1996 PLP 1198 (CLC)

Applicant has filed this Civil Revision Application under the provisions of section 115, C.P.C. impugning the judgment and decree dated 1‑9‑1980 passed in Civil Appeal No. 210/1980 by learned Ist Additional District Judge, Hyderabad whereby he set aside the judgment and decree dated 17‑5‑1977 passed by learned Ist Senior Civil Judge, Hyderabad decreeing the suit filed by the applicant.

2. On 4‑1‑1972 respondent No. l entered into an agreement of sale in respect of a shop and a house both situated on C.S. No.E/1085 NihalShah Ka Pir, Hyderabad for a consideration of Rs.17,

000. A sum of Ps.10,000 was paid to respondent No. l instantly while the balance amount was made payable at the time of execution of registered sale‑deed after obtaining clearance certificate from Income Tax Authorities. As this respondent did not execute the sale‑deed in favour of the applicant who received a notice dated 26‑7‑1975 from the advocate for respondent No.2 requiring him to hand over possession on the averments that he had purchased the house in dispute from respondent No. l he filed a suit for cancellation of conveyance deeds dated 6‑1‑1975, 10‑7‑1975 and 10‑9‑1975 being null and void and seeking specific performance of agreement against respondent No.

1. He maintained that on further verification he came to know that respondent No. l had sold away the suit property to respondent No.2 for a total consideration of Rs.20,000 through two sale‑deeds. Earlier he had filed Suit No.206/1975 against respondent No.2 for declaration of his tenancy in respect of the house in suit and a permanent injunction restraining the said defendant from dispossessing him from the house in suit except in due course of law. On coming to know that respondent No.2 had again sold out the shop as well as the house in suit in favour of respondent No.3 he filed the above suit against the respondents as stated above. Suit No.206/1975 was therefore withdrawn.

3. Each of the respondents filed separate written statements denying the claim of the applicant. Respondent No.1 while admitting the agreement sale in favour of the applicant stated that it had ceased to operate since the latter was never willing and ready to perform the part of his contract. He however admitted the sale of the property in suit in favour of respondent No.2.

4. Respondent No.2 on his part denied the agreement of sale between the applicant and respondent No.l but he admitted the sale of the property in his favour by respondent No.l and subsequent transfer of the property by him in favour of respondent No.3 for a consideration of Rs.40,000 through two sale deeds on 10‑9‑1975.

5. Written statement filed by respondent No.3 was in line with the stand taken by respondent No.2.

6. On the pleadings of the parties a number of issues were settled.

7. Applicant as well as respondent No.3 adduced evidence in support of their respective contentions whereas respondents 1 and 2 did not step into the witness‑box. Learned trial Court by his judgment dated 17‑5‑1977 declared the conveyance deeds referred to above as null and void and decreed the suit for specific performance as against respondent No. i but the decree was set aside in Civil Appeal No. 210/1980 filed by respondent No.3 giving rise to this revision application.

8. At the hearing M/s. Khursheed Alam Khan and Jhamat Jethanand addressed this Court and adversed a number of pleas while none appeared on behalf of respondents 1 and 2 for the obvious reason that after the transfer of property in suit by them they had hardly any interest in the property in suit.

9. Mr. Khursheed Alam Khan learned counsel for the applicant seriously contested the finding of Appellate Court holding that respondent No.3 was a bona fide purchaser of the property in suit for a valuable consideration without any notice. He strongly urged that respondent No.3 had not taken this plea in his written statement and no evidence could be led without setting‑up a case in the pleadings. He relied upon following cases: (i) Hakim Ali v. Muhammad Salim and another (1992 SCMR 46).. (ii) Malik Muhammad Bashir v. Muammad Aslam and another (1990 SCMR 1632). (iii) Government of West Pakistan (Now Punjab),v. Haji Muhammad tPLD 1976 SC 469).

