1994 PLP 1931 (MLD)

MALIK MUHAMMAD QAYYUM, J.--This is an appeal under section 96 of the C.P.C. from the judgment and decree of the learned Civil Judge Ist Class, Lahore, dated 27-1-1991, passed in a suit for possession through specific performance instituted by the respondent against the appellant.

2. The dispute between the parties relates to a house situated in Pakki Thathi Al-Mumtaz Road, Lahore. By an agreement of sale, dated 22-2-1987, the appellant, Akhtar Aslam, agreed to sell this house to Mst. Mujahida Afzal, respondent herein, for a sum of Rs.5,00,000, out of which an amount of Rs.30,000 was paid by the respondent to the appellant as earnest money at the time of the execution of the agreement. The suit, out of which this appeal has arisen, was filed by the respondent on 30-7-1987, complaining that the appellant had failed to perform his part of the contract and had refused to execute the sale-deed on receipt of the balance amount.

3. The suit was resisted by the appellant by filing his written statement, in which three preliminary objections were raised, firstly that the property stood encumbered in favour of the House Building Finance Corporation and, therefore, the agreement could not be specially enforced; secondly that the agreement was the result of coercion and was without consideration and lastly that the plaintiff/respondent was not entitled to equitable relief or specific performance, as he had not come to Court with clean hands. On facts, the execution of the agreement was not denied but it was reiterated that the same was the result of fraud, coercion and without consideration.

4. On pleadings of the parties, the following issues were framed by the trial Court. (1) Whether the plaintiff had paid Rs.30,000 to the defendant under the agreement to sell, dated 22-2-1987? OPP. (2) Whether the agreement to sell dated 22-2-1987 is the result of fraud and coercion? OPD. (3) Whether the plaintiff is entitled to decree for specific performance of contract? If so, with what terms? OPP. (4) Whether the suit is bad for non-joinder of House Building Finance Corporation? OPD. (5) Whether the plaintiff has not come to Court with clean hands? OPD. (6) Relief. ?

5. In support of his case, the plaintiff/respondent examined Barkat All (P.W.1), Habib Ullah (P.W.2), Muhammad Yousaf (P.W.3) and his attorney named Muhammad Afzal appeared as P.W.4. The appellant, on the other hand, produced two witnesses, namely, Muhammad Yousaf Bajnori (D.W.1) and Syed Muhammad Tayyab (D.W.2) and he himself appeared as D.W.3. Two documents, namely, agreement to sell (Exh.Pl) and special power of attorney in favour Muhammad Afzal, were also produced.

6. On the basis of the evidence led before it the learned trial Court found Issues Nos.1 to 3 in favour of the respondent. Issues Nos.4 and 5 were also decided against the appellant. As a consequence of these findings, the suit of the respondent was decreed, subject to deposit of balance of the sale price amounting to Rs.4,70,

000. It may, however, be noted that under Issue No.4, the learned trial Court found that the outstanding amount of loan payable to the I-louse Building Finance Corporation, which the appellant had obtained, shall be paid by the respondent and not the appellant.

7. The only contention raised by learned counsel for the appellant, in support of this appeal, is that the consideration fixed in the agreement to sell was highly inadequate and far less than the market value and, therefore, it would be inequitable to direct the specific performance of the agreement to sell.

8. Having perused the record with the assistance of learned counsel for the parties and heard them, we do not find any substance in this contention.

9. Although in the written statement, it was alleged that the agreement to sell was outcome of fraud, coercion and undue influence but no particulars of fraud as required by Order 6, Rule 4 of the C.P.C. were furnished. The appellant, while appearing as D.W.3, admitted the execution of the agreement and receipt of Rs.30,000 as earnest money. He has further stated that he was willing to refund the earnest money with an additional amount of Rs.30,000 as damages. Although he claimed that the market value of the property at the time when he was making the statement was 16/17 lacs but he did not depose about the price prevalent at the time of the agreement to sell. In the written statement, it was not pleaded that the sale price fixed did not commensurate with the value of the property.

10. Be that as it may, it has since long been held, and is not even disputed by learned counsel for the appellant, that inadequacy of consideration is, by itself, not a ground for refusing specific performance of an agreement. There is no justification for relieving one of the parties from its obligation only for the reason that it might qua some monetary loss to the other. Although section 22 of the Specific Relief Act, 1877, does empower the Court to refuse specific performance of the agreement in cases of hardship but the hardship contemplated by that provision is of the nature which could not be foreseen by the parties at the time of the agreement. In the present case, no such element has been brought on record or shown to exist. In view of the above, we do not find any force in this appeal. It is dismissed with costs. H.B.T./A-348/L?????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.