2004 PLP 1882 (YLR)

(6) Whether the Wakalatnama does not bear the signatures of the plaintiff or his general attorney and the suit has been filed without authority? If so, its effect? OPD (7) Whether the suit cannot proceed in the presence of the application under section 12(2) of the C.P.C. pending in the Court for setting aside the decree/rule of Court? OPD (8) Whether the defendant No.5 is entitled to special costs under section 35‑A, C.P.C.? If so, to what amount ?OPD (9) Whether the defendants Nos. 1 to 4 agreed to sell the suit‑land to the plaintiff on 4‑2‑1988 in consideration of Rs.2,00,000? OPP (10) Whether the defendants Nos.1 to 4 received the sale price of Rs.2,00,000 vide payment receipt dated 4‑2‑1988? OPP (11) Whether the plaintiff is entitled to the decree for specific performance of the sale contract dated 4‑2‑1988 in regard to the suit‑land? If so, on what terms and conditions? OPP (12) Whether the plaintiff is entitled to the decree for permanent injunction as consequential relief, prayed for? OPP (13) Relief.

5. Muhammad Shafi, plaintiff/respondent produced Bashir Ahmad, stamp vendor, Ghulam Rasool, petition‑writer, Nabi Bakhsh, one of the marginal witnesses of the agreement and of the receipt, and Munir Ahmad, general attorney of the plaintiff, as P.Ws. 1 to

4. In documentary evidence he tendered Fard Jamabandi Exh.P.3, the agreement Exh.P.W.1/1, receipt Exh.P.W.2/1 and certified copies of the plaint and orders Exhs.P.4 to P.12 as well as copy of the order dated 23‑4‑1996 as Exh.P.13.

6. In rebuttal, Muhammad Saleem, appellant‑defendant No.5 examined his general attorney Muhammad Amin as D.W.1 and he himself appeared as D.W.2. In documentary evidence he produced Fard Jamabandi as Exh.D.1, copy of the order of the Senior Civil Judge dated 11‑4‑1992 as Exh.D.2, order of the learned Additional District Judge dated 27‑4‑1992 as Exh.D.3, cancellation of the general power of attorney as Exh.D.4, Khasra Girdawari Exh.D.5 and copy of registered sale‑deed as Exh.D.6.

7. By discussing Issues Nos.2, 9, 10,11 and 12 jointly the learned Civil Judge held that defendant No.1 obtained Rs.2 lacs from the plaintiff and executed agreement dated 4‑2‑1988 and on the same day also executed receipt. According to the learner: Civil Judge, both these documents were admitted between the parties. Defendant No. 1 did not return the disputed amount to the plaintiff‑‑respondent. The agreement in favour of Muhammad Amin was cancelled and the suit for specific performance filed by Muhammad Amin against Malik Ali Akbar and other defendants was dismissed as withdrawn. The general power of attorney in favour of Malik Ali Akbar executed by Mst. Jannat Khatoon, Malik Ghulam Muhammad and Malik Atta Muhammad, defendants Nos.2 to 4, wits cancelled in 1987 therefore, defendant No. 1, Ali Akbar had no authority to sell the property belonging to defendants Nos.2 to

