2017 PLP 318 (YLRN)

SALAHUDDIN PANHWAR, J.--Through instant judgment, I am going to decide the captioned suit which the plaintiff filed for 'Specific Performance'.

2. Succinctly, facts are that on 26.07.2002, the Defendant agreed to sell residential bungalow on Plot No.141, CP and Berar Coop. Housing Society. Ltd., Karachi (hereinafter referred to as the "Said House") to the plaintiff against a total agreed sale consideration of Rs.53,50,000/-; as part payment the Plaintiff No.1 paid to the Defendant a sum of Rs.200,000/- through cheque No.BD 3326626 dated 25.07.2002 to be drawn on Bank Al-Habib Ltd., Bahaduarabad, Karachi. The Defendant executed a receipt for the said payment. It was agreed that the balance sale consideration should be paid on delivery of the property up to January 2003. The parties verbally agreed that a formal sale agreement would be drawn up soon thereafter. It was claimed that a fresh agreement was only a formality as concluded contract had been arrived at between the Plaintiff No.1 and the Defendant. In order to draw the formal agreement the Plaintiff No.1 from time to time sought photocopies of the title documents of the said house but the Defendant failed and neglected to provide the same. Consequently, by notice dated 30th September 2002 the Defendant was called upon to fulfill his obligation whereupon the defendant on receipt of the reminder delivered the photo copies of the documents of the title documents personally through the broker and sought some time to execute sale deed for the reasons best known to the defendant; on receipt of the reminder the Defendant through his counsel replied to the notice dated 30th September 2002 in which he admitted the concluded contract, however, took up a dishonest plea that part payment of Rs.200,000/- was returned as plaintiff No.1 was not interested in said property as was informed by plaintiff No.2. It was averred that this payment was refunded to the Plaintiff No.2; that vide notice dated 27.11.2002, the Plaintiff having consulted the Plaintiff No.2 denied that any part payment was refunded and insisted that the agreement be performed; the Defendant replied vide Counsel's letter dated 23rd December 2002, this time taking the plea that the cheque given as part payment had been returned to the plaintiff No.2 on his request. On checking the Plaintiff No.1 discovered from the bank that the defendant No.1 did not get cheques, given as earnest money, encashed till time of filing of this suit. It was, however, claimed by plaintiff that notwithstanding the failure of the Defendant to encash the concluded contract had arrived at between the parties hence the defendant cannot resile from the same. The Defendant had deliberately chosen not to present the cheque for realization as he has resiled from the agreement to sell. It was pleaded that plaintiff was ready, willing and able to perform her part of the sale agreement hence entitled to specific performance thereof.

3. With reference to above pleaded facts, the plaintiffs sought the following relief (s):- a) Directing the defendant to transfer house No. 141, Block 7 and 8, C.P. and Berer Coop. Housing Society Ltd. Karachi to the name of the Plaintiff, No.1 and to deliver peaceful vacant possession thereof; b) Grant costs of the suit; and Grant such other relief(s) as this Hon'ble Court may deem just and proper in the circumstances of the case.

4. That the defendant filed written statement whereby admitting claim of plaintiffs to the extent of payment of Rs.200,000/- through cheques as part payment and execution of receipt thereof but denied that plaintiff No.2 came to him for purpose of sale agreement. He claimed that after one week plaintiff No.2 informed that plaintiff No.1 is not interested in purchase of property so he (defendant) without hesitation returned the consideration cheques to plaintiff No.2 in good faith without taking receipt thereof. It was pleaded that the Defendant had handed over the property documents to the Broker at the time of sale consideration on 16th July 2002 and the Plaintiff No.1 demanded the photocopy of the property documents only through notice dated 30th September 2003 and reminder dated 01.11.2002 only to create harassment, threats and blackmailing. He admitted having sent reply to reminder, through his advocate but denied to have taken dishonest plea. In reply dated 27.11.2002 on 23.12.2002 the defendant again reiterated and re-affirmed the contents and averments of the defendant in which the defendant already returned the Cheque No. BD-33226626 of Rs.20,000/- to the Plaintiff No.2, the husband of Plaintiff No.1 on his request that the (Plaintiff No.1) is no more interested in the purchase of the said property. The said cheques, paid as earnest money was returned in good faith in the presence of two witnesses and on the undertaking of Plaintiff No.2 that the original receipt of earnest money will be treated as cancelled and the photocopy of the documents shall be returned within a week, but with mala fide intention instead of returning the documents the plaintiffs filed the false and fabricated suit against the Defendant. It was also claimed that that the plaintiffs themselves admitted that cheque of earnest money was not encashed which clearly shows the factual position and mala fide intention of the plaintiffs. After receiving of the cheque there remained no need for sale agreement rather it was cancelled hence the defendant pleaded that plaintiffs are not entitled to the alleged Specific Performance of contract and suit is liable to be dismissed.

