Specific performance after 29 years of agreement . dissmissed
 |
| Specific performance after 29 years of agreement . dissmissed |
**دعویٰی محمد نواز، مقدمے کے مدعی، نے تعمیل مختص کے لیے مقدمہ دائر کیا تھا۔ ان کا دعویٰ تھا کہ 16 مئی 1960 کو سرفراز احمد اویسی، جو کہ موجودہ درخواست گزار (مست عائشہ بی بی) کے والد تھے، نے 1 کنال زمین کی فروخت کے لیے معاہدہ کیا تھا جس کی قیمت 500 روپے تھی۔ محمد نواز کا کہنا تھا کہ انہوں نے یہ رقم ادا کر دی تھی اور انہیں زمین کی قبضہ بھی مل گیا تھا، مگر سرفراز احمد اویسی کی وفات اور دیگر قانونی مسائل کی بنا پر فروخت کا معاہدہ رجسٹرڈ نہیں ہو سکا۔ محمد نواز نے دعوی کیا کہ معاہدے کی بنیاد پر زمین کا رجسٹرڈ فروخت نامہ ان کے حق میں کیا جائے۔
**جواب:**
مست عائشہ بی بی اور دیگر مدعیان نے اس دعوے کو چیلنج کیا۔ ان کا موقف تھا کہ:
- مقدمہ وقت پر دائر نہیں کیا گیا ہے اور یہ مدت کے اعتبار سے باطل ہے۔
- معاہدہ برائے فروخت (Exh.P1) قانونی طور پر درست نہیں ہے کیونکہ محمد نواز کے دستخط نہیں ہیں۔
- محمد نواز کرایہ دار ہے اور زمین کی ملکیت کا دعویٰ نہیں کر سکتا۔
**فیصلہ:**
ٹرائل کورٹ نے مدعی محمد نواز کی درخواست کو مسترد کرتے ہوئے ان کے دعوے کو خارج کر دیا۔ ٹرائل کورٹ نے اس بات پر غور کیا کہ مقدمہ وقت پر دائر نہیں کیا گیا اور معاہدہ برائے فروخت کا کوئی مضبوط ثبوت موجود نہیں ہے۔
محمد نواز نے اس فیصلے کو اپیل کیا، جو ایڈیشنل ڈسٹرکٹ جج کے سامنے آئی۔ ایڈیشنل ڈسٹرکٹ جج نے اس فیصلے کو درست قرار دیتے ہوئے محمد نواز کی اپیل کو قبول کر لیا اور ان کے حق میں فیصلہ دیا۔
تاہم، ہائی کورٹ نے اس اپیلیٹ کورٹ کے فیصلے کو غلط پایا اور کہا کہ ایڈیشنل ڈسٹرکٹ جج نے ثبوتوں کا درست انداز میں مطالعہ نہیں کیا تھا۔ اس لیے ہائی کورٹ نے ایڈیشنل ڈسٹرکٹ جج کے فیصلے کو کالعدم
قرار دیتے ہوئے ٹرائل کورٹ کا فیصلہ بحال کر دیا۔
**عدالتی ریمارکس:**
**فیصلہ:**
*مست عائشہ بی بی بمقابلہ ظفر اقبال* (CR No.551-D-2001/BWP) میں لاہور ہائی کورٹ نے نچلی عدالتوں کے فیصلوں کا جائزہ لیا جو کہ زمین کی فروخت کے معاہدے کی خاص کارکردگی سے متعلق تھا۔
**حقائق:**
- محمد نواز، جو کہ مدعیوں کے پیشرو تھے، نے 16 مئی 1960 کو ایک زمین کی فروخت کے معاہدے کی مخصوص کارکردگی کے لیے مقدمہ دائر کیا، یہ دعویٰ کرتے ہوئے کہ انہوں نے 500 روپے کی ادائیگی کی اور 1 کنال زمین کی قبضہ حاصل کی، لیکن فروخت کا معاہدہ قانونی پیچیدگیوں اور اویسی کی وفات کے باعث رجسٹر نہیں ہو سکا۔
- ٹرائل کورٹ نے مقدمہ مسترد کرتے ہوئے کہا کہ یہ مقدمہ وقت پر دائر نہیں کیا گیا اور معاہدے کا کوئی مضبوط ثبوت موجود نہیں ہے۔
- ایڈیشنل ڈسٹرکٹ جج نے اس فیصلے کو کالعدم قرار دیتے ہوئے محمد نواز کے حق میں فیصلہ دیا۔
- تاہم، ہائی کورٹ نے ایڈیشنل ڈسٹرکٹ جج کے فیصلے کو غلط پایا، ثبوتوں اور طریقہ کار میں مسائل پر اشارہ کیا۔
**عدالتی ریمارکس:**
- معاہدہ برائے فروخت (Exh.P1) کو غیر معتبر قرار دیا کیونکہ محمد نواز نے اسے دستخط نہیں کیا، جس سے اس کی قابل عملیت پر سوالات اٹھتے ہیں۔
