1990 PLP 1649 (CLC)

(6) Reliefs?

3. My findings on these issues are: Issue No.l. Yes. Issue No.2. No. Issue No.3. No. Issue No.4. No. Issue No.5. Suit dismissed. REASONS issues Nos. 3 & 4.

4. Plaintiff No.1 could not be examined, as he was out of country. Hence his attorney Fayyaz Haider was examined, who had nothing to depose of his own except that he stated that his brother, plaintiff No.1 had agreed to purchase the land vide Agreement Ex.5/1, but on coming to know that there were other trespassers also besides Khuda Bux, he insisted that defendant No.1 should first get the land vacated from all the trespassers. Plaintiff No.2 has examined himself as Ex.5 and produced the agreement Ex.5‑1, the execution of which has not been denied by defendant No.1, nor the sale consideration of Rs.1,20,798 nor the payment of Rs.30,000 at the time of execution of agreement. Plaintiff No.2 had stated that plaintiff No.l is his sister's son and plaintiff No.2 was nominee of plainttiff No.l as Rs.30,000 were actually paid by plaintiff No.2 from his pocket. He has stated in his evidence that he had gone to see the land and found on site that not only Khuda Bux, but several other persons were also occupying the land and all of them were demanding money. He, therefore, asked defendant No.1 to get the land vacated from them. She orally promised to do it, but instead of doing so she served a notice Ex.5/2 calling upon him to pay the balance and get the sale‑deed executed. On this plaintiff No: 1 gave reply by letter Ex.5/3 dated 3‑6‑1977 and reminded her that she had to give vacant possession of the land and that he was willing to perform his part of contract. Plaintiff No.2 further stated that defendant No.l sent another letter dated 18‑6‑1977 Ex.5/4 whereby she asked plaintiff No.l to complete the sale within 10 days, else agreement would be cancelled and she would be entitled to forfeit an amount equal to the loss that she would suffer in re‑selling the property to others. He then produced his reply given to defendant No.l as Ex.5/5 dated 25‑6‑1977, whereby he had disputed the right of defendant to dispose of the land and has alleged that the land had not been demarcated and that the trespassers were insisting and asking him for compensation. He then produced letter dated 15‑7‑1978 as Ex.5/6, written by him to defendant No.l insisting that unauthorised occupants be cleared from the land first and reiterating that he was willing to pay the price. He has also produced the reply of defendant No.1 as Ex. 5/7 in which she has refused to revive back.

5. From the opposite side also defendant No.1 could not be examined as she was an old woman. In her place her daughter Mst. Sughra Bai was examined. She has stated that at the time of sale agreement only Khuda Bux was occupying the land and it had been agreed that Rs.30,000 will be paid to him by the plaintiff No.1 for abandoning the possession. After agreement of sale her mother got her share bifurcated and has produced village From‑VII, as Ex.9/2 but it was a photostat copy and hence the objection was raised for its production. She has also produced a notice of Mukhtiarkar, which had been published in the newspaper, but the advertisement therein was not legible, but it was taken provisionally on record as Ex.9/3. She alleged that the plaintiff No.l did not pay Rs. 25,000 to Khuda Bux in terms of the agreement of sale. He also showed his inability to pay balance to the defendant No.l and therefore, she sold the plot to defendants Nos.2 to

5. The sale consideration was Rs.1,00,000, out of which Rs.50,000 was paid to Khuda Bux and she received Rs.50,000 and thus suffered a loss of Rs.45,

