Additional amount 20 lakh pay in specific performance revision
Stereo. H C J D A 38.
JUDGMENT SHEET
LAHORE HIGH COURT
MULTAN BENCH MULTAN
JUDICIAL DEPARTMENT
C.R. No.16-D of 2021
Ghulam Akhtar
vs.
Muhammad Iqbal
J U D G M E N T
Date of Hearing: 30.05.2024
Petitioner by:
Rana Muhammad Nazir Khan Saeed,
Advocate.
Respondent by:
Mr. Muhammad Salman Amir, Advocate.
Anwaar Hussain, J. The respondent, Muhammad Iqbal,
instituted a suit for specific performance of contract, against the
petitioner, on the basis of a written agreement to sell dated
01.06.2013 (“agreement”) with the averments that total sale
consideration for the suit property was settled as Rs.2,400,000/-, out
of which, an amount of Rs.100,000/- was received by the petitioner
as earnest money, in the presence of witnesses and the remaining
was to be paid within one year and possession of the suit property
was handed over to the respondent, however, when the respondent
requested for execution of the sale deed, the petitioner declined
which constrained the respondent to institute the suit that was
contested by the petitioner, inter alia, on the ground that the
agreement is fraudulent and the possession of the suit property was
not given to the respondent under the agreement. The suit was
dismissed by the Trial Court, vide judgment and decree dated
17.12.2018, against which the respondent preferred an appeal that
was allowed and through impugned judgment and decree dated
C.R. No.16-D of 2021
23.01.2020, the suit of the respondent was decreed. Hence, the
present civil revision.
2.
Learned counsel for the petitioner states that the judgments of
the Courts below are at variance. Adds that well-reasoned judgment
of the Trial Court has been upended by the Appellate Court below,
without properly appreciating the evidence available on record.
Contends that the name of the scribe (PW-2) was not reflected in the
plaint and hence, the testimony of PW-2 as the scribe was beyond
pleadings; that the petitioner was pursuing litigation before the
Revenue Authorities for partition of the suit property forming part of
joint khata and it belies logic that the petitioner would be selling his
property to the respondent; and that even if the agreement is
presumed to be genuine, the respondent had no resources to pay the
balance sale consideration as the same was not tendered before the
Trial Court at the time of filing of the suit, which reflects that the
respondent was neither willing nor ready to perform his part of the
agreement.
3.
Conversely, learned counsel for the respondent supports the
impugned judgment and decree passed by the Appellate Court
below. As regards non-deposit of balance consideration, learned
counsel submits that the respondent was not directed by the Trial
Court to deposit the balance sale consideration and when the suit
was decreed in appeal, the respondent immediately deposited the
said amount within 10-days as directed by the said Court and in
order to substantiate his contentions, has produced the original
challan that has been seen and returned. He also adds that in the
execution proceedings, the petitioner has not appeared and Bai
Nama Sultani¸ in favour of the respondent has also been registered,
in respect of the suit property
C.R. No.16-D of 2021
4.
Arguments heard. Record perused.
5.
While the Trial Court was persuaded with the fact that no
record of rights exhibiting ownership of the petitioner/defendant, as
on the date of the execution of the agreement, was examined and has
not been referred in the agreement and signatures and/or thumb
impression of the petitioner were not available on the revenue tickets
affixed on the agreement, to non-suit the respondent; the Appellate
Court below has relied upon the admission on part of the petitioner
qua his signatures on the agreement to upend the findings of the
Trial Court. Therefore, it is for this Court to examine whether the
Appellate Court below erred in upending the judgment of the Trial
Court by exercising jurisdiction in a manner which warrants
interference of this Court in exercise of revisional jurisdiction and
whether while passing the impugned judgment, principles of equity
were kept in sight by the Appellate Court below.
6.