- معاہدہ کسی اسٹامپ کاغذ پر نہیں تھا، جس کی وجہ سے اس کی شواہد کی قدر کم ہو گئی۔
- مقدمہ معاہدے کے تقریباً 29 سال بعد دائر کیا گیا، جو کہ وقت کی حدود سے تجاوز کر گیا اور اس کے لیے کوئی قابل قبول وضاحت پیش نہیں کی گئی۔
- ہائی کورٹ نے مدعی کے بیانات میں تضاد اور قابل اعتماد شواہد کی کمی کو نوٹ کیا۔
**فیصلہ:**
لاہور ہائی کورٹ نے ایڈیشنل ڈسٹرکٹ جج کے فیصلے کو کالعدم قرار دیتے ہوئے ٹرائل کورٹ کے فیصلے کو بحال کر دیا، جس نے مقدمہ کو وقت پر نہ دائر کرنے اور شواہد کی کمی کی بنیاد پر مسترد کر دیا تھا۔
ہائی کورٹ کے فیصلے نے اس بات پر زور دیا کہ معاہدے کی قانونی حیثیت کے لیے درست دستاویزات اور بروقت مقدمہ دائر کرنا ضروری ہے۔
Form No.HCJD/C-121
ORDER SHEET
LAHORE HIGH COURT, BAHAWALPUR BENCH,
BAHAWALPUR.
JUDICIAL DEPARTMENT
Aisha Bibi.
Vs
Zafar Iqbal.
CR. No.551-D-2001/BWP
JUDGMENT
Date of
hearing:
18.02.2014
Appellant by:
Jam Muhammad Sajjad, Advocate
Respondent by: Mr. M.A Rasheed Chaudhary, Advocate for the
respondent.
SADAQAT ALI KHAN, J. The instant Civil
Revision has been filed by the present petitioner Mst.
Ayesha Bibi against the judgment and decree dated
21.12.2000 passed by Additional District Judge,
Bahawalpur according to which appeal of the
plaintiffs/respondents was accepted and their suit was
decreed.
2.
Brief facts are that Muhammad Nawaz predecessor
in interest of respondent No.1 to 11 filed suit for specific
performance of agreement to sell dated 16.05.1960(Exh.P1)
on 07.10.1989 against the petitioner and respondent No.12
to 19 with the assertion that Sardar Ahmad Owaisi father of
the present petitioner and predecessor in interest of
respondent No.1 to 11 had entered into an agreement to sell
of the land measuring 1 Kanal from rectangle No.552/6
against Rs.500/- and after receiving the sale consideration
Sardar Ahmad Owaisi delivered possession to Muhammad
Nawaz plaintiff in 1960. It is further stated that late Sardar
Ahmad Owaisi could not execute registered sale deed due
to land reform litigation which were pending before various
forums. It is stated in the plaint that Sardar Ahmad Owaisi
died in 1977 and his inheritance mutation was not attested
and defendant No.4 Mst. Abida Bibi sought the assistance
of the court in this regard as a result of which inheritance
mutation No.5608 and 750 were attested in November
CR No.551-D-2001/BWP
2
1985. Mst. Jamila Wd/O Sardar Ahmad Owaisi was also
died. It is stated that Muhammad Nawaz plaintiff called
upon the defendant to honour the agreement and execute
registered sale deed in his favour but they declined to do so.
