2005 PLP 301 (YLR)

5. The parties led evidence in support of their respective pleas. The learned trial Court found that the covenant (Exh.P.A./1), relied upon by the plaintiffs, was, duly proved, the petitioners were not bona fide purchasers for value and since agreement to sell stood proved, the plaintiffs were entitled to the decree. Accordingly, vide judgment, dated 24-2-1985, the suit filed by the plaintiffs was decreed. The petitioners filed an appeal which was dismissed vide judgment and decree, dated 9-10-1986.

6. The learned counsel for the petitioners contends that in accordance with the sale-deed, dated 9-5-1973 the area sold was 50 ft. x 132 ft. (although except 50 ft. no other dimension, is given in the said sale-deed). Thus, the suit was for partial performance and since it was not covered by sections 14, 15 and 16 of the Specific Relief Act, it was barred under section 17 of the Specific Relief Act. Reliance was placed on Alamdar Hussain v. Nazir Hussain and others 2004 PSC 815, Razia Sultana Bano and 4 others v. Muhammad Sharif and 9 others 1993 SCMR 804, Chaudhry Shah Muhammad and 6 others v. Muhammad Ishaq and 5 others 2001 MLD 1518 and Shaikh Javed Khalid Akhtar v. Deputy Commissioner, Khanewal and 4 others 2001 MLD 151.

7. He next submitted that the covenant in the sale-deed, basis of the suit, was a unilateral offer, without any acceptance by the plaintiffs. It, therefore, lacked mutuality, particularly, when no reciprocal obligation was undertaken by the plaintiffs Exh. P.1 does not show that the offer of the vendors was accepted by the plaintiffs. It was, thus, not enforceable. Reliance was placed on Kahn and Kahn v. Premsukh AIR 1931 Lah. 260, Shaukat Ali v. Secretary, Industries and Mineral Development, Government of the Punjab, Lahore and 3 others 1995 MLD 123.

8. It was next contended that the covenant that if the Gujranwala Cantonment did not acquire the land it will be sold to the plaintiffs, suffered from uncertainty and was hit by the provision of section 21(c) of the Specific Relief Act. Reliance was placed on Mst. Saeeda Akhtar and others v. Lal Din and others PLD 1981 Lah.

623. It was next urged that the sale in this case was made by the vendors after about 5 years in favour of the petitioners, therefore, the agreement was hit by section 21(g) of the Specific Relief Act and further on account of price escalation from 1973 to 1978, it was otherwise unjust and inequitable to grant specific performance.

9. He also submitted that besides being a unilateral promise, the essential ingredients of an agreement to sell were missing inasmuch as that no earnest money was paid by the plaintiffs and no time for completion of the transaction was contemplated. It was silent about mode of payment of sale consideration and delivery of possession. Therefore, the said covenant did not constitute a contract for sale. Reliance was placed on Fateh Muhammad v. Faqir Ullah 2001 CLC 801, Muhammad Azam Muhammad Fazil and Co., Karachi v. Messrs N.A. Industries, Karachi PLD 1977 Kar. 21, Shajar Ali Hoti v. Esmail Sobani 1987 CLC 2307.

10. He maintained that there was no consideration for the so called agreement itself and, therefore, it was hit by section 25 of the Contract Act. He submitted that one of the ingredients to successfully maintain a suit for specific performance is that the plaintiff should be ready and willing to perform his part of the contract but perusal of the plaint shows that there was no such averment. In support of this contention, he referred to paragraphs 5 and 6 of the plaint. Reliance was placed on Muhammad Yaqoob v. Muhammad Nasrullah Khan and others PLD 1986 SC

497. Statements of P.W.3 and D.Ws.1 and 3 were relied upon. He further submits that the petitioners were the bona fide purchasers for value and were, therefore, protected. Statement of D.W.5 was relied upon.

11. Mr. A.K. Dogar, Advocate, represents some of the respondents. He submits that the covenant in the sale-deed was specifically proved as Exh.P.A./1. It was held to be an enforceable agreement, it was impounded and eleven times penalty was paid on it. He contends that the terms of the agreement were specific and clear it did not suffer from any uncertainty or vagueness, the area measuring 132 ft. x 39 ft. was agreed to be sold and the suit was filed for the entire aforesaid area. In any case this question was not raised before any of the two Courts nor there was an issue on this controversy. Therefore, it could not be entertained for the first time in revisional jurisdiction.