5. Out of the pleadings of the respective parties, the following Issues were framed:-

1. Whether the defendant agreed to sell and the plaintiff agreed to purchase - residential Bungalow No.141, CP and Berar Co-operative Housing Society, Karachi for a total sale consideration of Rs.53,50,000/-?

2. Whether the plaintiff is entitled for transfer of the house in his favour?

3. Whether the plaintiff is entitled for transfer of the contract and paid the balance sale consideration?

4. Whether the plaintiff has received back the advance paid to the defendants, if so, to what effect?

5. What should the decree be?

6. The matter was referred to Commissioner for recording the evidence. Accordingly, in order to prove the issues, Plaintiff No.2, filed his affidavit-in-affidavit as Exh. "5" and photocopies of documents attached therewith i.e. Special Power Attorney dated 22.01.2003 as Exh.5/1, receipt dated 26.07.2002 for Rs.2,00,000/- as Exh."A", legal notice dated 30.09.2002 as Exh. "B", legal notice dated 1.11.2002 with acknowledgment receipt as Exh. "C", title deeds of the property as Exh. "C/ 1 to C/8", reply dated 11.11.2002 as Exh. "D", reply dated 27.11.2002, Exh. "E", notice dated 23.12.2002 as Exh "F". PW-2 Mohammad Haroon Motiwala filed his affidavit-in-evidence as Exh.7. He was cross-examined, thereafter, side of the plaintiffs was closed.

7. The defendant namely Muhammad Ashraf filed his Affidavit-in-evidence and that of Nadeem Rajput. The Defendant Mohammad Ashraf examined himself at Exh.8 and produced his affidavit in evidence at Ex.9; DW-2 Nadeem Rajput was examined at Ex.10 and he produced his affidavit in evidence at Ex.11. Both were cross-examined and then side was closed.

8. Learned counsel for the plaintiff has argued that plaintiff proved the concluded contract in respect of subject matter as defendant has not denied execution of receipt of Rs.200,000/- as part consideration of sale consideration hence execution of sale agreement was mere formality for which the plaintiff No.1 from time to time approached for photo copies of the documents of the said house but the defendant failed and neglected to provide the sale agreement. The bona fide of plaintiff to perform this part is evident that she served the defendant with a legal notice dated 30.09.2002 requesting for performance of his (defendant's) part of the contract and further to complete the deal within time as given in receipt annexure 'A' page 11 to the plaint, however, when there was no reply, a reminder was served through letter dated 1.11.2002. The defendant though not fulfilled his part however, delivered photocopies of the title documents etc, to the plaintiff. It was further argued that following facts fully establish the case of the plaintiffs i.e.: i) the defendant has admitted the fact sale and payment of part sale consideration; ii) the witness of defendant i.e. Nadeem Rajput entirely denied contents of his affidavit in evidence hence defendant failed in establishing his story; iii) no fault or omission on part of the plaintiffs have been proved; Thus, the plaintiffs have established their case and are entitled for a decree in their favour. In support of his contentions learned counsel for the Plaintiff has relied upon the case law reported as Bashir Ahmed v. Muhammad Luqman [1999 SCMR 378], Kali Krishna Chowdhury v. Tara Prosanna and others [AIR 1919 Calcutta 716], S.I.T.E v. Muhammad Waqar Manoo [2000 CLC 1510] and Fateh Muhammad v. Muhammad Hanif [PLD 1990 Lahore 82].

