2012 PLP 1598 (YLR)

SHAUKAT AZIZ SIDDIQUI, J.

Facts presented through instant petition are as follow:-- Mubarak Din Khan (respondent No.1) filed a suit for specific performance of the sale agreement dated 15-9-2003 executed between Ali Haider (petitioner) and respondent No.1 in respect of Plot bearing No.44, St. No.118, Sector G-13/4, Islamabad measuring 25x40, which was allotted by FGEHF (respondent No.2) to respondent No.1 against sale consideration of Rs.200,000 out of which an amount of Rs.100,000 was paid to petitioner as earnest money at the time of execution of sale agreement, whereas balance sale consideration was agreed to be paid at the time of transfer of plot in the name of respondent No.1. On failure of petitioner to transfer the plot, respondent No.1 filed suit for specific performance before the learned Civil Judge, Islamabad. Petitioner contested the suit, with the assertion that respondent No.1 had told petitioner that he would purchase the suit plot at the prevailing market price, which comes to Rs.2,000,000 (twenty lac) but knowing that petitioner is illiterate, respondent No.1 did not mention the actual market price and fraudulently got the thumb impression affixed on sale agreement, by mentioning the sale consideration of Rs.200,000 instead of Rs.20,00,000 in this background of the matter, in order to get the suit plot on the basis of fraudulently executed sale agreement, the respondent No.1 filed suit for specific performance. Out of divergent pleadings of the parties, learned trial court framed following issues. (i) Whether the defendant No.1 agreed to sell the suit-land to the plaintiff vide agreement to sell dated 15-9-2003 and received Rs.100,000 as earned money? OPP (ii) If issue No.1 is proved in affirmative, then, whether the plaintiff is entitled to the decree for the Specific Performance of the contract along with permanent and mandatory injunction as stated in the plaint, if so on what terms? OPP (iii) Whether the plaintiff has no cause of action to file this suit? OPD (iv) Whether the suit is not maintainable in its present form"? OPD (v) Whether the plaintiff has come to the court with unclean hands, hence not entitled to for any relief? OPD (vi) Whether the suit is liable to be dismissed with special costs? OPD (vii) Relief.

2. Both the parties led their evidence, learned trial court decreed the suit vide impugned judgment and decree dated 17-4-2006. Being aggrieved, petitioner preferred an appeal before District Judge, Islamabad which was entrusted to Mr. Nisar Baig, learned Additional District Judge, Islamabad. The learned ADJ after hearing the parties, dismissed the appeal vide impugned judgment and decree dated 8-2-2008, hence instant civil revision under section 115, C.P.C. before this Court.

3. Learned counsel for petitioner argued that, impugned judgment and decree are liable to be set aside on the grounds, that, courts below have failed to apply independent judicial mind, in view of facts and circumstances of the case. That, perusal of "agreement to sell" clearly indicates that at the time of it's execution, parties were not aware as to which plot was allotted to petitioner and this is the reason that description of plot is not mentioned in the Exh.P

1. Reference inserted in the margin, later on after issuance of provisional allotment letter, which was issued to the petitioner on 2nd of October 2003, even after the filing of suit. Agreement to sell was executed on 15-9-2003 whereas the suit was filed on 29-9-2003. That, in fact petitioner was trapped by respondent No.1 through his boss Ch. Sultan, Deputy Secretary and the dates stated above clearly indicates that aforesaid Deputy Secretary hatched up plan in connivance with respondent No.1 to deprive petitioner from his valuable property. That, both the courts below failed to give anxious consideration to the legal objection, raised by petitioner that respondent No.1 is a dealer, as such, has no locus standi to go for specific performance of sale agreement until and unless he established before the court through cogent evidence that he has purchased the plot for his own use. That, the impugned judgments and decrees suffer from material irregularity and illegality calling for interference by this court as the same are based on misreading and non-reading of evidence. That, the courts below erred in law while exercising their discretion, arbitrarily against the principles of natural justice, which resulted into miscarriage of justice to petitioner.

4. Conversely, learned counsel for respondent No.1 submitted that there is concurrent finding of facts recorded against petitioner, therefore, no interference is called for; that execution of agreement is admitted, according to section 18 of specific relief act, agreement was valid, therefore enforceable through law, there is no misreading and non-reading of material and petitioner is estopped by his words and conduct. By placing reliance on 2001 CLC 1431, 2000 YLR 1805, 1997 MLD 1975 and 2001 CLC 138, learned counsel prayed for dismissal of petition.