12. As far as mutuality and consideration is concerned, he submitted that the sale-deed Exh.P.1 was signed by both the parties and the agreed consideration was the same for which the land was sold in favour of the plaintiffs- respondents. According to him, the proposal and acceptance recorded in the sale-deed itself brought into existence a valid and enforceable contract. He further contended that even a contingent contract was valid and enforceable on the happening of the contingency. As far as the plea of the petitioners that they were bona fide purchasers of the value is concerned, he urged that it stood negated by the evidence produced in the case. He further submitted that the matter stands concluded by concurrent finding of fact of the two Courts and, therefore, no interference is warranted. He relied on Ghulam Muhammad and others v. Malik Abdul Qadir Khan and others PLD 1983 SC 53, Abdus Saeed Khan and 2 others v. Basharat Ali and 13 others PLD 1995 Lah. 255 and Pakistan through General Manager, P.W.R., Lahore v. Mrs. A. V. Issacs PLD 1970 SC 288.

13. Rana Bashir Ahmed, Advocate, also appears for some of the respondents. He submits that the sale deed in favour of the petitioners was for an area measuring 43 ft. x 140 ft. while the area agreed to be sold was 50 ft x 132 ft. but the suit for 39 ft. x 132 ft. was filed for the reason that out of 50 ft. area measuring 11 ft. had been acquired for sui gas pipeline. He referred to the statement of D.W.5, to contend that the passage referred to by him was the area acquired. He relied on site- plan Exh.P.3, in support of his contention. He also referred to paragraph 5 of the plaint to contend that the plaintiffs had always been willing and ready to perform their part of the contract.

14. When confronted that the pleas of partial performance, or the willingness of the plaintiffs to perform their part of the contract were not specifically raised before the learned two Courts, his contention was that these are questions of law and could be raised at any stage of the proceedings. According to him, the objections to the grant of specific performance are floating on the surface of record.

15. The submissions of the learned counsel for the parties have been considered. As far as the question of fact is concerned, the findings of the learned two Courts are:-- (a) that the covenant Exh.P.A./1 was duly proved; (b) that petitioners are not bona fide purchasers for value. These findings are based on evidence not liable to be interfered with.

16. To summarise, the learned counsel for the petitioners has raised the following questions, which according to him, are the questions of law and could be raised at any stage of the proceedings:-- (a) suit for partial performance was not maintainable; (b) the agreement lacked mutuality; (c) it was without consideration thus void; (d) the agreement was vague and uncertain and essential ingredients of a contract for sale were missing; (e) The appellant had not been ready and willing to perform his part of the contract and it was not even alleged in the plaint.

17. Before the above contentions are examined, it may be noted that in the memo. of appeal before the learned District Courts, the appellant had taken the following grounds: (a) The agreement was void and not enforceable and the covenant in the sale-deed did not constitute agreement to sell. (b) It was hit by section 29 of the Contract Act. (c) The agreement suffered from uncertainty and was hit by section 21 of the Specific Relief Act. The contentions noted in clauses (b), (c), (d) of para.16 were raised before the learned District Court and were repelled in para.7 of the impugned judgment. As far as the plea of partial performance and willingness and readiness of the plaintiffs to perform their part of the contract are concerned, these were not raised before any of the two Courts.

18. The objections of the learned counsel for the plaintiff-respondents is that all the pleas noted in para. 16 were not raised in the written statement by the petitioners and, therefore, cannot be entertained in revisional jurisdiction.

19. It is no doubt true that a new plea cannot be allowed to be raised, for the first time before a higher forum. However, a question of law can be raised at any stage of the proceedings. An inference from admitted facts, effect and construction of a document, law applicable on the admitted or proved facts are questions of law, which could be raised at any stage of the proceedings subject to the qualification that a factual inquiry is not required to determine it. The said principle is illustrated by the following cases.

20. In Khan Aziz Hassan Khan v. Haji Muhammad Ismail PLD 1972 Lahore

142. Protection of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII), 1958 was not pleaded in the written statement by the tenant. It was not allowed to be raised by the Rent Controller. The plea found favour with the learned Additional District Judge. Before this Court, in the second appeal, the argument advanced on behalf of the landlord was that since the plea was not raised in the written statement, it could not be allowed to be raised before the appellate forum. The plea was repelled with" the following observations: "The contention is not correct because if on the facts admitted or proved certain law becomes applicable then it is the duty of the Court to apply that law. It was so held by their Lordships of the Supreme Court in Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690, where at page 696, the actual passage runs as follows:-- "It may be pointed out that it is the duty of the Court itself to apply the law. A party is not bound to engage a counsel. Whatever law becomes applicable, on the admitted or proved facts, law has to be given effect to whether or, not it has been relied upon by a party." 20-A. In Safdar Ali through his legal heirs and 3 others v. Muhammad Malik and 4 others 1995 CLC 1751, the rule laid down in the case of Khan Aziz Hassan Khan supra was reiterated and Haji Abdullah Khan was followed. Haji Abdullah Khan supra was a case of specific performance and the effect of minority of the two vendees was allowed to be raised for the first time before the Honourable Supreme Court of Pakistan.