9. In contra, learned counsel for the Defendant argued that the plaintiffs have entirely failed in establishing their case and they cannot take advantage of bona fide of defendant who, at request of plaintiffs, returned the cheques. All the documents were available with broker and even with plaintiffs but on receipt of part consideration there was no need to execute sale agreement therefore, plaintiffs did not approach but after two months first notice was issued whereby asking for copies. It is undisputed that the admittedly cheque of earnest money was not encashed which was indicative to support assertion of defendant. He referred that the plaintiff in paras 4, 5 and 6 stated that Defendant failed to supply the documents upto 01.11.2002, but in his Cross-examination he admitted that "It is correct that at the time of signing receipt dated 26.7.2002 the photocopies of the title documents were with me. It is incorrect to suggest that on 30.9.2002 i.e. the date of Ex. B the documents were not with me. It is correct that the notice dated 01.11.2002 (Ex.C) was sent by Registered A/D Post. It is correct that the A/D receipt of above notice (Ex.C) does not bear the signature of Muhammad Ashraf or anybody." That during cross-examination the defendant did not contradict the facts mentioned in the written statement and his witness also fully supported the contention of the defendant. In support of his contentions learned counsel for the Defendant has relied upon the case laws reported as Syed Ahmed Hussain through Special Attorney v. Syed Muzaffar Hussain through L.Rs [2008 CLC 175 (Lahore)], Major Pervez Iqbal v. Barrister Muhammad Amin Bagri through Legal Heirs [2005 YLR 2224 (Lahore)], Sqn. Ldr. (R) Umeed Ali Khan v. Dr. (Mrs.) Sultana Ibrahim and others [2007 SCMR 1692] and Rafaqat Ali v. Muhammad Farid and others [2007 SCMR 1083]. The defendant, therefore, prayed for dismissal of the instant suit with compensatory cost.

10. Heard learned counsel for plaintiffs and defendant and have also meticulously examined the available material. My findings on the issues with reasoning are as under:-- FINDINGS Issue No.1 Affirmative Issue No.2 Not proved Issue No.3 Negative Issue No.4 As discussed. Issue No.5 Suit dismissed. ISSUE NO.1. Whether the defendant agreed to sell and the plaintiff agreed to purchase residential Bungalow No.141, CP and Berar Co-operative Housing Society, Karachi for a total sale consideration of Rs.53,50,000/-?

11. With regard to this issue, it would suffice to say that this issue appears to have been framed causelessly because the execution of receipt was never denied or even disputed by the defendant in his pleading (written statement). The contents of receipt are as under:-- "I, Mr. Muhammed Ashraf...., hereby RECEIVE WITH THANKS Sum of Rs.2,00,000/- (Rupees Two Lacs Only) through a Cheque No.BD.3326626 . against the Sale of My Residential Bungalow Singal (Single) story (storey) situated on Plot No.141, Block 7/8, C.P. Berar Co. Op. Housing Society, Karachi ad Measuring 300. sq. Yds. Approx. in Lump sum Sale Consideration price fixed Rs.53,50,000/- . agreed Delivery period up to, 2002 January 2003" Further, the defendant in his affidavit in evidence admitted in para-3 that: "

3. I say that Plaintiff No.1 entered into the Oral Sale Agreement with me on 26th July 2002 to purchase residential Bungalow on Plot No.141 CP and Berar Co-operative Housing Society Blocks 7 and 8, Karachi for the total Sale Consideration of Rs.53,50,000/- ." Thus, above admission was sufficient to establish that parties were never at dispute with regard to their being agreed for 'sale' of subject matter against fixed consideration at he agreed to sell his property (subject matter) to plaintiff for a total consideration of Rs.53,50,000/-. I must say here that purpose and object of framing the issues is to allow parties to prove and disprove their respective claims in respect of a disputed fact but no 'issue' should be framed in respect of a 'question of fact or law' which is not disputed. In view of existing position, this issue is answered in affirmative, though was framed causelessly. ISSUE NOS.2 AND 3

2. Whether the plaintiff is entitled for transfer of the house in his favour?

3. Whether the plaintiff is entitled for transfer of the contract and paid the balance sale consideration?

12. Both the above issues are strongly interlinked with each other, therefore, I am left with no other option but to discuss and decide the same simultaneously. The burden to prove these issues was upon the plaintiffs.

