P L D 2019 Lahore 346 (PLP)

AMIN-UD-DIN KHAN, J.

Through this second appeal the appellant has challenged the judgment and decree dated 04.05.2017 passed by the learned Additional District Judge, Lahore whereby first appeal filed by the appellant was dismissed and the judgment and decree dated 03.06.2014 passed by the learned Civil Judge 1st Class, Lahore whereby the suit for specific performance filed by the appellant/plaintiff was dismissed.

2. The brief facts of this case are that the appellant-plaintiff on 25.05.2004 filed a suit for specific performance, possession and injunction on the basis of an agreement dated 23.04.2004 of suit property Bungalow No.10, Plot No.14, Survey No.191/P measuring 1318.50 square yards i.e. 1102.40 square meters, situated at Shami Road, Lahore Cantt for total consideration of Rs.2,30,00,000/- fully detailed in Para No.1 of the plaint . The written statement was filed by the defendants on 14.06.2004. Various preliminary objections were raised. In objection No.3 it was mentioned that a token receipt can, in no way, be considered as a valid contract, same is the preliminary objection No.4. It is stated that merely an intention/indication on the part of the parties that they are interested in dealing with the property suit is not competent. The preliminary objection No.6 is very important, which relates to alternate plea. The defence of the defendants was that they received earnest money of Rs.500,000/- from Mr. Muhammad Ashraf and not from the plaintiff and receipt was issued. It is mentioned in reply to Para 2 of the plaint that the receipt, which is attached with the plaint, shows the signatures of plaintiff were affixed later on. In reply to sub-para (i) of Para 2 it is admitted that Rs.3.5 Million was to be paid on or before April 26, 2004. In reply to sub-para (ii) of Para 2 it is stated that after payment of Rs.3.5 Million further terms were to be agreed. Learned trial court framed the issues on 07.07.2004. The suit was dismissed for want of evidence on 25.01.2010. A Regular First Appeal No.134 of 2010 was filed by the plaintiff-appellant, which was allowed by this Court vide judgment dated 05.04.2010 and the case was remanded to the learned trial court with a direction to record evidence and decide the suit on merits. After remand the evidence was recorded. An amount of Rs.1,12,50,000/- (one cror twelve lacs and fifty thousand) was deposited with the learned trial court, as per the order dated 08.03.2010 passed in C.M.No.2-C of 2010 moved in R.F.A.No.134 of 2010. The said amount was invested by the learned trial court vide order dated 15.06.2010 in the profit bearing scheme under the orders of this Court. After recording the evidence of the parties learned trial court was again pleased to dismiss the suit vide judgment and decree dated 03.06.2014. The plaintiff/appellant preferred first appeal before the learned appellate court, which was also dismissed by the learned Additional District Judge, Lahore vide judgment and decree dated 04.05.2017. Hence, this second appeal.

