1996SCMR575 (PLP)

MIR HAZAR KHAN KHOSO, J.

This appeal is directed against the judgment dated 6th May, 1992 passed in R.S.A. No. 110 of 1990 by the Lahore High Court, Lahore, whereby judgment and decree dated 4-3-1990 passed by the Additional District Judge, Sialkot, in Civil Appeal No.99/1986 was set aside and judgment and decree passed by the Senior Civil Judge, Sialkot, on 15-10-1986 in favour of the respondents and against the appellant was revived and maintained.

2. The facts giving rise to this appeal are that on 29-11-1977 the respondents, Allah Loke and others, filed suit for specific performance against the appellant stating that a piece of land measuring 111 Kanals 17 Marlas situate 'in Mauza Kapurowali, Tehsil Sialkot was owned by the appellant whereas they were his tenants. It was on 1-1-1976 the appellant agreed to sell the abovesaid land to them for consideration of Rs.73,000 and a sum of Rs.5,000 earnest money was paid and an agreement was executed by him. As a litigation was pending between him and Barkat Ali in respect of the same land he promised to convey it within three months of that litigation coming to an end. But surprisingly on 27th January, 1977, the appellant exchanged it with that of the respondent Muhammad Nawaz by means of Mutation No. 134 dated 27-1-1977. The suit was contested by the appellant vehemently. He averred that the respondents Allah Loke and others were his tenants. He exchanged his land with that of Muhammad Nawaz. Tenants after coming to know of the exchange approached and insisted him to retain his ownership, cancel the exchange and allow them to continue on as tenants but; however, to defeat the exchange they prepared a fake document of sale in shape of agreement. On the pleadings of the parties following issues were framed:

(1) Whether defendant No. l agreed to sell the suit land to the plaintiff in the consideration of Rs.73,000? OPP (2) Whether defendant No. l received Rs.5000 as earnest money from the plaintiffs? OPP. (3) Whether the defendant has executed an agreement dated 1-1-1976 in favour of the plaintiffs? OPP. (4) Whether the agreement dated 1-1-1976 is specifically enforceable against the defendant? OPD. (5) Whether the suit is collusive between the plaintiffs and defendant No. l is so to what effect? OPD. (6) Relief.

3. In support of their case the respondents examined Ghulam Nabi (P.W.1), Muhammad Hussain (P.W.2), the marginal witnesses, and respondent Allah Loke (P.W.3), appellant examined himself as D.W.5 and examined A.R. Pasha, Handwriting Expert (D.W.1), Bashir Ahmad (D.W.2), Muhammad Boota (D.W.3) and Muhammad Shafi (D.W.4) in rebuttal.

4. The learned Senior Civil Judge, Sialkot, decreed the suit of the respondents on 15-10-1986. On appeal the learned Additional District Judge, Sialkot, on 4-3-1990 accepted the appeal and dismissed the suit. The High Court on 6-5-1992 accepted the appeal of respondents and maintained the judgment of the Senior Civil Judge. The appellant has come before this Court and challenged the judgment of the High Court.

5. We have heard Ch. Khalil-ur-Rehman, Senior Advocate Supreme Court, for the appellant and Ch. Muhammad Hassan, Advocate Supreme Court, for respondents Nos.l to

23. Respondent No.24 is a pro forma party. He has been served but has not turned up, hence case against him is heard ex pane.

6. The quintessence of the contention of the learned counsel reveal that the entire structure of the case oscillates upon unregistered and unstamped document dated 1-1-1976 alleged to have been written by the appellant and signed by him in shape of "Baqalum Khud" i.e. in his own hands. It is averred to be a sale-deed and valid document by the respondents. An objection for having it not been properly stamped was abortively raised by the appellant's counsel saying that required fee as provided under Article 5 of the Stamps Act was not paid. The document as such under section 35 of the Act was obviously inadmissible in evidence. In respect of this objection a photostat copy of Challan Form No.32A and a certificate was placed before us showing that penalty of Rs.44 therefore was paid by the respondents. The objection fails.

7. The learned counsel for the appellant further contended that:-- (i) the document dated 1-1-1976 is fake one; (ii) onus was wrongly shifted upon the appellant; (iii) the document was not signed by respondents Nos. l to 23, hence it was not an agreement, thus enforceable in law; (iv) the discretionary relief under section 42 of the Specific Relief Act could not have been granted; and (v) the first appellate Court has considered that entire evidence and the second appellate Court under section 100, P.P.C. was not competent to re-examine the same. He relied upon the cases reported in PLD 1989 Karachi 102, 1981 SCMR 1233, 1982 SCMR 284/286, AIR 1930 Nag. 37 and AIR 1923 Lahore 695.