Present petitioner Mst. Ayesha Bibi being defendant No.1
and Mst. Najam-un-Nisa respondent No.12 being defendant
No.2 contested the suit whereas other defendants were
proceeded against ex-parte. However, respondent
No.12/defendant Mst. Najam-un-Nisa conceded the claim
of the plaintiff while present petitioner/defendant No.1 has
contested the same and submitted written statement, raising
preliminary objection by stating that suit is hopelessly time
barred. The alleged agreement has no legal value and
further stated that plaintiff is a tenant and suit land is not
under the possession of the plaintiff on the basis of alleged
agreement to sell.
3.
Out of the divergent pleadings of the parties
following issues were framed by the trial court:-
ISSUES
1.
Whether the suit is time barred? OPD
2.
Whether the agreement to sell has no legal
value? OPD
3.
Whether Sardar Ahmad Owaisi
the
predecessor in interest of the defendants had
executed the agreement to sell in dispute? OPP
4.
Whether the plaintiff is a tenant and not owner
of the property in dispute? OPD
5.
Whether the defendant is entitled to recover
special costs under section 35-A of CPC? OPD
6.
Relief.
5.
Plaintiff produced Muhammad Ramzan as PW1,
Muhammad Shafi PW2, Ghulam Owais PW3, Imam
Mujtaba PW4, Muhammad Nawaz Qureshi PW5,
Muhammad Rafi-ud-Din Shah PW6, Babu Din PW7,
Muhammad Amin PW8 and himself appeared as PW9 and
CR No.551-D-2001/BWP
3
produced in documentary evidence disputed agreement to
sell as Exh.P1, decision of arbitration counsel for
permission of second marriage dated 29.05.1975 Exh.P2,
rent deed dated 26.01.1981 pertaining to Babu Din PW7
Exh.P3, another rent deed regarding shops No.7 and 8 dated
21.01.1988 Exh.P4, a third rent deed dated 09.08.1984
Exh.P5, 4th rent deed pertaining to Muhammad Amin PW8
Exh.P6, attested copy of the order of Additional
Commissioner dated 09.08.1971 Exh.P3, attested copy of
order of Additional Commissioner Bahawalpur dated
29.09.1971 Exh.P14, attested copy of order of
Commissioner dated 19.05.1973 Exh.P15 and closed the
evidence. On the other hand Haji Faqeerullah husband of
the present petitioner being attorney of the petitioner
appeared as DW1 and produced Abdul Ghaffar as DW2
who produced registered sale deed executed by Mian
Sardar Ahmad in his favour dated 14.07.1979 as Exh.D2.
After conclusion of the trial, learned trial court heard the
arguments from both sides and thereafter dismissed the suit
of the plaintiff predecessor of respondent No.1 to 11 who
preferred an appeal before the District Judge, Bahawalpur
which was entrusted to Additional District Judge,
Bahawalpur and the same was accepted on 21.12.2000 in
result of which suit of respondents No.1 to 11 was decreed.
Hence, this civil revision.
6.
Learned counsel for the petitioner submitted that
judgment and decree dated 21.12.2000 passed by learned
Additional District Judge, Bahawalpur is against law and
facts on the file and is liable to be set aside. It is further
submitted that plaintiff has failed to prove his case and suit
was rightly dismissed by the learned trial court. It is further
submitted that alleged agreement to sell Exh.P1 has not
been proved by the plaintiff and it is a forged document. It
is further submitted that alleged agreement to sell Exh.P1 is
not executable document as Muhammad Nawaz plaintiff is
not signatory of the document. It is further submitted that
CR No.551-D-2001/BWP
4
alleged agreement was allegedly executed on 16.05.1960
whereas suit was filed by the plaintiff Muhammad Nawaz
on 07.10.1989 and same is hopelessly time barred. It is
lastly submitted that this civil revision may be accepted and
the judgment and decree dated 21.12.2000 passed by
Additional District Judge, Bahawalpur may be set aside and
judgment and decree dated 05.12.1995 of the trial court
may be restored.
7.