13. Before discussing the merits of these issues, I feel it quite necessary, just and proper to say that mere consents (being agreed) of two or more would not constitute a legal binding 'agreement' which legally has to be reduced into writing. However, I am also in agreement that oral agreement is not barred under the law as held by Honourable Supreme Court in the case reported as Mussarat Shaukat Ali v. Safia Khatoon [1994 SCMR 2189], relied by learned counsel for the plaintiffs. Let me make it quite clear that since the 'agreement' is always a bilateral document/transaction which requires two or more (promisor and promisee) to have 'agreed' against some 'consideration'. The document which creates an obligation upon one alone cannot legally qualify the meaning of an agreement, enforceable in law (contract). Reference can be made to the case of Khalil Ahmad through Special Attorney v. Kamran Sharif and another [2006 CLC 855 Lahore] wherein it is held that:- "

6. I have heard learned counsel for the parties. As far as the alleged agreement to sell is concerned, suffice it to say that Khalil Ahmed, the appellant is not a party to this agreement; there is no offer by him for the purchase of the property, which could be accepted by Muhammad Sharif; therefore, such document cannot be termed as an agreement of sale, between the appellant and the respondent No.1, through his father ." Thus, the 'receipt', even admittedly executed by the defendant, cannot be legally insisted by the plaintiffs as an 'agreement' or 'concluded contract'. A receipt could at the most be termed as an acknowledgment. For more clarity I would like to take advantage of Black's Law Dictionary which defines the term 'receipt' as: "

1. The act of receiving something.

2. A written acknowledgment that something has been received". Further, a 'receipt', being a document signed by the party, acknowledging receipt of certain thing, creates no legal obligation or liability upon any other person (not signatory of document) hence cannot be termed to be a 'bilateral document'. Thus, a receipt cannot qualify the term 'agreement' which has got its own independent ingredients. Not only this, but the present plaintiffs themselves claimed that the 'receipt' was in result of some oral agreement and 'sale agreement' was yet to be reduced into writing between the parties.

14. Having discussed above, now I would like to revert to the merits of the case. Let's examine what the plaintiffs have to prove the existence of 'concluded contract'. As a matter of fact the present plaintiffs never claimed 'execution of a sale agreement'. This position shall stand clear from the documents of the plaintiffs themselves i.e. notices, sent by the plaintiffs to the defendants. Notices, being material to clarify this position, are referred hereunder:- "Legal notice dated 30th September, 2002 (Ex.B)" I, the undersigned do hereby under the instructions of my clientess Mst. Asma Farooq w/o Muhammad Farooq, Muslim, adult, resident of 358, Block-3 Gali No.16, Bahadurabad, Karachi, do hereby address you as under:- "

1. That you have entered with contract to sell your property being Single Storeyed House on Plot No.141, Block 7/8, C.P and Berar C.H. Society Ltd. Karachi to my client/clientess for a total sale consideration of Rs.53,50,000/- (Rupees fifty three lacs and fifty thousands only) and deal was to be completed by January, 2003 and my client have paid you a sum of Rs.200,000/- (Rupees two lacs only) through Cheque No.BD 3326626, Bank Al-Habib Ltd. Bahadurabad Branch, Karachi dated 25.7.2002. That even after lapse of two months time you even failed to supply the photo copies of title documents and you have still failed to sign the Agreement to Sell and also failed to perform your duties regarding the said deal. You are therefore hereby requested on behalf of my client to kindly perform your duty and complete the deal within the said time as given in the receipt, otherwise, I have not any alternative except to file the suit for Specific Performance at your own sold risk, cost and expenses which please be noted." "LEGAL NOTICE DATED 01.11.2002 (Ex.C)" In continuation of my legal Notice dated 30.9.2002, I, the under signed, under the instructions of my clientess Mst. Asma Farooq wife of Muhammad Farooq, Muslim, adult, resident of 358, Block-3 Gali No.16, Bahadurabad, Karachi, do hereby once again address you as under:-

