1973 PLP 231 (SCMR)

Date of hearing : 20th April 1973. . ANWARUL HAQ, J.‑This petition for special leave to appeal has arisen out of a suit for specific performance instituted by the petitioner, Haji Saeedur Rahman, against the respondents, in respect of the sale of four shops, with a Balakhana over them, situate in Qissa Khawani Bazar, Peshawar. The petitioner is in possession of the property as a tenant, under respondent No. 1, Nasrullah Jan. On the 12th of December 1961, the respondent executed an agreement for sale in favour of Haji Saeedur Rahman for Rs.80,OU0, out of which a sum of Rs.10,000 was paid to the vendor as advance. The sale was to be executed and registered up to 31‑7‑1962. However, on that date the parties entered into a fresh agreement in supersession of the previous one, and the advance of Rs.10,000 was refunded to the petitioner. Under the fresh agreement, the property was to be sold to the petitioner far Rs.60,000 out of which a sum of Rs.3,000 was paid as advance, and the sale deed was to be execu ted and registered before the 20th of November 1962. On the 18th of February 1963, the respondent, Nasrullah Jan, sold the property to Khadim Hussain (respondent No. 2) for a sum of Rs.40,000, and the necessary sale deed was registered on the 19th of February 1963. The petitioner instituted his suit on the 17th of April 1963, demanding specific performance of the agreement of sale, and alleging that the vendee, Khadim Hussain, had full knowledge of the said agreement and was not protected under section 27 of the Specific Relief Act. The suit was resisted by the defendants mainly on the ground that the vendor had been willing and ready at all times to carry out his part of the agreement, but the petitioner failed to have the sale registered within the specified time, and even failed to act on receipt of a notice sent to him by the vendor on the 19th of January 1963, giving him 15 days time to have the sale completed. These pleas of the vendor prevailed with the trial Court which dismissed the petitioner's suit. His appeal has also been dismissed by a Division Bench of the Peshawar High Court by its judgment and decree dated the 7th of November 1972. The learned Judges have analysed the evidence of the parties at some length and have upheld the finding recorded by the trial Court to the effect that it was the petitioner who failed to carry out his part of the agree ment, apparently for the reason that he did not have sufficient funds available with him to complete the sale. As regards defendant No. 2, .namely, the vendee, they have held that he was a bona fide purchaser for consideration, and was thus protected under section 27 of the Specific Relief Act. The main ground urged in support of this petition is that the Courts below have not properly appreciated the evidence brought on the record, and that the finding against the 'petitioner is thus vitiated and liable to be set aside in appeal by this Court. In support of this contention the learned counsel has read out before us extracts from the evidence of the witnesses produced by the petitioner including the assertion that the notice sent by the vendor was not received by the petitioner until the 26th of January 1963 and that he had purchased non judicial stamps of the requisite value on the 9th of February 1963 for the purpose of drawing up the instrument of sale. After hearing Mr. Pir Bakhsh Khan, we are left with the clear impression that the question sought to be agitated in this petition is pre‑eminently a question of fact, namely, whether it was the petitioner or the vendor who had failed to carry out his part of the agreement. The trial Court, as well as the High Court in appeal, have discussed the entire evidence and have recorded a concurrent finding against the petitioner. We are not persuaded that this finding is vitiated by any misreading of evidence or ignoring of material evidence. As a result, no justification is made out for our interference in the matter. The petition accordingly fails and is hereby dismissed. Leave refused.