1997 PLP 1294 (MLD)

(5) Whether the suit is time-barred? (6) What should the decree be?

6. In support of his case plaintiff examined himself Exh.35, Eidoo P.W.2 Exh.66 and Abdul Rahim P. W.3 Exh.67. On the other hand defendant examined himself Exh.83 and Sattar Dino D.W.2 Exh. 99.

7. On assessment of evidence learned trial Court discussed Issues Nos. 1 to 4 together and answered the same in negative, whereas Issue No. 5 was not pressed. Consequently, the suit was dismissed vide judgment and decree which have been impugned in the present appeal.

8. During the pendency of this appeal both parties expired and are survived by their legal representatives. Respondents Nos.2 and 3 being lessees of the property in suit up to October, 1983, were joined as party to this appeal on their own request.

9. I have heard learned counsel for the parties and given my careful consideration to the relevant evidence on the record. For the sake of convenience I shall refer the parties as plaintiff and defendant respectively.

10. In this appeal most essential issue for determination is whether the defendant had agreed to sell the suit property in favour of the plaintiff and whether he had received payments from the plaintiff from time to time towards part performance of the contract of sale. It may be pertinent to observe in this case that there is no written contract of sale in respect of the suit property between the parties but the plaintiff has relied upon various receipts, letters and chits duly written and signed by the defendant in token of acknowledgements amount towards the sale consideration. It is also pertinent to note that though the defendant who is brother of the plaintiff denied the contract of sale in respect of sale of his share in the Rice Mill has set up a defence that in fact the plaintiff had orally agreed to purchase 25 acres of land from him alongwith pumping machine and while he had taken away the pumping machine he had subsequently backed out from the transaction and did not perform his obligation.

11. From the evidence of the plaintiff duly supported by his witnesses Eidoo and Abdul Rahim both of whom are witnesses to receipts Exhs.48, 50 and 37, 49 and 50 respectively, I am satisfied that there was an oral agreement of sale in respect of the property in suit between the parties for a consideration of Rs.3,00,

000. It is the case of the plaintiff that initially he paid Rs.20,000 to the defendant who handed over to him the possession of his share in the Mill and put him in exclusive possession of the suit property. Thereafter defendant had been receiving amounts from him directly as well as through witnesses towards the sale consideration. In this connection, he has produced various receipts and chits Exhs.37 to 56 which would signify the acknowledgement of different amounts by the defendant from time to time towards the sale consideration.

12. From the evidence on record it is obvious that plaintiff had been making payments of different amounts to plaintiff against his chits, receipts etc. executed by him and through witnesses. Exh.37 dated 4-6-1975 relates to the payment of Rs.20,000 towards the transaction of sale, Exh.38 reflects the payment of Rs.5,000 on 21-10-1975, Exh.39 indicates the payment of Rs.20,000 through Rasool Bakhsh and is dated 5-11-1975, Exh. 40 dated 15-11-1975 indicates the payment of Rs.9,000 in favour of the defendant, Exh.41 dated 11-1-1976 reflects the payment of Rs.13,000, Exh. 42 dated 11-3-1976 is a chit written by the defendant to the plaintiff expressing that he was in earnest need of money which may be expedited. In the chit Exh.43 dated 12-4-1976 defendant wrote to the plaintiff that entire detailed account in sequence had been given to Sattar Dino D.W.

2. Exh.44 dated 16-3-1976 is an acknowledgement receipt for a sum of Rs.6,000 signed by the defendant, Exhs.45 and 46 dated 12-4-1976 and 4-5-1976 denote the acknowledgement of Rs.4,000 and Rs.20,000 respectively through D.W. Sattar Dino. Exh.47 denotes the payment of Rs.8,000 by plaintiff to defendant and is dated 19-6-1976. Exh.48 dated 13-11-1977 confirms the payment of Rs.29,000 from the plaintiff. In this receipt Rs.16,000 is acknowledged to have been received through Eidoo on 13-11-1977 and it confirms the earlier payment of Rs.13,000 in 1976 through D.W. Sattar Dino on account of transaction of Mill and lands agreed to be sold for a consideration of Rs.3,00,

