2000 PLP 251 (MLD)

SYED NAJAM‑UL‑HASSAN KAZMI, J.‑‑‑R.F.A. 20 of 1988 arising from judgment and decree, dated 24‑2‑1988 is being decided through this judgment.

2. Muhammad Ishaq and Muhammad Ashfaq, respondents herein, filed a suit for specific performance of an agreement of sale, dated 14‑9‑1982, claiming that Mst. Alam Khatoon, Predecessor of appellants 2 to 5 acting through Noor Muhammad, General Attorney, appellant No.2, agreed to sell land in issue in their favour, in consideration of Rs.20,40,000 and received Rs.8,00.000 as earnest money. A further sum of Rs.77,000 was claimed to have been paid on 20‑6‑1983, against receipt, while the sale‑deed was allegedly agreed to be executed on or before 13‑9‑1983, it was pleaded that the execution of sale‑deed was delayed on one pretext or the other and later the same was refused due to increase in the market price, from which refusal to perform agreement was assumed. Respondents, thus, claimed for the enforcement of the agreement through a decree of the Court.

3. In their joint written statement, appellants raised preliminary objections, as to absence of cause of action, incorrect description of property and valuation of suit for court‑fee and jurisdiction purposes, estoppel, limitation and non‑maintainability of the suit in its present form. On factual side, it was claimed that the agreement was concluded through Kayani Property Dealer, Rs.3,00,000 were paid as earnest money. Rs.5,00,000 was written as "Charhawa", no payment of Rs.77,000 was made on 20‑6‑1983, the property dealer obtained signatures on white paper, the respondents did not perform respective obligation within the stipulated date and that they were not entitled to enforce the agreement.

4. Points on which the parties were at variance, were incorporated in the following issues:‑‑ (1)??????? Whether the suit has been wrongly valued for the purpose of court? fee and jurisdiction, if so, what is its correct valuation? (2)??????? Whether the plaintiffs are estopped by their conduct to bring the present suit? (3)??????? Whether the suit has been wrongly described in the plaint. If so, to what effect? (4)??????? Whether the suit is time‑barred? (5)??????? Whether the defendant No. l through her general attorney‑defendant No.2 agreed to sell the suit property to plaintiffs in consideration of Rs.20,40,000 on 14‑9‑1982 and received an advance of Rs.8,00,000? (6)??????? Whether the defendant No. l received an amount of Rs.77,000 as second instalment of earnest money on 20‑6‑1983 through her general attorney, defendant No.2?. (7) Which of the parties delayed the execution and registration of sale?deed as agreed upon in the agreement? (8)??????? Relief. 5. . Respondents produced in evidence, Mushtaq Ahmad, P. W .1, Irshad Hussain Khokhar P.W.2, Muhammad Ishaq P.W.3, while appellants produced Abdul Ghani D.W.1, Muhammad Ali D.W.2, Ghulam Shabbir D.W.3, Haji Muhammad Alsam, Advocate, D.W.4 and Noor Muhammad D.W.5. Muhammad Ishaq, respondent/plaintiff appeared twice, as P.W.3, firstly in the affirmative evidence and thereafter in rebuttal additionally, documentary evidence, comprising of agreement dated 14‑9‑1982, Exh.P.l, receipt dated 20‑6‑1983, Exh.P.2 agreement dated 19‑9‑1982, Exh.D.l, notice, dated 15‑9‑1983, Exh.D.2, postal receipt and acknowledgement due Exh.D.3 and Exh.D.4, notice Exh.D.5, postal receipt Exh.D.6, application dated 14‑9‑1983, Exh.D.7 and extract of the register of deed writer Exh.D.8.

6. Issues Nos.5 to 7 were decided in favour of respondents, issues Nos.l to 4, reflecting preliminary objections were answered against the appellants and in result the suit was decreed by the learned Senior Civil Judge, Multan on 24‑2‑1988, subject to payment of Rs.11,63,000 as balance amount of consideration. In result, the present appeal came up for challenge to the decree in suit.

