2007 PLP 2973 (YLR)

SYED ASGHAR HAIDER; J.

This appeal is directed against the Judgment decree' dated- 20-7-1988 passed by the Additional District Judge, Lahore affirming the judgment and decree dated 24-11-1979 passed by the Civil Judge, Lahore whereby the suit for specific performance filed by the appellant/plaintiff dismissed.

2. The respondent No. 1 Mussarrat Khari entered into an agreement to sell with Surayya Nasreen pertaining to a plot of land measuring 2 kanals at the rate of Rs.38,000 per kanal. Rs.12,000 was paid as token money and balance was agreed to be paid at the time of registration of sale-deed before .the Sub-Registrar. It was stipulated in the agreement that sale-deed shall be executed within four months. However, it was also stated -hat as there was a clog on the title of respondent No.1, therefore, extensions could be granted for .completing title. Two extensions were granted. On completion of title, the plaintiff/appellant served a notice upon defendant No.1 to execute sale-deed. On refusal, a suit for specific performance was filed with an alternate prayer stating that in case specific performance cannot be enforced, the plaintiff/appellant be awarded Rs.24,000 as compensation. The suit was contested, of the divergent pleadings of the parties, issues were framed. After contest, the suit was dismissed, aggrieved thereof, the .petitioner tiled an appeal which after contest, was also dismissed, hence the present petition.

3. L. Rs. of respondent No.1 were proceeded against ex parte on 7-12-2004, thereof he is not represented.

4. The learned counsel for the appellant contended that the judgment of the lower Appellate Court and the 'trial Court is not in consonance with the spirit of section 20 of the Specific Relief Act,. both Courts have concurrently, illegally non-suited the appellant, the alternate plea of compensation Rs.24,000 could only came into play, if specific performance could not be enforced, thus, this was not the main relief, this important aspect was misconstrued concurrently by .both Courts below. He relied on the following precedents:-- (i) (2000 MLD 1875) "Abdul Aziz v. Maqsood Ahmad." (ii) (1995 CLC 43), "Mst. Noor Jehan and others v. Muhammad Rafique and others". (iii) (PLD 1999 Lahore 193), "Messrs Pioneer Housing Society (Pvt.) Limited through Managing Director, Bank Square, Lahore v. Messrs Baber &Company through Shakir Ali Khan and 2 others:" (iv) (PLD 1968 Lah. 501), "Hakim Ghulam Rasool v. Sh. Imdad Hussain and another." (v) (PLD 1967 Kar.158), "Sakinabai and others v. Kunool Muhammad Bashir." (vi) (PLD 1973 SC 39), "Seth Essabhoy v. Saboor Ahmad." (vii) (PLD 1998 Lah. 11), "Ghulam Hussain, and others v. Muhammad Yousaf etc." and (viii) (2004 YLR 1882), "Muhammad Saleem v. Muhammad Shafi and 4 others."

5. I have heard the learned counsel for the appellant and perused the impugned judgment as well as the judgment of the trial Court.

6. The agreement to sell was executed on 19-4-1975 and has been exhibited as Exh. P.1/A, it stipulated a target date for performance, 19-9-1979, it was extended for one month twice. The agreement clearly reflects that in case of non-compliance of the terms, the plaintiff/appellant would be entitled to receive Rs.12,000 and also damages to quantum of Rs.12,

000. Thus a penalty clause was incorporated in the agreement, it was precisely for this reason that the plaintiff/appellant made a prayer for alternate relief in the plaint. The trial Court and the lower Appellate Court, both examined the material evidence produced by the plaintiff/appellant and concurrently held that she was not entitled to specific performance. Primarily because the agreement was initially extended by one month and thereafter again for one month but no extension was made after that, the plaintiff/appellant could not prove the extension of the agreement indefinitely. It is rather absurd `that extension for one month was made in writing while indefinite extension made orally. As there was no credible documentary evidence to substantiate the assertion of the plaintiff, resultantly, the both Courts declined discretion in her favour. P.W.3 has by the large accepted this position, stating that in case, the plot was not transferable on the target date, a .penalty was incorporated in the alternate. Thus, it clearly emerges that the intention of .parties was that if transfer or property could not take-place on the target date, for title not being absolute, then the plaintiff could seek re-course by the penalty clause incorporated, this exactly was done, and concurrently held by both Courts below after appraising evidence. The precedents cited by the learned counsel are distinguishable on facts. There is concurrent finding against the petitioner/ plaintiff. The provisions of section 20 adverted to by the learned counsel have no bearing in the present matter, as they are inapplicable to contracts in the alternate, for which the Court is required to hold determination, in the instant matter, the determination held, found the plaintiff/ appellant entitled to compensation.. Resultantly, this appeal has no merits and is dismissed. No order as to costs. M.H./142/L Appeal dismissed.