2007 PLP 2834 (YLR)

MUHAMMAD MUZAMMAL KHAN, J.

Instant constitutional petition had prayed a, direction to the respondents requiring registration of criminal case under sections 419, 420, 468, 471, 465, 466, 474 and 34, P.P.C., with the claim that the petitioner had been residing at 122-G Model 'Town, Lahore for the last about 38 years with an ownership of i agricultural land at Mauza Ladhay Kay Bhullar and Galvaira Lahore, a part of which was gifted by him to his son. Petitioner claimed that he came to know that one Abdul Qadir son of Abdul Majeed resident of Chak No.140/10 Jahanian District Khanewal, has forged an agreement to sell dated 12-8-1976 touching his land though he never executed any such agreement and the same is forged, fabricated and fictitious at the hands of its beneficiary. It was contended that petitioner neither purchased any stamp paper for execution of the alleged agreement to sell nor he signed the same at its back or the register of the stamp vendor. It was also emphasized that no earnest money was ever paid to the petitioner and Abdul Qadeer accused incorrectly inserted in the forged agreement that he paid a token consideration of Rs.10,00,

000. According to him, forgery committed by the culprits was brought to the notice of the respondents but they failed to discharge their statutory obligations in view of section 154, Cr.P.C. A direction in constitutional jurisdiction of this Court was prayed to be issued for registration of criminal case against the named accused.

2. Having heard the case and perused the record; it became apparent that stance canvassed in this petition rested on disputed factual controversy, requiring determination through detailed inquiry/recording of evidence but such exercise cannot be undertaken while discharging jurisdiction under Article 199 of the Constitution of this country. These canons have already attained finality through consistent judgments of the Honourable Supreme Court of Pakistan, right from the case of' The Province of East Pakistan v. Kshiti Dhar Roy and others (PLD 1964 SC 636) up to date, including the case of Muhammad Younis Khan and others v. Government of N-W.F.P. through Secretary Forest and others (1993 SCMR 618). Besides this constitutional handicap, the 'petitioner has an alternative remedy of proceeding in the matter by filing a private complaint under section 200, Cr.P.C. Law' has also provided a course for investigation/inquiry if needed according to the opinion of the learned Magistrate cognizant of the private complaint through an order under section 200, Cr.P.C. In view of availability of equally efficacious remedy by way of private complaint, I am not persuaded to direct registration of criminal case. Petitioner may, if so advised, have recourse to other alternative remedies provided by law. With these observations, this writ petition is disposed of. H.B.T./S-224/L??????????????????????????????????????????????????????????????????????????????????? Order accordingly. 2007 Y L R 2835 [Lahore] Before Jawwad S. Khawaja, J Mrs. FAUZIA SHAUKAT

Appellant Versus AHMED ULLAH ZAFAR and others

Respondents Regular Second Appeal No.21 of 2006, heard on 9th March, 2007. Specific Relief Act (I of 1877)

S. 12

Suit for specific performance of agreement to sell

Breach of contract on the part of promisor

Trial Court dismissed the suit

Appellate Court found that the 'execution of agreement and payment of earnest money of Rs. 1 00, 000 was not disputed further the plaintiff had incurred the expenses of Rs. 3, 00, 000 on repairs and improvements in the suit property so the plaintiff was entitled to have twice the aforesaid sums

Validity

Appellate finding was the result of misreading of the agreement as in the said agreement defendant had agreed to pay twice only the sum of earnest money to plaintiff in the event of failure to execute a conveyance

Contention that amount claimed by plaintiff for improvements on property was not proved was repelled as plaintiff has established his claim by adducing oral as well as documentary evidence on record

Plaintiff, in circumstances, was entitled to recovery the sum of Rs. 3, 00, 000 incurred by him on repairs, improvements etc. together with the sum of Rs. 2, 00, 000 being double the earnest money paid by him

Appellate decree was, therefore, modified accordingly. Sardar Mashkoor Ahmad for Appellant. M. Naeem Sadiq for Respondents. Date of hearing: 9th March, 2007. JUDGMENT JAWWAD S. KHAWAJA, J.

Ahmad Ullah Zafar respondent-plaintiff filed a suit seeking specific performance of an agreement (Exh.P.4) dated 6-9-1996. This suit was dismissed in' its entirety by the learned trial Court. However, the learned appellate Court_ has reversed this finding vide judgment and decree dated 14-9-2005. Although specific performance of the agreement has not been decreed, the respondent-plaintiff has been held entitled to recover Rs.8,00,000 from the appellant. The execution of the agreement (Exh.P.4) by the appellant Mst. Fuazia Shaukat is not in dispute. The reason for declining specific performance was that respondent No.2, namely, Mst. Munaza Shaukat, who is the sister of the appellant, was not a signatory to the agreement and further that there was nothing on record to show that she had authorized the appellant to execute the agreement on her behalf.

2. The learned appellate Court has held that the respondent-plaintiff had paid Rs.1,00,000 to the appellant as earnest money and thereafter had also incurred expenses of Rs.3,00,000 on repairs and improvements in the suit property. It has been held that the respondent was entitled to twice the aforesaid sums. This finding, however, appears to be a result of misreading of the agreement (Exh.P.4). In the same the appellant agreed to pay twice the sum of earnest money to the respondent-plaintiff in the event of failure to execute a conveyance. Learned counsel for the respondent-plaintiff did not seriously dispute the fact that the obligation of the appellant to pay double the amount was limited to the earnest money of Rs.1,00,000 only. It is, therefore, clear that the appellant had not assumed responsibility for paying twice the amount spent on the repairs and improvements on the suit property.

3. Learned counsel for the appellant argued that even the amount of Rs.3,00,000 claimed by the respondent-plaintiff for improvements on the property had not been proved. This contention, however, is not well-founded. The respondent himself appeared as a witness to prove this amount and also examined five other witnesses. Moreover, correspondence between the parties was also adduced on record including Exh.P.9 and Exh.P.10 wherein the appellant had agreed to reimburse the respondent in respect of expenses incurred by him. At this stage it may also be added that the appellant had entered appearance before the learned trial Court but thereafter was proceeded against ex parte. In the circumstances the evidence produced by the respondent-plaintiff remained un-controverted. The breach of contract on the part of the appellant stands established on the record. Secondly, even the representation made by the appellant that she was the attorney of her sister Munaza Shaukat respondent No.2, was not proved on record.

4. In view of the foregoing discussion, I find that the respondent-plaintiff was entitled to recover the sum of Rs.3,00,000 incurred by him on repairs, B improvements etc. together with a sum of Rs.2,00,000 being double the earnest money paid by him. The appellate decree, is therefore, modified accordingly. This appeal succeeds partially in the above terms. F.B./F-15/L???????????????????????????????????????????????????????????????????????????????????????? Order accordingly.