7. Learned counsel for the appellants contended that the respondents, in this case were minors who could not enter into any agreement of sale, the agreement could not be ordered to be performed as it was in violation of law, the respondents played fraud and were not entitled to any relief, time was essence of the contract and since respondents did not perform respective obligations within the stipulated period nor relief could be extended in discretionary jurisdiction and that the appellants were entitled to treat the contract as cancelled. It was added that the respondents could not even ask for the refund of the earnest amount. Learned counsel submitted that there was sufficient evidence on record to prove that earnest money was Rs.3,00,000, the subsequent agreement was only a pretence to avoid suit for pre‑emption and that in the peculiar circumstances the suit could not be decreed. It was further submitted that even if the ground of minority had not been taken at the trial stage, still the same could be allowed in appeal, as it was a question of law and for this purpose C.M. No.548‑C/1 of 1992 was filed by the appellants.

8. In reply, it was argued that the appellants. did not raise plea of ambiguity in the written statement or in the evidence, therefore, at this belated stage new plea could not be allowed particularly when the plea involved factual inquiry. It was maintained that the agreement being in favour of the respondents, even if the plea of minority is considered the validity of agreement cannot affect as the alleged minors will be beneficiary thereof. It was added that without laying foundation in the pleadings, no evidence could be led and even if any evidence on a point of fact not raised in the pleadings was recorded, the same could not be considered. Learned counsel submitted that no oral agreement could be allowed to add, substract or vary the terms of a written agreement. It was further submitted that there was sufficient evidence on record to prove that the agreement was executed in good faith, earnest money of Rs.8,00,000 was paid, additional payment of Rs.77,000 was received and that the respondents did remain ready and willing to perform their part and were rightly awarded decree for specific performance. Lastly, it was submitted that time was not essence of the contract and in any case the agreement could not frustrate as the respondent did perform their part within the alleged period contained in the agreement.

9. We have concentrated on the submissions made in the course of hearing of this appeal and have also been taken through the entire oral and documentary evidence on record.

10. Case of respondents was that in terms of agreement of sale, dated 14‑9‑1982, Mst. Alam Khatoon predecessor of appellants Nos.2 to 5 acting through appellant No. l (Noor Muhammad) agreed to sell land in question, for a sum of Rs.20,40,000 and received Rs.8,00,000 as earnest money and that the additional sum of Rs.77,000 was paid on 20‑6‑1983. Appellants on the contrary claimed that Rs.3,00,000 were paid and that Rs.5,00,000 were mentioned as Charhawa, in the agreement. It is obvious from the pleadings and also the evidence that execution of agreement of sale dated 14‑9‑1982 is not in issue though the parties are at variance, in the matter of price. To prove that Rs.8,00,000 were paid as earnest money and that additional sum of Rs.77,000 were also received by the other side after the agreement, respondents produced P.W.1 Mushtaq Ahmad, Property Dealer, who deposed that the agreement, Exh.P.l was signed in his presence by Noor Muhammad, attorney, he himself was a marginal witness, Rs.8,00,000 were paid before the Sub‑Registrar, as earnest money, another sum of Rs.77,000 was paid on 26‑6‑1983 for which receipt Exh.P.2 was prepared and signed by Noor Muhammad of which he was a marginal witness. He was confronted with an earlier agreement of 30‑12‑1981, Exh.D.l of which he was a marginal witness. The witness denied that the .agreement dated 14‑9‑1982 was executed as a "Charhawa" and that only a sum of Rs.3.00.000 was paid. It appears from the statement that witness was not cross‑examined as to the payment of Rs.77,