I have perused the record with abled assistance of learned
counsel for the parties. There is no doubt that the agreement brought
on record as Exh.P-1 is not written on a stamp paper but on a letter
head. There is also no denial of the fact that it was not scribed by an
authorized person/stamp vendor and PW-2 was not referred in the
pleadings as scribe of the agreement, however, civil cases are to be
decided on the basis of preponderance of evidence and perusal of the
record reveals that the petitioner while appearing as DW-1 was
ہی ۔۔۔۔۔۔۔۔۔۔ دمیع اک درتف اہجں ھٹیب رک وسدا ایک اھت ایمونایل وہلٹ ےک اسھت ےہ۔ "َََ:asked a specific questions to which he responded as under
"۔ رپ ریمے دطختس ںیہ Exh-P-1 درتس ےہ ہک
The above quoted portion of the statement of the petitioner
constitutes an unequivocal admission of the execution of the
agreement. It is also noted that while the petitioner admitted the
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C.R. No.16-D of 2021
execution of the agreement during cross-examination, he denied
affixing of signatures and/or thumb impression on the agreement in
his pleadings and has reiterated the same stance before this Court.
However, there is no explanation as to why no effort was made by
the petitioner to seek comparison of his admitted thumb impression
and/or signatures with the disputed signatures and thumb impression
on the agreement. Furthermore, while being cross-examined, the
petitioner also stated as under:
"-----ںیم ےن وج دروخاںیتس دی ںیھت ابتب ہضبق ریمی وکیئونشایئہن وہیئریمی دروخاتس ڑلایئ
ڑگھجا وریغہ یک ابتب یھت ۔ ۔۔۔۔۔۔۔۔۔ںیم ےن ڑلایئ ڑگھجا اک دمحم اابقل وک رایض انہم رحتری رک ےک دای
اھت اہتبل ںیم ےن ارقارانہم یک ابتب اور ارقار انہم ےک وگااہن ےک الخف اھتہن رپ وکیئ دروخاتس ہن دی
ےہ۔۔۔۔۔۔۔۔۔۔۔۔۔۔زابین رایض انہم وہا اھت۔"
7.
In view of the above quoted admission of the petitioner, even
if the version of the petitioner is accepted that the respondent
forcibly took possession of the suit property, admittedly, there was
no application of the petitioner for registration of criminal case in
that regard and only applications on account of quarrels and
wrangles with the petitioner were filed, which too were dismissed. It
belies logic that a person will lose his entire land on account of use
of force and will remain mum and will not initiate legal proceedings
against the culprits. Moreover, the Appellate Court below has aptly
encapsulated the entire controversy in the impugned judgment while
dealing with assertion of the petitioner that he was pursuing the
litigation on the revenue side and hence, logically cannot execute an
agreement to sell. Operative part of the impugned judgment reads as
under:
“15. Further, admittedly possession of the suit
property was with the appellant and although
respondent attempted to justify the same by alleging
and stating that appellant took the possession forcibly
but this stance was not substantiated by the respondent
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C.R. No.16-D of 2021
during the evidence and he failed to place on file any
document to prove that he ever approached to the
concerned quarters for recovery of possession.
Admittedly respondent had not filed any suit for
possession against the appellant till to date. Keeping in
view the admission on behalf of respondent regarding
signatures available on agreement to sell Exh.P-1 it is
proved that long standing, continued and uninterrupted
possession of the appellant over the suit property is in
consequence of the agreement to sell Exh.P-1.
16. Learned trial court was swayed with the
documentary evidence produced by the respondent to
prove that some litigation was already pending before
the revenue court between the parties and due to
which execution of agreement to sell was uncalled
for. It is available from the record that appellant had
earlier purchased the share of brothers and sisters of
the respondent whereupon a petition for partition was
filed by the respondent. This was not such kind of
litigation prohibiting the execution of agreement to
sell. In addition to all above according to the
document Exh.P-1 the suit property was purchased by
the appellant against a consideration of
Rs.24,00,000/- whereas a meager amount of
Rs.1,00,000/- has been shown to be paid as earnest
money which shows bona fide on part of appellant
and there was no restraint upon him to mention a
bigger portion of price of the suit property to be
mentioned as earnest money if the agreement to sell
Exh.P-1 was prepared with forgery.”
