factual proposition hardly applies to the 

case in hand according to its peculiar facts. Whereas, the 

case law cited by the learned counsel for the respondent 

regarding power of attorney is not required to be 

discussed as the point agitated is not convincing one. 

Even, otherwise, we have decided the appeal on merits. 

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The Courts below have rightly passed the orders 

and no illegality has been committed, hence, finding no 

force, this appeal stands dismissed. No order as to 

costs.”

The conclusion from the above case-law is that the question 

relating to extension of time to comply with an order of the 

court depends upon the facts and circumstances of each case. 

As far as the case in hand is concerned, the petitioner was 

entitled for extension of time to comply with order, dated 

15.07.2021 for the reasons that firstly he was given only one 

opportunity and secondly when he deposited the entire 

outstanding amount by 30.07.2021 the learned Trial Court was 

supposed to show grace by extending period for deposit of 

outstanding balance amount. 

11.

At the cost of repetition it is observed that since the suit 

was fixed for recording of evidence of plaintiff same could not 

be dismissed due to non-deposit of balance amount as held by 

Hon’ble Supreme Court of Pakistan in the case of Muhammad 

Asif Awan (Supra) in the following words: -

“12. Coming to the second limb of submission, the 

record reflects that the order dated 15.07.2018 of the 

trial Court whereby the appellant in the light of Hamood 

Mehmood case (supra) was directed to deposit the 

remaining consideration did not provide any penal 

consequences, on the contrary the suit was fixed for the 

evidence of the plaintiff, therefore, in our opinion, the 

suit in the circumstances could not have been dismissed 

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on account of non-deposit. The approach of the High 

Court that the non-compliance of the order directing the 

deposit would amount to failure on the part of the 

appellant to perform act necessary to the further 

progress of the suit and therefore, would result in 

dismissal of the suit under Order XVII, Rule 3, C.P.C. 

appears to be totally misconceived. The Order dated 

15.07.2018 reflects that the matter was fixed for evidence 

of the plaintiff and record does not show that further 

progress was not possible on account of non-production 

of plaintiff evidence. In the given circumstances, unless 

the appellant would have been put to notice that the nondeposit of the balance sale price would be deemed to be 

his incapability of performing his part of the contract as 

envisaged under section 24(b) rendering the contract 

non-enforceable, the suit could not have been dismissed. 

Even otherwise, the language employed in Order XVII, 

Rule 3 by using the word, "the Court may, 

notwithstanding such default, proceed to decide the suit 

forthwith" is permissive and discretionary and does not 

in all circumstances entail penal consequences and the 

discretion exercised by the trial Court by extending time 

for deposit of balance sale price pendente lite just for few 

days in the face of denial of deal by the vendor was not 

perverse entitling High Court to interfere in its writ 

jurisdiction.” (emphasis provided)

12.

There is no cavil with the proposition that in the event of 

non-compliance of a court’s order, court can invoke penal 

provisions of Order XVII rule 3 CPC but prior to resorting to 

such penal action the court should satisfy itself that the party 

concerned has failed to comply with its order despite availing 

reasonable time. Reference in this regard can be made to the 

cases reported as Zahoor Ahmed v. Mehra through Legal Heirs 

and others (1999 SCMR 105), Jind Wadda and others v. Abdul 

Hameed and another (PLD 1990 SC 1192), Haji Shamsur 

Civil Revision No.49002/2021

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Rehman and another v. Nadar Khan and 6 others (2005 CLC 

215) and United Bank Ltd. v. Haji Muhammad Rahim Khan

(1994 MLD 2312). While dealing with the issue, under 

discussion, the Apex Court of the country in the case of Jind 

Wadda and others (Supra) has inter-alia held as under: -

“Accordingly, the revision petition was dismissed. It is 

remarked with regret that the learned Judge did not read 

the record with care. It is an obvious case of misreading 

as dismissed above. It was not a case of application of 

Order WIT, Rule 3, C.P.C. Otherwise too it is not correct 

that the appellants had obtained more adjournments as 

compared to the large number of adjournments granted 

for the sake of the respondents' side. The suit was 

instituted in 1985 and it was adjourned for more than a 

dozen times for the sake of the defendants/respondents. 