000. P.W.2, Irshad Hussain a deed writer appeared and deposed that the agreement was drafted by him, it was read over to Noor Muhammad who signed the document in his presence and that the witnesses also signed in his presence. He further deposed that Rs.8,00,000 was paid in his presence before the Sub‑Registrar and that are additional amount of Rs.77,000 was received by Noor Muhammad on 20‑6‑1983 which was acknowledged in Exh.P.2 duly signed by the executant and also the witnesses. Muhammad Ishaq, respondent, appeared as P.W.3 and deposed in support of the plaint, by stating that Rs.8,00,000 was paid as advance before the Sub‑Registrar and that no part of the amount was "Charhawa" and also that Rs.77,000 was paid after the agreement on 20‑6‑1983, for which Exh.P.2 was executed. Statements of P. W. I to P. W 3 do not suffer from any contradictions nor the credibility of those witnesses could be shaken in cross?-examination and from the evidence of the respondent, the payment of Rs,8,000 as earnest money and also' additional amount of Rs.77,000 stands proved. As against this, appellants produced Abdul Ghani D.W.1, who claimed to be a marginal witness of Exh.P.I and stated that Rs.5,00,000 was written as "Charhawa". In cross‑examination he did not deny that Rs.8,00,000 was paid before the Sub‑Registrar and he had not deposed before the Sub‑Registrar that the payment of Rs.8,00,000 was bogus. He admitted having relations with Noor Muhammad and having been approached for making the statement in his favour. The witness admitted that in the documents, it was never mentioned that Rs.5,00,000 was only for show purposes. The statement of D.W.1, thus, makes it obvious that he had been won over by Noor Muhammad appellant and that on account of his relationship with the defendant/appellant, he had tried to extend helping hand by, making a statement against the document. In any case, the witness himself admitted that Rs.8,00,000 was paid before the Sub‑Registrar which made two versions contradictory and unworthy of any credence. D.W.2 Muhammad Ali, deposed that the transaction was for Rs.15,40,000 under the previous agreement. In cross‑examination he expressed lack of knowledge as to the error of alleged agreement and admitted that he was not present and also that he was told before the alleged agreement by, Noor Muhammad. His statement was, therefore, hearsay. He, however, did not deny that there was no writing or document to support the plea that Rs.5,00,000 was recorded as "Charhawa". So much so, he admitted that he did not know about the land of which the alleged agreement was made. D.W.3 is record‑keeper, D.W.4 is Haji Muhammad Aslam, Advocate who of course are not relevant for the earnest money. Noor Muhammad appellant appeared as D.W.5 and claimed that another agreement was made on 30‑12‑1981 whereafter the agreement in issue was executed in September, 1982. He claimed that, the amount of Rs.5,00,000 was not paid. In cross‑examination, he admitted that the balance sale price was Rs.12,40,

000. The relevant portion of his statement is to the following effect:‑‑

11. From the statement of D.W.5 it is discernible that the execution of agreement of sale Fxh.P.l is not disputed, the balance sale price of Rs.12,40,000 is also not disputed and this is also the case of the respondents. According to respondents, the sale price was Rs.20,40,000 out of which Rs.8,00,000 was paid and balance price was Rs.12,40,

000. The payment of Rs.8,00,000 as earnest money was not only recorded in Exh.P.l but was also recorded in the endorsement of Sub‑Registrar as the amount was paid in the presence of the Sub‑Registrar. Not only that the witnesses of respondent deposed that Rs.8,00,000 was paid before the Sub‑Registrar but also D.W.1 a witness of appellants admitted in cross‑examination that Rs.8,00,000 was paid before the Sub‑Registrar. So much so, in the application Exh.P.7, the appellants claimed to have filed before the Sub‑Registrar for registration of the sale‑deed, it was alleged that in case of non‑registration of the sale‑deed the appellants were bound to return Rs.3,00,000 and were entitled to forfeit Rs.5,00,

000. If Rs.5,00,000 had not been paid to the appellants, there was no question of making claim of forfeiting the same. This belies the total stand of the appellants. Even otherwise, the appellants wanted to plead against the contents of the document, which was not permissible as the execution of the agreement was not denied. No oral evidence to contract, add or substract the terms of the written contract could either be led or be admissible in law. Likewise, the appellants could not prove that Rs.5,00,000 was returned to the respondents. Reference to the alleged agreement Exh.D.I does not make out any case for appellants, for the simple reason, that the document Exh.P.I is independent transaction which neither makes reference to any previous agreement nor has any nexus with the same. Exh.P.I has been independently proved, payment of earnest money having been established in evidence, the plea of appellants of fixing Rs.5,00,000 as "Charhawa" having not been proved by any admissible evidence the appellants could not non‑suit the respondents by taking any self‑concocted plea. Same is the position as to the payment of Rs.77,000 which is proved by the statements of PW.1 to PW.3.

12. Regarding the entitlement to enforce the agreement, respondents did lead evidence to the effect that they remained ready and willing to perform their part. P.W. 1 deposed that before the expiry of the period given in the agreement, Noor Muhammad was contacted and was asked to execute the sale‑deed who required him and respondents to reach the place of Deed Writer and that the respondents continued visiting the deed writer for 6/7 days but the appellants did not execute the sale‑deed and after the expiry of date given in the agreement the execution of sale‑deed was refused. P.W.