(Emphasis supplied)
This Court agrees with the reasoning put forth by the Appellate
Court below while holding that the agreement stood proved. It is
settled principle of law that in the event of a conflict between the
judgments of the Courts below, preference should be given to the
views of the Appellate Court below, who had the opportunity of reexamining and analyzing the evidence on the record. Cases reported
C.R. No.16-D of 2021
as “Enayat Sons (Pvt.) Ltd. v. Government of Pakistan through
Secretary, Finance and others” (2007 SCMR 969) and
“Muhammad Hafeez and another v. District Judge, Karachi East
and another” (2008 SCMR 398) are referred in this regard.
8.
However, this Court cannot lose sight of the fact that in terms
of Section 22 of the Specific Relief Act, 1877 (“the Act”), the
jurisdiction of the Courts to issue a decree of specific performance is
discretionary/equitable in nature, thus, the Court is not bound to
grant such relief merely because it is lawful to do so. In cases
involving specific performance, the primary part of the contract is
the consideration to be paid by the vendee for which he must exhibit
his willingness and readiness, at all times. In this regard, the vendee
must unconditionally seek permission of the Court, on the first date
of hearing, to deposit the remaining sale consideration. The Supreme
Court in case reported as “Hamood Mehmood v. Mst. Shabana
Ishaque and others” (2017 SCMR 2022) observed that it is
mandatory for a person seeking performance of the contract, under
the Act, to seek permission of the Court to deposit the balance sale
consideration. The respondent/plaintiff had admittedly not made any
such request in terms of settled principle of equity i.e., “he who
seeks equity must do equity”, without waiting for any direction
from the Trial Court and/or the Appellate Court till such time the
suit was decreed by the latter Court.
9.
No doubt that the Trial Court did not direct the respondent to
deposit the balance sale consideration until the Appellate Court
below decreed the suit, however, the same enabled the respondent to
enjoy the possession of the suit property, for good 07 years
approximately, while he only paid Rs. 100,000/- to the petitioner,
which constitute approximately 4%, only, of the total sale
consideration (Rs. 2,400,000). Generally, a substantial amount, at
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C.R. No.16-D of 2021
least 20 or 25% of the sale consideration amount, is paid as earnest
money and even more in cases when the agreement to sell is
executed coupled with handing over of the possession, to the
vendees. In the present case, a meagre amount of Rs.100,000/- was
paid as earnest money and the possession of the suit property was
also taken over by the respondent whereafter the respondent
continued to retain both the possession of suit property as well as the
96% of outstanding sale consideration, which in the opinion of this
Court is inequitable, on the part of the respondent. Inequity
perpetuated when neither the Trial Court nor the Appellate Court
below directed deposit of the balance consideration, at the time of
entertaining the suit or admitting the appeal preferred by the
respondent, in addition to the fact that the respondent never showed
his willingness to deposit the balance sale consideration. This aspect
of the matter has not been considered by the Appellate Court below,
which needs to be corrected by this Court while exercising
revisional jurisdiction.
10. There is no denial that with the passage of time, there has
been inflation in the country and Pakistani Rupee has considerably
devalued. While the petitioner claims that price of similar property
in the vicinity has escalated thrice, learned counsel for the
respondent could not refute that the price has been doubled during
the pendency of the proceedings. Therefore, it is equitable to
improve the total sale price. In this regard, I am fortified by the dicta
laid down in case reported as “Muhammad Siddique vs. Muhammad
Akram” (2000 SCMR 533). While the findings of the Appellate
Court below are upheld, the respondent is directed to deposit
additional Rupees Two Million, within a period of two months, from
today with the Treasury Office where the respondent had already
deposited the balance sale consideration (i.e., Rs. 2,300,000), in
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C.R. No.16-D of 2021
compliance with the impugned judgement dated 23.01.2020. In case
of failure on part of the respondent to deposit the said amount, this
judgment shall cease to have an effect and the petition shall deemed
to have been accepted as prayed for.
11. Disposed of in above terms. No order as to costs.
(ANWAAR HUSSAIN)
JUDGE
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