8. The learned counsel for the respondents vehemently controverted the contentions raised by the learned counsel for the appellant and contended that objection regarding enforcement of the agreement was not raised before the trial Court, hence it cannot be raised for the first time before this Court; as the first appellate Court did not properly assess the evidence; the High Court in second appeal was competent to reassess the same; and the private handwriting expert's evidence was procured one, hence the trial as well as the second appellate Court had rightly rejected the same and compared the writing themselves and had correctly held that the agreement deed was genuine one. In support of the same reliance was placed upon the cases reported in PLD 1969 SC 617, PLD 1981 SC 302, PLD 1982 SC 465, PLD 1975 SC 295; PLD 1958 Lahore 747, 1968 SCMR 1126, PLD 1976 SC 53, PLD 1990 SC 359 and PLD 1978 SC 279.

9. Undisputedly the agreement was not signed by respondents Nos.l to 23, but, however, the learned counsel miserably failed to convince us as to what was its effect? to us it does not seem to be fatal. The most important point involved in the appeal is whether the agreement deed was written and executed by the appellant or not? In support of his claim respondent Allah Loke produced the deed, besides examined himself and attesting witnesses Ghulam Nabi and Muhammad Hussain. The document was found to be genuine and their evidence confidence inspiring.' The evidence of handwriting expert was brushed aside mainly on the ground that no sanctity could be attached to private handwriting expert's opinion who invariably support their clients in each and every circumstance. It may be observed that the trial Court itself took the responsibility of an expert and compared the agreement with that writing of the appellant and opined that it tallied with handwriting of the appellant. However, the learned Additional District Judge did not believe evidence of Ghulam Nabi, Muhammad Hussain and that of respondent Allah Loke and observed that the document was forged one and oral evidence nor trustworthy. The appellate Court gave weight to the evidence of D. Ws. Bashir Ahmad, Muhammad Shafi and Sarbaland in addition to the expert's evidence. But again the learned Judge in Chamber of the High Court himself took the responsibility on his shoulders, compared the handwriting and held that the appellant's handwriting tallied with that of the agreement.

10. It may .be pertinent to observe that when the expert was produced to depose in respect of the disputed document, the Court should have not taken the responsibility of comparing the signatures of the appellant with that of the disputed document, particularly when Muhammad Shafi claims to have written it. In such situation the Court should not have compared the handwriting. In such case it was bounden duty of the respondents Nos. l to 23 to have requested the Court for sending the document for comparing of the writings to another expert. Secondly, when the first appellate Court had assessed the evidence produced by the parties before the trial Court the second appellate Court ought not to have assessed the evidence. The scope of reassessment of the evidence is limited in second appeal unless it is the case of non-reading/misreading. We do not find any infirmity with assessment made by the first appellate Court and conclusions arrived at by it. In such view of the matter we find that the second appellate Court has misused its jurisdiction. Its judgment suffers from this inherent defect. The authorities relied upon by the learned counsel for the respondents Nos.l to 23 do not come to their rescue. Resultantly the appeal is accepted, the judgment dated 6-5-1992'passed by the learned Judge in Chambers of the Lahore High Court is set aside and the judgment and decree passed by the learned Additional District Judge, Sialkot, is upheld. The parties to bear their own costs. I have enclosed hereto my dissenting note. (Sd.) Ajmal Mian, J. (Sd.) Fazal Ilahi Khan, J. (Sd.) Mir Hazar Khan Khoso, J. AJMAL MIAN, J.

I have had the advantage of going through the proposed opinion of my learned brother Mir Hazar Khan Khoso, J. With due deference to him, I am unable to subscribe to the conclusion arrived at by him. So I intend to record my separate opinion.