3. Learned counsel for the appellant argues that learned both the courts below ignored the principle of interpretation of contract while dismissing the suit as well as the first appeal. Learned first appellate court has wrongly referred the oral as well as documentary evidence and even the number of P.Ws have wrongly been mentioned, which shows that learned appellate court has not even bothered to go through the evidence, rather the findings of learned trial court have been affirmed. Further argues that both the courts below seem to be influenced by the judgment of august Supreme Court of Pakistan reported as "Mst. GULSHAN HAMID v. Kh. ABDUL REHMAN and others" (2010 SCMR 334). States that the law declared through the said judgment is no more in the field in the light of judgment of Hon'ble apex Court reported as "MUHAMMAD SATTAR and others v. TARIQ JAVAID and others" (2017 SCMR 98). Argues that the agreement Ex.P-1 is though noted as token receipt but it is a complete contract. States that if anything extra is written in the contract over and above the terms of the contract which is not the condition of the contract, it is an expression of desire that how the party will proceed further and the document is to be read as a whole and not bifurcating the same. Further argues that a party cannot take the benefit of its own wrong and further that it is a principle of interpretation that a document is to be saved and not destroyed. Learned counsel argues that the defense taken in the written statement as well as the statement made before the court when one of the defendants appeared as D.W-1 clearly proves the case pleaded by the plaintiff/appellant. Learned counsel for the appellant has produced the Interpretation of Contracts By Sir Kim Lewison, the Law of Contract By G.H.Treitel, Contract Cases and Materials By H. G. Beale, W. D. Bishop, M. P. Furmston and the Construction of Contracts (an analysis of Objectivity and Subjectivity within Contractual transactions By Joseph Dance). Learned counsel has also relied upon "MUHAMMAD SATTAR and others v. TARIQ JAVAID and others" (2017 SCMR 98), "MUHAMMAD MATOOB and 10 others v. JAMSHED K. MARKER and 2 others" (PLD 2006 Karachi 523), "Mrs. SHABEENA FARHAT v. HIGHWAY HOUSING PROJECT and 2 others" (2006 CLC 430), "Messrs PAKISTAN STATE OIL CO. LTD. v. MUHAMMAD TAHIR KHAN and others" (PLD 2001 Supreme Court 980), "SAUDI-PAK INDUSTRIAL AND ARGICULTURAL INVESTMENT COMPANY (PVT.) LTD., ISLAMABAD v. Messrs ALLIED BANK OF PAKISTAN and another" (2003 CLD 596), "HOUSE BUILDING FINANCE CORPORATION v. SHAHINSHAH HUMAYUN COOPERATIVE HOUSE BUILDING SOCIETY and others" (1992 SCMR 19), "UNIPRIX INC. v. GESTION GOSSELIN ET BERUBE INC. and another" (2017 SCMR 1734), "Messrs POWER CONSTRUCTION CORPORATION OF CHINA LIMITED through Authorized Representative v. PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY through Chairman and 2 others" (PLD 2016 Lahore 637), "UNION INSURANCE COMPANY OF PAKISTAN LTD. v. HAFIZ MUHAMMAD SIDDIQUE" (PLD 1978 Supreme Court 279), "AKHTAR IQBAL v. THE STATE" (2015 SCMR 291), "LIAQAT HUSSAIN ZIA v. MUHAMMAD DIN and others" (PLD 2013 Lahore 277), "MUNIR AHMAD KAHLOON v. RANA MUHAMMAD YOUSAF" (PLD 2003 Lahore 173), "MASOOD PERVEZ SAJID v. MST. NAWASH FATIMA and 2 others" (2005 MLD 579), "MST. SAFIA v. MST. BIBI and 14 others" (2005 MLD 646) and "Mst. ZAITOON BEGUM v. NAZAR HUSSAIN and another" (2014 SCMR 1469), "ALOKA BOSE v. PARMATMA DEVI and others" (AIR 2009 SUPREME COURT 1527), "ELAHI BAKHSH through Legal Heirs and others v. MUHAMMAD IQBAL and another" (2014 SCMR 1217), "Messrs JAMAL JUTE BALING & CO., DACCA v. Messrs M. SARKIES & SONS, DACCA" (PLD 1971 Supreme Court 784), "MUHAMMAD AYUB v. Miss AMBREEN NAZ" (2016 YLR 100), "Haji ADAM ALI AGARIA v. ASIF HUSSAIN and 2 others" (1996 MLD 322), "FATEH MUHAMMAD through L.Rs and others v. FIDA HUSSAIN SHAH through L.Rs" (2007 CLC 1885), "MST. BASWAR SULTAN v. MST. ADEEBA ALVI" (2002 SCMR 326), "KARACHI GAS CO. LTD. v. DAWOOD COTTON MILLS LTD." (PLD 1975 Supreme Court 193), "STATE OF HARYANA and others v. MESSRS MALIK TRADERS" (2012 SCMR 1222), "THE TRUSTEES OF THE PORT OF KARACHI v. MESSRS MUHAMMAD BAKHSH AND SONS" (PLD 1959 (W.P.) Karachi 658), "MESSRS M. A. KHAN AND CO. through Sole Proprietor Muhammad Ali Khan v. MESSRS PAKISTAN RAILWAY EMPLOYEES' COOPERATIVE HOUSING SOCIETY LTD. through Principal Officer/Secretary, Karachi" (2006 SCMR 721), "MESSRS ASHIQ HUSSAIN AND SONS v. CANTONMENT BOARD, SARGODHA and others" (2002 MLD 1063) and "SUBHANALLAH and 2 others v. MST. MARYAM and another" (1988 CLC 890). Prays for acceptance of the instant second appeal, setting aside the impugned judgments and decrees passed by both the learned courts below and decree of the suit.