On the other hand learned counsel for the
respondents(plaintiffs) submitted that judgment and decree
dated 21.12.2000 of Additional District Judge Bahawalpur
is quite legal in which every piece of evidence has been
discussed and rightly the appeal of the plaintiffs was
accepted and suit was decreed. It is further submitted that
due to the land reform litigation suit could not be filed and
this fact has been considered by the lower appellate court
and suit of the plaintiff was rightly treated within time. It is
further submitted that plaintiff has proved the document i.e.
agreement to sell Exh.P1 with solid evidence which was
rightly considered by the lower appellate court by accepting
the appeal of the plaintiffs/respondents No.1 to 11 and suit
was decreed. It is further submitted that possession of the
plaintiff on the suit property is admitted and lastly
submitted that civil revision may be dismissed.
8.
I have heard the learned counsel for the parties and
perused the record.
9.
Exh.P1 is an agreement to sell on the basis of which
Muhammad Nawaz plaintiff predecessor in interest of
respondents No.1 to 11 had filed suit for specific
performance of land measuring 1 Kanals from rectangle
No.552 situated within revenue estate of Mauza Khanqah
allegedly executed by Sardar Ahmad Owaisi father of the
present petitioner. To prove this document Muhammad
Nawaz plaintiff produced Muhammad Ramzan as PW1
who stated that in the year 1960 he was attorney of Sardar
Ahmad Owaisi and he was dealing the matter of sale and
CR No.551-D-2001/BWP
5
purchase of the land of Sardar Ahmad Owaisi being
attorney and stated that 1 Kanal land in village Khanqah
Sharif was sold to Muhammad Nawaz plaintiff against
Rs.500/- and the document Exh.P1 in this regard was
written by him and his signatures are Exh.P1/1 and further
stated that Sardar Ahmad Owaisi had signed before him
which is Exh.P1/2 and stated that sale price Rs.500/- in his
presence Sardar Ahmad had received. In cross examination
he stated that his eye side is weak and he cannot read
Exh.P1 and stated that price of the land was received by
him and thereafter he paid the same to the owner. He
admitted that he has no power of attorney of Sardar Ahmad
Owaisi and further stated that he had returned the power of
attorney after termination from the service. He further
stated that he remained as clerk of an Advocate. I think
that this witness is not believable as he neither proved
himself as attorney of Sardar Ahmad Owaisi through oral
evidence nor produced any document in this respect and he
himself admitting on one hand that he had received the sale
price of the suit land in the cross examination and on the
other hand in same breath stated that he paid the same to
the owner. It is not acceptable that in presence of original
owner Sardar Ahmad Owaisi why Muhammad Nawaz paid
sale price to this witness Muhammad Ramzan and further
this witness has not been shown in agreement to sell
Exh.P1 as attorney of Sardar Ahmad Owaisi and nowhere it
is mentioned in Exh.P1(agreement to sell) that Muhammad
Ramzan firstly received the sale price and then handed over
the same to Sardar Ahmad Owaisi. PW9 Haji Muhammad
Nawaz himself appeared as a witness and stated that he had
purchased land measuring 1 Kanal from Sardar Ahmad
Owaisi against Rs.500/- that he had paid sale price to
Ramzan Munshi PW1 who thereafter paid the same to
Sardar Ahmad Owaisi in his presence. He further stated
that the document Exh.P1 agreement to sell was written by
Ramzan Munshi PW1 in his presence but it is very strange
CR No.551-D-2001/BWP
6
that Mian Ghulam Mustafa, Abdul Ghani and Allah
Wasaya alleged marginal witnesses of document are
mentioned in the document Exh.P1 who allegedly signed
the same though who were not produced due to
unavoidable circumstances but why the plaintiff could not
sign the document Exh.P1. This thing itself creates doubt
regarding preparation of agreement to sell Exh.P1. It is
settled principle of law that unilateral agreement not signed
by the vendee was not mutually enforceable and no effect
could be granted. Reliance is placed on case titled “Mst.