10. There can be no dispute with the proposition that in law no evidence can be permitted to be led on a point not raised in the pleadings but in the instant case it may be observed that it was the applicant himself who had sought the cancellation of conveyance deeds in favour of respondents Nos.2 and

3. Indeed in para. 10 of his plaint he specifically pleaded that the respondent had full knowledge of the fact that respondent No. l had entered into sale agreement dated 4‑1‑1972 with him which was subsisting and operating and that he was in possession of residential portion of the property in suit. He referred to the conveyance deeds dated 6‑1‑1975 and 10‑7‑1975 executed by respondent No. l mentioning that the agreement to sell between the said respondent and the applicant had ceased to operate and stood null and void. He also took an exception to the averment in the said documents that the applicant was occupying a portion of the suit property as a licensee and that possession of one of the rooms of the house was handed over by respondent No. l to respondent No.2.

11. This position was seriously controverted in the written statements filed by the respondents. While respondent NJ. l maintained that the applicant had full knowledge on notice of the sale by him in favour of respondent No.2; that the facts mentioned in the sale‑deed were correctly embodied; that he had never handed over possession of a room to the applicant and rather it had been handed over to respondent No.3 after sale, respondent No.2 took the stand that there was no agreement of sale in existence between respondent No. l and the applicant at the time, property in suit was transferred in his favour. Respondent No.3 however simply denied the allegations, but he expressly denied that the execution of conveyance deeds dated 6‑1‑1975, 10‑7‑1975 and 10‑9‑1975 were the result of conspiracy and collusion between the respondents.

12. It may be observed that respondent No.2 did not step in the witness‑box but there is nothing on the record to hold that he was not a bona fide purchaser of the property in suit without notice of the original agreement of sale as alleged by the applicant in his suit. However, the case of respondent No.3 is distinguishable inasmuch as it was claimed by the applicant himself that latter had the knowledge and notice of the original sale in his favour therefore he was primarily required to prove this assertion where after the burden would shift to respondent No.3 to displace the same.

13. Strange enough on his part, applicant in his whole evidence has not stated a word about the knowledge and notice of this respondent about the prior sale agreement in his favour. On the other hand respondent No.3 in his evidence specifically stated that he never knew that plaintiff had made any agreement of sale regarding the property in suit in favour of some other person. Referring to the persons of respondents Muhamamd Ilyas, respondent Muzaffar Hussain, Aziz, Iqbal and Shoukat he asserted that none of them had disclosed the fact that a sale agreement in respect of the property in suit had already been made with any other person. Technically speaking it could be said that respondent No.3 had not raised this plea in his written statement but it must be borne in mind that applicant himself did not show that this respondent had the notice and knowledge of original sale in his favour thus the latter has successfully rebutted the case set up by the applicant by denial in his written statement and evidence at the trial. Strictly speaking, it cannot be held that the evidence adduced by respondent No.3 on this point was beyond his pleadings or that it deserve to be ignored.

14. There is another aspect of the matter. Applicant had chosen to impugn the two conveyance deeds executed by respondent No. l in favour of respondent No.2 and a conveyance deed executed by respondent No.2 in favour of respondent No.3 on 10‑9‑1975 but he did not bother to produce in evidence a copy of the sale‑deed in favour of respondent No.3. In fact learned counsel for the respondent No.3 stated at the Bar that there are two different sale‑deeds of even date in favour of respondent No.3 one relating to the shop and the other pertaining to the house but the applicant challenged only one conveyance deed in favour of respondent No.3 and that too was not' brought on record in order to effect its cancellation by the Sub‑Registrar in the event of grant of prayer by the Court.

15. Adverting to the cases relied upon on behalf of the applicant in Hakim Ali's case referring to the earlier case of Government of West Pakistan v. Haji Muhammad view taken was that it is a well‑established rule that if a plea of fact is not pleaded no case can be founded on it. In Malik Muhanmlad Bashir's case leave to appeal was granted to consider whether High Court was justified in law to upset concurrent findings of two Courts below; and whether protection under section 27(b), Specific Relief Act read with section 53‑A, Transfer of Property Act was available to vendee in the absence of any assertion in his written statement or statements recorded by Court that he was a bona fide purchaser for consideration and without notice. In the reported case, suit was filed by vendee for specific performance against the vendor. During the pendency of the suit he came to know that vendor had sold the property in favour of another respondent through a registered sale‑deed with the result that first suit was withdrawn and a fresh suit with permission of the Court was filed against the vendor as well as subsequent purchaser. In the present suit relief of specific performance has been sought against respondent N6:1 above and none else.