4. On the other hand, learned counsel for the respondents argues that there is no valid contract for sale of impugned property between the parties, plaintiff has not paid the amount of Rs.3.5 Million on 26.04.2004 as agreed through Ex.P-1 the receipt of token money. Further that third party has deposited part of the remaining consideration amount and not by the plaintiff-appellant under the orders passed by this Court in R.F.A.No.134 of 2010. Further that the witness of the plaintiff i.e. P.W-2 Muhammad Ashraf has admitted that now the value of the property is Rs.40 Million and further that there are concurrent findings of fact recorded by two courts below. Relies upon "HAMOOD MEHMOOD v. Mst. SHABANA ISHAQUE and others" (2017 SCMR 2022), "KHUDA BAKHSH ANWAR and another v. Mst. SHARIF BIBI and 2 others" (2012 YLR 291), "BASHIR and 6 others v. LAL ARNOLD and 11 others" (2003 MLD 310), "IMTIAZ HUSSAIN v. MUHAMMAD ANWAR KHETANI" (2009 MLD 785), "NASEER AHMED SIDDIQUE through Legal Heirs v. AFTAB ALAM and another" (PLD 2011 Supreme Court 323), "STATE LIFE INSURANCE CORPORATION OF PAKISTAN and another v. JAVAID IQBAL" (2011 SCMR 1013), "MUHAMMAD SHARIF and others v. NABI BAKHSH and others" (2012 SCMR 900), "MATLOOB HUSSAIN and others v. ALAMGIR and others" (2016 MLD 1372) and "MUHAMMAD RASHID and others v. SHAHID AZIZ and others" (2003 SCMR 789). Therefore, prays for dismissal of the appeal.

5. I have heard the learned counsel for the parties at full length and also gone through the record minutely as well as the findings recorded by both the learned courts below and the interpretation of statute and the case law referred to by the learned counsel for the parties.

6. Though there are concurrent findings of fact recorded by two courts below but the question is whether the same are in accordance with law and true interpretation of evidence available on the file. I am conscious of the fact that this Court while dealing with the matter under section 100 of the C.P.C. is to scrutinize the matter in the light of grounds mentioned under section 100 of the C.P.C. Both the courts below have non-suited the plaintiff/appellant on the grounds that:-- (i) Ex.P.1 token receipt is not an agreement to sell between the parties. (ii) Ex.P.1 is not signed by the plaintiff, therefore suit is not competent in the light of judgment of august Supreme Court of Pakistan reported as "Mst. GULSHAN HAMID v. Kh. ABDUL REHMAN and others" (2010 SCMR 334). The third point which is very pivotal and important in this case is recorded as below:- (iii) Who is at fault in performance of terms of Ex.P.1.

7. I take up the first point noted supra for determination. The token receipt Ex.P-1 is an admitted document by the parties. The caption of this document is token receipt. Needless to observe here that it is the body of the document and not the caption, which is considered for intention of the parties. I think it necessary to note that the court has to judge the document keeping in view the whole facts, the pleadings, the evidence produced by the parties and evaluate the matter in the light of the codified law as well as the principles of interpretation of statute and the law declared by this Court and the august Supreme Court of Pakistan.