21. To my mind, the questions being agitated, except, willingness and readiness of the plaintiffs to perform their part of the contract, are questions of law going to the root of the case and no further investigation into the facts is required. As far as the plea of partial performance is concerned, the covenant in the sale-deed Exh. P. A/1, and the plaint is required to be examined to determine the aforesaid question. Both these are admitted documents. It was not the case of the plaintiffs-respondents that the area agreed to be sold was more than the area claimed in the suit and the reason for the omission to sue for the entire area, was, acquisition of the land of the vendors for laying sui gas pipeline. The case set up in the plaint was that the area agreed to be sold by vendors was 39 ft. x 132 ft. while one of the vendors sold to the petitioners an area measuring 43 ft x 140 ft. including the area agreed to be sold. Their case was based on the covenant Exh.P.A./1. A careful examination of the said covenant shows that only one dimension i.e. from north to south as 50 ft. was agreed to be sold without specifying any other dimension. However, the case has throughout been contested on the assumption that the other dimension was 132 ft. Thus, against the area of 50 ft. x 132 ft., agreed to be sold, the suit was brought for 39 ft. x 132 ft. without any explanation for not seeking performance of the contract in its entirety. It was for the plaintiffs to have shown that despite seeking partial performance their case fell under section 14 or 15 or 16 of the Specific Relief Act and section 17 of the said Act was not attracted. Reference may be made to Razia Sultana Bano v. Muhammad Sharif and 9 others 1993 SCMR 804 in which sections 14, 15, 16 and 17 of the Specific Relief Act were explained. It was observed that the Court will not as a rule, grant specific performance of contract unless it can execute the whole contract. In the case in hand, the plaintiffs-appellants did not seek performance of the contract to its entirety in accordance with the covenant Exh.P.A/1. Therefore, the suit was hit by section 17 of the Specific Relief Act and could not have been decreed.

22. As far as contentions at (b), (c) and (d) as noted in para. 16 and, are concerned, again, no investigation into the facts is required to determine these questions because these can be answered on the basis of the plaint and the covenant, Exh.P.A/1. Perusal of the aforesaid covenant and even the entire sale-deed in which it was contained should that the plaintiffs had not undertaken any reciprocal obligation. Therefore, it lacked mutuality because if the vendors wanted to enforce the contract, the plaintiffs-respondents could rely on the absence of their acceptance to the offer made by the vendors was through Exh.P.A./1. The offer of the vendors was at gratis promise. Until an offer is accepted, it does not consummate into a binding and enforceable contract. A perusal of the said covenant further shows that there was no consideration for the agreement to sell because no earnest money was paid to the vendors to constitute consideration for the agreement. I have also noticed that no details whatsoever of the area agreed to be sold such as the total area, the East to West dimension, the description in terms of revenue record, were given in the sale-deer Which contained the aforesaid covenant Exh.P.A./1. In fact, it does not say that the area agreed to be sold was 50 ft x 132 ft. The area sold through the said sale-deed was 103 ft. (North-South) and 132 ft. (East -West) and not that 50 ft. x 132 ft. was agreed to be sold. Therefore, the contract of sale was hit by sections 25 and 29 of the Contract Act and section 21 of the Specific Relief Act.

23. As far as the contention at (e) of para.16 is concerned, I am not allowing it to be raised for the first time before this Court because it is a mixed question of law and fact and had an objection been taken, it could have been met.

24. It may also be observed that grant of specific performance is discretionary. The covenant on which the suit of the plaintiffs-respondents was based is dated 9-5-1973 while the suit was filed on 28-1-1978 and at the time of execution of the sale-deed, dated 9-5-1973, the plaintiffs-respondents had not incurred any financial obligation. Keeping in view the price escalation, the fact that it was not the case of the plaintiffs that any time after 9-5-1973 they had offered the sale consideration to the vendors, and the other features of the case as noted above. I am of the view that specific performance ought not to have granted in this case.

25. For what has been stated above, this revision petition is allowed with costs. The judgments and decrees of the learned two Courts are set aside and the suit of the plaintiffs-respondents is dismissed. S.A.K./R-92/L Revision accepted.