1. That you have entered with contract to sell your property being Single Storeyed House on Plot No.141, Block 7/8, C.P. and Berar C.H. Society Ltd. Karachi to my client/clientess for a total sale consideration of Rs.53,50,000/- (Rupees fifty three lacs and fifty thousands only) and deal was to be completed by January, 2003 and my client have paid you a sum of Rs.200,000/- (Rupees two lacs only) through Cheque No.BD 3326626, Bank Al-Habib Ltd. Bahadurabad Branch, Karachi dated 25.7.2002. That even after lapse of so much time you even failed to supply the photo copies of title documents and you have still failed to sign the Agreement to Sell and also failed to perform your duties regarding the said deal. You are therefore hereby requested on behalf of my client to kindly perform your duty and complete the deal within the said time as given in the receipt, otherwise, I have not any alternative except to file the suit for Specific Performance at your own sold (sole) risk, cost and expenses which please be noted. The above documents are sufficient to show that 'sale agreement' was never executed between the parties, even within understanding and knowledge of the present plaintiffs hence there can be no legally 'concluded contract' on basis of the 'receipt' as this (receipt) was never taken by the plaintiffs as 'sale agreement' else they would not have asked the defendant for execution of the 'sale agreement'. Not only had this but the plaintiff No.2 in his affidavit-in-evidence in paras-3 and 4 stated that: "(3) That, I say .The parties verbally agreed that a formal sale agreement would be drawn up soon thereafter. It is submitted that a fresh agreement was only a formality as a concluded contract had been arrived at between the Plaintiff No.1 and the Defendant. (4) That, I say that in order to draw the formal agreement, the Plaintiff No.1 from time to time sought photocopies of the title documents of the said house but the Defendant failed and neglected to provide the same ."

15. As above, it should not be disputed any more that parties were yet to enter into an agreement (sale agreement). The plaintiffs have claimed that non-signing of the 'sale agreement' was because of non-supply of the documents by the defendant but cross-examination of the plaintiff No.2 establishes otherwise i.e.: "I know how the properties are sold/purchased. It is correct that for sale/purchase of property an agreement is executed and the agreement is prepared by the purchaser." This admission is sufficient to show the active knowledge of the plaintiff No.2 regarding execution of 'sale agreement'. Further, the plaintiff admitted in his cross-examination that: "It is correct that whenever a property is sold, the seller supplies copies of the title documents of the property the broker or purchaser. It is correct that at the time of signing receipt dated 26.7.2002, the photocopies of the title documents were with me." Further, the plaintiff No.2 in his affidavit in evidence claimed as:- "(5) That the defendant on receipt of the reminder delivered the photo copies of the title documents personally through the broker and sought some time to execute sale deed, the reasons best known to the defendant. Photo copies of the title documents of the said property are filed herewith and marked annexures as C/1 to C/8 respectively" Although, the reply (Ex.D) of the defendant to very first notice of the plaintiffs contained specific plea that : "Admitted receipt .True facts are that after one week of the Contract your client through her husband Muhammad Farooq informed my client that she was not interested to purchase my client's Property, for reason not known to my client and demanded to return the Part payment of Rs.200,000/- (Rupees Two Lac \may). My Client without any hesitation returned the Cheque to your client, although my client was legally entitled to forfeit the advance amount. Your notice is totally false fabricated and based on mala fide intention and only to harass and threaten and only blackmailing my Client. My Client reserves his right to take legal action against your client."