4. The learned Judge finally concluded that, "The agreement, therefore, is executable as against defendant No.1 only to the extent of his share in the property." He, therefore, decided Issue No.2 against the defendant and Issues Nos. 9 and 10 were decided in favour of the plaintiff‑respondent. Issues Nos. 11 and 12 were also answered in favour of the plaintiff and the plaintiff respondent was declared to be entitled for the decree of specific performance of the agreement dated 4‑2‑1988 against defendant No.1 only. Regarding Issue No.3 "Whether the defendant No.5 is bona fide purchaser for value without notice", the learned Civil Judge observed that during the pendency of the suit for specific performance filed by Muhammad Shafi all subsequent developments were made as Muhammad Amin filed a suit for specific performance of the agreement which was later on withdrawal because of the compromise and thereafter Award was made rule of the Court therefore, the decree and the Award in favour of the appellant dated 12‑9‑1991 was hit by the principle of lis pendens. The issue was therefore, decided against the defendant‑appellant Muhammad Saleem. Since Issue No.3 was decided against Muhammad Saleem, defendant‑appellant, therefore, while deciding Issues Nos.4 and 5, it was observed by the trial Court that proceedings of arbitration made during the pendency of the of the suit were hit by the principle of lis pendens and the Award‑had no effect upon the rights of the plaintiff respondent. Consequently, the suit of Muhammad Shafi, respondent, was decreed to the extent of defendants Nos.1 and 5, Malik Ali Akbar and Muhammad Saleem only, whereas the relief to the extent of Mst. Jannat Khatoon, Malik Ghulam Muhammad and Malik Atta Muhammad, widow and sons of Mian Muhammad was declined vide judgment and decree dated 7‑2‑1998.

8. Muhammad Saleem, defendant No.5‑appellant filed an appeal against the judgment and decree dated 7‑2‑1998. The said judgment and decree of the trial Court was maintained as the appeal was dismissed by the learned District Judge vide judgment and decree dated 4‑7‑1998. It was observed by the First Appellate Court that the agreement is executable against defendant No.1 only to the extent of his share in the property. It was also observed that, "The appellant is not a party to the agreement. He has admitted in his written statement that the agreement dated 4‑2‑1988 was executed but it was collusive between respondents Nos.1 and

2. He has not led any evidence to prove that the same was collusive except his own statement. He has also admitted the payment of Rs.2 lacs by respondent No. 1". It was further observed that, "the suit for specific performance filed by Muhammad Amin, brother of Muhammad Saleem against respondents Nos.2 to 5 on the basis of agreement dated 8‑8‑1985 was dismissed as withdrawn on 18‑9‑1990 (Exh.P.5). The amount was returned to Amin under the compromise. He has also not asserted any fraud. The appellant cannot take benefit of file of the suit by Muhammad Amin because that was an independent transaction which ended in compromise." it was further observed that the decree which was made rule of the Court on the basis of arbitration Award is hit by the principle of lis pendens and since the application for referring the matter to the Arbitration was filed by Muhammad Saleem when the suit of Muhammad Amin was pending therefore, the Arbitrator appointed without the consent of the Court as provided under section 21 of the Arbitration Act was illegal. Consequently the appeal was dismissed.

9. The learned counsel for the appellant has challenged the concurrent findings of the two Courts below by filing the second appeal. It is contended that the judgments and decrees of both the Courts below are against the law and facts and result, of misreading and non‑reading of evidence. But, I may observe here that no misreading and non‑reading of evidence has been pointed out by the learned counsel for the appellant.

10. It is further contended that all the issues were wrongly decided. The onus to prove the Issues Nos.9. 10 and 11 regarding entering of the agreement to sell dated 4‑2‑1988 in consideration of Rs.2 lacs with the plaintiff vide receipt dated 4‑2‑1988 and whether the plaintiff is entitled to the decree for specific performance of the sale contract dated 4‑2‑1988 was on the plaintiff‑respondent Muhammad Shafi. To prove the agreement dated 4‑2‑1988 plaintiff produced Bashir Ahmad, stamp‑vendor, as P.W.1 who stated that the stamp paper, on which the agreement was reduced into writing, was purchased by Malik Ali Akbar. Ghulam Rasool, petition‑writer, appeared as.P.W.2 and stated that he is the author of the agreement Exh.P.W.1/1. Nabi Bakhsh, P.W.3, was the marginal witness of the agreement and receipt Exh.P.W.2/1 through which Malik Ali Akbar received Rs.2 lacs. The documents are to be proved through the handwriting of the person who has signed them. There are different modes of proving a document under Articles 78 and 79 of the Qanun‑e‑Shahadat Order, 1984. The objection of the learned counsel for the appellant is that respondent No.1 plaintiff Muhammad Shafi produced only one marginal witness, namely, Nabi Bakhsh, P.W.3, who happens to be his father‑in‑law and another marginal witness namely Muhammad Afzal Alvi was not produced therefore, the agreement to sell dated 4‑2‑1988 was not proved in accordance with Articles 17 and 78 of the Order. This objection is not sustainable, because the agreement to sell is not required to be attested under any law. It has been ruled in the case reported as Manzoor Hussain Khan v. Mst. Asia Begum and 21 others 1990 CLC 1014 that the agreement to sell does not require attestation of two marginal witnesses, therefore, the provisions of Article 79 of the Qanun‑e‑Shahadat Order is not attracted. Even otherwise, Qanun‑e‑Shahadat Order, 1984, being a comprehensive Code, it contemplates numerous modes of proof of documents. In this view of the matter, the objection that the agreement has not been proved by production of two marginal witnesses is repelled.

