P L D 1994 Supreme Court 679 (PLP)

AJMAL MIAN, J.‑‑‑ This is an appeal filed by the appellant under Article 185(2)(3) of the Constitution of the Islamic Republic of Pakistan, 1973, hereinafter referred to as the Constitution, against the judgment dated 15‑11‑1992 passed by a learned Single Judge of the Lahore High Court in R.S.A. No.19 of 1992, filed by respondent No. 1 against the judgment and decree dated 8‑2‑1992 of the learned Additional District Judge, Lahore, whereby upon the appellant's appeal, he set aside the judgment and decree of the learned trial Court in favour of respondent No. 1, allowing the same by setting aside the above appellate judgment/decree and restoring the above judgment/decree of the trial Court. .

2. The brief facts are that the appellant entered into an agreement of purchase with respondent No. 1 on 24‑3‑1979 (Exh.P.l), hereinafter referred to as the agreement, whereby the latter agreed to sell the suit plot of land measuring 10 Marlas in L.DA.'s Scheme situated in Allama Iqbal Town, Lahore, hereinafter referred to as the suit plot, which was an exempted plot as per exemption certificate dated 22‑3‑1979 (Exh.P.3) for a sum of Rs.1,00,

000. Out of the above consideration of Rs.1,00,000 the appellant paid Rs.95,000 in advance and the balance of Rs.5,000 was to be paid at the time of execution of the sale‑deed. Respondent No.l also executed and got registered with the Sub‑Registrar a General Power of Attorney (Exh.P.2) on 24‑3‑1979 in favour of father‑in‑law of the appellant, Ch. Muhammad Ismail. It may be pertinent to reproduce para. 3 of the above exemption certificate, which reads as follows:‑‑ You may be allowed to sell your interest in the plot after executing the agreement with the prior approval of the Lahore Development Authority on payment of the prescribed transfer fee which shall be deposited with the application of transfer."

3. It appears that on i1‑1‑1984 L.DA. executed a sale agreement of the suit plot in favour of respondent No. 1 and got it registered on 14‑1‑1984. Respondent No.l, instead of completing the above sale transaction in favour of the appellant, executed sale‑deed on 12‑1‑1984, which was registered on 19‑1‑1984 in favour of respondent No.2 transferring the suit plot. The appellant filed above suit on 6‑2‑1984 for specific performance of the agreement against respondents Nos.1 and

2. The above suit was resisted inasmuch as both the above respondents filed written statements. The learned trial Court, on ‑the basis of pleadings of the parties, framed the following issues:‑‑ "(1) Whether the defendant No. 1 entered into sale agreement on 14‑3‑1979 in respect of Plot No. 886, Ravi Block, Allama Iqbal Town, Lahore with the plaintiff? OPP (2) Whether the plaintiff paid an amount of Rs.1,00,000 as earnest money in respect of suit plot to the defendant No. 1? OPP (3) Whether the suit is within time? OPP (4) whether the plaintiff is in physical possession of the suit plot? OPP (5) Whether the suit is not maintainable in present form? OPD (6) Whether defendant No. 2 is bona fide purchaser for value of the suit land? OPD‑2 (7) Whether plaintiff has no cause of action? OPD (8) Relief."

4. In support of the claim in suit, the appellant examined himself as P.W.

6. Besides that, he also examined P.W. 1 Muhammad Alam, Petition Writer, in order to prove agreement and power of attorney, P.W.2 Muhammad Sarwar, who had allegedly intimated about the sale transaction to respondent No.2, P.W.3 Aslam Hayat, a marginal witness to the agreement, and P.W.4 Rana Pervez. Whereas respondent No.l examined himself as D.W.1, D.W.2 Nazir Ahmad, property dealer, Respondent No.2 examined his attorney Fazal Din, D.W. 3.

5. The learned trial Court, after hearing the parties, dismissed the suit though it held under issues Nos.l and 2 that the agreement (Exh.P.l), power of attorney (Exh.P.2) and the payment of Rs.95,000 were proved, but at the same time, under issue No.6 is held that respondent No.2 was a bona fide purchaser for valuable consideration without notice.

6. Against the above judgment/decree, the appellant fled above first appeal, which was allowed by the learned Additional District Judge, Lahore, by his aforesaid judgment/decree. Thereupon, respondent No.2 filed above R.SA., which was allowed with the addition that under Order LJQ, Rule 33, C.P.C., a decree in favour of the appellant for a sum of Rs.95,000 with interest at the bank rate from the date of institution of the suit to the date of realization was passed. After that the appellant filed the above appeal under the aforesaid provision of the Constitution.

7. In support of the above appeal, Mr. M. Iqbal, learned ASC for the appellant, has vehemently contended that the learned Judge in Chambers was not justified in reversing the judgment/decree of the learned first appellate Court and restoring the judgment/decree of the trial Court. His further submission was that respondent No.2 had failed to prove that factually his case was covered by clause (b) of section 27 of the Specific Relief Ad, 1877, hereinafter referred to as the Act. On the other hand, Mr.Muhammad Saleem Shahnazi, learned counsel for respondent No. 2, has contended that since the first appellate Court was not justified in interfering with the judgment/decree of the trial Court, the learned Judge in Chambers was justified in reversing the finding of the learned appellate Court.