000. In cross‑examination to the Advocate of the defendants Nos.2 to 5 she corrected the figure of Rs.25,000 to Rs.30,

000. In cross‑examination to the plaintiff's Advocate she stated that she had been appointed guardian of her mother on 4‑11‑1985 under the order of the Court as her mother was not in full senses. Another witness Hatam son of Akbar Ali was also examined on behalf of the defendant No.l. He stated that the Defendant No.1 is his mother. Sale‑deed was not executed in favour of the plaintiff No.1 as he was not ready to purchase the suit land. In his cross‑examination to the counsel of the Defendants Nos.2 to 5 he stated that only Khuda Bux had been occupying the suit land. In reply to the question put by the plaintiffs' Advocate he stated that his mother the Defendant No.l had been residing with him whilst her elder sister Mst. Sughra Bai had stated that the Defendant No.l had been living with her sister Mst. Nafeesa. He admitted that he had seen the land some 10 years ago and denied that the plaintiff No.l had visited his mother, the Defendant No.l. He denied the suggestion that a sum of Rs.50,000 had been paid to Khuda Bux when Mst Sughra Bai had stated that a sum of Rs.50,000 had been paid to Khuda Bux. He also stated that Mst. Sughra Bai had not gone to see the site of the suit land. He denied the knowledge of the sale of the suit land to the Defendants Nos.2 to 5.

6. On behalf of the Defendants Nos.2 to 5, Defendant No.2 Shabbir Ahmed examined himself for self and as Attorney of Defendants Nos:3 to

5. He stated that he had contacted personally the Defendant No.l and she stated that the land to be sold to him was free from encumbrances but he knew in 1979 that there was an agreement of sale in favour of plaintiff No.l. He had visited the suit land and found that there was one Jhugi at the site. He agreed to pay Rs.50,000 to the occupant and Rs.50,000 to Defendant No.l. He admitted that he had no knowledge of the share of defendant No.l in Survey No.540 or that the land o her share had been given in Survey No.540‑A.There was no receipt of payment o: Rs.50,000 to the occupant of the land. He was unable to produce any document showing demarcation of the land but according to him he had seen boundary stones on four corners of the plot: He reiterated that the defendant No.1 had given him a copy of the village Form‑VII. He produced Sale‑Deed Ex.l1‑1 where in the price of the land was shown Rs.50,000 only as consideration and a cutting of the advertisement in Jang dated 23‑7‑1977 as Ex.12/1. In cross‑examination to the Advocate of defendant No.1 he stated that he did not know the names of other occupants. In reply to the question put by the Advocate of the defendants Nos. 2 to 5 he stated that his brother, the plaintiff No.1 had told him that Rs.30,000 had been paid to the defendant No.1 by the plaintiff No.2, who was his uncle.

7. The main question for determination in this case is as to whether plaintiff No.1 is to be blamed for failure in performance of the contract that was entered into between the plaintiff No.1 and defendant No.1 or defendant No.1 is at fault and to be blamed. If plaintiff No.1 was so then the plaintiff could not claim specific performance, and if defendant No.1 was at fault then she could not avoid specific performance.