000. In this chit defendant had requested the plaintiff to make payment the balance amount as early as possible so that the record of rights in respect of the property is finally settled. There is a supplementary note to show that on counting amount of Rs.16,000 received through Eidoo was found short by Rs.100. Exh.49 dated 22-12-1977 denotes the acknowledgement of Rs.8,500 from the plaintiff on account of transaction of Mill. Exh.50 dated 6-2-1978 reflects the acknowledgement of Rs.5,000 by defendant through P.Ws. Abdul Rahim and Eidoo. Exh.51 dated 12-5-1978 indicates the payment of Rs.27,583 with a break-up as under:

Rs.9,583 on account of Pappaya Rs.10,000 on account of Mill through Iqbal Rs.8,000 on account of Mill through Tufail.

13. Exh. 52 denotes the payment of Rs.30,000 to the defendant on 4-10-1978, Exh.53 is a personal letter dated 25-12-1975 addressed by the defendant to Ali Muhammad (son of plaintiff) reminding payment of amount which was earnestly needed and may be remitted through Sattar Dino D.W.2, Exh.54 dated Nil denotes a receipt of Rs.7,000 through Sattar Dino. Exh.55 which is undated indicates the receipt of Rs.8,000 by the defendant from Ali Muhammad son of Haji Muhammad Haneef. Finally Exh.56 dated 10-7-1976 is thumb-marked by D.W. Sattar Dino acknowledging that he had paid Rs.14,700 to defendant Haji Ghulam Hussain Dino who had earlier executed a receipt in token of payment of Rs.13,700 and delivered it to Haji Muhammad Haneef whereas no receipt was issued in respect of balance of Rs.1,000 which was also paid.

14. It may be observed here that the receipts having reference to witnesses, Eidoo and Abdul Rahim have been duly corroborated and fully supported by both these witnesses and the defendant has failed to shatter their credibility. No doubt defendant in his evidence had denied any contract of sale in respect of the suit property and attempted to confuse the payments covered by Exhs.37, 38 and 39 by stating that these payments did not concern the Rice Mill. As regards Exh.37 he stated that it pertained to payment on account of Pappaya and pumping machine while Exhs.38, 40, 41, 44, 45, 46 and 47 pertained to his share in the business. According to the defendant Exh.48 and Exh.49 pertain to the payment on account of pumping machine whereas Exh.50 pertained to his share in the business. He denied his signature on Exh.56 and he may be right in saying so because this receipt is attributed to D.W. Sattar Dino who has also dishonestly denied the same. He further asserted that all the receipts pertained to payment of pumping machine and agricultural lands in Deh Chuhar Jamali or his share in business and not in respect of the Rice Mill.

15. On a careful scrutiny of the evidence of the defendant in juxtaposition to evidence of plaintiff and his witnesses I am not persuaded to accept this plea which is not supported by all other relevant circumstances and documents on record. The evidence on record clearly and unequivocally makes out a transaction of sale of the share of the defendant in the Rice Mill as set up by the plaintiff. In fact the defendant has utterly failed to substantiate his stand that these payments were towards his share in the business and there is hardly evidence on record in support of this theory.

16. Evidence of the plaintiff, who is not a stranger but brother of the defendant on its face value inspires confidence and is corroborated to all material particulars by his other brother P.W. Abdul Raheem, who categorically stated on oath, that there was a transaction of sale of Rice Mill including shops and godowns between the parties in the sum of Rs.3,00,000, being half share of the defendant. He has proved the initial receipt for payment of Rs.20,000, paid by the plaintiff to the defendant in his presence vide Exh.37 as well as payment of Rs.8,500 to the defendant by plaintiff through him vide receipt Exh.49. It may be observed here that the receipt Exh.49 reflects the acknowledgement of Rs.8,500 through this witness but by inadvertence the witness described the amount as Rs.8,000 which is of not much consequence. Likewise he has proved the payment of Rs.5,000 to the defendant in presence of P.W. Eidoo on behalf of plaintiff vide Exh.50 dated 6-2-1978. He reiterated that all these receipts were issued for payment towards the sale of Rice Mill. This witness, was cross- examined at great length but no inherent defect or infirmity m his evidence could be pointed out to create a doubt about his veracity.