However, be that as it may the fact remains that there 

was absolutely no justification for application of Order 

XVII, Rule 3, C.P.C. The impugned judgment, 

accordingly, is liable to be set aside on this ground 

alone.”

Similar view was taken by the Apex Court of the country in the 

case of Zahoor Ahmed (Supra) in the following terms: -

“4. We have heard the learned counsel for the parties 

and perused the material on record. We find that the 

Trial court had acted illegally and/or with material 

irregularity in not giving sufficient time to the 

appellant/defendant to produce his evidence in the facts 

and circumstances of the present case. The order passed 

by the Trial Court in the purported exercise of its power 

under rule 3, Order XVII, C.P.C. was not conformity with 

the well-accepted principles laid down by the Superior 

Courts. The Trial Court should have adjourned the case 

to ascertain the market value of the suit land. The 

learned Judge in Chambers was also wrong in holding 

that the appellant was employing delaying tactics. In 

such matters, the law favours the decision on merits 

rather than on technicalities unless the party concerned 

Civil Revision No.49002/2021

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19

is guilty of gross negligence, within the contemplation of 

rule 3, Order XVII, C. P.C. 

5. In view of the above, the appeal is allowed. The 

impugned judgments of the Courts below are set aside 

and the case is remitted to the Trial Court for recording 

evidence of the appellant/defendant to ascertain the 

market value of the suit land and that of the 

respondent/plaintiff, in rebuttal thereof, on 13-5-1998. 

The resolution of the other issues by the Trial Court is 

upheld. The parties shall bring their witnesses along, 

without any process of the Court, on the said date. The 

Trial Court shall finalize the matter within a week of 13-

5-1998, under intimation to the Additional Registrar of 

this Court. There shall be no order as to costs.” 

(emphasis provided)

Likewise, a learned Division Bench of Peshawar High Court in 

the case of Haji Shamsur Rehman and another (Supra) while 

deprecating invocation of penal provisions of Order XVII rule 3 

CPC without giving sufficient time to the party concerned, has 

inter-alia resolved as under: -

“11. Now coming to the revision petition, we find that 

the learned trial Court has given only one full 

opportunity to the petitioner for producing evidence and 

on his failure has closed his evidence under Order 17, 

rule 3, C.P.C. which is not justified, as such, the 

impugned order, dated 8-3-2001 is set aside.” 

13.

It is important to mention over here that the suit filed by 

the petitioner was consolidated with that of respondent No.1 

seeking cancellation of agreement to sell in favour of 

respondent No.2. It is well settled by now that when different 

proceedings are consolidated by a court of competent 

jurisdiction, they are to be decided jointly until and unless they 

Civil Revision No.49002/2021

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are unconsolidated by the same forum with tangible reasons. 

The Apex Court of the country in the case of Sheikh Khurshid 

Mehboob Alam v. Mirza Hashim Baig and another (2012 

SCMR 361), while dealing with question as to whether court 

can invoke penal provisions of Order XVII rule 3 CPC to the 

extent of one suit, especially when it was consolidated with 

another suit, has laid law to the following effect: -

“6. As to the fact of the decree in favour of the appellant 

the High Court had rightly placed reliance upon the case 

QUTUB-UD-DIN v. GULZAR (ibid) and it would not 

make any difference whether or not the decree in favour 

of the appellant came under challenge. The suits filed by 

the plaintiff and the respondent were consolidated and 

thus the same ought to have been decided together, as 

both plaintiffs prayed for decree on similar basis 

regarding the same subject matter.” (emphasis provided)

If the validity of the impugned decision is considered in the 

light of afore-referred judgment of Hon’ble Supreme Court of 

Pakistan, it becomes crystal clear that the suit of the petitioner 

could not be dismissed in isolation without deciding the fate of 

the suit filed by respondent No.1 which was consolidated with 

that filed by the petitioner. 

