P L D 1995 Lahore 329 (PLP)

This judgment shall dispose of the following five identical civil revisions:-- C.R. No.247 of 1995 (Abdul Hameed, etc. v. Muhammad Zubair) C.R. No.248 of 1995 (Abdul Hameed, etc. v. Anwarul Haq), C.R. No.249 of 1994 (Abdul Hameed, etc. v. Ghulam Qadir), C.R. No.250 of 1994 (Abdul Hameed etc. v. Muhammad Akbar), C.R. No.251 of 1994 (Abdul Hameed, etc. v. Afaq Ali).

2. Briefly stated facts of the case out of which these petitions have arisen are that vide agreement to sell dated 23-5-1994, land measuring 210 Kanals 11 Marlas situate in Mauza Tullah Kamboh, Tehsil Depalpur, District Okara, was agreed to be sold by M/s. Abdul Hameed, Muhammad Akram, Bashir Ahmad petitioners in all these cases. M/s. Afaq Ali son of Muhanimad Hussairi, Muhammad Zubair son of Nazir Ahmad, Akbar Ali son of Iqbal Hussain, Ghulam Oadir son of Faiz Ahmad and Anwarul Haq son of Iqbal Hussain, who are respondents in all these cases and M/s. Muhammad Ashraf, Muhammad Akram sons of Ghulam Rasul and Ali Muhammad, who are closely related to the other respondents, for a consideration of Rs.5,78,

875. Out of the sale price rupees one lac was received by the petitioners by way of earnest money whereas the balance sale amount had to be paid at the time of execution of sale deed. Thereafter, as the petitioners did not execute the sale deed, in spite of the oral and written demands in this behalf and in spite of the fact that on 25-1-1985, the intending vendees remained in Tehsil Office ready with balance sale amount but the petitioners did not turn up, hence, the five respondents filed five separate suits for payment of Rs.20,000 each out of the amount of earnest money of Rs.1,00,000 which according to them was contributed in equal shares. All these five suits were contested inter alia on the grounds that separate suits are not maintainable on the basis of one agreement to sell; that the earnest money stood confiscated as the plaintiffs were at fault and they were not prepared to get the sale-deed executed and that the suit is bad for non-joinder of necessary parties. On the basis of pleadings of the parties, the learned trial Court settled the following issues:-- ISSUES: (1) Whether the plaintiff is entitled to recover Rs.20,000 from the defendants? OPP. (2) Whether the suit is not maintainable in its present form? OPD (3) Whether the suit is incorrectly valued for the purposes of court-fee and jurisdiction? OPD (4) Whether the suit is mala fide and defendants are entitled to special costs under section 35-A, C.P.C.? OPD (5) Whether the plaintiff is estopped to file this suit by his words and conduct? OPD (6) Whether this suit is not maintainable in view of preliminary objection No.6 of the written statement? OPD (7) Relief. and after recording of evidence vide judgment and decree dated 17-6-1992decreed all the five suits in favour of the plaintiffs. Aggrieved of this judgment and decrees the petitioners filed five regular first appeals which, have been dismissed by the learned Additional District Judge, Okara Camp at Depalpur, vide judgments and decree dated 19-10-1994, hence these civil revisions have been filed. `

3. Mian Asif Mumtaz Advocate, learned counsel for the petitioners has raised the following contentions:-- (i) that there being one agreement to sell in pursuance whereof the earnest money amounting to rupees one lac was received by the petitioners, which was paid by all the intending vendees jointly and there being no specification. of amount contributed by each vendee, separate suits for recovery of Rs.20,000 each, are not maintainable and that the device of filing of separate suits has been adopted -by the plaintiffs to avoid payment of court-fee, therefore, these being dishonest suits,~are liable to be dismissed; (ii) that the earnest money was paid by eight persons, whereas the suits have been filed only by five out of the said eight persons. Therefore, decree for payment of Rs.20,000 in favour of each plaintiff could not have been passed; (iii) that it is a case of wrong appreciation of evidence as it is the plaintiffs who are responsible for failure of execution of the sale-deed, therefore, the earn:st money stood confiscated, hence decree for payment of the same could not have been passed. In support of his contentions learned counsel has placed reliance on the following cases:-- Abdullah and 3 others v. Abdul Karim and others (PLD 1968 SC 140), Haji Muhammad Zaman v. Zafar Ali Khan ,and others (PLD 1986 SC 88), Wazir Muhammad etc. v. Abdul Aziz and another (1982 SCMR 189).