2. The brief facts are that respondents Nos. 1 to 23 and/or their predecessor-in-interest, hereinafter referred to as the above respondents, were tenants of the suit land measuring 111 Kanals and 17 Marlas situated in Mauza Kapurowali, Tehsil and District Sialkot, hereinafter referred to as the suit land.. On 1-1-1976 the appellant Sarbaland, hereinafter referred to as Sarbaland, agreed to sell the suit land to the above respondents for a sum of Rs.73,000, hereinafter referred to as the sale agreement, out of which he received a sum of Rs.5,000 as earnest money. It seems that at the time of the sale agreement, there was a litigation pending between Sarbaland and Barkat Ali in respect of the suit land. It was, therefore, agreed between the parties that Sarbaland would convey the land to the above respondents within three months of the termination of above litigation. However, on 27-1-1977, Sarbaland entered into a transaction of exchange with respondent No.24, hereinafter referred to as Muhammad Nawaz, for exchange of his land with the latter. The above transaction was reflected through Mutation No. 134 dated 27-1-1977. Thereupon, the above respondents filed Civil Suit No. 640 of 1977 for two reliefs, namely, (i) for specific performance of the sale, and (ii) for cancellation of the above exchanged transaction. It may be pertinent to reproduce para. 2 of the plaint, which reads as follows:--

3. The above suit was resisted by Sarbaland inasmuch as he filed a written statement. In reply to above para. 2 of the plaint, he submitted as under:--

4. The learned trial Court, on the basis of pleadings of the parties, framed the following six issues:-- . "(1) Whether defendant No. l agreed to sell the suit land to the plaintiff in the consideration of Rs.73,000? OPP. (2) Whether defendant No. l received Rs.5,000 as earnest money from the plaintiffs? OPP. (3) Whether the defendant has executed an agreement dated 1-1-1976 in favour of the plaintiff? OPP. (4) Whether the agreement dated 1-1-1976 is specifically enforceable against the defendant? OPD. (5) Whether the suit is collusive between the plaintiffs and defendant No. 1, if so to what effect? OPD. (6) Relief. " In support of the suit, the above respondents produced the sale agreement (Exh. PW 1/1), P.W. 1 Ghulam Nabi and P.W. 2 Muhammad Hussain, two marginal witnesses to the sale agreement. Respondent No.l Allah Loke examined himself as P.W. .3. In rebuttal, Sarbaland examined D.W.1 A.R. Pasha, handwriting expert, D. W.

2. Bashir Ahmed, D. W.3 Muhammad Boota, who acted as the attorney for Muhammad Nawaz in the above exchange transaction, D.W. 4 Muhammad Shafi and himself as D.W.

5. Whereas Muhammad Nawaz on 18-1-1978 appeared before the trial Court and stated that he had no objection to the exchange transaction being set aside.

5. The learned trial Court took up issues Nos. l to 3 together and after discussing the oral and documentary evidence brought on record decided the above issues in favour of the above respondents by holding that they had been able to prove by sufficient evidence that the document Exh.PWI/1 was executed by 'Sarbaland and that the document itself indicated the settled price and the earnest money received by him. It also returned its finding in the affirmative on Issue No.4 by holding that the sale agreement was specifically enforcible. Whereas Issue No.5 was decided in the negative and it was held that Sarbaland failed to prove that the sale agreement was collusive. Consequently, under issue No.6 the suit was decreed on 15-10-1986.

6. Sarbaland, being aggrieved by the above judgment/decree, filed Civil Appeal No. 99 of 1986, which was upheld inter alia on the ground that in presence of handwriting expert's evidence, D.W.1 A.R. Pasha, it was not proper on the part of the trial Court to have compared the disputed document with the specimen writing of Sarbaland in view of the judgment of a learned Single Judge of the High Court of Sindh in the case of Dr, Major Abdul Ahad Khan through his Legal Representatives v-. Muhammad Iqbal through his Legal Representatives (PLD 1989 Kar. 102), in which it was held that if a party totally denies his signatures, it is contrary to the rule of prudence laid down by the superior Courts for the Court to compare the same with the specimen signature as it will be unsafe. The learned A.D.J. was also of the view that there was contradiction between the testimony of the marginal witnesses P.W.1 and P.W.2 inasmuch as P.W.1 had deposed that the above earnest money of Rs.5,000 was paid in notes of Rs.10 denomination, whereas P.W.2 had stated that the notes were Rs.5 denomination. The learned Judge was also influenced by the fact that P. W . 2 had stated that . Exh. PW 1 / 1 was a white paper, but factually it was a bluish paper. He was further impressed by the fact that P.W.4 Muhammad Shaft had stated that he had written Exh.PW 1/1 and not Sarbaland which was the case of the above respondents. The learned A.D.J. was also of the view that the document Exh.PW 1/1 needed registration as it involved sale of land valuing more than Rs.100. Consequently, the above judgment/decree of the trial Court was reversed, against which the above respondents filed aforesaid R.S.A., which was allowed by a learned Single Judge of the' Lahore High Court through the judgment under appeal, which seems to be very elaborate and which demonstrated the fallacy of the view found favour with the learned A.D.J. After that, the appellant filed the above appeal as a matter of right.