16. On the other hand learned counsel for' respondent No.3 has referred to section 27(b) of the Specific Relief Act, which provides an exemption to a subsequent purchaser for value without notice of original sale in a suit for specific performance. This provision of law permits enforcement of specific performance of a contract against any other person claiming under the vendor by a title arising subsequently to the contract except a transferee for value who has paid his money in good faith and without notice of the original contract. Relying on section 53‑A of the Transfer of Property Act learned counsel pointed out an averment in the sale‑deed dated 10‑7‑1975 executed in favour of respondent No.2 in respect of the house in suit to the effect that two rooms of the house were in' occupation of Syed Liaquat Ali as license and that agreement in his favour had ceased to operate. This averment in the sale‑deed per se does not show that the applicant was put in possession of two rooms in part performance of the contract and his possession would not amount to notice to third parties since he was shown to be in possession as a lessee. Be that as it may, at any rate, agreement of sale dated 4‑1‑1972 does not mention whether the applicant was put in possession of two rooms of the house in furtherance of part performance of the agreement. On the contrary, the case of applicant as established by the plaint in Suit No.206/1975 is that he was a tenant of the vendor in respect of the house therefore his possession could not be treated as possession of a prior purchaser in pursuance of original sale. As regards the exemption in law provided to a subsequent purchaser suffice to say that respondent No.3 not only denied the allegation made in para. 10 of the plaint but also satisfactorily dislodged the claim of the applicant in his evidence. Reliance has been placed on the cases of (1) Mst. Suriya Begum and others v. Mst. Subhan Begum and others (1992 SCMR 652). (2) Muhammad Ashraf v. Ali Zaman (1992 SCMR 1442) (3) Muhammad Rafiq v. M/s. Habib Bank Ltd. (1994 SCMR 1012) (4) Mst. Sharifan and another v. Nasimuddin and another (PLD 1994 Karachi 135) and (5) Muhamamd Ramzan v. Muhammad Sharif and another (1987 MLD 403). which tend to support the version of respondent No.3

17. It is true that section 22 of the Specific Relief Act, gives discretion to a Court to grant specific performance but the mandate of law is that this discretion must be exercised on sound judicial principles and not in an arbitrary manner. There is no doubt that jurisdiction to decree specific performance is discretionary and the Court is not bound to grant such relief simply because it is lawful to do so. However, the discretion of the Court is not arbitrary but it is to be guided by sound legal principles, which is always amenable to correction by a Court of appeal. It may further be noticed that section 22 givers two illustrations which are not exhaustive to demonstrate in which cases the Court may decline the exercise of granting specific performance of a contract namely (i) where the circumstances under which the contract is made are such as give the plaintiff an unfair advantage over the defendant though there might not be fraud or misrepresentation on the plaintiff's part; and (ii) where the performance of the contract would involve some hardship on the defendant which he did not foresee whereas his non‑performance of the contract would involve no such hardship on the plaintiff. It may also be observed that the above section provides that the Court may properly exercise discretion to decree specific performance where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.

18. No other point was raised on behalf of the applicant in support of this revision petition. On a careful consideration of the judgment impugned in this revision application. I am of the considered view that by allowing the appeal learned Appellate Court neither committed any illegality nor acted with material irregularity. By setting aside the judgment and decree passed by the trial Court learned Appellate Court did not, commit any error of law affecting the jurisdiction of the Court in order to warrant an interference in the exercise of revisional jurisdiction. Needless to observe exercise of revisional jurisdiction being discretionary in the absence of any grave injustice or hardship to the applicant, I see no merit in the revision application which is liable to be dismissed and I order accordingly. There will be no order as to costs. A.A./L‑83/K Revision dismissed