2003 PLP 833 (MLD)

Date of hearing: 29th July, 2002. Nobody has entered appearance on behalf of the petitioner in spite of the repeated calls. Since the civil revision has been admitted for regular hearing vide order dated 8th of May, 1998, the same cannot be dismissed for non-prosecution, in view of the rules laid down by the Hon'ble Supreme Court, in the case reported as PLD 2000 SC `820, I intend to dispose of this civil revision on merits.

2. Muhammad Yaqoob son of Ibrahim, petitioner was the owner of 4 Kanals of land situated in Mauza Bakapur, Tehsil Chaunian, District Kasur. He entered into an agreement of sale with respondent Hakim Ali in consideration of Rs.22,

000. On 23-4-1990 Rs.15,000 was received by Muhammad Yaqoob petitioner from the respondent Hakim Ali at the time of execution of the agreement to sell dated 23-4-1990. It was agreed that remaining Rs.7,000 shall be paid at the time of attestation of the sale deed. 2-5-1991 was the date fixed for completion of the agreement. The agreement was not completed, therefore, respondent Hakim Ali filed suit for possession through Specific Performance of the agreement dated 23-4-1990 against the petitioner Muhammad Yaqoob. The written statement was filed by the petitioner Muhammad Yaqoob. It was contended by him that through intervention of Panchayat a settlement has been arrived at between parties and Hakim Ali plaintiff had received the amount of earnest money alongwith Rs.1,000 additionally. According to the petitioner, the earnest money of Rs.15,000 was refunded and thus the agreement to sell dated 23rd of April, 1990 was revoked. The contention of the petitioner Muhammad Yaqoob was that after revocation of the agreement the respondent Hakim Ali has no lawful authority to get the specific performance of the agreement dated 23-4-1990.

3. From the divergent pleadings of the parties the following issues were framed by the learned trial Court:-- (1) Whether agreement to sell alleged by the plaintiff was later on revoked and the advance money was returned to the plaintiff? OPD. (2) If the above Issue No. 1 is not proved. Whether the plaintiff is entitled for specific performance of agreement dated 23-4-1990? OPP. (3) Relief.

4. The learned Civil Judge decided Issue No. 1 against the respondent Hakim Ali while relying on the decision of the Panchayat (Exh.D.1) which was written on 22nd of May, 1991 and dismissed the suit of the respondent vide judgment and decree dated 18-9-1993. The appeal filed by the respondent Hakim Ali was accepted by the learned Additional District Judge on 17th of March, 1998 by reversing the findings on Issues Nos. 1 and

2. The learned Additional District Judge held that-- "It is proved that the agreement to sell dated 23-4-1990 was executed and it was never annulled. The execution of agreement to sell is also admitted by the respondent in his written statement. The appellant also performed his part of agreement but the respondent failed to execute the sale-deed in his favour. Therefore, I hold that the appellant is entitled to the specific performance of the impugned agreement to sell."

5. The agreement to sell dated 23-4-1990 between the parties has been admitted. The petitioner has received Rs.15,000 as earnest money. The respondent Hakim .Ali was ready to perform his part of agreement to pay Rs.7,

000. The petitioner Muhammad Yaqoob has taken the stand before the Court that amount received by him was returned to the respondent Hakim Ali. In this' regard no receipt has been produced by the petitioner to show that amount was refunded. The petitioner has produced Nazir Ahmad son of Nawab Din, who is the scribe of the decision (Exh.D.1). D.W.2 Ghulam Rasul materially contradicted Nazir Ahmad about the refund of the amount. The learned Civil Judge has not correctly read the evidence regarding the refund of the amount by respondent through the Panchayat. The members of Panchayat have neither legal authority nor the decision of Panchayat has any legal value. The learned Additional District Judge on the basis of the evidence rightly excluded the decision of the Panchayat (Exh.D.1) from consideration. No illegality or irregularity has been committed by the learned Additional District Judge in accepting the appeal of the respondent Hakim Ali. Resultantly, this revision petition fails and is dismissed with costs. H.B.T./M-1667/L Revision dismissed.