14.

Seemingly, undue haste on the part of the learned Trial 

Court looks to be due to its misconception about word 

“forthwith” with reference to Order XVII rule 3 ibid. The 

Hon’ble Supreme Court of Pakistan, in the case of Maulvi 

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Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others (PLD 

1971 SC 434) defined the said word in the following manner:-

“Thus it is quite clear that the word "forthwith" 

does not mean on the same day. The reasonable meaning 

of this word in the context of Order XVII, rule 3, C. P. C., 

is that the Court should proceed to decide the suit within 

a reasonable time under the circumstances of the case. In 

our opinion, the view expressed in above decision that 

the suit should be decided on the same day is not in 

accordance; with law.

In view of the above conclusion, we are satisfied 

that the trial Court was perfectly justified in adjourning 

the case for argument so as to enable him to proceed 

with the suit forthwith. We, therefore, find no fault with 

the order of the trial Court and are satisfied that it is a 

perfectly legal order. There is, therefore, no force in this 

appeal which is dismissed with costs.”

Moreover, the Hon’ble Supreme Court of Pakistan in the case 

of Muhammad Aslam v. Nazir Ahmed (2008 SCMR 942) has 

defined the said term as under: -

“It may be pointed out here that though under Order 

XVII, rule 3, C.P.C. it has been provided that where 

sufficient cause is not shown for the grant of adjournment 

the Court may proceed to decide the suit forthwith but 

the words used in the provision in question "proceed to 

decide the suit forthwith" do not mean "to decide the suit 

forthwith" or "dismiss the suit forthwith". The said rule 

simply lays down that the Court may proceed with the 

suit notwithstanding either, party fails to produce 

evidence etc. meaning thereby that in case of default to 

do a specific act by any party to the suit, he next step 

required to be taken in the suit should be taken. Though 

the word "forthwith" means without any further 

adjournment yet, it cannot be equated with the words "at 

once pronounce judgment, as used in Order XV, rule 4, 

C.P.C. where, on issuance of summons for final disposal 

of the suit either party fails, without sufficient cause, to 

produce the evidence on which he reli

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7. Since in the instant case it appears from record that on 

7-9-2006 the plaintiff himself was in attendance when the 

case was adjourned for the next day i.e. to 28-9-2006 for 

orders, otherwise recourse to Order XVII, rule 2 could 

have been made, therefore, the trial Court, despite nonproduction of witnesses by the plaintiff, ought to have 

asked the plaintiff to come in the witness-box instead of 

dismissing the suit forthwith.”

Further, a learned Division Bench of Peshawar High Court in 

the case of Government of N.-W.F.P. and others v. Fazal Maula 

and others (PLD 1993 Peshawar 192) has defined the said 

term in the following manner: -

“2. During the course of hearing the learned counsel for 

the plaintiffs respondents was confronted with. a legal 

position that Order XVII, rule 3, C.P.C. was permissive 

and not mandatory and further Court was supposed to 

proceed to decide the suit forthwith on merits that in the 

process he was to hear the arguments of the parties and 

give judgment on each and every issue in the light of the 

evidence brought on record and that he was not supposed 

to summarily decide the case in the manner as to grant a 

decree to the plaintiffs as against the defendants without 

discussion and decision on each issue……”

The accumulative study of the afore-quoted judgments leads to 

irresistible conclusion that it is not mandatory to decide the lis

on the same day when a party fails to comply with the order of 

a court rather the court should adjourn the proceedings to the 

decide the same on merits or having regard to the peculiar facts 

and circumstances of the case should extend the period for 

compliance of its own order suo moto or on the application of 

the party concerned. Insofar as the case in hand is concerned, 

admittedly, the petitioner filed application seeking extension in 

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23

time for compliance of order dated 15.07.2021 prior to expiry 

of the period fixed by the learned Trial Court for deposit of 

outstanding amount of difference. 

15.