7. In support of the above appeal, Ch. Khalil-ur-Rehman, learned Sr. ASC has raised the following contentions:-- (i) That since the question, whether Exh. RW 1/1 was a forged document, was essentially a question of fact, the learned Judge in Chambers could not have, interfered with the finding of fact recorded by the learned A.D.J. while exercising the jurisdiction as a second Court of appeal, (ii) that the learned Judge in chambers has wrongly placed burden on Sarbaland (the appellant); (iii) that Exh.PW 1/ 1 was not admissible as it was on a plain paper and on a requisite stamp paper; (iv) that since Exh. PW 1/1 was not signed by the above respondents, the same could not have been treated as a sale agreement; and (v) that it was not fair to grant specific performance of the sale agreement after the expiry of 22 years. On the other hand, Ch. Muhammad Hassan, learned ASC appearing for the above respondents, has supported the judgment under appeal and contended that the learned Judge in Chambers was justified in interfering with the appellate judgment/decree as the same was founded on misreading of evidence and wrong inferences drawn from the material on record, burden was not wrongly placed by the learned Judge in Chambers, the sale agreement Exh. PW 1/1 was rightly admitted and that, in any case, the Court compounded the above document, pursuant whereof the above respondents have deposited the requisite stamp duty for which they have the receipt dated 24-4-1995 from the District Accounts Officers, Sialkot. It was further contended by him that in order to constitute a sale agreement, it is not necessary that both the parties should sign the same and even an oral agreement is sufficient. Lastly it was urged by him that if the sale agreement would not have been specifically enforced, the above respondents would have suffered hardship as they were in possession of the suit land and had been cultivating the same and the delay in completion of the sale transaction was on account of illegal conduct on the part of Sarbaland and not on their part.

8. To reinforce the above first submission, Ch. Khalil-ur-Rehman has referred to the case of Hafiz Muhammad Hussain and another v. Abbas Khan and another (1981 SCMR 1233), the case of Akbar Ali Shah and 3 others v. Muhammad Shah and 4 others (1982 SCMR 286) and the case of Balak Ram v. Muhammad Said (AIR 1923 Lahore 695) in order to contend that the second appellate Court cannot interfere with the finding of fact recorded by the first appellate Court. On the other hand, Ch. Muhammad Hassan has referred to the case of Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 SC 617), the case of Mir Haji Khan and 11 others v. Mir Aijaz Ali and 2 others (PLD 1981 SC 302), the case of Allah Din v. Habib (PLD 1982 SC 465), the case of Mst. Bibi Jan v. Habib Khan and another (PLD 1975 SC 295) and the case of Riaz Hussain v. The State (1987 SCMR 846) in order to urge that the finding of appellate Court ordinarily prevails but it would not possess same value or sanctity of a concurrent finding and that a second appellate Court can interfere with even a concurrent findings.