8. The case pleaded by the plaintiff is that the defendants agreed to sell the suit property in his favour through Ex.P.1 the receipt of token money. The term mentioned therein ( ) was for writing of the same terms on the requisite stamp paper only. Against the version of the plaintiff there is defence that they did not agree to sell the property in favour of the plaintiff and agreement was yet to be written. The matter requires scrutiny of both the claims that who is with dishonest assertion or defence. It is settled principle that the documentary evidence cannot be negated through oral evidence. The document Ex.P-1 clearly shows that both the ladies entered into an agreement of sale of suit property with the plaintiff, Saleem Shahadat through a token receipt getting token money of Rs.500,000/- but in the written statement the agreement was not clearly admitted by the defendants nor clearly denied but it was pleaded that there is no agreement with the plaintiff, Saleem Shahadat. Hence, it will be beneficial if preliminary objection No.6 is reproduced, which is as under:- "That in the alternative, if the token receipt is considered as an enforceable contract, it has already been frustrated as the payment of Rs.3.5 Million as mentioned in the token receipt has not been made by 26/04/2004. Even if the plea of the Plaintiff regarding the payment to be made on 26/04/2004 is accepted, the contract stands frustrated as the term of payment of Rs.3.5 Million has not been made by the Plaintiff nor is it alleged that the Plaintiff or anyone on his behalf visited the defendants to make such payment." It was stated that with one Muhammad Ashraf they intended to agree, when one of the defendants appeared as D.W-1, who admitted that she signed the token receipt Ex.P-1 after reading the said document and her sister also signed the same in her presence. She identified her signatures and the signatures of her sister. A question for cross-examination put to P.W-3 is the most important, which is reproduced as under:- This very important fact, when the counsel for the defendants put this question, indicates that Saleem Shahadat was available on that date at the time of writing of the token receipt Ex.P-1, which is termed as agreement. The statement of defendant No.2 who appeared in the witness box as D.W-1, she stated that she is unmarried and subsequently in the cross-examination admitted that she is divorcee, shows the truthfulness of the defendants. Defendant No.1 neither appeared nor she appointed her sister as her attorney in the suit to make statement on her behalf. The written statement does not clearly deny the agreement as I have quoted supra the preliminary objection No.6 of the written statement, which is very important. Though as per the pleadings both the defendants are house hold ladies but scrutiny of statement of defendant No.2 who appeared as D.W-1, the only evidence produced by the defendants, clearly shows that she is not a simpliciter household lady. She is very sharp and experienced ( ) lady when she has refused to answer some questions put to her during the cross-examination.