2. Deed Writer corroborated the statement of P.W. 1 and deposed that the respondents as well as P. W . I had been visiting him for the preparation of the sale‑deed but the attorney of the vendor did not turn up. P.W. 3, Muhammad Ishaq also made a statement to the same effect. As against this,, appellants produced oral evidence to allege that they were ready to perform their part and that an application was moved before the Sub‑Registrar, for this purpose. D.W. 4 was produced in support of the‑legal notice. Perusal of notice Exh.D.2 will show that the same was issued after the expiry of the date given in the agreement. Exh.D.5 is undated and from the contents thereof it appears that the same was allegedly sent after the expiry of the period given in the agreement. The alleged notice sent subsequent to the expiry of the period will not be relevant to determine the conduct of the appellants, during the period given in the agreement. It was admitted by Noor Muhammad, D.W.5 that no notice was given before 15‑9‑1983, it was also not denied that no notice was given to the respondents for appearance before the Sub‑Registrar. Making of any application before the Sub‑Registrar without prior intimation to the proposal vendee would obviously be not relevant. In this view of the evidence, it is clear, that the respondent did prove their readiness and willingness to perform their obligation under the agreement and also filed the suit without delay and that the appellants avoided the execution of sale‑deed and after the time had expired an attempt was made to fabricate evidence for covering up default which of course would be of no help.

13. Coming to the objection of alleged minority of respondent much stress was given to urge that the point should be allowed at the appellate stage and that the application for additional grounds should be granted. Careful study of the written statement and also the evidence on record will show, that the appellants did not raise the plea of minority in defence, nor questioned the validity of agreement on this account. So much so the legality of the agreement was never questioned during cross‑examination of the witnesses of respondents. Even in their own evidence the appellants did not come up with any such remote plea. It is, thus, a case, where the appellants seek permission to urge a ground for which there is no foundation in pleadings or evidence. In principle, no party can be allowed to make out a case for which no foundations were laid in the pleadings. A point requiring factual enquiry not raised in the written statement, the defendant cannot be permitted to lead evidence and if by oversight, evidence is brought on record, the same cannot be considered. Reference can be made to Haji Gaffar‑Haji Habib Janu v. Khawaja Wakil Ahmad (PLD 1959 (W.P.) Karachi 611), Ghulam Mustafa v. Haji Mian Muhammad and another (PLD 1969 Peshawar 241), Saiyed Ali Amir v. Messrs Dalmia Cement Ltd. (PLD 1961 (W.P.) Karachi 255), Allah Ditta v. Mst. Rasoolan Bibi and 7 others (1976 SCMR 459) and Siddik Mahmood Shah v. Mst. Saram and others (AIR 1930 Privy Council 57(1). Reference can also be made to Mst. Jannat Bibi v. SUer Muhammad and others (1988 SCMR 1696), wherein it was ruled that a party is not permitted to deviate from his pleadings nor can the Court set up a different plea for a party and decide the suit on that basis, muchless at appellate stage. Likewise, in Abdullah v. Maqbool Ahmed (PLJ 1987 Lahore 605), it was observed that if a ground is not taken in memorandum of appeal, the appellant will not be entitled to urge the same during arguments.

14. In this case as noted supra, plea of minority to challenge the validity of agreement was not set up as a defence in the pleading or in the evidence nor it was raised in the grounds of appeal and that with a view to urge this plea at appellate stage. C.M. No. 548/C/1 of 1992 was filed. If the defence on merit and also the evidence of the appellants is kept in view, one gains the impression the appellants always alleged the agreement to be valid and pleaded that they have been willing to perform it and also that they allegedly did every thing necessary for the completion of the deal. In view of the defence already taken and due to the fact that the ground sought to be raised, was never raised in defence, the appellants cannot possibly be permitted to take a U turn and raise altogether different plea.

