2020 PLP 1732 (MLD)

SHAHID BILAL HASSAN, J.

Tersely, the present respondents Nos.1 and 2 instituted a suit for Specific Performance of contract by maintaining that present appellants/defendants were joint owners of the House No.699-H, Sabza Zar Housing Scheme, Lahore, who entered into an agreement to sell the same on 16.02.2004 with them (respondents Nos.1 and 2) for a consideration of Rs.18,40,000/-, out of which Rs.500,000/- was paid to them as earnest money. Allegedly, it was settled between the parties that the remaining amount of Rs.13,40,000/- would be paid at the time of transfer of house in the names of the respondents Nos.1 and 2/plaintiffs and handing over physical possession as well as completion certificate issued in favour of the present appellants/defendants Nos.1 and

2. The other dues of the defendants Nos.3 and 4 were also to be paid by the appellants. The time for transfer of the house was fixed as 18.05.2004 but appellants failed to furnish the requisite documents and supplicated to extend the time upto 15.08.2004. Allegedly, the respondents/plaintiffs were ready to perform their part of the agreement but the appellants failed to perform their part, which constrained the respondents Nos.1 and 2/plaintiffs to institute the suit. The appellants/defendants Nos.1 and 2 submitted their written statement by raising objection of cause of action and maintainability of the suit. It was pleaded by them that the respondents Nos.1 and 2/ plaintiffs failed to make payment of balance amount so the agreement dated 16.02.2004 was deemed to be cancelled as per legal notice dated 15.07.2004. The appellants also entered into agreement to sell with one Abdul Razzaq for the purchase of land and paid Rs.400,000/- as earnest money but they could not pay the remaining amount as the respondents Nos.1 and 2/ plaintiffs did not fulfill their part of agreement and failed to pay the remaining amount. Prayer for dismissal of the suit was made. Divergence in the pleadings of the parties was summed up into issues by the learned trial Court. Both the parties adduced their respective evidence. The learned trial Court after hearing arguments vide impugned judgment and decree dated 11.01.2011 decreed the suit in favour of the respondents Nos.1 and 2, against the appellants; which decree was assailed before the learned lower appellate Court by filing an appeal, but subsequently the same was dismissed vide impugned judgment and decree dated 01.10.2012.

2. Feeling aggrieved of both the impugned judgments and decrees, the appellants agitated the same through this second appeal before this Court, which was decided on 04.12.2015. The respondents Nos.1 and 2 filed appeal bearing No.12-L of 2016 before the Hon'ble Supreme Court, which was allowed vide order dated 17.09.2018 and case was remanded to this Court for decision afresh after hearing both the parties with the following observation:- '

3. The primary oasis for dismissing the Suit for Specific Performance by the learned High Court was that the document in question was not signed by both the sides. Now this Court vide its judgment reported as Muhammad Sattar and others v. Tariq Javaid and others (2017 SCMR 98) has held that where an Agreement to Sell is not signed by vendor it was not necessary that the Suit filed for Specific Performance must automatically be dismissed in every eventuality.

4. In this view of the matter, both the learned counsel states that the impugned order dated 04.12.2015 be set aside and the case is remanded to the learned High Court for decision afresh after hearing both the parties.

5. Consequently, the impugned order dated 04.12.2015 is set aside and RSA filed by the Respondent shall be deemed to be pending and shall be decided after hearing both the parties.'

3. Heard.

4. It is settled proposition of law that to bestow the relief of specific enforcement of an agreement to sell pertaining to an immovable property is a discretionary relief; even in cases where the agreement to sell is validly proved by the plaintiff, the Courts may refuse to allow the relief of specific performance. Court is neither obliged to grant the relief of specific enforcement nor can the plaintiff claim it as a matter of right. Reliance is placed on Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others (2019 SCMR 524), wherein it was held:-

16. Finally, there is no cavil with the proposition that relief of specific performance is discretionary in nature and despite proof of an agreement to sell, exercise of discretion can be withheld if the Court considers that grant of such relief would be unfair or inequitable.'

5. In this case, a minute perusal of the alleged agreement to sell Ex.P1 goes to divulge that the time was essence of the agreement and it was not agreed that the remaining amount would be paid at the time, fixed by the parties to get the agreement enforced, rather the contents of the agreement go to evince that production of certain documents regarding clearance of encumbrances was upon the vendors at the time of the transfer and not before the transfer or execution of the agreement deed. Meaning thereby time was the essence of the agreement and the respondents Nos.1 and 2 failed to cope with the agreed terms and conditions in time. There is nothing on record to suggest that the respondents Nos.1 and 2 ever tried to make payment of the remaining amount. Moreover, it is noticeable fact that on the backside of the first page of alleged agreement to sell Ex.P1, a receipt with regards to receiving of Rs.300,000/- has been recorded but the same does not bear the signatures or thumb impressions of the applicants, which fact speaks volume about authenticity of the same. 5(sic) The other aspect of the case that the agreement to sell is an admitted document, so non-signing of the same by one of the vendees is not barring the same; in order to cater this issue, in Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 Supreme Court 187) it has been observed by the Apex Court of the Country that, The argument that the agreement to sell in favour of the appellants has been admitted by the vendors and, therefore, is valid and the non-signing has lost its efficacy, suffice it to say that despite the above, the respondent has joined issue with the appellants vis- -vis the validity and valid execution of the agreement, therefore, the appellants cannot rely upon and take advantage of any admission made by the vendors, because of the law, that an admission made by a co-defendant is not binding on the other even if made in the written statement. Reliance in this regard can be placed on the judgments reported as Shah Muhammad and 2 others v. Dulla and 2 others (2000 SCMR 1588), Allah Rakha through L.Rs. v. Nasir Khan and 4 others (2007 CLC 154) and Zeeshan Bhatti v. Maqbool Bhatti and another (PLD 2001 SC 79). "

6. Pursuant to the above, the learned Courts below have failed to appreciate and construe law on the subject in a proper way as well as failed to consider the subject in question judiciously. Material illegalities and irregularities as well as misreading and non-reading of evidence have been committed by learned Court below while passing the impugned judgments and decrees.

7. For the foregoing reasons, while placing reliance on the judgment supra, the instant appeal is accepted, impugned judgments and decrees passed by the learned Courts below are set aside, consequent whereof the suit of the respondents Nos.1 and 2/plaintiffs stands dismissed. No order as to costs. ZC/A-36/L Appeal allowed.