8. The basic question in the case in hand is as to whether respondent No‑2 was a transferee for, value who had paid his money in good faith and without notice of the original contract in terms of above clause (b) of section 27 of the Act. It may be pertinent to reproduce the above provision, which reads as follows:‑‑ "

27. Relief against parties and arsons claiming under them by subsequent title: ‑‑Except as otherwise provided by this chapter, specific performance of a contract may be enforced against‑‑‑ (a) .. ... ... .... .... .... .... .. .... .... .... .... .... .... ... (b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract; (c) (d) ................ ... ... ... ... ..

9. It may be noticed that under the above provision, it has been provided that specific performance of a contract may be enforced against either party to the contract or against any other person claiming under him by a title arising A subsequently to the contract, but subject to the exception that the same cannot be enforced against a transferee for value who has paid his money in good faith and without notice of the original. contract.

10. Mr. M. Iqbal, learned counsel for the appellant, has referred to the case of Mst. Khair‑ul‑Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25, in which this Court has inter alia held that burden lies heavily on such person to prove that he was transferee in good faith without notice of original contract for valuable consideration. In the present case, the trial Court had held that according to the appellant's own admission in the cross‑examination, respondent No.2 had no knowledge of the agreement prior to the purchase of the suit plot through the above registered sale deed. It was further held by the trial Court that there were no circumstances present in the case which could have put respondent No.2 to notice necessitating making of enquiries. The above findings were reversed by the first appellate Court on the grounds which were not sustainable. Once it was admitted by the appellant in his cross‑examination that respondent No.2 had no knowledge of the C agreement, the bad faith could not be attributed to respondent No.2 in the absence of any material brought on record .

11. However, Mr. M. Iqbal has submitted that as per agreement, the appellant was handed aver possession of the suit plot and, therefore, respondent No.2 should have made enquiry as to the possession.

12. The above contention is belied by the contents of power of attorney, which was executed on the same date when the agreement was executed and in which it was stated that the attorney would obtain the possession of the suit plot from the L.DA. In view of the above contents of the power of attorney, it is apparent that the appellant was not given possession of the suit plot on the date of execution of the agreement. On the contrary, respondent No‑2 had brought evidence on record to show that he was handed over possession of the suit plot upon the registration of the above sale‑deed. This fad is further proved by the factum that the appellant before the first appellate Court as well as before this Court sought ad interim injunction for restraining respondent No. 2 from alienating, transferring the possession of the suit plot or raising construction of the same.

13. It was further submitted by Mr. M. Iqbal that there is a lack of good faith on the part of respondent No.2 as the appellant had purchased the suit plot for Rs.1,00,000 whereas under the sale‑deed, the sale consideration shown is only Rs.18;000.

14. It is true that in the sale‑deed the consideration mentioned is Rs.18,000 but respondent No.2 in his statement had deposed that he had purchased the suit plot for Rs.1,35,

000. The above statement WAS not challenged by the appellant in the cross‑examination. The factum that lesser consideration was shown in the sale‑deed would not make the above provision of the Act inapplicable as it was a matter between respondent No. 2 and the State, which could claim the payment of the proper stamp duty. This fact would not show that respondent No.2 had the knowledge of the agreement at the time of purchasing the suit plot or that he had purchased the plot without valuable consideration.

15. It was then contended by Mr. M. Iqbal that respondent No.2 executed sale‑deed on 12‑1‑1984 though L.DA. got sale agreement registered in favour of respondent No.1 on 14‑1‑1984.

16. This contention is also not tenable as the L.DA. executed the sale agreement on 11‑1‑19$4 and got it registered on 14‑1‑1984, whereas respondent No.1 executed sale‑deed on 12‑1‑1984 but got it registered on 19‑1‑1984. In other words, on 19‑1‑1984 when the sale‑deed was registered in favour of respondent No.2, respondent No.1 had already acquired necessary right from the L.DA. on the registration of the above sale agreement on 14‑1 1984.

17. Before parting with the above discussion, we may observe that respondent No.1 had not filed any appeal against the above judgment/decree of the learned Judge in Chambers, whereby he passed above money decree in favour of the appellant, nor anybody appeared on his behalf before us. It appears that the Advocate‑on‑Record of respondent No.l, Ch. Ghulam Mujtaba, had expired a year back but respondent No.1 had not made any alternate arrangements. It is reported that he was ex parte even before the High Court. We, therefore, proceeded with the matter as it is the duty of a litigant to keep himself informed about the case in which he may be a party.

18. The upshot of the above discussion is that the appeal is dismissed, but there will be no order as to costs. M.BA/M‑2059/S Appeal dismissed.