1989 PLP 1466 (SCMR)

JAVID IQBAL, J.‑‑This petition for leave to appeal is directed against the order of the Lahore High Court, Lahore, dated 19 January 1983 whereby civil revision of the petitioner was dismissed Briefly the facts are that the petitioner entered into an agreement of sale for the purchase of house with Sardar Muhammad deceased predecessor‑in interest of the respondents. Out of the sale price a sum of Rs.6,000 was paid at the time of the execution of the agreement while the balance amount of RS.30,OOf1 was agreed to be paid within 15 days of Eid‑ul‑Azha 1978. The case of the petitioner was that he collected the money for paying the balance amount but on the night between 8/9 September 1978 the sons of Sardar Muhammad deceased had committed a theft in the house of the petitioner and thus had taken away Rs.10,500 in cash as well as some gold ornaments. A report to this effect was accordingly lodged with the police. However, Sardar Muhammad deceased admitted the guilt of his sons before a Punchayat and it was agreed that out of the remaining sale price of Rs.30,000 a sum of Rs.19,000 would be deposited by the petitioner with one Haji Muhammad Ramzan but Rs.11,000 would be deemed to have been received by Sardar Muhammad deceased on account of the alleged theft committed by his sons. On the basis of this agreement between the parties the police case was withdrawn as claimed by the petitioner. It is in this background that the petitioner filed a suit against Sardar Muhammad for specific performance of the agreement of sale on payment of Rs.19,000 or m the alternative he claimed back Rs.‑7,000 i.e. Rs.6,000 paid as earnest money plus Rs.11,000 paid as compensatory amount. The suit was resisted. The trial Court after recording the evidence and hearing the parties decreed the suit on payment of Rs.30,

000. On appeal the District Judge reversed the judgment and decree of the trial Court and dismissed the suit taking the view that the story of theft had little foundation and that the whole drama was enacted to save the petitioner from his liability to make payment of the balance of the amount within the period specified in the ‑original agreement of sale. On this basis it was held that the petitioner was not entitled to the equitable relief of specific performance. Thereupon the petitioner challenged the aforesaid judgment and decree of the appellate Court by way of a civil revision which was dismissed as stated above. , Hence the present petition. Learned counsel for the petitioner argued before us that the District Judge was not justified in reversing the judgment of the trial Court merely on the ground that he regarded the story of theft committed by the sons of Sardar Muhammad as baseless although there was no supporting evidence to that effect on the record. But we read before the learned counsel para. 4 of the impugned judgment of the High Court at pages. 10 and 11 of the paper book in which the findings of the learned Judge are that it was not the mere registration of the theft case‑ that the District Judge concluded that the petitioner was not willing to perform his part of the contract, but that his finding was that the story of the theft m the light of the plea that a sum of Rs.11,000 was agreed to be adjusted on account of the theft and that the sum of Rs.19,000 was agreed to be paid had been introduced to save the petitioner from his liability within the stipulated period. It is evident from the record of evidence that this Haji Muhammad Rarnzan was not produced. Similarly Mushtaq, at whose house the Punchayat was held and Sardar Muhammad who is stated to have admitted that his sons were guilty of the theft and that therefore he agreed to allow the adjustment of Rs.11,000, had also not been produced. Again two other witnesses who were stated to be the members of the Punchayat in which this agreement had been made namely Muhammad Ashraf and Abdullah had denied that they were members or were present in the Punchayat. Thus the finding of the learned Judge was that in the light of this evidence the conduct of the petitioner could not be considered to be above board. In the light of the above discussion in our view there is no substance in this petition which is accordingly dismissed. MA.K./M‑890/S Petition dismissed.