Ghulam Hamid VS. KH Abdul Rehman and others” 2010
SCMR 339 in which case Supreme Court of Pakistan
observed as under:-
“A perusal of the deed would indicate that it was
signed by the appellant Mst. Ghulam Hamid alone
and not by any of the three vendees. As evident
from the contents of the deed, it created rights and
liabilities on both sides. Had there been an
occasion for the owner-lady to bring a suit for
specific performance, she would not have
succeeded because the vendees had not signed the
deed so as to accept any of the liabilities. The
circumstances under which the contract is made
are such that the present plaintiffs are given an
unfair advantage over the defendant. Section. 22
of the Specific Relief Act, 1877 clearly provides
that in such circumstances, the discretion is not to
be exercised in favour of the plaintiffs. For ready
reference section 22 (clause-I) is reproduced as
follows:
22. Discretion as to decreeing specific
performance.--- The jurisdiction to decree specific
performance is discretionary, and, the Court is not
bound to grant such relief merely because it is
lawful to do so; but the discretion of the Court is
not arbitrary but sound and reasonable, guided by
CR No.551-D-2001/BWP
7
judicial principles and capable of correction by a
Court of appeal.
The following are cases in which the Court may
properly exercise a discretion not to decree
specific performance:
1.
Where the circumstances under which the
contract is made are such to give the plaintiff an
unfair advantage over the defendant, though there
may be no fraud or misrepresentation on the
plaintiff’s part”.
7.
This Court in Arif Shah VS. Abdul Hakeem
Qureshi PLD 1991 SC 905(e) held that the
illustrations, given in S.22 are a few instances
where discretion should not be exercised in favour
of specific performance. Rather, these,
illustrations were held to be not exhaustive and
the Courts were at liberty, in the circumstances of
each case, to visualize any other circumstances as
falling within the purview of S.22 of Specific Relief
Act. So far as the case in hand is concerned, it is
directly and squarely hit by illustration I of
section 22.
8.
The evidence shows that the three plaintiffs
belonging to Sialkot and having the blessings of
local property dealers brought a lady-owner
around in such a manner so as to take unfair
advantage. They kept themselves immune from
any future claim of the opposite party by not
signing the deal at all. It is admitted in the
evidence that the plaintiffs had tempered with the
document. It is admitted in the evidence that the
document was executed by the lady at Islamabad.
It is surprising to observe that it was attested on
18.6.1986 by an Oath Commissioner at Sialkot, in
the absence of the deponent executant. The
plaintiffs have, thereby, resorted to forgery as
well. We are of the firm view that in the very
construction of the agreement, it was not mutually
CR No.551-D-2001/BWP
8
enforceable and hence no decree of specific
performance could be granted.
21.
As a sequel to the above discussion, we
hold that the unilateral agreement not signed by
the respondents was not mutually enforceable;
that, no decree could be granted because of the
withdrawal of NOC; that, it were the respondents
who malafidely exploited the situation, tempered
with the deed, forged the same through an Oath
Commissioner in the absence of executant, failed
to perform within 15 days despite the positive
knowledge of the NOC and above all were guilty
of misrepresentation about the pay order which
they had already withdrawn. Resultantly, the
appeal is accepted, the impugned judgment dated
09.07.1999 of the learned High Court is set aside
and that dated 31.07.1993 of the learned Trial
Court is hereby restored.”
10. In view of above in my view it does not constitute a
valid contract because offer and acceptance when reduced
into writing and one of the parties to the contract does not
sign or thumb mark the same how it can be termed as a
valid contract enforceable by the law. Moreover, alleged
agreement to sell Exh.P1 is on a simple paper of some diary
and it is not on a stamp paper. It was to be impounded by
the court when presented in evidence without stamp duty,
therefore, it has a little evidentiary value. In this regard
reliance is placed on case titled “Faqeer Bakhsh VS. Khan
Muhammad” 2013 MLD 955. PW2 is Muhammad Shafi.
He simply stated that he has identified the signatures of his
father Haji Allah Wasaya on the document Exh.P1 and he
has not uttered a single word regarding agreement to sell.
