2022 PLP 1659 (CLC)

CH. MUHAMMAD IQBAL, J.

Through this civil revision, the petitioner has challenged the judgment and decree dated 25.05.2006, passed by the learned Additional District Judge, Jampur District Rajanpur whereby the appeal of the respondent was allowed and the judgment and decree dated 21.09.2004, passed by the learned Civil Judge, Jampur was set aside and the suit for specific performance filed by the respondent was decreed with cost throughout.

3. Brief facts of the case are that the respondent/plaintiff, Mst. Jameela Sikandar, filed a suit for specific performance of contract against the petitioner/defendant contending therein that petitioner launched a Housing Colony (Qadir Mamdot Colony) making offer of plots to the public. The respondent/plaintiff opted to purchase four plots [No.49-52-55 and 58] fully mentioned in the plaint. The respondent paid an amount of Rs.20,000 to the petitioner against a receipt on 17.06.1986. It was settled between the parties that the suit plots would be transferred in the name of respondent/plaintiff after the approval of the site plan of the housing scheme/colony. Later on the petitioner/defendant refused to transfer the suit plots in the name of the respondent/plaintiff, which denial resulted into filing of the suit. The petitioner/defendant filed contested written statement and denied the assertions of the respondent/plaintiff. As per divergent pleadings of the parties following issues were framed which are as under:-

1. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD.

2. Whether the suit is not within limitation? OPD.

3. Whether the description of the suit property is incorrect, if so, its correct description? OPD.

4. Whether the plaintiff is estopped by his act and conduct to file the suit? OPD.

5. Whether the suit is not maintainable in view of the preliminary objections Nos.8 and 9 of the written statement? OPD.

6. Whether an agreement to sell the suit land was arrived at between the parties for a consideration of Rs.81,000/- and the defendant received Rs.20000/- in advance and delivered the possession? OPP

7. Whether the plaintiff is entitled to the grant of decree for specific performance on the basis of alleged contract? OPP

8. Relief. The plaintiff Mrs. Jameela Sikandar herself appeared as PW-1 and she produced Muhammad Rafique as PW-2 and Muhammad Yasin as PW-3. In documentary evidence she produced agreement-cum-receipt (Ex.P1), Register Haqdaran Zameen for the year 1997-1998 (Ex.P2), copy of the map of Qadir Mamdot Colony, (Ex.P3) map of Laghari Colony (Ex.P4). Conversely, in defence, Abdul Qadir Mamdot son of the defendant as well as her special attorney appeared as DW-1 who in documentary evidence produced special power of attorney as Ex.D

1. The learned trial court after recording pro and contra evidence of the parties and finally dismissed the suit vide judgment and decree dated 21.09.2004. Being aggrieved, the respondent filed an appeal which was allowed by the learned appellate Court vide judgment and decree dated 25.05.2006 and by setting aside the judgment and decree dated 21.09.2004, passed by the learned trial Court, the suit of the respondent/plaintiff was decreed as prayed for. Hence, this civil revision.

4. I have heard the arguments of learned counsel for the parties and have gone through the record with their able assistance.

5. The controversy of this case is encompassed in issues Nos.6 and 7 supra. The almost claim of the respondent / plaintiff in the plaint was as under: The defendant developed a housing scheme namely Qadir Mamdoot Colony in 1986. Upon the site plan of the scheme, the defendant mentioned the rates of the plots and advertised the same. The plaintiff in the presence of his husband, Sardar Sikandar Hayat Durrani, intended to purchase four residential plots [Nso.49-52-55 and 58] measuring 27 Marla at the rate of Rs.3000/- per Marla upon which the defendant agreed to sell out the aforesaid plots for a consideration of Rs.81,000/-. This understanding was reduced into writing as an agreement in the shape that the plaintiff gave an application and gave Rs.20,000/- as earnest money. The manager of the scheme assured the plaintiff that the sale deed would be executed after sale of some other plots. In order to prove the above asserted stance as well as to dislodge the onus of issues Nos.6 and 7 the respondent/plaintiff, Mst. Jameela Sikandar (P.W.1), while appearing in the witness box, stated that she purchased the plots from the defendants through agreement; that the defendant prepared the site plan and as per the plan, the name of the colony was published as Qadir Mamdot Colony; that as per the map as well as receipt (Exh.P.1), she purchased plot Nos.49, 52, 55 and 58 comprising of land measuring 27 Marlas at the rate of Rs.3000/- per Marla; that she paid an amount of Rs.20,000/- to the defendant who executed receipt (Exh.P.1); that when she requested for the execution of the sale deed, the defendants said that she is in possession of the plots, therefore, after sale of the some other plots, the sale deed would be executed; that in 1997 she came to know that the defendant had renamed colony as Jamal Khan Colony and trying to sale the suit plots; that plaintiff is ready to pay the remaining consideration. In cross examination, she deposed that: The respondent/plaintiff produced Muhammad Rafique (P.W.2) and Muhammad Yasin (P.W.3) who supported her version.

