P L D 1969 Peshawar 185 (PLP)

4. The parties proceeded to trial on the following issues :‑ (1) Whether the plaintiff is entitled to the possession of the rooms and shops as detailed in the heading of the plaint by specific performance of contract ?' (2) Whether the suit is properly valued for purposes of court -fee and jurisdiction (3) Whether the plaintiff is estopped by his conduct to‑ ‑bring the present suit ? (4) Whether the suit is bad for mis‑joinder of defendant No. 2 ? (5) Relief.

5. The trial Court found these issues in the plaintiff's favour and decreed the suit. The findings were armed by the learned Additional District Judge in appeal.

6. One of the grounds urged in appeal is that the plaintiff was not entitled to the possession of the two shops and the two rooms in dispute under the terms of the agreement Exh. P. W. 1/1. This document is not happily drafted. The measurements are not given and the property is described by the boundries on the four sides. It appears from the description of the boundaries that the property in dispute is probably a rectangle but the site plan indicates differently. There is no proper location of the rooms or of the shops to be constructed, nor are any measurements given. Nor is it clearly mentioned that the defendant‑appellant was not to raise any construction on the premises other than the five shops and the nine rooms mentioned in the agreement. Nor is it indicated as to what is to happen if the defendant appellant raised some more construction on the premises. The relief of specific performance is granted under the equitable jurisdiction of the Civil Court and. is in the discretion of the Court. According to section 21(c) of the Specific Relief Act, 1877". The following contract cannot be specifically enforced "(a) . (b) .. (c) A contract the terms of which the Court cannot find with reasonable certainty." Apart from the difficulties created by the uncertainties mentioned above, there has been some disagreement with regard to the construction raised and the construction agreed upon. The plaintiff‑respondent had not raised any objection in time to see that the construction raised conformed to the terms of the agreement: According to the plaint, the plaintiff had to receive five shops and nine rooms totaling fourteen and he had received one shop on the west and asked for three shops on the north and ten rooms instead of nine. The total would be fourteen, although the defendants' contention is that the one big room on the west was comprised of three shops and had been so constructed on the request of the plaintiff. The question of rent is also material. The parties had agreed upon rent at the rate of Rs. 70 p.m. for each shop and Rs. 20 for each room. This would mean that the plaintiff respondent was to pay Rs. 530 p.m. If the plaintiff's suit is allowed as prayed, he gets four shops and ten rooms and the monthly rent agreed upon would not come to Rs. 530 as agreed upon in the agreement. The position, therefore, is that the plaintiff in the suit is not asking for the specific performance of the terms agreed upon between the parties, but asks for something being given in compensation. This is not within the scope of the law while granting a specific performance of the terms of the contract. A plaintiff coming for specific performance of contract must conform himself fully and completely to the terms of the contract and his only prayer would be that he should be granted under the command' of the Court what the defendant in the case had agreed tai give. Since the reliefs asked for are not supported by the terms of the agreement Exh. P. W. 1/1, the plaintiff is not entitled to the decree as prayed. This, however, would not stand in the way of his seeking any other relief to which he may be entitled on the basis of the agreement or by reason of its breach, if proved. In this view of the matter, the decree granted to the plaintiff cannot be upheld. This appeal is, therefore, allowed and the plaintiff‑respondent's suit is ordered to be dismissed. The parties are, however, left to bear their own costs throughout. A. E./K. B. A. Appeal allowed.