15. Even if the new plea is considered, the same will not strengthen the case of appellants nor will render any help to the appellants to non‑suit the respondents. Main contention of learned counsel for appellants was that under section 11 of the Contract Act a minor is incompetent of entering into a contract and even if the minor intended to ratify a contract after attaining majority the inherent defect would not be cured. Reliance was placed on Darey Khan v. Muhammad Hussain and others (1998 CLC 1439). This judgment is based on distinguishable facts and does not support the appellants. In the said case, no agreement of sale in favour of the minor was being enforced and instead the plea was that sale transaction was allegedly effected by a minor in favour of a third person. In that context, it was observed that the contract to sell minor's property, if made by the minor, would be void ab initio and could not be rectified. The situation will be altogether different where minor is transferee and beneficiary of an agreement. It is true that any person, who has not attained majority cannot enter into an agreement of sale to sell his property, nor the sale‑deed purportedly executed by minor, regarding his property can operate against his interest but nevertheless if a minor is beneficiary of the transaction and is vendee. He can successfully avail the benefits. In Munni Kunwar v. Madan Gopal (ILR 38 All. 62), it was observed that there is nothing in law to prevent a minor from becoming a transferee of immovable property and a minor in whose favour a valid deed of sale has been executed is competent to sue for possession of the property thereby conveyed. In Narain Das and another v. Mst. Dhania (ILR 38 All, 154), it was observed that a minor of capable of purchasing immovable property and where such a purchase has been completed by execution and registration of a sale‑deed he can sue to recover possession of the property purchased upon tender of a balance of the purchase money. In firm Bhola Ram Harbans Lal and another v. Bhagat Ram and others (AIR 1927 Lahore 240), it was observed that a document in favour of the minor can be enforced as the underlying principle is that while no liability can be incurred by a minor, he is not debarred from acquiring title to anything valuable. In Mst. Amanat v. Mahboob Hussain (PLB 1959 Karachi 362) it was observed that under section 11 of the Contract Act minor is not incapable of being a transferee under a sale‑deed of immovable property. In Muhammad Hussain v. Saleem Jan and others (PLD 1995 Peshawar 98) it was observed that an agreement of sale in favour of minors 'could be enforced in law. '

16. In this case, one of the plaintiffs was claimed to be minor at the time of institution of the suit and agreement, the suit on his behalf was filed by next friend, the agreement of sale even according to the new plea raised by the appellants, will be in favour of the persons including the one who was allegedly minor, it was not a case of sale by a minor but the minor was the prospective, buyer and beneficiary of the agreement. The two respondents accepted the agreement and followed up proceedings to enforce the same even in the proceedings of appeal, they appeared and claimed to be major and interested to enforce their rights under the agreement, the agreement did not suffer from any legal ‑infirmity and could be successfully enforced in law. The objection raised on this account is devoid of merit and is hereby repelled.

17. As to the plea that time was essence to the contract, it may be observed that ordinarily time is not essence of the contract pertaining to the immovable properties unless the parties have made their intentions so clear and the agreement provides for ipso facto rescission of the contract due to non‑adherence to the time clause. Reference can be made to Seth Essabhoy v. Saboor Ahmad (PLD 1972 Supreme Court 39) and Abdul Hamid v. Abbas Bhai‑Abdul Hussain Sodawaterwala (PLD 1962 Supreme Court 1). In these cases, the terms of the agreement and also the conduct of the parties as demonstrated in the evidence do not give an impression if they had ever considered the time as essence of the contract. Be that as it may, this objection otherwise becomes ineffective for the reasons that the respondents independently proved that within the time framework given in the agreement they were willing and ready to perform their part under the agreement and that they did take steps for the completion of the deed which could not succeed due to the evasive attitude of the appellants.

18. It is true that the relief of specific performance is discretionary but at the same time it is a rule that the discretion cannot be exercised arbitrarily. The discretionary jurisdiction under section 22 of the Specific Relief Act conferred on Courts, has to be exercised judicially on recognized principles of equity and not on erroneous assumptions and presumptions. Keeping in view the facts and circumstances noted supra, we are of the view that the learned Court below rightly concluded that the respondents were entitled to specific performance of the agreement of sale. The decree passed in their favour which has practically been excluded by delivery of possession and deposit of the sale price, in terms of consenting order dated 30‑8‑1988 passed in C.M. No. 424 of 1988 in C.P.S.L.A. No 677 of 1988, do not call for any interference.

19. In consequence, we do not find any merit in this appeal which fails and is accordingly dismissed leaving the parties to bear their own costs. H.B.T./N‑180/L ????????? Appeal dismissed.