4. I have considered the arguments addressed by the learned counsell for the petitioners, have gone through the record and judgments cited at the bar. Learned counsel has taken me through the evidence produced in all these cases. Execution of agreement of sale and receipt of earnest money of rupees one lac in pursuance thereof is admitted by the petitioners. It is also admitted that the plaintiffs in all the suits are included in eight vendees and the left out three persons are close relations of the five plaintiffs. It is stated by the witnesses produced by the plaintiffs which evidence has been believed by the two Courts. below, that it is the five plaintiffs who had paid earnest money by contributing it in equal shares of Rs.20,000 each and the left out these person did not share the payment. The preponderance of evidence produced by both the parties is that the plaintiffs have been ready and willing to pay the balance sale amount to get the sale-deed executed in their favour but the petitioners did not turn up even on the last date fixed for execution of sale-deed, hence the same could _ not be executed. This is what has been held by the two Courts below after scanning of the whole evident;,. No misreading/non reading of evidence has either been alleged or proved. According to the learned counsel evidence has not been properly appreciated. Firstly wrong appreciation of evidence is not a subject for interference in revisional jurisdiction of this Court; secondly. a perusal of the evidence clearly shows that both the Courts below have appreciated the evidence correctly and there is nothing wrong that the findings of fact rendered by the two Courts below to the effect that it is the petitioners who are at fault. Therefore; the petitioners have no right to retain the amount of earnest money which has admittedly ,been received by them from the plaintiffs. Merely because three glut of the intending purchasers have not joined as plaintiffs will not absolve the petitioners of their liability to return the amount of earnest money, as they cannot retain the same being themselves guilty of breach of contract. Even it is a assumed for the sake of arguments that there is no evidence regarding equal contribution of the, amount of earnest money, the matter is within the plaintiffs other intending purchasers and riot the petitioners and as no body has raised arty objection inter se the plaintiffs or the left out intending purchasers, no fault can be found with the suits filed by the plaintiff's or the judgments and decree rendered by the Courts below. hence the. arguments of the learned counsel for the petitioners that separate suits could not have been filed is without any lawful basis, and hence is repelled. The cases relied upon by the learned counsel for the petitioners are. not applicable to the facts and circumstance of the case in hand. The cases of "Abdullah and 3 others" and Wazir Muhammad etc". (supras) are the pre emption matters wherein the question of divisibility ,of sale transaction has been debated and answered. In case of "Haji Muhammad Zaman" (supra) it has been laid down that-without there is error of exercise of jurisdiction or it is a case of misreading or non-reading of evidence, revision petition is competent. There is no cavil with the legal propositions as laid down in the aforementioned cases but the same are not relevant for the purpose of decision of the case in hand- keeping in view its facts and issues involved therein. Therefore, concurrent findings of facts rendered by the two Courts below are unexceptionable and are not liable to be interfered with in exercise of the revisional jurisdiction of 'this Court.

5. Looking the case from another angle as well, no interference is called for with the judgment rendered by the two Courts below. It is now well -established legal proposition that the Courts should make every effort to give a party which is due to him and the technicalities should not stand in the way of administration of justice, In the case in hand, simple question to be decided is as to whether the petitioners are liable to return the earnest money or not'? it has been found by the Courts below that they are liable to return the amount which finding has been upheld by this Court as well. Therefore, the judgment arid decree rendered by she. two Courts below (resides being lawful is also in aid of administration of substantial justice. Therefore ratio of case of M/s. Ghulam Farid Muhammad Latif and others v. The Central Bank of India Ltd., Lahore (PLD 1954 Lah. 575) is attracted in this case, hence it is not a fit case for interference in exercise of.revisional jurisdiction of this Court.

6. Resultantly, I see no force in all these petitions, hence the same are dismissed in limine. AA./A-799/L Revision dismissed.