It has not been denied by learned counsel representing 

respondent No.1 that entire outstanding amount has already 

been deposited by the petitioner with the only difference that 

Rs.3,00,00,000/- was deposited beyond the cut-off date fixed by 

learned Trial Court. There exists no provision in the Specific 

Relief Act, 1877 compelling plaintiff in a suit for Specific 

Performance of Agreement to Sell to deposit the balance 

amount of consideration rather the courts order so to adjudge 

the readiness of the plaintiff to perform his part of the contract. 

Reference in this regard can be made to the case of Muhammad 

Asif Awan (supra) wherein the question, under discussion, has 

been dealt with in the following manner:-

“7.

Admittedly, unlike section 24 of the Pre-emption 

Act, which caste a duty upon the Court in a suit for preemption to require the plaintiff to deposit in Court 1/3rd 

of the sale price, there is no provision in the Specific 

Relief Act which upon filing of the suit seeking specific 

performance of an agreement in respect of an immovable 

property cast any duty on the Court or requires the 

vendee to first deposit the balance sale consideration, 

however, since the law of Specific Relief is based on the 

principles of equity and further that the relief of specific 

performance is discretionary and cannot be claimed as a 

matter of right, therefore, the Court in order to ensure 

the bona fide of the vendee at any stage of the 

proceedings may put him to terms.”

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24

If the conduct of the petitioner is adjudged in line with the 

above quoted decision of the Apex Court of the country, upon 

deposit of the entire balance amount of consideration it cannot 

be doubted that he not willing to perform his part of the 

contract.

16.

This Court is fully cognizant of the fact that vendors are 

entitled to the consideration amount as per schedule stipulated 

in the agreement to sell and Overseas Pakistanis deserve special 

treatment as they invest their hard earned savings with the hope 

that they would get something out of it but at the same time 

while dealing with a matter Court has to strike a balance 

between the parties irrespective of their stature. Reliance in this 

regard can be placed on the cases reported as Service Industries 

Limited through Chief Financial Officer v. Government of 

Pakistan through Secretary and others (2020 CLD 562), 

Shaikh Aijazur Rehman v. The State (NAB) through Director 

General (NAB) and another (PLD 2006 Karachi 629) and M.Z. 

Khan v. Aziz-Ud-Din Ahmad Khan and others (2004 YLR 84).

17.

As per section 148 ibid, a court enjoys power to extend 

period fixed by it for performance of an act by a party to the lis

upon showing sufficient cause for non-compliance of its order 

within the stipulated period. Admittedly, the learned Trial Cour

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25

failed to exercise its powers in violation of the above provision 

despite the fact that the petitioner filed application for extension 

of time to comply with order dated 15.07.2021 prior to 

expiration of the period fixed by the Trial Court which amounts 

to failure on its part to exercise the power vested in it which 

calls for interference by this court in exercise of its revisional 

jurisdiction vested under section 115 CPC. Reliance in this 

regard can be placed on the case reported as Ahmad Yar and 6 

others v. Ghulam Rasool and 5 others (2016 CLC NOTE 42) 

wherein this Court while dealing with its powers to correct any 

illegality by a subordinate court in respect of misuse of the 

jurisdiction vested in it or its failure to exercise the jurisdiction 

vested in it has inter alia concluded as under:-

“10. So far as case law relied by the learned counsel for 

the respondents with regard to the concurrent findings of 

the courts below while dealing in the civil revision is 

concerned, as the discussion above noted shows that both 

the courts below failed to exercise jurisdiction vested in 

them by law and have misinterpreted the evidence on the 

file and failed to consider the real question in 

controversy between the parties and take note of the legal 

position involved in the case and reached to a wrong 

conclusion, therefore there is no hurdle in the way of this 

court while exercising jurisdiction under section 115 of 

the C.P.C. to correct a wrong committed by the courts 

below. In this view of the matter, the case law relied by 

the learned counsel for the respondents is not applicable 

to the facts of this case. For what has been discussed 

above, this revision is accepted. Judgments and decrees 

passed by the learned courts below dated 25.10.1995 and 

25.7.2002 are set aside. Resultantly, suit filed by the 

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26

plaintiffs-respondents stands dismissed with costs 

throughout.”