6. In paras 4, 5, 6 and 7 of the written statement, the defendant denied the execution of any agreement as well as receipt of any consideration and raised objection that suit is time barred. That neither the suit land is unpartitioned nor any possession of the land was handed over to the plaintiff, but while advancing evidence as well as to prove the defensive assertion, Abdul Qadir Mamdoot, real son as well as special attorney of the petitioner/defendant, appeared as D.W.1 as sole witness and deposed in his examination-in-chief as under: In cross-examination, he deposed that:

7. The core question which requires consideration is that whether the receipt (Exh.P.1) of consideration amount can be termed as a valid contract/agreement to sell. In this regard it is appropriate to take guidance from Section 8 and 9 of the Contract Act, 1872, which are as under:- "

8. Acceptance by performing, conditions or receiving consideration.

Performance of the conditions of a proposal, or the acceptance of any consideration for a reciprocal promise which may be offered with a proposal, is an acceptance of the proposal.

9. Promises, express and implied.

In so far as the proposal or acceptance of any promise is made in words, the promise is said to be express. In so far as such proposal or acceptance is made otherwise than in words, the promise is said to be implied." The term "Agreement to sell" is defined in Black's Law Dictionary as under:- "An agreement that obligates someone to sell." The above referred definition requires that both the parties to agreement have to make promise for some lawful act against some lawful consideration. Furthermore an agreement to sell should contain the following constituents:- i) Identification of seller and purchaser, ii) Sale consideration amount, iii) Identification of property to be sold, iv) Parties to agreement to sell property at consensus ad idem. With regard to visualization of a valid contract/agreement the Hon'ble Supreme Court of Pakistan has resolved this controversy in a judgment cited as Muhammad Sattar and others v. Tariq Javaid and others (2017 SCMR 98) as under:

7. The primary and basic law relating to the contracts is obviously the Contract Act, 1872. The essentials of a valid contract are an offer communicated, the unconditional acceptance of such offer and consideration. There is nothing in the Contract Act, 1872 which requires that such offer and acceptance must necessarily be in writing or form a single document. The law i.e. the Contract Act, 1872 envisages a valid enforceable contract, which may even be oral. A perusal of the provisions of the said enactment also reveals that both the proposal and its acceptance may be expressed or implied, as is apparent from Section 9 thereof, which reads as under: "

9. Promises, express and implied.- In so far as the proposal or acceptance of any promise is made in words, the promise is said to be express. In so far as such proposal or acceptance is made otherwise than in words, the promise is said to be implied."

8. Similarly, once an offer is communicated, the performance of the conditions of the proposal or the acceptance of any consideration or part thereof offered with the proposal also constitutes an acceptance so as to bring about a valid binding contract between the parties, as is obvious from the bare reading of section 8 of the Contract Act, 1872, which his reproduced hereunder for ease of reference:

8. Acceptance by performing conditions or receiving consideration.

Performance of the conditions of a proposal, or the acceptance of any consideration for a reciprocal-promise which may be offered with a proposal, is an acceptance of the proposal. (emphasis supplied) Reliance in this regard is also placed on a latest judgment cited as Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others (2019 SCMR 524).