16. Thus, it is quite clear that defendant while responding to the first notice of the plaintiffs had claimed to have returned the 'cheque' hence the subsequently claimed delivery of the photocopies of title documents by plaintiffs is not believable. This position further stands clear from the admission of the witness of the plaintiffs namely Muhammad Haroon Motiwala that: "It is correct that at the time of deal the documents Ex. C/ 1 to C/ 8 were with me" These admissions are sufficient to show that the plaintiffs were possessing the photo-copies of title documents but deliberate omission in getting the 'agreement' in writing is sufficient that some thing was still requiring to be settled between the parties because of which 'agreement' was not executed but plaintiffs considered it sufficient to have acknowledgment of their part payment by getting a 'receipt' thereof only which may be the one explained by the defendant to a question, put by the Commissioner i.e.: "Q. I put it to you that what were the reasons for not encashing the cheque for one week? Ans: As the plaintiffs had asked me verbally to keep the cheque for sometime so that they are able to verify the documents relating to the property and publish the notice in the newspaper, therefore, the cheque was not encashed by me" This so appears from stand of the plaintiffs (though stood contradicted) that at time of payment of cheque as part consideration the plaintiffs had not seen the status of the defendant as they were not provided the title documents. Thus, it is quite clear and evident that there was never an agreement, binding either sides (parties to a claimed agreement). At this point, I would like to refer the judgment passed by honourable Supreme Court of Pakistan in the case of Ch. Ghulam Rasool v. Mrs. Nusrat Rasool and others (PLD 2008 SC 146) wherein it is held that: " ..This is settled law that to constitute a binding agreement, the intention of the parties must be proved and an agreement by which the parties do not intend to create any legal obligation is not enforceable in law. In the light thereof, in the present case no such agreement enforceable in law has been provided." (Underlining is provided for emphasis). The plaintiffs never established that by executing the receipt the defendant had taken any liability because it does not contain any term/condition that defendant shall make title of plaintiffs perfect against such receipt. The plaintiffs have not produced any witness to prove the existence of a legal 'sale agreement' rather the 'execution of receipt' in place of 'sale agreement' proved that parties yet were to enter into a legal agreement. Besides, since, in the instant case it is not disputed that the cheque, received by the defendant, was never encashed which supports the stand of the defendant that it was returned to the plaintiffs on the ground of their being no more interested. This also finds support from their conduct that the plaintiffs though had claimed to have got prepared a sale agreement but did not produce the draft thereof; no date and time of oral sale agreement is established and even the plaintiffs never established that as to on what terms and conditions the parties had agreed. Since a 'receipt' at the most can give a right against the defendant to return the amount but same does not create any legal obligation upon the plaintiffs hence the position, being so, render the agreement, if any, to be not enforceable in law within meaning case-1 where discretion for specific performance cannot be ordered. The same, being, relevant, is made hereunder:-

1. Where the circumstances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant, though there may be no fraud or misrepresentation on the plaintiff's part"

17. At this point, I would like to refer the judgment passed by Honourable Supreme Court of Pakistan in the case of "Gulshan Hamid v. Abdul Rehman' (2010 SCMR 334), relevant paras of the judgment (supra) are referred hereunder:-

6. A perusal of the deed would indicate that it was signed by the appellant Mst. Gulshan Hamid alone and not by any of the three vendees. As evident from the contents of the deed, it created rights and liabilities on both sides. Had there been an occasion for the owner-lady to bring a suit for specific performance, she would not have succeeded because the vendees had not signed the deed so as to accept any of the liabilities. The circumstances under which the contract is made are such that the present plaintiffs are given an unfair advantage over the defendant. Section 22 of the Specific Relief Act, 1877 clearly provides that in such circumstances, the discretion is not to be exercised in favour of the plaintiffs. For ready reference section 22 (clause-I) is reproduced as follows:-- "

22. Discretion as to decreeing specific performance.

The jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal. The following are cases in which the Court may properly exercise a discretion not to decree specific performance:

1. Where the circumstances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant, though there may be no fraud or misrepresentation on the plaintiff's part". (underlining is supplied for emphasis)

7. This Court in Arif Shah v. Abdul Hakeem Qureshi PLD 1991 SC 905 (e) held that the illustrations given in S. 22 are a few instances where, discretion should not be exercised in favour of specific performance. Rather, these illustrations were held to be not exhaustive and the Courts were at liberty, in the circumstances of each case, to visualize any other circumstances as falling within the purview of S. 22 of Specific Relief Act. So far as the case in hand is concerned, it is directly and squarely hit by illustration I of section 22.

