2000SCMR1436 (PLP)

SH. RIAZ AHMED, J.

Leave to appeal is sought against the judgment and order dated 2-7-1999 delivered by a learned Judge of the Lahore High Court whereby regular second appeal filed by the petitioner assailing the orders of the learned Civil Judge and that of the Appellate Court affirming the same, was dismissed.

2. The facts in brief are that the petitioner instituted a suit for specific performance of a contract in respect of the suit land on the basis of an agreement to sell dated 21-2-1980, against the respondents in the Court of 'the Civil Judge, Kasur. The suit was contested and the respondents -defendants controverted the averments by stating that the petitioner-plaintiff himself did not perform his part of the contract within the time specified and, therefore, the agreement was incapable for being enforced. On the pleadings of the parties the following issues were framed:

(1) Whether the plaintiff is entitled to decree for possession through specific performance of agreement to sell dated 21-2-1980 against the defendant? O.P.P. (2) Whether the suit is not maintainable in its present form? O.P.D. (3) Whether the suit is undervalued? If so, what should be correct court fee and its legal effect? O.P.D. 1 (4) Relief The trial Court after recording and appraising the evidence dismissed the suit vide judgment and decree dated 20-10-1984, but directed the petitioner plaintiff to refund `the earnest money to the - defendants-respondents. Aggrieved by the said judgment and decree an appeal was filed, but the same was dismissed by the Additional District Judge, Kasur vide judgment and decree dated 9-5-1985.

3. The concurrent finding of both the Courts below is to the effect that the petitioner-plaintiff had failed to prove that he had taken all the necessary steps to perform his part of the obligation under the contract. In addition thereto, the Courts also came to the conclusion that the petitioner-plaintiff had also entered into agreement to sell on behalf of his sister, but had neither signed the agreement to sell nor any authority had been given by her to the petitioner-plaintiff to sell her land. The Courts also came to the conclusion that the agreement to sell failed to specify the exact amount of consideration' to be disbursed to the owners. The Courts also came to the conclusion that the respondents-defendants were present in the office of the Sub-Registrar, but the petitioner-plaintiff had not come forward to perform his part of the contract. Although the petitioner-plaintiff had also produced an application addressed to the Sub-Registrar stating therein that he was also present, but the respondents-defendants had not come forward to perform their part of the obligation under the contract.

4. After hearing the learned counsel at length and having gone through the judgments delivered by the Courts below, we are of the view that the willingness on the part of the petitioner-plaintiff to perform his part of the obligation by way of moving an application to the Registrar on the day fixed for the completion of the contract has not been properly attended to. In this view of the matter, we grant leave to appeal to consider the evidence led by the petitioner-plaintiff about his willingness to perform his part of the obligation under the contract.

5. Status quo shall be maintained in the meanwhile. Q.M.H./M.A.K./K-5/S Leave granted.