18.

Now coming to the case-law, referred by learned counsel 

for respondent No.1, I am of the view that though it has been 

held in the said case that non-deposit of balance amount in suit 

for specific performance is fatal but in the light of judgment of 

Hon’ble Supreme Court of Pakistan in the case of Asif Awan

(Supra) no reliance can be placed on the judgment passed by a 

learned Division Bench of this Court. Even otherwise, the 

learned Division Bench of this Court formulated certain points 

to be considered by the subordinate judiciary while dealing with 

question relating to deposit of balance amount by inter-alia

observing as under: -

“2.

At the time of taking cognizance of the suits by the 

civil courts, while issuing notice to the defendants, an 

order shall be made for the deposit of the balance sale 

consideration by the vendee (if he is a plaintiff in the suit) 

within a stipulated time. In sum, not more than two 

opportunities for making the deposit shall be given by 

the court. At the time of granting the second and last 

opportunity (if requested by the vendee), the civil court 

shall specifically mention the consequences that will visit 

the failure to deposit viz. that the suit shall be dismissed 

on that account. It is made clear that this order shall be 

passed separately and will not be made part of any other 

order passed for a different purpose. The amount so 

deposited as balance sale consideration shall be 

invested, pendente lite, in a profit bearing scheme with a 

high rate of return.” (emphasis provided)

Admittedly, only single chance was given to the petitioner to 

comply with the order passed by learned Trial Court, hence, 

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27

instead of lending any support to respondent No.1, the referred 

case goes in favour of the petitioner.

Viewing from another angle, in none of the cases referred 

by the learned Division Bench in its above referred judgment,

the Hon’ble Supreme Court has forbade the Trial Court to 

exercise its power to extend period already fixed to perform an 

act. Moreover, since every case has to be decided in the light of 

its peculiar facts and circumstances, in my humble opinion, the 

present case is quite distinguishable from cases referred in the 

judgment of the learned Division Bench of this Court, referred 

supra, inasmuch as in none of the referred cases the suit, which 

otherwise was consolidated with other suit(s), was decided in 

isolation in exercise of the powers vested under Order XVII 

rule 3 CPC.

19.

For what has been discussed above, instant petition is 

accepted and impugned order, dated 30.07.2021, passed by 

learned Trial Court is set-aside. As a result, the suit filed by the 

petitioner shall be deemed to be pending and learned Trial 

Court shall decide the same alongwith suit filed by respondent 

No.1 by or before 30th June, 2022, positively, under intimation 

to this Court through the Deputy Registrar (Judicial). No order 

as to cost. 

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20.

Before parting with this judgment it is observed that to 

comply with the above direction learned Trial Court would be 

at liberty to proceed with the matter on day-to-day basis.

21.

Office is directed to transmit a copy of this judgment to 

the learned District & Sessions Judge, Gujranwala, through 

fax, for its onwards information and compliance by the learned 

Trial Court. 

Judge

APPROVED FOR REPORTING

Third judgement about specific performance in this judgement both parties filed a case of specific performance but one party failed to prove his case.

Judge

For More information call or Whatsapp 0324-4010279

Judgement 

Stereo. HCJDA 38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE 

JUDICIAL DEPARTMENT

R.F.A. No.23090 of 2017

Amer Saleem

Versus

Nadeem Akhtar Mirza and another

J U D G M E N T

Date of hearing: 06.03.2023

Appellant(s) by:

Rana Nasarullah Khan, Advocate

Respondent(s)by: Mian Qaiser Kabir, Advocate for respondent 

No.2

Ch. Muhammad Shafiq Hanif, Advocate for 

respondent No.1

SHAHID BILAL HASSAN-J: This single judgment 

shall decide the captioned appeal as well as connected appeal 

bearing R.F.A.No.78460 of 2017, having been filed against one 

and the same impugned judgment and decree.