5. I have heard the learned counsel and gone through the impugned judgments and decrees and perused the record as well as evidence of the parties with due care and caution. It is well-settled law that by exercising authority under section 115, C.P.C., normally, High Court does not interfere in the concurrent findings until and unless same are result of misreading and non-reading of evidence, arbitrary, perverse, shocking, unprecedented, besides the law, mandate of dictums of the superior courts of the country and are without jurisdiction. In this regard guidance has been sought from the dictums of august Supreme Court, reported as 2001 SCMR 1700, 2000 SCMR 974.

6. In my humble appreciation, instant matter is crude example of misreading, non-reading of evidence and application of law on the subject. I also observed that both the courts below failed to take the judicial notice of factors which were relevant to resolve the controversy i.e. status of respondent No.1 who appeared as "P.W.1" of a property dealer and minimum market value of the suit property at the time of alleged execution of agreement "Exh.P-1" and that status of petitioner as of gardener (Mali), illiterate, villager and one having no influence.

7. Now, I may point out, mis reading and non-reading of the evidence. Statement of petitioner/defendant who appeared as "DW-1" same is most relevant, therefore, intend to reproduce the examination-in-chief, which reads as D.W.1 28-7-05

8. I am amazed to note that not a single question was asked on behalf of plaintiff with regard to stance taken by the petitioner, still both the courts below ignored and non-read the evidence, which to my mind is nothing but arbitrariness. Both the courts below ignored this cardinal principle of law, that, when any witness is not cross-examined on the stance taken by him in examination-in-chief, that would tantamount to admission. Petitioner in his statement has taken a categorical stance, that his signature and thumb impression were obtained or a plain paper and was told that sale is for consideration of Rs.20,00,000 (twenty-lac). This part of statement has gone without putting any question and even by giving a suggestion. I really failed to understand that how the courts below ignored this part of evidence while passing the impugned judgments and decrees. Now, I may refer to the statement of plaintiff who appeared as "P.W.1". Plain reading of his statement reveals this fact that under the agreement "Exh.P-1" he was supposed to perform certain acts which he did not.

9. Admitted position is that no amount whatsoever was deposited by him, in these circumstances how plaintiff could have asked for enforcement of an agreement, without performing his part. When confronted with this preposition, learned counsel for respondent No.1 submitted that this amount was intact deposited by plaintiff/respondent No.1. This court asked learned counsel to produce the receipt on which learned counsel under instructions from his client informed that no such document is available. The consistence stance of petitioner, that consideration amount was fixed at Rs.20,00,000 is evident from this aspect that in the written statement in reply to paras 3, 5, 9 and 13 about the consideration amount mentioned as Rs.20,00,000 and in the cross-examination even suggestion in this regard was put to plaintiff/respondent No.1 which reads as under:--

10. If for the sake of arguments both the courts below were convinced that agreement to sell "Ex-P-1" was genuine, entered into with free-will, then there should have been no other consideration, except to attach the condition of payment of remaining Rs.19,00,000 before the court, as in the matters relating to specific performance to agreement, it is well settled law that parties seeking its enforcement, must be directed by the courts to deposit the remaining sale consideration so that bona fide of such party may be gauged and interest of other party may be guarded.

11. I observe, it without any reservation that both the courts below, failed to apply their judicial mind, mis-reading and non-reading of the evidence and found erred of wanting to adhere to the provisions of law and pronouncements of superior courts. The case-law relied by the learned counsel for respondent is not applicable to the facts and circumstances of the case, as matter in hand clearly is a case of cheating, deception, exploitation and nothing but a fraud. Through the device of so called agreement, a poor person like petitioner has been defrauded. As provided by section 22 of Specific Relief Act, 1877, to decree any of suit, specific performance is discretionary and courts are not bound to grant the relief merely because, it is lawful. It is apparent that, petitioner was at disadvantageous position when so called agreement was executed, therefore, courts below were required to decline the relief instead of granting it, therefore, instant Civil Revision is allowed and impugned judgments and decrees are set aside with a consequence of dismissal of suit. The respondent No.1 has not only, defrauded the petitioner and tried to take benefit of his illiteracy, simplicity and poverty but also dragged him into litigation, therefore, costs of Rs.20,000 (twenty thousand) is being imposed on him. Findings on all the issues are reversed accordingly. M.H./76/Isl Revision allowed.