8. In clauses Nos.1 and 5 of the Agreement of Sale (Ex.5/1) it is expressly stated that Rs.30,000 would be paid by the vendee to Khuda Bux Baluch and that the vendee after making payment of Rs.30,000 to Khuda Bux Baloch, shall get vacant possession of the land before execution and registration of the Sale‑Deed. The Defendant No.l on her part performed the conditions of the contract by getting her share partitioned and getting separate mutation of 4 acres 19 ghuntas in her exclusive name. She thereafter addressed a registered letter Ex.5/2 to the plaintiff No.l. This letter was accompanied by a photostat copy of Deh Form No.VII. She requested plaintiff No.l to get a Sale‑Deed drafted so that Defendant No.1 may execute the same before the Sub‑Registrar. In the last paragraph of this letter, she stated that earlier she had personally approached plaintiff No.l and that she was then told by plaintiff No.1 that he did not have necessary funds ready for the purpose. The letter of defendant No.1 Ex.5/2 was replied by Defendant No.l through his letter dated 3‑6‑1977 Ex.5/3. In the opening paragraph, he acknowledges receipt of Deh Form No. VII dated 10‑5‑1977 and expressed his satisfaction from the view point of title and share. As to the statement that plaintiff No.1 had no funds the same has been admitted in the letter Ex.5/3 in the following words:‑ "As regards the position of funds and business merely pointed out by me during the course of conversation; the same was relevant to the well known enormous conditions in the country." This letter (Ex. 5/3) is a clear proof of the fact that the vendee was fully satisfied with the partition of the land and he accepted photostat copy of Deh Form No.VII as a clear proof of title and partition of share. He is, therefore, estopped from subsequently alleging that the land was not actually partitioned and that the photostat copy of Deh Form No. VII is not admissible in evidence. He has also admitted that in order to get the Sale‑Deed executed and registered in his favour, he had no funds available for the purpose due to his business conditions. The photostat copy of Deh Form No.VII has been produced by Mst. Sughra Bai in her statement (Ex.9/1). The plaintiff has then objected to the production of photostat copy, but this objection has lost its weight for the reason that he had already expressed his satisfaction to the title and separation of share of Defendant No.1 vide his letter Ex.5/3. The plaintiff's subsequent allegations in the plaint that Defendant No.1 committed breach of the Agreement is belied by documentary evidence namely the correspondence exchanged between the parties. In the letter Ex.5/3 the purchaser, plaintiff No.1 took the stand that the unauthorised occupants are claiming full payment in advance before the demolition of the hutments. He also stated that it was the responsibility of the defendant No.1 to give vacant and peaceful possession. The stand taken by plaintiff No.1 in this letter Ex.5/3 is clearly against the agreement Ex.5/1 which clearly lays down in Clauses Nos.1 and 5 that it was the purchaser's obligations to make payment of Rs.30,000 direct to the occupant and to get vacant possession before the execution and registration of the Sale‑Deed. Thus plaintiff No.1 could not wriggle out of this condition by alleging that there were more than one squatters and all of them were asking for compensation. This situation was created by Plaintiff No.1 himself and obviously to avoid specific performance of the Agreement of Sale. The letter Ex.5/3 was replied to by Defendant No.1 through her letter Ex. 5/4 in which it was pointed out that the plaintiff No.l alone was bound to make payment of the agreed amount direct to the unauthorised occupant and to get vacant possession of the land. It was also pointed out in this letter that if he was not willing to make any payment for getting vacant possession of the land, the Defendant No.l would have no alternative but to cancel the Agreement and to sell the property to some one else. The Plaintiff No.1 addressed another letter dated 25th June, 1977 Ex.5/5 in which he changed earlier position and stated that he had not received any demarcation plan nor he was in a position to get the vacant possession of the land. He acknowledged that proper Deh Form NO.VlI had been obtained by Defendant No.1 and again stressed that the responsibility of getting vacant possession of land rested with Defendant No.l which stand was obviously incorrect in the light of para‑] and para‑5 of the Agreement Ex.5/1 Defendant No.1 addressed another letter. Ex.5/6 dated 15‑7‑1978 in which he again insisted that Defendant No.1 should arrange to get vacant possession of the land herself to which a reply was sent dated 25th July, 1978 Ex.5‑7 in which it was clearly stated that if defendant No.1 would not complete the transaction within the time allowed, the Defendant No.1 will not be in a position to keep the Agreement of Sale alive. The plaintiff No.1 was persistently avoiding to make payment of Rs.30,000 to Khuda Bux Baluch and unless his part of the obligation was performed by plaintiff No.l, no sale‑deed could be executed by Defendant No.l in his favour. I am, therefore, satisfied that the Vendor, Defendant No.l, had performed her part of the contract by getting her share separated and by supplying a copy of the Deh Form No.VIl to the satisfaction of the vendor. This was the only document required for the purposes of execution and registration of sale‑deed. But the vendee, plaintiff No.1, declined to perform his part of the contract by making payment of Rs.30,000 to Khuda Bux Baloch and by getting vacant possession of the land from him to finalise the deal. He had also no money either for payment to Khuda Bux Baloch or to the vendor, Defendant No.1 which he had admitted in his earlier letter Ex.5/3.