17. Likewise P.W. Eidoo had established receipt Exh.48 indicating payment of Rs.16,000 and Exh.50 reflecting payment of Rs.5,000 to the defendant on behalf of the plaintiff. This witness frankly stated that the plaintiff had told him that this payment was made regarding sale of Rice Mill situated at Chuhar Jamali. Credibility of this witness also could not be shaken during cross examination and there is no justifiable reason to discard his evidence or to treat it with suspicion. It would thus follow that Exh.37, which is the initial payment for a sum of Rs.20,000 and Exhs.48, 49 as well as Exh.50 stand fully proved.

18. Even in his own evidence defendant did not deny the receipt of payment and amounts through these receipts but he wrongly claimed that payment on account of Exh.37 pertained to Pappaya and pumping machine, Exhs.48 and 49 pertained to payment on account of pumping machine whereas Exh.50 related to the share of his business. There is no dispute that Exh.37 recites payment of Rs.8,000 out of Rs.20,000 on account of Pappaya and to this extent defendant may be correct, but balance payment of Rs.12,000 and payment of Rs.29,000 vide Exh.48 and Rs.8,500 vide Exh.49 in all probability cannot be treated as payments towards the pumping machine. In my view the explanation offered and the stand taken by the defendant in this regard is totally dishonest and ridiculous, which cannot be accepted on the face of it. From the evidence of the defendant it would seem that he has denied the receipt of Rs.20,000 vale Exh.39 acknowledged by Rasool Bakhsh. No doubt plaintiff has stated about payment of this amount through Rasool Bakhsh but since Rasool Bakhsh was not examined in Court, it would not be safe to conclude that this receipt was proved or that amount of Rs.20,000 was received by the defendant through Rasool Bakhsh. Defendant has also denied execution of Exh.56 and as observed earlier he may be justified in saying so because this receipt was thumb-marked by D.W. Sattar Dino affirming total payment of Rs.14,700 to defendant, out of which Rs.13,700 had already been acknowledged by the defendant in his own hand. Receipt of this amount in round figures amounting to Rs.13,000 is reflected in the receipt Exh.41 dated 11-1-1976, executed by the defendant himself. Even the defendant did not dispute the receipt of this amount vide Exh.41 but his only explanation was that this 'payment was received by way of his share of business. As regards the balance payment of Rs.1.000 through D.W., Sattar Dino vide Exh.56 I am inclined to hold that this amount was paid to the defendant through Sattar Dino, who being under the influence of the defendant has dishonestly denied this position. It would, therefore, be just and proper to hold that this amount was actually paid to the defendant through this witness on behalf of the plaintiff. As pointed out earlier, remaining receipts for payment of different amounts have not been denied or disputed by the defendant himself, which can be safely said to have been paid towards the transaction of sale.

19. It may be observed with reference to the word "machine" used in different receipts, chits and letters written by the defendant that it literally refers to and is commonly known in the rural areas of interior Sindh as a rice husking Mill. It may be pointed out that almost in all villages of Sindh there are Mills for husking rice as well as grinding rice and other grains for consumption of the common people and in village life in Sindh the word "engine" or "machine" is used to denote a Rice Mill or a flour Mill which has remained in vogue for times immemorial. Defendant has however confused this word by referring it to pumping machine which does not find place in any document and is contrary to evidence on record. Contention of the defendant that in fact there was transaction for sale of 25 acres of his lands and a pumping machine used for lifting water is neither natural nor logical on the face of it. There is hardly any evidence -on record to substantiate his claim which has been advanced just to defeat the transaction of sale in respect of suit property.

