1998 PLP 1260 (MLD)

SARDAR MUHAMMAD RAZA, J.

Haji Hakeem Gul son of Eid Badshah and 5 others brought a suit against Madad Khan son of Ghulam Muhammad Khan and four other heirs of Ghulam Muhammad Khan of Bhana Mari Peshawar for specific performance of a sale agreement No. 154 dated 21-7-1990 whereby the defendants had agreed to sell land measuring 3807 Kanals, 15 Marlas situated in village Regi Lalma, fully detailed in the heading of the plaint filed on 13-3-1991.

2. The suit duly contested by the defendants proceeded in the normal course when through an Award dated 24-3-1992 the property was acquired by Peshawar Development Authority. The learned Civil Judge 1st Class Peshawar vide his judgment and decree dated 13-1-1993 dismissed the aforesaid suit holding that owing to the acquisition of land by the Government the defendants lost title in the property and hence the agreement dated 21-7-1990 stood frustrated and incapable of being performed. The learned Judge also refused the amendment of the plaint sought by the plaintiffs for addition of (i) a declaration to the effect that they are entitled to receive the compensation amount, (ii) permanent injunction against the defendants for restraining them from denying the rights and title of the plaintiffs and (iii) impleadment of Collector Acquisition Peshawar Development Authority as defendant in the suit. Haji Hakeem Gul etc. the plaintiffs have filed this regular first appeal.

3. The present situation is referable to section 21 of the Specific Relief Act, subsection (b) whereof was particularly discussed. It provides that a contract which runs into such a minute or numerous details that practically become unenforceable, should not be specifically enforced. In the instant case, the agreement to sell between the parties is plain and simple agreement sans minute or numerous details. It also is not dependent on the personal qualification or volition of the parties. From its nature also one does not feel confronted with any difficulty prima facie qua its performance with special reference to its material terms. Only two difficulties seem apparently to be likely to be faced after acquisition i.e. the loss of title of the defendants due to which no sale deed is likely to be executed and secondly, the technical loss of possession which cannot now be delivered to the plaintiffs. Can these hurdles create such disabilities that fall within the ambit of section 21 of the Specific Relief Act, is a question which in all its details is answered by the Hon'ble Supreme Court in Joydeb Agarwala v. Baitulmal Karkhana Limited (PLD 1965 SC 37), placed reliance upon by Mr. Zeenat Khan learned counsel for the appellants.

4. While giving verdict, the Supreme Court relied upon Hillingdon Estates Co. v. Stonefield Estate Limited (1952 Ch.D 627) from English jurisdiction where the Judge had observed, "I agree that this compulsory purchase order very much altered the situation, but I cannot appreciate that it has altered it in such a fundamental and catastrophic manner as to justify the Court in holding that the whole contract has been frustrated." The Supreme Court further relying on its previous judgment dated 17-3-1964 in Civil Appeal No. 30-D of 1961, Mrs. Anwara Chaudhry v. M. Majeed and others had ruled that in making the decree for specific performance of a contract for sale of land, of which a part had been acquired by Government, the vendee would be entitled to take the compensation for the compulsorily acquired part, after the conveyance had been registered in the vendee's favour.

5. In view of the aforesaid principle of law, we believe that the situation, no doubt, has changed in the instant case due to acquisition of property by the Government but it has not changed in such a serious manner so as to frustrate the very contract. In such changed circumstances, when the plaintiffs seek to amend their plaint in order to include all consequential relief, it does not amount to changing the character of the suit. Again this was maintained by the Hon'ble Supreme Court in Bashir Ahmed Khan v. Qaiser Ali Khan (PLD 1973 SC 507(c)).

6. All the amendments sought in the instant case, not only failed to change the character of the suit but also are necessary for purpose of determining the real questions in controversy between the parties. In such state of affairs also the amendments were held necessary by the Hon'ble Supreme Court in Mst. Ghulam Bibi and others v. Sarsa Khan and others (PLD 1985 SC 345). We believe and hold that the amendments prayed for by the plaintiffs never operated to change the character of the suit and were rather, necessarily, required to determine the real question bf controversy between the parties. The learned Trial Court had unlawfully disallowed the amendments.

7. Mr. Abdul Sattar Khan learned counsel for the respondents, with reference to the question of frustration of contract, placed reliance upon Qureshi Muhammad Anwar v. S.A. Qureshi (1994 CLC 733) a Division Bench judgment from Lahore High Court but therein the contract between the parties was held rightly to have become frustrated because within the rightful exercise of jurisdiction, the Cantonment Board had refused to issue No Objection Certificate concerning the sale in question. Similar was position in Muhammad Ishaq v. Mst. Sofia Begum (1992 SCMR 1629) where impediment was the non-issuance of No Objection Certificate. Further reliance was placed on M/s Dada Limited v. M/s Abdus Sattar and Company (1984 SCMR 77) but in that case too the frustration of contract was rightly concluded because of imposition of ban by the District Magistrate under section 144, Cr.P.C. especially when such order of the District Magistrate was held valid unless set aside at the instance of aggrieved person in appropriate legal proceedings. The rulings relied upon by the learned counsel for the respondents do not pertain to the acquisition of land by Government.

8. Mr. Abdul Sattar Khan, Advocate further argued that a decree for specific performance of contract is purely a discretionary relief and should not be granted in the circumstances where one party is placed at such a bargaining position that it fully exploits the agreement to the utter difficulties of the opposite party. That in the instant case the appellants had entered into an agreement of purchase at a nominal price which presently stands considerably enhanced through compulsory acquisition of land. This, in addition to many other circumstances, was a situation in which the learned counsel for the respondents was of the view that the grant of decree against the respondents would be totally inequitable.

9. We do agree that a relief for specific performance of contract is completely an equitable relief and in circumstances of each case, it can be refused as well, under the equitable discretion of the Court but it is a question of fact which can only be decided by the Trial Court after recording evidence of both the parties. We leave this matter to the discretion of the Court after when the evidence is recorded on either side. Presently, we are confronted with the only two questions of frustration of contract and amendment of the plaint.

10. In the circumstances, we hold that the contract is not frustrated and the desired amendments do not at all operate to change the character of the suit. Resultantly, the appeal is accepted, the impugned judgment and decree dated 13-1-1993 is set aside. The original proceedings in suit are restored with direction that the plaintiffs shall be allowed to file amended plaint as prayed, for parties to appear before the Trial Court on 29-9-1997. H.B.T/29/ Appeal accepted.