10. There is another aspect of the case. Admittedly the sale consideration agreed in the Agreement of Sale Ex.5/1 is Rs.1,20,

798. Rs.30,000 only were paid by the vendee as earnest money leaving a balance of Rs.98,

798. In the plaint, nowhere the plaintiffs have stated that they are ready and willing to make payment of the balance of Rs.90,

798. Instead in para. 7 (a) of the plaint, the plaintiffs have shown their readiness to pay Rs.60,798 only and in para 7 (b) they have claimed further reduction of sale consideration by Rs.10,000 for alleged damages with interest. Thus the plaintiffs are seeking specific performance of the Agreement of Sale against their offer of Rs.50,798 only instead of Rs.90,

798. It is clear that a party can claim specific performance of a contract of sale if he himself is ready and willing to perform his part of the contract and further the agreement has to be specifically performed as it is and not as the plaintiffs want it to be performed. The relief of specific performance under section 22 of the Specific Relief Act is purely discretionary and if the vendee is not ready and willing to perform the contract as it is, he has no equity in his favour and the specific performance has to be refused. Reliance was placed on the cases of Bilal Ahmad Malik v. Mst. Amtul Haseen and others P L D 1988 Lah. 680 and M /s. Aman Enterprises, Kotli Loharan, Sialkot v. M/s. Rahim Industries Pakistan Ltd. and another (P L D 1988 Lah. 717).

11. Plaintiff No.1 is also not entitled to the alternative relief of damages. Firstly no evidence worth the name has been adduced either by plaintiff No.1 or by plaintiff No.2 as to the claim of damages. Secondly the defendant No.1 is not at fault in failing to perform the Agreement specifically. The entire fault lies at door of plaintiff No.1, who had no ready money to get the Sale Deed executed and who falsely alleged that under the Agreement of Sale he was liable to get vacant possession of the land by making payment of Rs.30,000 to Khuda Bux Baluch. He is not entitled even to the refund of ‑Rs.30,000 which was paid as earnest money. Firstly this payment is not part payment of sale consideration. It is specifically stated to be the earnest money so that if the vendee fails to perform his part of the contract and the vendor suffers any loss the amount has to be forfeited under the law. The position of the earnest money is that it is part of the purchase price when the transaction goes forward, but it is forfeited when the transaction falls through by any reason of the fault or failure of the vendee. If the contract goes off by fault of the buyer, the seller is entitled to retain the earnest B money as forfeited. It is proved by evidence that Defendant No.1 had to resell the property at a reduced price of Rs.1,00,000 out of which Rs.50,000 were paid by the purchaser to Khuda Bux Baluch and only Rs.50,000 were paid to Defendant No.1 at the time of execution and registration of Sale‑Deed in favour of Defendants Nos.2 to

5. Thus she suffered a loss of Rs.40,798 and after the earnest money of Rs.30,000 is adjusted, still a sum of Rs.10,798 remains as loss suffered by Defendant No.1 As such the plaintiff No.1 is not entitled even to the refund of his earnest money of Rs.30,

000. Reliance was placed on the cases of Nasira Sultana v. Habib Bank Ltd. (P L J 1975 Kar. 258), Maksud Ali v. Eskandar Ali (P L D 1964 SC 381) and the English decision of the Privy Council in the case of Australia Hardwoods Pty. Ltd. v. Commissioner for Railways (1961 (1) All England Reports 737). The ratio decidendi of these three cases and the cases of Bilal Ahmad Malik and M/s. Aman Enterprises cited earlier in this judgement is that the plaintiff in suit for specific performance has to prove that he was throughout ready and willing to perform his part of contract. If it was due to non fulfilment by the plaintiff of the conditions of agreement that the sale in his favour could not be finalised, the appellant himself is to be blamed for falling through of the agreement. As unreasonable delay in bringing the suit is also an additional factor for denying discretionary relief particularly when the property has been sold to a third party. I am, therefore, of the clear view that plaintiff No.1 L having failed to get the plot vacated from Khuda Bux Baloch or whoever was in possession thereof and having refused to pay the balance of consideration until and unless the Defendant No.1 got the plot vacated contrary to what was agreed in the agreement of sale, had himself committed breach of the agreement. Hence Defendant No.1 was justified in refusing to perform the contract and in selling away the land to Defendants Nos.2 to 5.