20. Adverting to the counter stand taken by the defendant that in fact the plaintiff had entered into an agreement for purchase of 25 acres of lands from him in Deh Chuhar Jamali and pumping machine for a sum of Rs. 3,00,000, there is no concrete and reliable evidence to support this view. Indeed the defendant has miserably failed to substantiate that actually there was a contract for sale of 25 acres of agricultural land and a pumping machine in favour of the plaintiff or that the latter took away the pumping machine and backed-out from the transaction with regard to lands. In his evidence defendant has produced village form VII of Deh. Chuhar Jamali Exh.91 to show that he owned 0.50 paisa share in the lands. This document, however, indicates the mutation of 14 survey numbers transferred by Aneel Kumar and another in favour of Ahmad, Ghulam Muhammad and Muhammad Ali sons of Ghulam Hussain and Muhammad Juman, Ali Ahmad and Nazeer Ahmad sons of Haji Muhammad Haneef in different shares for consideration of Rs.5,000 vide entry dated 15-1-1972. This document does not tend to show that defendant owned a share in any of the survey numbers recorded in this document. During his cross-examination he admitted that the lands in Deh Chuhar Jamali stand m the record of rights in the name-of his sons and the sons of the plaintiff. He could not give the survey numbers agreed to be sold to the plaintiff, as alleged by him. Since the record of rights stood mutated in the names of his sons, it is difficult to accept that he was legally competent to enter into a transaction of sale thereof in the absence of any authority. Likewise he miserably failed to make out a case of sale of pumping machine alongwith the lands and I am clear in my mind to hold that he was exploiting the words "machine" used in various receipts, chits and letters, written by him, which has been dealt with in the earlier part of this judgment.

21. Reverting to the claim of the defendant that he had spent a sum of Rs.1,02,000 on account of the plaintiff for release of his son from criminal case, on Court proceedings and payment of professional fees etc. there is hardly any evidence on record to support his claim. He has produced Exh.97 a plain paper mentioning certain amounts in all totalling Rs.1,02,000 without any details or vouchers in support thereof. It may be observed here that in .the written statement defendant claimed that entire amount spent by him remained unpaid, but in his evidence he changed his plea by stating that a sum of Rs.50,000 was due against the plaintiff on this account, which he failed to substantiate. In the peculiar circumstances and facts of the case, the defendant cannot be allowed even to say that payments received by him were towards his share in the business or joint property inherited after the death of his father in view of his clear admission that his father had given separate shares in lands to his heirs during his lifetime and that he has been enjoying its possession in his own rights. Examined in the light of the aforesaid discussion and the evidence on record it would be just, proper and equitable to conclude that there was a contract of sale in respect of Shah Yaqeeq Rice Mill situated at Deh Chuhar Jamali between the parties and calculating the amount of the receipts duly proved, I am inclined to hold that the plaintiff had paid a sum of Rs.1,84,100 to the defendant towards the sale consideration while a balance of Rs.1,15.900 is payable by him.

22. The contention raised on behalf of the defendant that there was no written contract of sale between the parties and that as required by section 21(c) of the Specific Relief Act the contracts terms whereof Court cannot find with reasonable certainty cannot be specifically enforced is without any substance. Section 4 of the Specific Relief Act lays down that except where it is otherwise specifically enacted nothing in the Act shall be deemed to give any right of relief in respect of any agreement, which is not a contract. Main object of this provision is to exclude agreements which cannot be enforced at law. Section 2(b) of the Contract Act defines contract "as an agreement enforeable by law". An agreement or a contract executed between the parties with their consent for lawful consideration and lawful object is always binding on the parties. For enforcement of a contract law requires that there should be a lawful and concluded contract between the parties whether it be in writing or oral. All agreements are valid and enforceable as a written agreement provided it fulfils all the requirements of a valid contract. In this connection I am fortified by the judgments in the case of Ali Muhammad Khan v. Riazuddin Khera (PLD 1981 Kar.170) and Kumar Gokul Chandra Law v. Haji Muhammad Din (AIR 1938 Cal. 136). There is no legal bar to the specific performance of contracts made orally, which are otherwise valid and lawful. In the present case apart from the overwhelming oral evidence adduced by the plaintiff there is strong corroborative documentary evidence in the shape of receipts Exhs.37, 48 and