9. Now I come to the point of interpretation of the contract. The bare perusal of the document Ex.P-1 shows that it is an agreement and its plain language shows that it is a contract when offer, acceptance, the detail of property, the full consideration amount, the mode of payment, the period of payment, amount of earnest money and the receipt thereof is admitted fact. The sentence mentioned that: Though grammatically the aforesaid sentence is meaningless but as per the learned counsel for the appellant it shows that on the stamp paper the agreement will be written. This interpretation seems to be reasonable. Even in the pleadings as well as in the oral evidence or through any other document no case has even been introduced by the defendants that there were any other terms of the agreement except mentioned in the token receipt. The struggle and preparation by the learned counsel for the appellant for interpretation of the Contract, if not referred herein, will be to ignore the efforts of learned counsel for the appellant. The reference of interpretation of Contract argued before the Court, is as follows:- (1) The Interpretation of Contracts by Sir Kim Lewison, A Lord Justice of Appeal, 5th Edition: WHAT IS INTENTION? 2.05 For the purpose of the interpretation of contracts, the intention of the parties is the meaning of the contract. There is no intention independent of that meaning. CONSTRUING THE DOCUMENT AS A WHOLE 7.02 In order to arrive at the true interpretation of a document, a clause must not be considered in isolation, but must be considered in the context of the whole of the document. In Chamber Colliery Ltd v Twyerould, Lord Watson said: "I find nothing in this case to oust the application of the well-known rule that a deed ought to be read as a whole, in order to ascertain the true meaning of its several clauses; and that the words of each clause should be so interpreted as to bring them into harmony with the other provisions of the deed, if that interpretation does no violence to the meaning of which they are naturally susceptible." PARTY NOT TO TAKE ADVANTAGE OF OWN WRONG 7.10 A contract will be construed so far as possible in such a manner as not to permit one party to it to take advantage of his own wrong. This principle has a long history, and can be traced back to Lord Coke's day. In Rede v Farr a tenant who had failed to pay his rent asserted that by reason of a proviso for re-entry which said that the lease would be void in the event of breach of obligation his lease was at an end. Lord Ellenborough said: "In this case, as to this proviso, it would be contrary to an universal principle of law, that a party shall never take advantage of his own wrong, if we were to hold that a lease, which in terms is a lease for twelve years, should be a lease determinable at the will and pleasure of the lessee; and that a lessee by not paying his rent should be at liberty to say that the lease is void." This formulation suggests that it is a rule of law. However, the decision could be justified on the basis that the court was construing the word "void" in the proviso for re-entry as meaning "voidable". In New Zealand Shipping Co v Societe des Ateliers et Chantiers de France, Lord Atkinson seems to have treated it as a matter of construction. He said: "It is undoubtedly competent for the two parties to a contract to stipulate by a clause that the contract shall be void upon the happening of an event over which neither of the parties shall have any control, cannot bring about, prevent or retard . But if the stipulation be that the contract shall be void on the happening of an event which one or other of them can by his own act or omission bring about, then the party, who by his act or omission brings that event about, cannot be permitted either to insist upon the stipulation himself or to compel the other party, who is blameless, to insist upon it, because to permit the blameable party to do either would be to permit him to take advantage of his own wrong, in the one case directly, and in the other case in a roundabout way, but in either way putting an end to the contract." In Decoma UK Ltd v Haden Drysys International Ltd the Court of Appeal held that the words of a "crystal clear" clause in a contract could not be overridden by the principle. In Petroplus Marketting AG v Shell Trading International Ltd Andrew Smith J. said: "It is a general principle of construction that prima facie it will be presumed that the parties intended that neither should be entitled to rely on his own breach of duty to obtain a benefit under a contract, at least where the breach of duty is a breach of an obligation under that contract: see Chitty on Contracts, Vol 1 at para 12-082. This is sometimes presented not as a matter of contractual construction but an implied contractual term that a right or benefit conferred upon a party shall not be available to him if he relies upon his own breach of the contract to establish his claim: Chitty on Contracts Vol 1 at para 13-012. However analysed, the principle is not inflexible or absolute: it may be displaced by express contractual provision or by the parties' intention to be understood from the express terms: Richco International Ltd. v Alfred C. Toepfer International GMBH." SAVING THE DOCUMENT 7.16 Where two constructions of an instrument are equally plausible, upon one of which the instrument is valid, and upon the other of which it is invalid, the court should lean towards that construction which validates the instrument. This principle is based on the proposition that "the parties are unlikely to have intended to agree to something legally ineffective." It is expressed in the Latin maxim verba ita sunt intelligenda ut res magis valeat quam pereat. One suggested translation is "validate if possible". In Langston v Langston Lord Brougham L.C. said: "If there are two modes of reading an instrument, and one destroys the instrument and the other preserves it, it is the rule of law and of equity following the law in this respect that you should lean towards that construction which preserves, rather than towards that which destroys. Ut res magis valeat quam pereat is a rule of common law and common sense, and much the same principle ought surely to be adopted where the question is, not between two rival constructions of the same words appearing in the same instrument, but where the question is on so ready an instrument as that you may either take it verbally and literally, as it is, or with a somewhat larger and more liberal construction, and by so supplying words as to read it in a way in which you have every reason to believe that the maker of it intended it should stand. Thus, again, according to the rule ut res magis valeat quam pereat, to supply, if you can safely and easily do it, that which he per incuriam omitted, that which instead of destroying preserves the instrument, and, instead of putting an end to the instrument and defeating the intention of the maker of it, tends rather to keep alive and continue and give effect to that intention." In more modern times, the principle was described by Lord Wright in Hillas (W.N.) & Co v Arcos as follows: "Business men often record the most important agreements in crude and summary fashion; modes of expression sufficient and clear to them in the course of their business may appear to those unfamiliar with the business far from complete or precise. It is accordingly the duty of the court to construe such documents fairly and broadly, without being too astute or subtle in finding defects; but, on the contrary, the court should seek to apply the old maxim of English law, verba ita sunt intelligentda ut res magis valeat quam pereat. That maxim, however, does not mean that the court is to make a contract for the parties, or go outside the words they have used, except in so far as there are appropriate implications of law." In the same case Lord Tomlin said: "The problem for a court of construction must always be so to balance matters, that, without the violation of essential principle, the dealings of men may as far as possible be treated as effective, and that the law may not incur the reproach of being the destroyer of bargains." INTERNAL INCONSISTENCY 9.08 If a clause in a contract is followed by a later clause which destroys the effect of the first clause, the later clause is to be rejected as repugnant and the earlier clause prevails. If, however, the later clause can be read as qualifying rather than destroying the effect of the earlier clause, then the two are to be read together, and effect given to both. INCONSISTENCY WITH MAIN OBJECT 9.09 Words and even whole clauses may be rejected if they are inconsistent with the main object of the contract, as ascertained from a reading of it as a whole. (2) THE LAW OF CONTRACT by SIR GUENTER TREITEL, Q.C., D.C.L., F.B.A. Honorary Bencher of Gray's Inn Formerly Vinerian Professor of English Law. 11th Edition (3) Contract Cases and Materials H G Beale, W D Bishop and M P Furmston (4) Construction of Contracts: An Analysis of Objectivity and Subjectivity within Contractual Transactions Joseph Dance

