1989 PLP 1288 (SCMR)

JAVID IQBAL, J.‑‑This petition for leave to appeal is directed against judgment of the Lahore High Court, Lahore whereby R.S.A. of respondent Ghulam Muhammad was accepted and judgments and decrees of the Courts below were set aside, decreeing the suit of the respondent subject to the payment of Rs.16,725 to the present petitioner. Briefly the facts are that Shahzada petitioner executed a deed of agreement on 15 June, 1970 with his real brother Ghulam Muhammad to sell to the latter the disputed property owned by him measuring 32 Kanals and 10 Marlas at the rate of Rs.700 per Kanal. The petitioner received Rs.5,000 as earnest money and delivered possession of the land to the respondent. The time for registration of the sale‑deed and attestation of mutation of sale was fixed upto 3 January 1971. Since the sale was not completed by 3 January 1971, on 19 January 1971 the petitioner sent to the respondent notice stating that as the date for getting the sale‑deed registered etc. had passed, the respondent had ceased to have any right. The respondent replied to him on 26 January 1971 that respondent had always been ready to get the sale‑deed registered but as some portion of the disputed land had been acquired by the High Way Department, after settling the matter concerning the acquired area he was prepared to get the sale‑deed executed in respect of the rest of the area of land. Since the petitioner considered the agreement as having finished because the respondent did not perform his part of the contract by 3 January 1971, the respondent instituted suit on 15 February 1971 for specific performance of the contract of sale in question. The petitioner resisted the suit. The trial Court dismissed the suit of the respondent holding that the contract was void. The judgment of the trial Court was upheld in appeal. Thereupon the respondent filed R.SA. which as stated above was accepted. Hence the present petition. It was argued by learned counsel for the petitioner before us that there were concurrent findings of fact by the two lower Courts that the contract of sale had become void because the respondent did not perform his part of the contract of sale. Consequently there was no justification on the part of the High Court to upset the concurrent findings of fact. It was submitted by the learned counsel that admittedly the agreement of sale was to be completed by 3 January 1971 but the respondent did not complete the sale by that crucial date. In reply to the notice of the petitioner on 19 January 1971 if the position taken by the respondent was that he was prepared to pay the balance amount in respect of the area of land which had not been acquired by the High Way Department then he should have made the payment of the balance amount in respect of that area by 3 January 1971. It was further submitted that in the light of this evidence on facts the High Court erred in arriving at the conclusion that the agreement was still subsisting and that specific performance of the same should have been allowed. Leave is granted in this case to further consider the arguments raised by learned counsel. Security to be deposited in the sum of Rs.5,

000. Record of the case be prepared in the ordinary manner. Stay to continue. Accounts to be maintained with yearly security for mean profits to be furnished to the Assistant Registrar, Supreme Court of Pakistan at Lahore starting with the date of decision by the trial Court. Amount deposited by the respondent to be invested in Khas Deposit for benefit of the succeeding party. A.A./S‑258 Leave granted.