2022 PLP 1363 (MLD)

ALI AKBAR QURESHI, J.

This civil revision is preferred against judgment and decree dated 03.04.2015 and 17.02.2014, by which the learned Courts below have dismissed the suit for specific performance of an agreement to sell dated 11.09.2004, filed by the petitioners.

2. Shortly the facts for the disposal of this revision petition are that; the petitioner/plaintiffs filed a suit for specific performance of an agreement to sell dated 11.09.2004 on the ground, that predecessor of respondents/defendants was owner of land measuring 14 kanal 1 marla, who died on 12.02.2001; that the inheritance mutation was entered in the revenue record after preparing the pedigree-table, the respondents who are legal heirs of deceased Abdullah entered into an agreement to sell regarding the suit land, the petitioners had paid the consideration but the respondents have denied to execute the sale deed. The respondents/defendants instead of filing the written statement, filed an application under Order VII, Rule 11 of Code of Civil Procedure, 1908, wherein the validity of the agreement to sell dated 11.09.2004, was challenged. The learned trial court on the basis of divergent claim framed an issue and after hearing the arguments on the application under Order VII, Rule 11 of Code of Civil Procedure, 1908, rejected the plaint, against which an appeal was filed which too was dismissed. Hence, this revision petition.

3. Learned counsel for the petitioners contended, that although the agreement to sell dated 11.09.2004, was invalid to the extent of the minors but rest of the part of the agreement to sell was valid and could be performed by the respondents. Further contended, that at the time of executing the agreement to sell certain terms and conditions were agreed which were incorporated, therefore, no illegality was committed by the petitioners.

4. Conversely learned counsel for the respondents opposed the arguments and submitted that the case of the petitioners is not sustainable under any law.

5. Heard. Record perused.

6. Both the learned courts below formulated two questions to decide the fate of the plaint filed by the respondents; first one is, regarding the restraints imposed by the petitioners to avail the legal remedy available in the law and the second is, the execution of the agreement by the minors. As regards the first legal question, the provisions of Section 28 of the Contract Act, 1972, can safely be referred, whereby nobody can be restrained or restriction can be imposed to any party from enforcing their rights provided by the law. In this case as evident from the contents of the agreement dated 11.09.2004, it is mentioned, that the respondents, who are one of the signatory of the agreement to sell will not avail the remedy of appeal or revision etc. provided in the law. It has been observed by the Hon'ble Supreme Court of Pakistan in the judgment cited as "Rasheed-ur-Rehman Khan v. Mian Iqbal Hussain" (PLD 2006 Supreme Court 418), that the document must be construed and read as a whole and section 28 of the Contract Act, 1872, applies where there is absolute restraint against the enforcement of rights. In another judgment styled "Ghulam Samdani v. Abdul Hameed" (1992 SCMR 1170), the same interpretation of section 28 of The Contract Act, 1872 has been made by their lordships of the Hon'ble Supreme Court of Pakistan. In the judgment titled "Messrs Pakistan State Oil Company Ltd through Business Manager and 4 others v. Malik Hadi Hussain and another" (2013 YLR 2769) passed by this Court, it has also been observed, that section 28 of The Contract Act, 1872 (Act IX of 1872) declares any contract to be void restricting "absolutely" the parties from enforcing their rights under or in respect of any contract.

7. As regards the execution of the agreement to sell by the minors; admittedly, the minors are not competent under section 11 of The Contract Act, 1872 to enter into any type of the contract but in accordance with law. When these two legal aspects of the case were confronted to the learned counsel for the petitioners, could not offer any plausible explanation nor referred any law to rebut the same. Even otherwise, it looks very ridiculous and ludicrous; that one of the executant/seller is being restrained to enforce their legal rights in case of any dispute and further the petitioners knowingly allowed the minors to execute the agreement. Thus the petitioners themselves are responsible to create an invalid document.

8. Even otherwise as ruled by the Hon'ble Supreme Court of Pakistan, that the concurrent findings on facts should not be interfered in routine, but in an extra ordinary circumstance, when the learned courts below have committed serious jurisdictional error or legal infirmity. I find support from the valuable judgments of the Hon'ble Supreme Court of Pakistan, titled "Cantonment Board through Executive Officer Cantt. Board, Rawalpindi v. Ikhlaq Ahmed and others (2014 SCMR 161), Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469), Noor Muhammad and others v. Mst. Azmat-e-Bibi (2012 SCMR 1373), Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others (2010 SCMR 984), Malik Muhammad Khaqan v. Trustees of the Port of Karachi (KPT) and another (2008 SCMR 428), and "Abdul Ghafoor and others v. Kallu and others" (2008 SCMR 452), that the High Court, in the case of concurrent findings, normally does not interfere unless the same is result of exercise of jurisdiction not vested in the learned courts below.

9. In view of the above, I see no reason to interfere with the concurrent findings rendered by the learned courts below. Resultantly, this revision petition is dismissed with no order as to cost. SA/M-135/L Petition dismissed.