10. In the light of above, Ex.P-1 is an agreement to sell, the sentence ( ) indicates the intention of parties that same will be written on the stamp paper. The case pleaded by the defendants that agreement Ex.P-1 was between Muhammad Ashraf and defendants is against the document Ex.P-1. Furthermore said Muhammad Ashraf appeared in the witness box as P.W-2 and stated that he is a property dealer and through Ex.P-1 the parties to the suit entered into agreement of sale of suit property through his professional assistance. Needless to note here that written terms of an agreement cannot be denied through oral assertions. Even defendant No. 2 as D.W-1 admitted that in Ex.P-1 name of plaintiff is written. The resume of above discussion is that Ex.P-1 is an agreement to sell enforceable under the law and if it does not contain the signatures of plaintiff in the light of "MUHAMMAD SATTAR and others v. TARIQ JAVAID and others" (2017 SCMR 98), even then the absence of formal signatures did not affect the validity or enforceability of the contract.

11. It is on the record that the defendants moved an application under Order XI read with Order XIII and section 151 of the C.P.C. on 14.06.2004 for production of original documents. The original documents i.e. Token Receipt and Pay Order for Rs.4.0 Million dated 24.04.2004 were brought before the court on 07.07.2004 under the orders of the court and the same were examined by the learned counsel for the defendants as noted in the interim order of the said date. Further when at the time of evidence the original document Ex.P-1 was lost and permission was sought from the court for the production of secondary evidence, which was granted vide order dated 12.05.2011 and the same was produced under the orders of the court, therefore, the finding of the learned courts that Photostat copy of the receipt has been placed is also a fact when the courts below fell in error by ignoring the legal position and evidentiary value of the document. Even otherwise it is a complete contract containing the offer, acceptance, specification of the suit property and the terms of payment. In these circumstances, the findings of learned trial court that neither it is an agreement nor the contract are against the law. The finding of both the courts that Ex.P-1 is neither an agreement nor a contract is absolutely against the legal position discussed supra.