2.

Succinctly, the respondent No.1 namely Nadeem 

Akhtar is owner of suit land measuring 301-Kanals situated at 

Village Chattabad, Tehsil & District Hafizabad. Sarfraz Iqbal, 

respondent No.2 instituted a suit for specific performance of 

contract on 05.03.2011 against the respondent No.1 alleging 

therein that respondent No.1 entered into an agreement to sell 

with him regarding the suit land for a consideration of 

Rs.18,000,000/- and received Rs.3,000,000/- as earnest money 

R.F.A.No.23090 of 2017

2

vide document dated 04.02.2009; that period to accomplish the 

agreement was fixed till 04.03.2011. The respondent No.1 

contested the suit and denied the execution of the agreement to 

sell ibid and receipt of any earnest money.

On 14.03.2014, the present appellant namely Amer 

Saleem also instituted a suit for specific performance of 

contract against Nadeem Akhtar, respondent No.1 and also 

impleaded the respondent No.2 namely Sarfraz Iqbal in the 

array of defendant(s) by maintaining that agreement to sell 

dated 01.03.2011 was entered into with him by the vendor/ 

owner for a consideration of Rs.51,000,000/- (five crore ten lac 

only); that earnest money of Rs.30,000,000/- (three crore only) 

was paid and period of accomplishment of agreement was fixed 

till 15.03.2011. The respondent No.1 filed consenting written 

statement and execution of agreement to sell, receipt of earnest 

money and sale consideration was admitted. The respondent 

No.2 contested the suit on different factual and legal grounds by 

submitting written statement. 

Both the suits were consolidated by the learned trial 

Court and consolidated issues were framed.

Both the parties adduced their evidence in pro and contra. 

The learned trial Court, on conclusion of trial dismissed both 

the suits vide impugned judgment and decree dated 27.03.2017. 

The agreement to sell dated 04.02.2009 in favour of Sarfraz 

Iqbal was declared as forged, while the agreement to sell dated 

R.F.A.No.23090 of 2017

3

01.03.2011 in favour of the appellant was declared as antedated and a counter-blast to the other agreement to sell. The 

valuation of the agreement to sell of Sarfraz Iqbal was 

Rs.18,000,000/-, hence, he filed the appeal in the Court of 

learned District Judge, Hafizabad. The valuation of the 

agreement to sell in favour of the appellant was Rs.51,000,000/-

therefore, he has filed the appeal in hand before this Court. The 

connected R.F.A.No.78460 of 2017 was initially filed before 

the District Judge, concerned, which has been consolidated with 

the instant appeal.

3.

Heard.

4.

At the inception, it is observed that during course 

of arguments, the learned counsel appearing on behalf of the 

respondent No.1 namely Nadeem Akhtar Mirza has submitted 

duly sworn in affidavit, attested by Oath Commissioner on 

behalf of Nadeem Akhtar Mirza, contents whereof are 

reproduced as under:-

Affidavit

of Nadeem Akhtar Mirza S/O Col.Muhamamd Saalam 

Baig Mirza, Resident of Village Chatta Dad Tehsil and 

District Hafizbad. On oath

1. That the appeal R.F.A.No.23090 of 2017 titled 

as Aamer Saleem Vs. Nadeem Akhtar etc. 

against the decree dated 27.03.2017 is pending 

in the Lahore High Court Lahore and fixed for 

today i.e. 14.02.2019. I am the respondent 

No.1.

R.F.A.No.23090 of 2017

4

2. That my stance in the trial Court was 

consenting with the appellant Aamer Saleem. In 

the appeal, my stance is still the same. I thus 

state on oath that the appeal of Aamer Saleem 

may be accepted and his suit as prayed for may 

be decreed.

3. That I am permanently in CANADA and 

presently in Pakistan. Since I am going back to 

CANADA and would not be able to attend the 

Court in person hence, this affidavit may be 

considered as final and absolute statement by 

me.

Deponent.

