1989 PLP 4110 (MLD)

ABAID ULLAH KHAN, J.‑‑This appeal against the judgment and decree of the learned Senior Civil Judge, Okara, dated the 9th March, 1986, decreeing the respondents' suit for specific performance of contract of sale of 40 kanals 2 marlas 17 sarsahis of the land in dispute, situate in the area of village Dargan, tehsil Depalpur, district Okara, on payment of the balance of price amounting to Rs.2,42,500.00 arises out of the following circumstances. On the 2nd April, 1981, the defendant‑appellant, the late Khanoo alias Khan Bahadur, son of Boota, executed the deed of agreement, Exh.P.1 undertaking to transfer the land in question by sale to the respondents. According to Khanoo Rs.4,00,000.00 had been settled as price of the land and he had been paid Rs.40,000.00 as earnest money. However, as contended by the respondents, the price agreed to be paid amounted to Rs.3,40 000.00 and a sum of Rs.97,500.00 had been given to Khanoo as earnest money. The appellant maintained that material alterations had been made by the respondents m the deed of agreement, Exh.P.1 and figures relating to price as well as earnest money had been changed and, therefore, they were not entitled to the relief of specific performance of contract.

2. The learned trial Court formed the view that the price of Rs.3,40,000.00 had been mentioned in the deed of agreement, Exh.P.1, in figures as well as in words and that half of the price had also been so stated that it had not been changed in any manner. It thought that no alteration either had been made in the entries pertaining to the payment of Rs.97,500.00 as earnest money. Therefore, excluding the amount of earnest money from that of price it decreed the suit on payment of Rs.2,42,500.00.

3. With the assistance of the learned counsel for the parties we have minutely examined the entries of the deed of agreement, Exh.P.1. We are satisfied that no change with regard to the entries quoting the price of Rs.3,40.000.00 has been made. Nevertheless, there are some sort of over-writings at various places touching the entries reciting the amount of earnest money which had been paid to Khanoo deceased. Be that as it may the learned counsel for the respondents, on the instructions received from his clients, stated that in order to settle the dispute the respondents were prepared to accept the appellant's assertion that he had been paid Rs.40,000.00 as earnest money and were willing to pay the remaining price of Rs.3,00,000.00. It may be mentioned that while appearing as the appellant's witness, Muhammad Arif, son and legal representative of the appellant, DW.2, expressed preparedness and willingness to get the sale‑deed registered if the respondents were to pay the amount of price mentioned in the deed of agreement, Exh.P.1. It means that the payment of Rs.3,00,000.00 the balance of price of Rs.3,40,000.00 was acceptable to the appellant. As the respondents are now agreeable to making such payment, the appeal is partially accepted and the impugned judgment and decree are modified to the extent that the respondents will pay Rs.3,00,000.00 instead of Rs.2,42,500.00 for the purpose of getting the sale‑deed registered. The learned counsel for the respondents says that the aforesaid amount will be paid by the 15th May, 1989. The parties are left to bear their own costs throughout. H.B.T./K‑169/L Order accordingly.