12. Now I take up the third point noted supra, the suit was filed on 25.05.2004. In accordance with the token receipt (agreement) which is dated 23.04.2004 next payment of Rs.35,00,000/- was to be made on 26.04.2004, whereas the original pay order of Rs.4 Million in the name of defendants was got prepared by the plaintiff on 24.04.2004 and the original of receipt Ex.P-1 were shown to the learned counsel for the defendants in the court on 07.07.2004 as noted in the interim order. The Photostat copy of the pay order is available on the file, which is dated 24.04.2004 as the original record is available before the court. A notice can be taken of the fact that it was not denied that pay order was got prepared in the name of defendants by the plaintiff/appellant on 24.04.2004 when on 26.04.2004 further amount of Rs.35,00,000/- was to be paid to the defendants. The story narrated by the plaintiff that the defendants were demanding more amount for writing of the agreement on the stamp paper seems to be correct. In these circumstances, pay order for Rs.40,00,000/- was got prepared in the name of the defendants on 24.04.2004 but same was not received by the defendants. This bundle of facts leads to the conclusion that there were the defendants who violated the terms of the agreement for sale of the property.

13. The language of token receipt has been admitted by D.W-1 and it is also admitted fact that she signed the document after perusal of the same, which clearly shows that a certain amount was agreed as full consideration amount and further receipt of earnest money and admission thereof clearly shows the acceptance on the part of the defendants. The only question remains for determination of the court that who is at fault. If an agreement was to be written on a stamp paper and if that has not been written and the plaintiff has come to the court for specific performance, in this eventuality, the court was to determine that who is at fault in performance of further terms of the said contract. If the plaintiff is at the fault, certainly he will not be entitled for specific performance and if the defendants are at fault, then the plaintiff was having no other remedy with him except to file a suit for specific performance.

14. Now comes the question that whether the plaintiff has come to the court dishonestly or it is the defendants who are dishonest in their defence. Ex.P-1 is an admitted document. The plaintiff terms it an agreement, whereas the defendants term it as token receipt merely an intention/indication on the part of parties that they are interested in dealing with the property but pleaded that Muhammad Ashraf was the party and not the plaintiff whereas in the Ex.P-1 it is clearly mentioned that the defendants agreed to sell the suit property in favour of Saleem Shahadat plaintiff. Here some original texts from the statement of D.W-1 are necessary, which are as follows:- Against a document the oral evidence has no value. At the time of execution of Ex.P-1 on 23.04.2004 an amount of Rs.500,000/- was paid and on 26.04.2004 thirty five lacs were to be received by the defendants and from receiving one crore ninety lacs rupees, an amount of twenty five lacs rupees was to be received within six weeks and final remaining amount of one crore sixty five lacs within thirteen weeks from the date of this document was to be received. A pay order of Rs.4 Million was got prepared by the plaintiff on 24.04.2004 in the name of defendants but as per the plaintiff, the defendants refused to receive the same dishonestly on the ground that some third party offered more amount than the plaintiff to the defendants of the suit property. The plaintiff filed the suit on 25.05.2004 i.e. before the target date of third amount and defendants filed written statement on 14.06.2004 and denied the performance and contested the suit. The above discussion clearly leads to the conclusion that the defence taken by the defendants was dishonest and they were at fault. The plaintiff himself appeared as P.W-1 and marginal witnesses of Ex.P-1 were produced as P.W-2 and P.W-3, who are consistent with the plaintiff and Ex.P-1 and against this evidence the sole statement of D.W-1 defendant No.2 is available, that too against the written document Ex.P-1, therefore, the defendants miserably failed to rebut the evidence of plaintiff. The statement made by one of the defendants as D.W-1 against the admitted document Ex.P-1, in these circumstances, I have no hesitation to hold that D.W-1 told a lie in her statement when she stated that agreement was not with the plaintiff.