12. Coming to the case of plaintiff No.2, he is not even sure as to on which date the Agreement was executed. In para‑1 of the plaint as well as in subsequent paras of the plaint, the Agreement of Sale is stated to be dated 11‑1‑1977, while the plaintiff No.2 in his deposition Ex. 5) states on oath that the Agreement of Sale was executed on 14th January, 1977. As to his position in the suit, he has taken contradictory position. At one stage he says that he is the real purchaser because he has advanced the money to his nephew, plaintiff No.1 and in the same deposition subsequently he claims that he is the nominee of plaintiff No.l. When cross‑examined on this point, he says that he was nominated by plaintiff No.1 at the time the plaint in the suit was presented. He also admits in the cross examination that no intimation either of the fact that he was the real purchaser or of the fact that he was nominee was given to Defendant No.1 for the reason that he did not think it necessary (Ex. 5). Obviously, therefore, except the words of plaintiff No.2, there is nothing on record to prove that plaintiff No.2 was either the real purchaser of the land or that he was the nominee appointed by plaintiff No.1 for taking execution of sale‑deed in his favour. No doubt, there is clause No.7 in the Agreement of Sale Ex.5/1 which authorises Defendant No.1 to make a forward sale of the land to any third party, but it was conditional that the payment to the vendor, Defendant No.1 must be secured. No agreement of forward sale by Defendant No.1 to any one including the plaintiff No.2 has either been alleged or produced. Thus the position of plaintiff No.2 is that of an utter stranger and thus he is not entitled to seek specific performance of the Agreement of Sale in his favour. He does not fall in any of the categories mentioned under section 23 of the Specific Relief Act. The vendor, defendant No.1 had not privity of contract with plaintiff No.2. He is neither a purchaser himself nor is he the legal representative of the purchaser. He is also not an assignee of the rights of plaintiff No.1. No assignment or resale has been alleged by plaintiff No.2 nor any document of payment has been produced. If he was the real purchaser, it will mean that the Agreement of Sale Ex.5/1 was a Benami transaction, but that has to be proved by evidence. In this case even plaintiff No.1 does not support him. The attorney of plaintiff No.1 in his deposition Ex.14 does not say a single word that plaintiff No.2 was the purchser of the land himself, or that he was the nominee or assignee of plaintiff No.1. His statement that plaintiff No.2 paid Rs.30,000 to the vendee, defendant No.1 is inadmissible in evidence being hearsay because this deposition is not on the basis of his personal knowledge, but has been heard by him from his brother plaintiff No.2. It was obvious that plaintiff No.2 was not on the scene at the time of execution of the Sale Agreement Ex.5/1. If he was present or he was the person who was advancing earnest money and was the real purchaser, there is no reason why he should not have executed the Agreement of Sale himself. He has not explained what was the necessity of executing the Sale Agreement by plaintiff No.1 when the real purchaser was present on the scene and was making actual payment, for the purpose of purchasing the land.

13. I am, therefore, satisfied that Plaintiff No.1 was not prepared to perform his part of the contract with Defendant No.1 and that he was avoiding to fulfil the averments made by him in the Agreement. I am also satisfied that plaintiff No.2 subsequent to the sale of land by Defendant No.1 in favour of Defendants Nos.2 to 5 joined with the Plaintiff No.1 and had prevailed upon plaintiff No.1 to rile this suit. I am satisfied that neither Defendant No.2 had paid the earnest money, nor he was nominee or assignee of plaintiff No.1. Rest of the Issues:

14. Defendant No.2 Shabbir Ahmad has filed his affidavit in evidence as Ex.12. He has stated that he was general attorney for Defendants Nos.3 to