18. Thus, in view of above discussion I am of the clear in my view that plaintiffs failed in establishing thee issues which are accordingly answered in negative. ISSUE NO.4 Whether the plaintiff has received back the advance paid to the defendants, if so, to what effect?

19. After discussion on Issues Nos.2 and 3, this issue has lost its significance. However, since it is not disputed that the defendant did not encash the cheque with a specific claim to have returned the same to the plaintiffs. After such stand, the remaining of the cheque with the defendant even does not entitle him any more to use the cheque for encashment or any other purpose. There are words against the words in this regard but since the circumstances prove that defendant while responding to first legal notice had completely divested himself from all his rights to get cheque encashed therefore, words of the defendant seem to be over weighing to those of the plaintiffs. Accordingly, the issue is answered as discussed. ISSUE NO.5.

20. Since from the discussion made above, it stands established that plaintiffs failed in establishing their case hence the suit of the plaintiffs is hereby dismissed with no order as to costs. While parting, it would be worth to refer the case of Farzand Ali and another v. Khuda Bakhsh and others [PLD 2015 Supreme Court 187] wherein, it is held that:-- "The aspect of exercise of discretion and the noted provision has come under consideration for its interpretation and application before this Court in a large number of cases. And few of the judgments have been selected for guidance. In this context in Liaqat Ali Khan and others v. Falak Sher and others (PLD 2014 SC 506) it has been held:-- "A plain reading of above reproduced statutory provision leads to a definite conclusion that the relief of specific performance claimed by respondents Nos.1 to 4 in their suit is, purely discretionary in nature and the Court is not bound to grant such relief merely as it is lawful to do so. At the same time, the discretion to be exercised by the Court shall not be arbitrary, but it should be based on sound and reasonable analysis of the relevant facts of each case, guided by judicial principles it will be the peculiar facts and circumstances of each case, particularly, the terms of the agreement between the parties, its language, their subsequent conduct and other surrounding circumstances, which will enable the Court to decide whether the discretion in terms of section 22 (ibid) ought to be exercised in favour of specific performance or not." In Mst. Mehmooda Begum v. Syed Hassan Saijad and 2 others (PLD 2010 SC 952), it has been categorically ordained as under:-- "Supreme Court was competent to consider she conduct of parties to agreement and circumstances attending to its execution, if specific performance would give an unfair advantage to plaintiff over defendant then the same should be refused." Further in Shakeel Ahmed v. Mst. Shaheen Kousar (2010 SCMR 1507) this Court opined:-- "Such discretion must be exercised on sound judicial principles of equity, fairness and good conscious and not on erroneous assumption or presumption

Court is not bound to grant relief merely because it is lawful to do so irrespective of the conduct of contracting parties and no unfair advantage to be given to a party or to the other in the suit for specific performance--Relief can be refused though there may not be any fraud or misrepresentation on the part of plaintiff." In Muhammad Sharif and others v. Nabi Bakhsh and others (2012 SCMR 900) while considering the remedy in the cases pertaining to the suit for specific performance and the power of the Court, it has been held:-- "Remedy by way of specific performance for being an equitable relief and discretionary could not be claimed as of right

Court would not be bound to grant such relief merely because doing so would be lawful." Besides the above in line thereto, there is a plethora of dicta of this Court on this point. The pith and substance of the entire case-law on the subject is, that even in the case(s) where the agreement to sell is validly proved by the plaintiff, for the reasons which are by now quite settled for the exercise of the discretion by the courts, the courts may refuse to allow the relief of specific enforcement. And that the court is neither obliged to grant the relief of specific performance nor can the plaintiff claim it as a matter of right ." Let such decree be drawn. RR/A-50/Sindh Order accordingly.