15. I have further noticed that the case pleaded by the plaintiff that after agreement with the plaintiff the defendants were having offers more than the agreed amount by some other parties, therefore, they refused to perform their part of the contract in accordance with the token receipt, which is visible from the trend of cross-examination upon the witness P.W-2 when his statement was recorded on 02.12.2011, the question in cross-examination was put by the learned counsel for the defendants that the value of the property will be of 3.5/4 crore rupees at this time. Learned counsel for the defendants/respondents during the arguments stated that the value of the suit property is at least fifteen crore rupees now a days. The scrutiny of evidence of one of the defendants when appeared as D.W-1 indicates that the defendants opted that one of them should appear in defence and no documentary evidence be produced. When a specific question was put to one of the defendants as D.W-1 that if the amount of Rs.2,30,00,000/- is paid by Saleem Shahadat to them, they are ready to transfer the property in his name. The witness stated that no answer is to be given to this question. There are many more questions noted by the learned trial court, the answers whereof were refused by D.W-1. The scrutiny of statement of D.W-1 shows that she is not a simpliciter household lady.

16. The point discussed by the learned first appellate court that the amount was not deposited by the appellant/plaintiff himself under the orders of this Court passed in R.F.A. No.134 of 2010. As it was mentioned and observed in the order dated 08.03.2010 that the plaintiff/appellant has offered deposit of amount through surety. Therefore, it makes no difference when the amount was deposited by the appellant/plaintiff himself or by some surety. The order of the court was complied with and as such no adverse effect can be given to this fact against the rights of the appellant/plaintiff. There is no cavil to the case law produced by the learned counsel for the parties but the law is applied on bundle of facts in issue in a lis.

17. It is pertinent to mention here that the plaintiff is to step into the shoes of the vendors and the decree in a suit for specific performance is a declaration of maturity of the contract which is enforced through its execution.

18. When it is held that it was the defendants who came in the court with dishonest defence refusing the agreement with the plaintiff against the written document Ex.P-1 and further the plaintiff/appellant even came to the court within four weeks from the day of writing of Ex.P-1, whereas the final payment was to be made within thirteen weeks of the document Ex.P-1. One of the defendants when appeared in the court as D.W-1 being sole witness and against the oral as well as documentary evidence of the plaintiff/appellant no evidence was produced by the defendants except the statement of D.W-1 telling a lie and it was the defendants who caused the delay of performance, therefore, the defendants to suffer in this eventuality.

19. In this view of the matter, the judgments and decrees dated 04.05.2017 and 03.06.2014 passed by the learned first appellate court and trial court respectively, being contrary to the law, whereby the suit was dismissed and the appeal there against was also dismissed, are not sustainable under the law, same are set-aside. The second appeal is allowed on the basis of discussion supra and the suit for specific performance with regard to the suit property filed by the plaintiff/appellant is decreed in his favour for the consideration amount of Rs.2,30,00,000/- (two crore and thirty lacs rupees). The earnest money of Rs.5,00,000/- was paid at the time of writing of the document on 23.04.2004, whereas an amount of Rs.1,12,50,000/- was deposited with the trial court on 20.03.2010. The remaining amount i.e. Rs.1,12,50,000/- (one crore twelve lacs and fifty thousand rupees) be deposited within one month with the learned trial court. The defendants/respondents are entitled to withdraw the whole amount along with its profit. However, it is made clear that if the remaining amount of Rs.1,12,50,000/- is not deposited by the appellant/plaintiff with the trial court within the stipulated period, then this appeal will be deemed to have been dismissed and the dismissal decree of the suit will hold the field. Furthermore, in case the remaining amount is not deposited by the appellant, surety will be entitled to withdraw the earlier amount of Rs.1,12,50,000/- along with the profit keeping in view the order dated 08.03.2010 passed by this Court in R.F.A.No.134 of 2010. The appellant/plaintiff to further deposit the stamp paper of Rs.1100/- for payment of duty upon Ex.P-1 along with ten times penalty for process of impounding of document in the trial court, the learned trial court should complete the process.

20. Before parting with this judgment I would like to appreciate the valuable arguments advanced by both the learned counsel for the parties in a professional way. I extremely appreciate one of the learned counsel for the appellant namely Mr. Khalid Ishaq Advocate, whose preparation of the case as well as the assistance to the Court professionally was visible from the way of his arguments, submitting the case law and interpretation of statute. MWA/S-25/L Appeal allowed.