11. It is next contended by the learned counsel for the appellant that the terms of the, agreement to sell dated 4‑2‑1988 Exh. P.W.1/1 stipulate that in case of default in payment of the amount on the part of the vendor Malik Ali Akbar as well as on failure to execute the sale‑deed he was under legal obligation to pay double the amount to the plaintiff Muhammad Shafi which could have been safely considered as adequate damages in terms of money and therefore, the alleged agreement was not specifically enforceable and the decree in the suit for specific performance would have not been granted. The learned counsel for the respondent, on the other hand, contends that under section 20 of the Specific Relief Act liquidated damages may not be the compensation. Reliance has been placed on the cases reported as Mst. Noor Jehan and others v. Muhammad Rafique and others 1995 CLC 43 Peshawar and Messrs Pioneer Housing Society (Pvt.) Limited v. Messrs Babar & Company through Shakir Ali Khan and 2 others PLD 1999 Lahore

193. It is further contended that by virtue of section 12 of the Specific Relief Act it shall be presumed that compensation would not be an adequate relief.

12. To resolve the controversy between the parties, reading of sections 12 and 20 of the Specific Relief Act, 1877 is relevant, which are reproduced as under:‑‑ "

12. Cases in which specific performance enforceable.‑‑‑Except as otherwise provided in this Chapter, the specific performance of any contract may in the discretion of the Court be enforced: (a) When the act agreed to be done is in the performance, wholly or partly, of a crust; (b) when there exists no standard for ascertaining the actual damage caused by non‑performance of the act agreed to be done; (c) when the act agreed to be done is such that pecuniary compensation for its non‑performance would not afford adequate relief; or (d) when it is probable that pecuniary compensation cannot be got for the non‑performance of the act agreed to be done. Explanation.‑‑‑Unless and until the contrary is proved, the Court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money, and that the breach of a contract to transfer movable property can be thus relieved.

20. Liquidation of damages not a bar to specific performance.‑‑‑A contract, otherwise proper to be specifically enforced, may be thus enforced, though a sum be named in it as the amount to be paid in case of its breach, and the party in default is willing to pay the same. Bare reading of the above stated provisions of law would show that the compensation in terms of money is not the adequate relief in a suit for specific performance. In the case of Messrs Pioneer Housing Society (Pvt.) Ltd. PLD 1999 Lahore 193 (supra), this Court while interpreting section 12 of the Specific Relief Act (I of 1877) held that, "Non performance of an agreement pertaining to immovable property cannot be compensated under section 12, Specific Relief Act, 1877 in terms of money, therefore, its enforcement cannot be refused unless same causes any extreme hardship to the other side".