8. Now adverting to the material evidence of the plaintiff, it is expedient to have a glance at the receipt (Ex.P1), Register Haqdaran Zameen (Exh.P.2) and site plans (Exh.P.3 and Exh.P.4). The scanned copies of receipt (Exh.P.1) and site plan (Exh.P.3 Exh.P.4) are as under:

9. Perusal of the aforementioned documents conspicuously shows the existence of willing seller, willing buyer, settlement of the bargain, partial payment of consideration as well as the availability of specific property and consensus for the bargain between the parties. Admittedly, a general offer was made to the public at large and in response to the said offer the respondent/plaintiff through written application to the petitioner/defendant expressed her intention to purchase the suit property/plots which was duly accepted by the petitioner/defendant who received the amount of Rs.20,000/- as earnest money and issued a duly signed receipt (Exh.P.1). D.W.1 admitted the site plan Mark-A (Exh.P.3) wherein the rate of residential plot has been mentioned as Rs.3000/- per Marla. As per paragraph No.7 of the written statement filed by the petitioner/defendant, the respondent/plaintiff is in possession of the suit property. The receipt (Exh.P.1) coupled with site plan (Exh.P.3) conveniently lead to hold that a valid agreement was executed between parties on 22.06.1986. Reliance in this regard is also placed on a case cited as Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others (2019 SCMR 524).

10. The plaintiff asserted in her plaint as well as evidence that the parties of the lis arrived at a contract regarding the suit plots for a consideration of Rs.81000/- out of which, earnest money of Rs.20000/- was paid. All these facts were admitted by the attorney of the petitioner/defendant in his statement and it is settled law that admitted facts need not to be proved. Reliance is placed on the cases of Mst. Nur Jehan Begum through LRs v. Syed Mujtaba Ali Naqvi (1991 SCMR 2300), Karachi Metropolitan Corporation, Karachi and another v. Raheel Ghayas and 3 others (PLD 2002 SC 446) and Chief Engineer, Irrigation Department, N.W.F.P. Peshawar and 2 others v. Mazhar Hussain and 2 others (PLD 2004 SC 682).

11. The petitioner/defendant mere orally asserted the non-existence of any agreement and also claimed the return of the consideration amount as well as the rescission of the agreement but the petitioner/defendant has not brought on record any documentary evidence nor produced any independent witness of return of consideration as well as the rescission of the agreement by describing exact date, time and presence of the witnesses which flaw badly oust the defence version. Moreover, the statement (in examination in chief) of D.W.1/Abdul Qadir Mamdot, who is son as well as special attorney of the petitioner, has admitted receipt of the consideration and launching of the colony. This witness went on saying that after failure of the project of said colony, the agreement with the plaintiff was verbally rescinded and amount received as partial consideration was returned to the plaintiff but in this respect no plea/assertion was taken in the written statement nor proved through any corroborative evidence.

12. The respondent/plaintiff proved her assertion through reliable documentary as well as oral evidence which facts have been admitted by the petitioner/defendant but on the other hand, the petitioner/defendant while appearing as D.W.1 made only oral assertions that the agreement to sell alleged by the respondent/plaintiff has been cancelled but in support of his stance, he did not lead any solid and concrete documentary evidence. It is settled principle of law that admitted documentary evidence always takes preference over the oral deposition. A document can be rebutted by the document having better legal sanctity only. In this regard, reliance is placed on the cases of Abdul Ghani and others v. Mst. Yasmeen Khan and others (2011 SCMR 837) and Saleem Akhtar v. Nisar Ahmad (PLD 2000 Lahore 385). Keeping in view the aforesaid facts and circumstances of the case, it can conveniently be held that the respondent/plaintiff successfully proved execution of agreement, payment of earnest money qua the booked/reserved plots through oral as well as documentary evidence.

13. The learned trial court failed to appreciate the legal and factual aspects of the case and dismissed the suit of the respondent/plaintiff whereas the learned appellate court, after discussing the facts as well as evidence of the parties, through a well-reasoned judgment has rightly decreed the suit of the respondent/plaintiff and has committed no illegality. It is well settled law that in the event of conflict of judgments, findings of appellate Court are to be preferred and respected, unless it is shown from the record that such findings are not supported by evidence. Reliance is placed on the case reported as Muhammad Hafeez and another v. District Judge, Karachi East and another (2008 SCMR 398).

14. Resultantly, all these civil revisions being devoid of any merits are hereby dismissed. However, the respondent/plaintiff is directed to deposit the remaining consideration amount (i.e. Rs.61,000/- with the learned trial Court within a period of 60 days. No order as to costs. ZH/A-82/L Order accordingly.