Verification.

Verified on oath at Lahore on this 14th Feb. 2019 

that the contents of the contents of above affidavit 

are true and correct to the best of my knowledge.

Deponent.’

After submission of the said affidavit, when the record 

maintained by the learned trial Court has been gone through, it 

has emerged that the said Nadeem Akhtar Mirza, respondent 

No.1, while submitting his written statement in suit titled 

“Aamer Saleem v. Nadeem Akhtar Miza, etc.” submitted his 

conceding written statement having no objection on decreeing 

the suit in favour of Aamer Saleem and he also submitted 

written statement in suit titled “Sarfraz Iqbal v. Nadeem Akhtar

Mirza, etc.” and in reply to para 1-alif (on facts) he denied the 

entering of agreement to sell dated 04.02.2009 with Sarfraz

R.F.A.No.23090 of 2017

5

Iqbal but admitted the execution of agreement to sell dated 

01.03.2011 with Aamer Saleem, the present appellant for a 

consideration and denied that the same is ante-dated. After 

such a vivid admission on behalf of Nadeem Akhtar Mirza, 

there was no need to produce the marginal witnesses of the said 

document, because the case of Aamer Saleem is covered by 

Article 81 of the Qanun-e-Shahadat Order 1984. The simple 

reading of Article 81 divulges that where the execution of a 

document is admitted by the executant himself, the examination 

of attesting witnesses is not necessary. In this regard reliance is 

placed on Muhammad Afzal (Decd.) through L.Rs. and others v. 

Muhammad Bashir and another (2020 SCMR 197). Consistent 

stance of the Nadeem Akhtar Mirza, defendant, remained that 

he entered into agreement to sell with Aamer Saleem, the 

appellant and he, even, tendered a sworn affidavit before this 

Court. It is a settled principle of law that admitted facts need 

not to be proved, so production of two attesting witnesses in the 

case of Aamer Saleem was not necessary. In this regard reliance 

is placed on Muhammad Rafique and others v. Manzoor Ahmad 

and others (2020 SCMR 496), wherein it has been held that:-

‘Now, the record and in particular the pleadings of 

parties clearly show that the vendor (i.e. the 

original contesting defendant) did not deny 

execution of the agreement to sell. A fact admitted 

need to be formally proved. Reliance in this regard 

was correctly sough to be placed on Muhammad 

R.F.A.No.23090 of 2017

6

Iqbal v. Mehboob Alam 2015 SCMR 21, where (at 

pg.25) this settled principle of law has been 

reiterated. Indeed, the cited judgment was also in 

relation to a suit for specific performance and the 

admission of the agreement to sell in the written 

statement.’ (emphasis supplied)

5.

In view of the above, when the stance of the 

appellant Aamer Saleem was admitted by Nadeem Akhtar 

Mirza, the learned trial Court ought to have proceeded with the 

matter as per mandate of Rule 6 of the Order XII, Code of Civil 

Procedure, 1908, which provides:-

‘6.

Judgment on admissions. Any party may, at 

any stage of a suit, where admission of fact have 

been made, either on the pleadings, or otherwise, 

apply to the Court for such judgment or order as 

upon such admissions he may be entitled to, 

without waiting for the determination of any other 

question between the parties: and the Court may 

upon such application make such order, or give 

such judgment as the Court may think just.’

6.

Pursuant to the above discussion and while placing 

reliance on the judgments supra, we conclude that after 

unequivocal and categorical admission as well as no objection 

on decreeing suit of Aamer Saleem by Nadeem Akhtar Mirza, 

the original vendor/owner of the disputed land, the impugned 

judgment and decree to his extent cannot be allowed to sustain 

further

R.F.A.No.23090 of 2017

7

7.