Likewise PW3 Ghulam Owais stated that plaintiff had
purchased suit land from Sardar Ahmad Owaisi and he is
not the witness of the transaction. So his evidence is
discarded being hearsay evidence. PW4 Imam Bakhsh
simply stated that plaintiff constructed some shops at the
CR No.551-D-2001/BWP
9
Lorry Adda of Khanqah Sharif. Muhammad Nawaz
Qureshi PW5 stated that he has not brought record of Union
Council Khanqah Sharif pertaining to year 1960 which was
burnt in the year 1988. Muhammad Rafi-ud-Din PW6
simply stated that he has brought the record of union
council pertaining to application titled “Nazar Muhammad
VS. Tasleeman Khatoon” for second marriage. Babu Din
PW7 stated the same fact. So plaintiff could not prove the
document Exh.P1 agreement to sell. PW9 Muhammad
Nawaz plaintiff stated in Para No.3 of the plaint that due to
land reform litigation Sardar Ahmad Owaisi could not
execute registered sale deed in his favour and further stated
in Para No.4 of the plaint that Sardar Ahmad Owaisi died in
the year 1979. Thereafter litigation on the basis of
inheritance mutation regarding the disputed property was
started by filing a suit in the civil court by Mst. Abida Bibi
defendant No.4 and thereafter suit was filed. I think that
this explanation is not sufficient bringing the suit within
time as Muhammad Nawaz plaintiff while appearing as
PW9 before the trial court explained the delay for filing the
suit stated that Sardar Ahmad Owaisi went abroad and due
to some family dispute he could not execute registered sale
deed in his favour. So there is glaring contradiction
between plaint and the statement of plaintiff PW9. Further
in Para No.4 of the plaint PW9 himself admitted that suit
between the legal heirs of Sardar Ahmad Owaisi was
remained pending filed by Mst. Abida defendant No.4
pertaining to the inheritance dispute after the death of
Sardar Ahmad Owaisi original owner of the suit property
and thereafter that suit was decreed and civil court had
determined the shares of the legal heirs of Sardar Ahmad
Owaisi regarding the suit property. So plaintiff despite
knowledge of said litigation remained mum for so many
years and had not joined the litigation with his version that
he had purchased some share measuring 1 Kanal from the
land left by Sardar Ahmad Owaisi through Exh.P1
CR No.551-D-2001/BWP
10
(agreement to sell) and he was entitled for the same.
Further DW2 Haji Ghaffar produced registered sale deed
Exh.D2 dated 14.07.1979 executed by Sardar Ahmad
Owaisi according to which DW2 Hafiz Abdul Ghaffar had
purchased land from Sardar Khan within the revenue state
of Khanqah Sharif. So the version of the plaintiff became
false as if agreement to sell Exh.P1 was a genuine
document then there was no hurdle for execution of the sale
deed by Sardar Ahmad Owaisi in favour of Muhammad
Nawaz plaintiff within his life time. Exh.P1 was allegedly
executed on 06.05.1960 whereas suit was filed on
07.10.1989 with the delay of about 28 years which is
hopelessly time barred. The explanation given by the
plaintiff Muhammad Nawaz PW9 in Para No.3 and 4 of the
plaint as well as in a statement before the trial court is
contradictory and not acceptable and rightly observed by
the trial court that suit of the plaintiff is time barred. The
judgment and decree of Additional District Judge
Bahawalpur is a result of misreading, non reading of
evidence and is without reasoning and is based on no
evidence. This court is of the opinion that the findings of
first appellate court is liable to be set aside. Reliance is
placed on case titled “Brig. (Rtd) Sher Afgan VS. Mst.
Shireen Tahir & 6 others” 2010 SCMR 786 in which
Supreme court of Pakistan observed at page 793 as under:-
“This by now a well-settled principle of exercise
of revisional jurisdiction under 115, CPC that if a
finding of first Court of Appeal is based on no
evidence or is not denuded of its power of
interfere with such a finding. This view was
reiterated by this Court in Naziran Begum VS.
Khurshid Begum 1999 SCMR 1171 wherein at
page 1178 it was held as follows:-
A finding on a question of fact arrived at by
the First Appellate Court which is based on
no evidence or is the result of conjectures
CR No.551-D-2001/BWP
11
or fallacious appraisal of evidence on
record is not immune from scrutiny by the
High Court in exercise of its power under
section 100 or 115, CPC. The learned
Judge in Chambers, therefore, rightly
reversed the findings of the first appellate
Court insofar the execution of the
document Exh.P/8 was concerned.”
11. For the foregoing reasons this civil revision is
allowed and the judgment and decree dated 21.12.2000
passed by the Additional District Judge, Bahawalpur is
hereby set aside and judgment and decree dated 05.12.1995
passed by the trial court is restored.
(Sadaqat Ali Khan)
Judge
M.Afzal
Approved for reporting.
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