1992CLC1688 (PLP)

(8) Whether the defendant No.l is bound to convey the property to the plaintiff to the exclusion of defendant No.2 ? (9) What should the decree be?" On .the pleadings of the parties, the following issues were framed in Suit No.748 of 1981:‑ "(1) Whether the claim is barred under section 53‑A of Transfer of Property Act ? (2) Whether the Agreement dated 30‑6‑1978 between the plaintiff and defendant/vendee stands repudiated in accordance with section 45 of Contract Act ? (2‑A) Whether there is a supplementary agreement dated 15‑9‑1980? If so, what is its effect ? (3) Whether there is any collusion between plaintiff and defendant No.l as alleged in para. 12 of defendant No.2's written statement? (4) What is the effect of Suit No.1283/80 filed by defendant No.2, against plaintiff and defendant No.1 for specific performance of the contract and in the alternative damages of Rs.3,00,000. (5) Whether the plaintiff is entitled for the reliefs as prayed in para. 24(i) to (vii) of the plaint ? (6) Whether defendants paid sale consideration jointly or any amount was paid by the defendant No.l alone ? (7) What should the decree be ?" Mrs. Qamar Zia was examined as Exh.9. Tanveer Ismail examined his attorney and younger brother, Zain Ismail as Exh.10. Mrs. Shireen Siddique did not examine herself nor she led any evidence whatsoever in these two suits. The learned Single Judge, on assessment of the evidence on the record, came to the conclusion that the legal stand taken by the Advocate of Ziaul Khalique does not appear to be correct. He observed as follows:‑‑ "This section lays down two rules. The first rule is that in the case of a joint promise all joined promisees must join in suing the promisor. The second rule is that if any one of the promisees dies his survivors shall step into his shoes. It is a settled position of law that if there are more than one promisees then all of them have to be joined in a suit filed against the promisor. It is also a settled position of law that if the promisees do not agree among themselves, any one of the promisees can sue the promisor but he shall have to make other promisees defendants and cannot sue without making the other promisees party." The learned Single Judge further observed that all the promisees have to be joined in a suit for specific performance of a contract, it is not necessary (hat all of them should be plaintiff. In that view of the matter, the suit filed by Mrs. Shireen Siddique was decreed and the suit filed by Ziaul Khalique was dismissed. The learned Single Judge directed Shireen Siddique and Tanveer Ismail to deposit the balance of the consideration in‑ the Court on or before 31‑5‑1988. Hence the present appeals. We have heard Mr. Muhammad Hanif Khan, learned counsel appearing for the appellants and Mr. M.G. Dastgir, learned counsel appearing for the respondent No.2. The respondent No.l though served, remained absent for the reasons best known to her. Mr. Muhammad Hanif Khan raised the following contentions:‑ (1) The suit at the instance of one of the co‑promisees for specific performance of the contract was not maintainable. (2) Whether Mrs. Shireen Siddique is entitled to a decree of specific performance. Mr. M.G. Dastgir, learned counsel for respondent No.2, Tanveer Ismail submitted that Tanveer Ismail was not in possession of the premises in question. The learned counsel further submitted that Tanveer is not interested in the purchase of the suit premises. The first contention of Mr. Muhammad Hanif Khan, in our view, is one of form not of substance. It is of course essential that when there are joint promisees, all of them must be before the Court. But it is not essential that they must join as plaintiffs when one of such joint promisees riles a suit for specific performance as they can be made defendants. In case, however, those of the joint promisees, who have been added as defendants, also intend to assert their right under the contract, it may be necessary to transpose them as plaintiffs and the Court may have to give judgment in favour of all of them. But there is nothing in section 23 of the Specific Relief Act, 1877 which forbids one of the joint promisees to institute a suit, for enforcing a contract and on the contrary the words "any party thereto" appearing in Clause (a) thereof clearly envisage that one or some of the joint promisees can institute such a suit. If the intention of the Legislature was that the joint promisees should have to be clubbed together as plaintiffs, it could have read "either party thereto" instead of "any party thereto". We arc unable to accept the contention of Mr. Muhammad Hanif Khan that in the absence of other promisees, the suit was liable to be dismissed for non‑joinder of the parties. In the instant case, the other joint promisee had been made party as a defendant and nothing prevented him from being added as plaintiff so as to enable him to assert his right under the contract and to obtain the relief which the plaintiff asked for, jointly with him. Any dispute the purchasers may have