49. At the bottom of Exh.37 defendant has clearly and unequivocally acknowledged the receipt of Rs.20;000 from Haji Muhammad Haneef towards the transaction of Mill. In Exh.48 he has acknowledged the receipt of Rs.29,000 specifically stating that this amount was received towards the transaction of Mill and land agreed to be given for a sum of Rs.3,00,

000. In this document he requested the plaintiff for payment of the balance amount so that the record of rights could be duly mutated. Similarly Exh.49 denoting the receipt of Rs.8,500 refers to the transaction in respect of Mill. Even Exh.59 reflecting the acknowledgement of receipt of Rs.10,000 through Iqbal and Rs.8,000 from Tufail by defendant specifically refers to Mill's transaction. It is admitted position that the defendant or the plaintiff did not own any other Mill except Shah Yaqeeq Rice Mill situated at Chuhar Jamali, which is the subject-matter of the suit between the parties.

23. It is true that section 22 of the Specific Relief Act gives discretion to a Court to grant specific performance but the mandate of law is that this discretion must be exercised on sound judicial principles and not in an arbitrary manner. There is no doubt that jurisdiction to decree specific performance is discretionary and the Court is not bound to grant such relief simply because it is lawful to do so. However, the discretion of the Court is not arbitrary but it is to be guided by sound and legal principles, which is always amenable to correction by a Court of appeal. It may further be noticed that section 22 gives two illustrations which are not exhaustive to demonstrate in which cases the Court may decline the exercise of granting specific performance of a contract namely (i) where the circumstances under which the contract is made are such to give the plaintiff an unfair advantage over the defendant though there may not be fraud or misrepresentation on the plaintiff's part; and (ii) where the performance of the contract would involve some hardship on the defendant which he did not foresee whereas his non-performance of the contract would involve no such hardship on the plaintiff. It may also be observed that the above section provides that the Court may properly exercise discretion but decree specific performance where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.

24. It would be seen in the facts and circumstances of this case that the defendant has not raised either of the two grounds to defeat the claim of the plaintiff. On the contrary he has denied the contract in toto and raised the plea that the contract pertained to the sale of 25 acres of land in Deh Chuhar Jarnali and a pumping machine for a consideration of Rs. 3,00,

000. As held earlier he has failed to substantiate the case set-up by him and it is very difficult to accept that 25 acres of land purchased by three sons of the defendant in partnership with the sons of plaintiff in equal shares for a total consideration of Rs.5,000 in January, 1972 could possibly be sold away for a fantastic amount of Rs.3,00,000 after a lapse of only three years. Needless to emphasise the record of rights mutated in the names of his sons, he had obviously no authority to enter into transaction of sale on their behalf.

25. Since the breach of contract is attributed to the defendant and he has been found to be in default in my view relief of specific performance being an equitable relief can only be refused if the equities in the case are against the plaintiff. In Mrs. Mussarat Shaukat Ali v. Mrs. Sofia Khatoon and others (1994 SCMR 2189) it was held by their Lordships of the Supreme Court that the Court while refusing to grant a decree for specific performance to a plaintiff must find something in the conduct of the plaintiff which disentitles him to the grant of equitable relief of specific performance of contract which cannot be refused merely because it is lawful for the Court to refuse it.

26. In the facts and circumstances stated above, I allow this appeal, set aside the judgment and decree passed by the lower Court and decree the suit with costs subject to deposit of balance amount of Rs.1,15,900 within a period of thirty days from the date of decree. A.A./M-2170/K Appeal accepted.