13. The receipt of Rs.2 lacs has been admitted by Malik Ali Akbar from Muhammad Shafi, plaintiff‑respondent. The execution of the agreement to sell Exh.P.W.1/1 and the receipt Exh.P.W.2/1 have been proved on the record. In this view of the matter, there was a concluded enforceable agreement between Muhammad Shafi, plaintiff‑respondent and Malik Ali Akbar, defendant No.

1. Since the power of attorney on behalf of Mst Jannat Khatoon, widow, Malik Ghulam Muhammad and Malik Atta Muhammad, defendants. Nos. 2 to 5 was cancelled on 24‑8‑1987 (Exh.D.4) prior to the execution of the agreement dated 4‑2‑1988, therefore, both the Courts below have rightly held that the agreement to sell dated 4‑2‑1988 against the defendants Nos.2 to 4 was not enforceable as Malik Ali Akbar had no authority on behalf of the other defendants to execute the agreement to sell dated 4‑2‑1988.

14. This brings me to discuss Issue No.3 regarding the bona fide purchaser of the land by defendant No.5/appellant with value and without notice and the principle of lis pendens. It is the case of appellant Muhammad Saleem that defendants Nos. 1 to 4 transferred the land through the agreement to sell dated 8‑8‑1985 for a consideration of Rs.2,65,000 with Muhammad Amin, real brother of defendant No.5/appellant Muhammad Saleem. The suit of Muhammad Amin for specific performance against defendants Nos. 1 to 5 was filed on 13‑3‑1988 but the same was withdrawn on the basis of compromise. It is nowhere mentioned in the order of withdrawal of the suit of Muhammad Amin that they had agreed upon to decide the matter through arbitration of Ashfaq Ahmad, Advocate. The suit was filed by Muhammad Amin, real brother of the appellant Muhammad Saleem against the other defendants for specific performance of the agreement dated 8‑8‑1985, but the application under sections 14 and 17 of the Arbitration Act to make the Award dated 12‑9‑1991 as rule of the Court was moved by Muhammad Saleem. This application was filed by him when the suit of Muhammad Amin, on the basis of agreement dated 8‑8‑1985 was pending adjudication. Therefore, the application moved in the said suit could have not been filed and the Arbitrator could have not been appointed without the intervention of the Court as contemplated in section 21 of the Arbitration Act, 1940. In the case reported as Abdul Qayyum Khan v. Government of Punjab through Secretary, Local Government and Rural Development Department and another PLD 1995 Lahore 205 it has been ruled that if the arbitrator appointed without the intervention of the Court the Award is void and cannot be made rule of the Court.

15. From all the above discussion, it is clear that all the proceedings in the suit initiated by Muhammad Amin on the basis of the agreement dated 8‑8‑1985, which suit was dismissed as withdrawn, have no nexus with the suit of specific performance filed by Muhammad Shafi. Furthermore, the proceedings under sections 14 and 17 of the Arbitration Act were filed during the pendency of the suit of Muhammad Shafi for specific performance, therefore, the same was hit by the principle of lis pendens under section 52 of the Transfer of Property Act and no rights is the property were available to Muhammad Saleem, appellant. There is concurrent finding of fact against the appellant that defendant No. 1, Malik Ali Akbar entered into the agreement to sell with Muhammad Shafi regarding the suit‑land on 4‑2‑1988 and received Rs.2 lacs and executed receipt Exh.P.2. The signatures are admitted on the documents by Malik Ali Akbar. He had no authority to execute the agreement to sell on behalf of other defendants Nos.2 to

4. Award dated 12‑9‑1991, which was made rule of the Court, does not confer any right in favour of the appellant. The concurrent findings of fact recorded by the two Courts below, on the basis of evidence and correct interpretation of sections 12, 20, 27‑B of the Specific Relief Act and section 52 of the Transfer of Property Act and the provisions of the Arbitration Act, do not call for any interference in the second appeal. There is no question of law agitated by the appellant in this second appeal. This being so, the appeal has no merits and the same is dismissed with costs. M.H./M‑102/L Appeal dismissed.