As far as the suit of the respondent No.2/appellant 

in connected R.F.A.No.78460 of 2017 namely Sarfraz Iqbal is 

concerned, it is observed that the said respondent No.2 has 

miserably failed to substantiate his stance by leading 

unimpeachable, trustworthy and confidence inspiring evidence 

as the witnesses produced by him are inconsistent on material 

points and even both the witnesses are interested ones, because 

P.W.2 is servant of Sarfraz Iqbal and P.W.3 is his brother in 

law, so keeping in view the material discrepancies as to 

proceeding towards the office of Sub-Registrar and managing 

of remaining sale consideration, their evidence has rightly been 

discarded by the learned trial Court. Moreover, the respondent 

No.2 namely Sarfraz Iqbal while appearing in the witness box 

admitted that he did not manage the remaining sale 

consideration when he allegedly visited the office of SubRegistrar. So much so, Sarfraz Iqbal admitted that no receipt for 

purported payment of huge amount of Rs.3,000,000/- as earnest 

money was executed; such stance cannot be believed. The 

alleged agreement to sell in favour of Sarfraz Iqbal is written on 

plain paper and name of scribe is missing thereon, which speaks 

volumes about its veracity and the learned trial court has rightly 

observed that non-production of scribe of the document Ex.P1 

amounts to withholding the best available evidence and it may 

be inferred that said scribe if had been produced would not 

have supported the stance of the respondent No.2/appellant in 

R.F.A.No.23090 of 2017

8

connected appeal namely Sarfraz Iqbal as per Article 129(g) of 

the Qanun-e-Shahadat Order, 1984.

Even the respondent No.2 did not make any exertion to 

get the signatures of Nadeem Akhtar Miza, respondent No.1 

compared with the admitted one after specific denial of 

execution of agreement to sell Ex.P1 and making of signatures 

thereon by him (Nadeem Akhtar Mirza). The learned trial Court 

has compared the signatures of Nadeem Akhtar Mirza on Ex.P1 

with the admitted ones (made on written statement and reply to 

application) in exercise of jurisdiction under Article 84 of the 

Qanun-e-Shahadat Order, 1984 and found the same different. 

When we put a bird’s eye view over the disputed document 

Ex.P1 and admitted signatures of Nadeem Akhtar Mirza, we 

have found the assessment and comparison made by the learned 

trial Court to be true and correct. In Messrs Waqas Enterprises 

and others v. Allied Bank of Pakistan and 2 others (1999 

SCMR 85), the Apex Court of the country held:-

‘7.

It is settled principle that in certain 

eventualities Court enjoins plenary powers to itself 

compare the signature alongwith other relevant 

material to effectively resolve the main 

controversy.’

In this regard further reliance is placed on judgment reported as 

Ghulam Rasool and others v. Sardar-Ul-Hassan and another

(1997 SCMR 976).

R.F.A.No.23090 of 2017

8

connected appeal namely Sarfraz Iqbal as per Article 129(g) of 

the Qanun-e-Shahadat Order, 1984.

Even the respondent No.2 did not make any exertion to 

get the signatures of Nadeem Akhtar Miza, respondent No.1 

compared with the admitted one after specific denial of 

execution of agreement to sell Ex.P1 and making of signatures 

thereon by him (Nadeem Akhtar Mirza). The learned trial Court 

has compared the signatures of Nadeem Akhtar Mirza on Ex.P1 

with the admitted ones (made on written statement and reply to 

application) in exercise of jurisdiction under Article 84 of the 

Qanun-e-Shahadat Order, 1984 and found the same different. 

When we put a bird’s eye view over the disputed document 

Ex.P1 and admitted signatures of Nadeem Akhtar Mirza, we 

have found the assessment and comparison made by the learned 

trial Court to be true and correct. In Messrs Waqas Enterprises 

and others v. Allied Bank of Pakistan and 2 others (1999 

SCMR 85), the Apex Court of the country held:-

‘7.

It is settled principle that in certain 

eventualities Court enjoins plenary powers to itself 

compare the signature alongwith other relevant 

material to effectively resolve the main 

controversy.’

In this regard further reliance is placed on judgment reported as 

Ghulam Rasool and others v. Sardar-Ul-Hassan and another

(1997 SCMR 976).

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