9. There cannot be any cavil with the proposition that a second appellate Court normally would not interfere with a concurrent finding of fact or even with a finding of fact recorded by first appellate Court based on proper appraisal and evaluation of evidence and founded on proper inferences drawn from it. However, if the concurrent finding is based on misreading of evidence or if material evidence was ignored by the two Courts below or is founded on wrong inferences drawn on material legal issues, the second appellate Court is competent to interfere with a concurrent finding of fact. The same will be equally applicable with more force to a finding of fact recorded at variance by the first appellate Court. In the case in hand, the learned trial Court has analysed the evidence thoroughly and drawn right conclusion. The first appellate Court reversed the finding of the trial Court for the reasons which are not legally sustainable. The approach of the first appellate Court was not in consonance with law. From the above-quoted paras. of the plaint and the written statement, it is evident that the plea raised by Sarbaland was that the above respondents were his tenants of the Suit land. He had exchanged the suit land with Muhammad Nawaz. When this fact was discovered by the above respondents, they approached him with the request to allow them to continue as tenants and to get the exchange transaction cancelled, to which he readily agreed and then at the above respondents' instance, the agreement was prepared with a back date to enable the plaintiff to file the suit and to have the exchange transaction cancelled. The above plea indicates that' Sarbaland had admitted the factum that he executed the sale agreement for the above reason and, therefore, the burden was shifted on to him to prove the above plea as rightly pointed out by the learned Judge in Chambers, which he failed to prove. On the contrary, his witness D.W. 3 Muhammad Boota, who acted as the attorney for Muhammad Nawaz in the above transaction of exchange of land in his statement before the Court, deposed that after the registration of the exchange deed, the above respondents, who were in cultivating possession, had shown to him a paper saying that there was a sale agreement in their favour. This statement of Sarbaland's witness belies his above plea. This seems to be the reason that Muhammad Nawaz did not contest the suit of the above respondents and made statement before the trial Court on 18-1-1978 to the effect that he had no objection to the exchange transaction being set aside. The sale agreement was proved by P.W. 1 Ghulam Nabi and P.W. 2 Muhammad Hussain, who were marginal witnesses to the same. Nothing was brought out in the cross-examination of the above witnesses by Sarbaland to indicate that they had any motive to support the above respondents falsely. The minor discrepancies pointed out by the learned first appellate Court in their testimony have been effectively dealt with by the learned trial Court as well as by the learned Judge in Chambers. The other witnesses produced by Sarbaland also do not advance his case. D.W. 2 Bashir Ahmed was produced to prove the factum that the sale agreement was executed in order to get the above exchanged transaction cancelled and that the document was written by D.W. 4 Muhammad Shafi. However, in his cross-examination, he admitted that he was not a witness to the above document Exh.PW 1/1 and that nobody had signed in' his presence. He also admitted that he was an illiterate person and would not be able to recognise handwriting. P.W. 4 Muhammad Shafi's testimony was also without any consequence. Except his words of mouth, nothing has been brought on record to prove that he in fact had written Exh. PW 1/1 and not Sarbaland himself, which was the case of the above respondents. Sarbaland should have got the specimen writing of D.W. 4 Muhammad Shafi compared with the disputed document by the handwriting expert in order to prove the above fact, which he had not done. The entire case of Sarbaland was founded on a false plea. If it was to be disbelieved, it would adversely reflect on the testimony of his witnesses as to warrant to discard the same. 9-A. The above second contention of Ch. Khalil-ur-Rehman as to the placement of burden of proof wrongly on Sarbaland, it will suffice to observe that the same has been covered by the above discussion. Factually the learned Judge in Chambers has not wrongly placed burden of proof on Sarbaland keeping in view the above state of pleadings.

10. Adverting to Ch. Khalil-ur-Rehman's third submission that Exh.PW 1/1 was not admissible for want of payment of proper stamp duty, it may be observed that no objection was raised by Sarbaland or his counsel when the above document was exhibited. In this view of the matter, section 36 of the Stamp Act, 1899, hereinafter referred to as the Act, was attracted to, which provides as follows:-- "

36. Admission of instrument where not to be questioned.--Where are instrument has been admitted m evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the same suit or proceedings on the ground that the instrument has not been duly stamped." In terms of the above section read with section 61 of the Act, the above respondents had deposited Rs.44, of which they have produced a certificate from the District Accounts Officer, Sialkot, dated 26-4-1995. In this behalf, reference may be made to the case of Union Insurance Company of Pakistan Ltd. v. Hafiz Muhammad Siddique (PLD 1978 SC 279), in which it has been held that the object of section 35 of the Act is not to invalidate the instrument not properly stamped but to protect the public revenues. It was further held that unstamped or improperly stamped arbitration agreements were not invalid but only subject to disabilities specified in section 35 of the Act removable in manner prescribed in sections 35 and 36 of the Act. The above stamping is done at the behest of the Court below.

11. As regards Ch. Khalil-ur-Rehman's submission that Exh. PW 1/1 has not been signed by the above respondents and, therefore, it cannot be treated as an agreement, it may be observed that once it is held that Exh.PW 1/1 is in the handwriting of Sarbaland and he had signed the same, there was a legal promise on his part to transfer the suit land. Since the above writing was in the favour of above respondents, they were legally entitled to enforce the same as a sale agreement.

