1989 PLP 1271 (CLC)

‑‑‑S.12‑‑Contract Act (IX of 1872), S.56‑‑Specific performance of contract‑‑Sale of land‑‑Where in case of contract for sale of land, pecuniary compensation did not afford complete remedy and land had special value for purchaser, specific performance of such contract should be ordered. Khaliq Ahmed Chauhan for Petitioner. Muhammad Jaffar Hashmi for Respondent. Date of hearing: 21st March, 1989. The revisional jurisdiction of this Court has been invoked to set aside the judgment and decree pronounced by the learned Additional District Judge, Bahawalnagar dated 25‑10‑1983, who had granted a decree in favour of the respondent regarding the sale of the land in dispute.

2. The facts of the instant case, in brief, are that Ahmadyar the defendant/petitioner sold his entire land measuring 104 Kanals and 15 Marlas situate in village Dara Qamar Din Tehsil Bahawalnagar for Rs.8,000 in favour of Manzoor Abroad respondent. The petitioner received Rs.4,500 as advance money and promised to get the sale‑deed registered after the receipt of another sum of Rs.3,

500. The petitioner did not perform his part of the contract dated 24‑7‑1973 and the respondent was constrained to bring a suit for Specific Performance of the Contract. It may be noted that the petitioner purchased land measuring 21 Kanals by means of a Mutation No.163 attested on 29‑9‑1974 and the suit was instituted on 30‑‑12‑1978.

3. The petitioner pleaded that Martial Law Regulation No. 115 stood as a complete bar to the suit for the specific performance of the contract as there was an accretion in his land which was more than the area of subsistence holding and less than economic holding. Secondly, it was pleaded that section 56 of the Contract Act was a complete bar to such a suit as the contract has become unlawful. Finally, it has been urged that where the compensation is an adequate remedy, then the contract may not be specifically enforced.

4. Para. 24 of Martial Law Regulation No. 115 has been quoted by the learned counsel for the petitioner. Sub‑para. (3) of para. 24 reads as under: "No person owning more than the area of a subsistence holding but less than an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding which may reduce the size of his holding to an area less than the area of subsistence holding. Provided that such a person may alienate his entire holding: With reference to the said para., it has been pleaded that the petitioner held land measuring more than 12‑1/2 Acres i.e. 100 Kanals and it was less than 50 Acres. It was less than an economic holding and therefore, he could not perform his part of the contract as 21 Kanals of land was still in his ownership.

5. This argument is devoid of force because at the time when the petitioner covenanted to sell the land in dispute he held an entire area of 104 Kanals and 15 Marlas and he sold his entire land which was strictly in accordance with law. In Abdul Ghafoor and others v. Muhammad Ismail PLD 1982 SC 364, it was held that para. 24 of Martial Law Regulation No.115 was more a restriction on vendor than on vendee. In Limo Khan and another v. Member, Federal Land Commission and 3 others P L D 1981 Kar. 114, it was asserted that when right, interest or encumbrance, was created, in respect of any land by declarant in favour of a third party and such transaction was held to be a bona fide one by the Land Commission authorities, such land‑holding, may not be considered to be a part of holding of declarant for the purposes of land reforms laws. It may be pointed out that a relief for the specific performance of the contract is an equitable relief and he, who seeks equity must do equity. In the precedent reported as Noor Samad v. Muhammad Aslam and 16 others 1986 M L D Lah. 431, the father had sold his land in favour of his son, who further alienated the same in favour of a third party. The father instituted a suit on the plea that the alienation made by him in favour of his son was hit by the Martial Law Regulation No.115 and he was not allowed to do so on the off quoted principle, he, who seeks equity must do equity. In the circumstances of the case, the acquisition of 21 Kanals of land by the petitioner is not affected by the provisions of Martial Law Regulation No.115 as the original agreement was lawful when it was made on 24‑7‑1973.

6. The learned counsel for the petitioner, with reference to section 56 of the, Contract Act has represented that the contract had become unlawful, as he had acquired 21 Kanals of land more and, therefore, it was void under the said provision of law. The relevant portion of section 56 is reproduced for the facility of reference:‑ "

56. An agreement to do an act impossible in itself is void. A contract to do an act which, after the contract is made, becomes impossible, or by reason of some event which the promisor could not prevent, unlawful, becomes void then the act becomes impossible or unlawful. The phraseology of section 56 of the Contract Act is very clear. It applies, where the promisor by reason of some event could not prevent the transaction to become unlawful. In the instant case, the petitioner had himself transacted and bargained 21 Kanals of land and he could have prevented the transaction becoming unlawful. Section 56 is, therefore, not applicable to the instant case. Abdul Sattar and Co. Karachi v. Messrs Dada Ltd. Karachi P L D 1979 Kar. 88 and Messrs Mansukhdas Bodoram v. Hussain Brothers Ltd., PLD 1980 SC 122 have been quoted by the learned counsel for the petitioner. Both the judgments do not apply to the case in hand, as the latter authority concerns the sale of rape seed and in the former authority, transportation of goods was restricted by the order of the District Magistrate to a particular area.

7. Finally the refuge under section 12 of the Specific Relief Act has been sought in the terms" when the act agreed to be done is such that pecuniary compensation for its non‑performance would not afford adequate relief. It has been added that the respondent had himself asked for the alternate relief for the recovery of money and the specific performance of the contract was not necessary. It is an established law that in land cases a decree for the specific performance of the contract should be passed because a pecuniary compensation at law may not afford a complete remedy, as the damages which are generally calculated upon the general money value of the land may not be a complete remedy to the purchaser to whom the land may have a particular and special value. This being so, the specific performance of the contract has rightly been ordered. I, therefore, see no merit in this Civil Revision and dismiss the same with costs throughout. M.Y.H./S‑580/L Petition dismissed.