5. The brokers had informed him and the remaining Defendants in early August, 1978 that the land in suit was available for sale. He, therefore, contacted Defendant No.l, who was the owner of the land in the middle of August, 1978. Defendant No.1 sent his son to accompany Defendant No.2 and he showed the land in suit to Defendant No.2. He found that one Khuda Bux was in unauthorised occupation thereof and was demanding Rs.50,

000. In early September, 1978 the sale of the land was finalised. It was settled that the price will be Rs.1,00,000, out of which he paid Rs.15,000 in advance. Rs.50,000 were to be paid to Khuda Bux, while remaining Rs.35,000 were to be paid to Defendant No.1 at the time of registration of Sale‑Decd. Defendants Nos.2 to 5 then advertised in Daily `Dawn' inviting objections, if any, against the same within seven days. He has produced the cutting of the newspaper dated 24‑9‑1978. The Defendant waited for objections till the middle of October, 1978 and when there was no response, they asked Defendant No.1, who executed the Sale‑Deed and got registered in their favour on 20‑10‑1978. The vacant physical possession of the land in suit was obtained before the Registrar by paying Rs.50,000 to Khuda Bux. He has asserted that the Defendants were bona ride purchasers of the land for value without notice of the plaintiffs claim. They were also assured by the broker and Defendant that the land in suit was in no encumbrance, charge or claim.

15. The Defendant was cross‑examined at length by Mr. Z.U. Ahmad Advocate. The evidence of Defendant No.2 could not be shaken in cross -examination, nor any substantial discrepancy could be brought out in evidence. It was admitted that the broker was one Jan Mohammad, who had died and that the word `brokers' which was used by him in affidavit was, therefore, not accurate. This discrepancy is neither material, nor of any significance. The Defendants have also filed affidavit in evidence of Mehar Hussain Advocate, who had drafted the Sale‑Agreement, presented the same before the Sub‑Registrar and identified the parties i.e. Defendant No.1 and Defendants No.2 to

5. They have also filed affidavit of Farid Ahmad, who has produced the original record of the Sale‑Decd. These witnesses were not cross‑examined by the plaintiff's Advocate. The evidence adduced by the Plaintiff has already been discussed by me in the above issue. From the above evidence it is quite clear that Defendants Nos.2 to 5 had no notice of early transaction between the plaintiff No.1 and Defendant No.1. The notice in the newspaper Daily `Jang' dated 23‑7‑1977 given by the Plaintiff No.1 has been denied by Shabbir Ahmad, The assertion of Shabbir Ahmad cannot be disbelieved in the circumstances of the case. The registered Sale‑Deed has been produced. Its genuineness has not been disputed or denied. The plaintiffs counsel has not even cross‑examined the Advocate Mr. Mehar Hussain, who had drafted and presented the Sale‑Deed and identified the parties, as according to him, he was an identification witness of the Sale‑Deed.

16. I am, therefore, satisfied that the Defendants Nos.2 to 5 had purchased the land in suit from Defendant No.1 without notice of plaintiff's claim, bona fide and for valuable consideration. Subsection (1) of section 53‑A of the Transfer of Property Act saves bona fide purchasers for value without notice even if the previous transaction was valid and subsisting. I am, therefore, satisfied that the Defendants Nos.2 to 5 had no notice or even knowledge of the Agreement of Sale entered into between the Plaintiff No.1 and the Defendant No.]. I am also satisfied that even if he had any knowledge of the same, it would not make any difference, because I have already held that Plaintiff No.1 had himself failed to perform his part of the contract and therefore, Defendant No.1 was absolved from the responsibility to perform his part of the contract and was entitled to sell the plot to defendants 2 to 5 and to forfeit the earnest money given to him by the plaintiff No.1. 17. 1, therefore, dismiss the Plaintiffs' suit. Since I have allowed Defendant No.1 to forfeit the earnest money, I direct that there shall be no order as to costs. M.B.A./S‑604/ K Suit dismissed.