12. Before dealing with the last submission of Ch. Khalil-ur-Rehman, I may revert to the question, as to whether the learned trial Court was justified to compare the disputed document with the specimen writing of Sarbaland. In my view, there is no legal prohibition that a trial Court cannot compare handwriting of a disputed document with the admitted writing and cannot take a contrary view to the opinion of the handwriting expert. In this regard, reference may be made to the case of Mushtaq Ahmad Gurmani v. Z.A. Suleri and another (PLD 1958 (W.P.) Lahore 747) and the case of Syed Shabbir Hussain v. The State (1968 SCMR 1126). In the first case, a learned Single Judge of the erstwhile High Court of West Pakistan held that the opinion of a handwriting expert should be received with great caption, however impartial expert may be. He is likely to be unconsciously prejudiced in favour of the side that calls him. In the second case, this Court, the judgment of which was rendered by Hamoodur Rahman, J. (as his Lordship then was), while construing section 45 of the Evidence Act, 1872, held that the evidence of handwriting expert is neither the only nor the best method of proving the handwriting or signature of a person and that it is at best only opinion evidence. It was further held that if other direct evidence of the nature adduced in the case was available, there can be no question of any illegality being committed by acceptance of such direct evidence in presence of the handwriting expert's opinion. In the instant case as pointed out hereinabove, Sarbaland had admitted that the sale agreement was executed but he gave reason for the execution, namely, to facilitate the cancellation of the transaction of sale, which plea he failed to prove. In the above background, the trial Court was right in believing P.W. 1 and P.W. 2, the marginal witnesses to the sale agreement, and comparing itself the handwriting/signature with that of admitted signature of Sarbaland. I had also occasion to compare the same while the case was heard and my view was also to the effect that the conclusion arrived at by the learned trial Court and the learned Judge in Chambers was correct on this question. The learned Judge in Chambers has rightly pointed out that the learned first appellate Court has proceeded on wrong assumption that the sale agreement was required to be executed and registered though factually it was merely an agreement to sell and, therefore, no registration was required at the stage of execution. The sale agreement was to be performed in future as stated above.

13. Dealing with the last submission of Ch. Khalil-ur-Rehman that grant of specific performance would cause hardship of Sarbaland and, therefore, the Court in view of section 22 of the Specific Relief Act, 1877, should not have decreed the suit, it may be observed that section 22 of the same provides as under:

"

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 judicial principles and capable of correction by a Court of appeal. " A perusal of the above section indicates that a Court is not bound to I grant relief of specific performance as the grant of the same is discretionary matter but this discretion is not arbitrary and should be guided by judicial principles which are susceptible to correction by a Court of appeal. It may further be noticed that where the circumstances under which the contract is made' are such as to give the plaintiff an unfair advantage over the defendant, though there may be no fraud or misrepresentation on the part of the plaintiff, the Court would refuse to grant the above discretionary relief of specific performance.

14. In the present case, the above section has no application. The above respondents are Haris in cultivating possession. They entered into an agreement of purchase with Sarbaland, who illegally entered into a transaction of exchange with Muhammad Nawaz subsequent to the sale agreement. In other words, he had no intention to retain the suit land. Muhammad Nawaz did not defend the above exchange transaction as he discovered the sale agreement after being approached by the above respondents. He, therefore, made a statement in the Court on 18-1-1978 that he had no objection to the exchange transaction being set aside. It was improper conduct of Sarbaland which delayed the completion of the above sale agreement in favour of the above respondents. There seems to be no default on their part. In this view of the matter, it cannot be said that the above respondents have an unfair advantage over Sarbaland by getting the above suit decreed for specific performance. Ch. Khalil-ur-Rehman has referred to the case of Syed Arif Shah v. Abdul Hakeem Qureshi (PLD 1991 SC 905), in which inter alia above section 22 of the Specific Relief Act has been dilated upon and it has been highlighted that illustrations to section 22 are not exhaustive to demonstrate in which cases the Court may decline to exercise discretion of granting specific performance of a contract. It has been also held that the Court may properly exercise discretion to decree specific performance where the plaintiff has done substantial acts or suffered losses in consequence of contract capable of specific performance. There is no controversy as to the correctness of the legal proposition propounded in the above report. However, the facts of the above report are distinguishable from the case in hand.

15. The upshot of the above discussion is that, in my opinion, the above appeal merits dismissal. I would therefore, order the dismissal of the same, with no order as to costs. (Sd.) Ajmal Mian, J. By majority opinion this appeal is accepted, the judgment dated 6-5-1992 passed by the learned Judge in Chambers of the Lahore High Court is set aside and the judgment and decree passed by the learned Additional District Judge, Sialkot, is upheld. The parties to bear their own costs. (Sd.) Ajmal Mirza, J. (Sd. ) Fazal Ilahi Khan, J. (Sd.) Mir Hazar Khan Khoso, J. M.B.A./S-1028/S Appeal accepted.