2002MLD 812 (PLP)

Muhammad Zahid Abbasi for Appellant. Ch. Muhammad Ibrahim for Respondent. Date of hearing: 11th September, 2001. This regular second appeal is directed against the judgment and decree, dated 2‑11‑1992 passed by the Additional District Judge, Gujranwala whereby the decree of the trial Court dated 6‑7‑1991 was modified and instead of decreeing the suit for specific performance of the contract a decree for recovery of Rs.40,000 was awarded.

2. Brief facts of the case are that the petitioner filed a suit for specific performance of the agreement in respect of 75 Kanals, 11 Marlas of land situated in Kot Murad Bux (Kot Nakka), Tehsil Hafizabad. The case set up, by the petitioner was that an agreement to sell was executed on 13‑5‑1984 for the sale of land by the respondent for a consideration of Rs.80,

000. The respondent received Rs.40,000 as earnest money on the same day and remaining consideration of Rs.40,000 was required to be paid before the Sub‑Registrar at the time of execution of the sale‑deed. It was asserted that he petitioner was willing to pay the remaining consideration and in that he remained present on 18‑7‑1984 in the office of Sub‑Registrar and also appeared before him but the respondent did not turn up. The suit was contested by the respondent. From the pleadings of the parties as many as four issues were framed. The respondent denied the agreement to sell and pleaded that the suit land is joint property which he holds alongwith his other brothers. The trial Court decreed the suit subject to the condition that the plaintiff/petitioner would deposit the remaining sale price of Rs.40,000 within a period of one month. The respondent preferred in appeal which was partly allowed by thee First Appellate Court and in that the judgment and decree of the trial Court was set aside and the decree for specific performance of the contract was substituted with a decree for the recovery of Rs.40,

000. Aggrieved from the judgment and decree of the First Appellate Court the petitioner filed the present regular second appeal.

3. It is contended by the learned counsel for the petitioner that the First Appellate Court has wrongly invoked the provision of section 21‑A and H of the Specific Relief Act. The learned counsel for the respondent supported the judgment of the First Appellate Court.

4. I have considered the arguments of the learned counsels for the parties and perused the record. The agreement to sell is dated 13‑5‑1984. It is for a sale of 72 Kanals, 11 Marlas of land for a consideration of Rs.80,000 out of which Rs.40,000 were acknowledged to have been received by the respondent and the remaining amount was to be paid before the Sub‑Registrar on 18‑7‑1984. The petitioner attended the office of Sub‑Registrar Hafizabad and filed an application which reflects that the petitioner appeared before the Sub‑Registrar on 18‑7‑1984 to seek the execution of the final sale‑deed in his favour. The respondent denied the agreement to sell. The petitioner proved the execution of Exh.P.I which is an agreement to sell. P.W.2 Javed Akhtar and P. W.3 Muhammad Zubair who were the marginal witness to the agreement to sell were produced by the petitioner. The Additional District Judge after appraising the evidence concluded that the signing of the agreement is not denied specifically and no witness were examined by the defendant/respondent, to controvert the agreement Exh. P.1. The respondent has nowhere denied his signatures on Exh.P.l. 'As the agreement to sell was found to be genuinely executed by the respondent in favour of the petitioner after receiving a sum of Rs.40,000 as earnest money, the right acquired by the petitioner to seek the enforcement of validly executed agreement to sell‑could not be denied on the basis of the rule contained under section 21‑A (H) of the Specific Relief Act. The discretion, exercised by the Additional District Judge was fanciful and it was not judicious. Once a genuine and valid agreement to sell was established to have executed by the respondent, he was under legal obligation to sell the suit land and in favour of the petitioner. This right acquired by the petitioner could not have been thwarted and there did not exist any mitigating circumstances to decline him the, right to seek the enforcement of agreement to sell. The Additional District Judge mainly observed that the agreement was nom ore enforceable because after the consolidation proceedings the land which was described in the agreement to sell was not based on correct appreciation of law. If during the suit for specific performance of the contract some other land was given to the respondent in lieu of the land in dispute in the course of consolidation; proceedings the claim to the new land which the respondent acquired after consolidation would be available and the right of the petitioner would not be destroyed. Reference is made to the case titled Mst. Rashida Begum and Farid reported as PLD 1973 Lahore.

637. In view of my findings hereinbefore, I set aside the judgment and decree of the First Appellate Court dated 21‑11‑1992 and restore the Judgment and decree dated 6‑7‑1991 passed by the trial Court. H.B.T./S‑386/L Appeal allowed.