amongst themselves in such a case was not for the Court to decide in the suit; nor was the Court being asked to make a new contract for the parties. On the contrary, the Court was being asked to enforce the contract as it was originally made. Reliance in this connection may also be placed on the following passage from the judgment of Privy Council in the case of Monghibai v. Cooverji Umersey AIR 1939 PC 170 given at page 173:‑‑‑ "It has long been recognized that one or more of several persons jointly interested can bring an action in respect of joint property and if their right to sue is challenged can amend by joining their co -contractors as plaintiffs if they will consent or as co‑defendants if they will not. Such cases as (1879) 11 Ch. 121 and (1898) 2 QB 380 arc examples of this principle. Nor indeed would it matter that a wrong person had originally sued through he had no cause of action: sec (1902)2 KB

485. Once all the parties are before the Court, the Court can make the appropriate order and should give judgment in favour of all the persons interested whether they be joined as plaintiffs or defendants." It appears that the learned Single Judge has rightly decided this point against the appellants. In that view of the matter, it is not necessary to discuss the decisions cited by Mr. Muhammad Hanif Khan. The next question is whether Mrs. Shireen Siddique is entitled to a decree of specific performance. No doubt the trial Court has the discretion and Court is not bound to grant such a relief. The discretion exercised should not be arbitrary but should be guided on sound and reasonable judicial principles, capable of being corrected by the Court of appeal, as enumerated under section 22 of the Specific Relief Act. In this case, the question is whether the learned Single Judge has reasonably exercised his discretion guided by sound and judicial principles. It is now well‑settled by catena of decisions that the Court of appeal has got jurisdiction to consider whether the trial Court has exercised such a discretion on sound and reasonable judicial principles. The relief is discretionary and can be refused where the ends of justice do not require the relief to be granted. In other words, where justice demands that the grant of the relief of specific performance is just, reasonable or proper, the Court has to grant the relief and it would be a proper exercise of discretion. The question is whether the learned Single Judge has exercised that discretion. Exercise of discretion would positively weighing the pros and cons of grant of relief in proper perspective and to arrive at the decision. Assigning reasons to support thereof is the guide through which the exercise of discretion is to be gauged. In the instant case Ziaul Khalique had agreed to sell the property in suit to Mrs. Shireen Siddique and Tanveer and possession was handed over to Mrs. Shireen Siddique. It is common ground that there was a dispute between the purchasers themselves. Mrs. Shireen Siddique, omitted to mention in the plaint that she was ready and willing to perform her apart of the contract. It is also significant that no issue has been struck on the question whether Mrs. Shireen Siddique was ready and willing to perform her part of the contract. However, since in the eye of law the plaintiff is bound to aver and prove the same, we must look into the evidence to find out whether the allegation made by the plaintiff as to her readiness anti willingness to perform her part of the contract has been proved but while doing so, we cannot lose sight of the fact that Mrs. Shireen Siddique did not appear in the witness‑box. At this stage, we may also point out that on 16‑3‑1986 Mrs. Shireen Siddique was directed to deposit the balance sale consideration with the Nazir. But she failed to do so. Both the purchasers were directed to deposit the balance sale consideration in the Court on or before 31‑5‑1988. Even this was not done. Thus there are no equities in favour of the respondents. In the present case, both the respondents have been guilty as they failed to perform their part of the contract. Mr. M.G. Dastgir learned counsel appearing for respondent No.2 fairly conceded that respondent No.2 was not interested in the purchase of the property. We feel that the respondents have deliberately failed to comply with the direction of the learned Single Judge. We are, therefore, of the view that the respondents are not entitled to enforce specific performance of the contract. We are informed by the appellants' counsel as well as by the counsel of Tanveer that the premises in question is locked by the first respondent but not occupied by the respondents or anybody else. In the facts and circumstances, the suit filed by Mrs. Shireen Siddique is liable to be dismissed. Accordingly we allow these appeals, set aside the judgment and decree passed by the learned Single Judge dated 24‑5‑1988 and decree the suit No.748 C of 1981 for possession against Mrs. Shireen Siddique and dismiss the suit against Tanveer Ismail. A.A./Z‑169/K Appeals accepted.