2024 PLP 2597 (YLR)

Ijaz Anwar, J.

This civil revision petition is filed against the judgment and decree dated 29.11.2021 passed by the learned Additional District Judge-VII, Peshawar, whereby, he dismissed the appeal of the petitioners and maintained the judgment and decree dated 29.01.2021 passed by the learned Civil Judge-IX, Peshawar, decreeing the suit of respondent No.1 in his favour.

2. In essence, suit filed by respondent No.1 against the petitioners pertaining to declaration, possession through specific performance of agreement dated 11.11.2014 was decreed by the learned Civil Judge-IX, Peshawar vide judgment and decree dated 29.01.2021 in his favour. On appeal of the present petitioners before the learned District Judge, Peshawar, it was maintained vide judgment and decree dated 29.11.2021. Hence, this civil revision petition.

3. Arguments heard and record perused.

4. Perusal of the record reveals that respondent No.1 has filed a declaratory suit claiming that through the sale agreement (Ex.PW-3/1) dated 11.11.2014, he has purchased a house measuring 08 Marla situated at Ring Road, Mohalla Waris Abad Tehsil and District Peshawar on a sale consideration of Rs.34,50,000/- out of which Rs.4,50,000/- has already been paid to respondent No.2. In the suit, he claimed that the suit in question was infact the ownership of respondent No.2 on the basis of a family partition dated 16.09.2014 and that the petitioners are bound to attest the sale mutations. I have noted that in the suit, beside reliance of respondent No.1 on the sale deed dated 11.11.2014, he also wanted to justify that respondent No.2 was also owner of the suit house through family partition. Admittedly, the petitioners and respondent No.2, being legal heirs of Haji Muhammad Sharif, became owner of the suit house, besides, other property through inheritance mutation No.6798 dated 25.02.2015. The date of death of their predecessor has also not been mentioned and it has also not been brought on record as to how the alleged transaction was made when infact the inheritance mutation was attested long thereafter.

5. In order to prove the transaction, respondent No.1 has produced witnesses of both the deeds dated 11.11.2014 and 16.09.2014, similarly, respondent No.2 submitted her cognovit, however, she has not opted to appear as a witness to support the case of respondent No.1. Respondent No.2 has merely admitted the receipt of the earnest money, however, she and respondent No.1 have conceded that petitioners were not agreeing to sell the suit house. All the witnesses of the sale deed dated 11.11.2014 never uttered about payment of the earnest money to the petitioners. The suit in hand was not simply a suit for specific performance rather a declaration was also sought by respondent No.1 to prove the family partition deed dated 16.09.2014. It is pertinent to mention here that petitioners have completely denied the execution of the deeds in question and have distance themselves from the sale deed. They have, however, admitted that respondent No.2 has executed the deed and has received the earnest money. They stated that respondent No.1 is a land grabber and that the house in question is in his possession without any mutation or legal documents in his favor. The possession of the suit house taken over by respondent No.1 has been admitted at the bar right from the date of execution of the sale deed dated 11.11.2014.

6. In the plaint, it has been simply stated that respondent No.1 has time and again insisted upon the petitioners to attest the sale mutation in his favour, however, they are not agreeing. Admittedly, after filing the suit or before filing the suit, respondent No.1 has never tendered the amount in question to the petitioners nor after filing the suit, any application is filed for permission to deposit the outstanding money pertaining to the sale consideration in the Court. The suit in hand is of a nature to be dealt with in accordance with the provisions of the Contract Act.

7. Interestingly, in the case in hand, the respondents taken upon themselves initially the burden to prove about family partition (Ex.PW-1/4) and also the sale deed (Ex.PW-3/1). In case, the house in question was the sole ownership of respondent No.2 through Ex.PW-1/4 then there was no need of insisting upon the present petitioners for the execution of the sale deed (Ex.PW-3/1) or for paying them the alleged outstanding amount of Rs.30 Lac. In the sale deed, allegedly, Rs.4,50,000/- was paid but admittedly, not to the present petitioners but allegedly to respondent No.2. In the sale deed, it was agreed that Rs.30 Lac will be paid to the seller before 12.02.2015, however, as stated above, respondent No.1 has made no effort to tender the remaining outstanding amount in terms of the sale deed to the petitioners or to have submitted an application before the trial Court for its deposit. It is also alleged that respondent No.1 is a resourceful person and has taken over the possession of the suit house by force. It is also admitted in the Court during arguments that presently, he is occupying the suit house.

8. In the case tilted "Nazar Hussain and another v. Syed Iqbal Ahmad Qadri (deceased) through his LRs and another (2022 SCMR 1216)", it is held by the apex Court that "buyer's primary obligation in a contract of sale is to make payment of the balance sale consideration as stipulated in the contract

If the seller refuses to receive payment the buyer must establish that he had the required money which was kept aside for the seller, for instance, by making a pay order or cashier cheque in his name; this would show that the buyer no longer had access to the sale consideration

Alternatively, the buyer could deposit it (the balance sale consideration) in court. If a buyer does not fulfill his primary obligation to secure/tender the sale consideration and files suit (for specific performance of agreement to sell), and does so without depositing the sale consideration in court, the buyer is placed in an advantageous position". Same view was earlier expressed in the cases titled "Mst. Noor Jehan and another v. Saleem Shahadat (2022 SCMR 918). Reference can also be made to the cases titled Muhammad Yousaf v. Allah Ditta and others (2021 SCMR 1241), Mst. Samina Riffat and others v. Rohail Asghar and others (2021 SCMR 07), Hamood Mehmood v. Mst. Shabana Ishaque and others (2017 SCMR 2022) and Liaqat Ali Khan and others v. Falak Sher and others (PLD 2014 SC 506)".

9. In the instant case too, no effort was made by respondent No.1 to deposit the outstanding sale consideration in the Court or to have demonstrated before the trial Court that the amount in question can be paid at any time, as such, he has miserably failed to perform his legal obligation as enunciated by the superior Courts in the above referred judgments.

10. For the reasons stated above, I find that the suit of respondent No.1 must fail on such score alone. Accordingly, this civil revision petition is allowed. The judgments and decrees of the learned Courts below are set-aside and the suit of respondent No.1 stands dismissed with no order as to cost. MQ/39/P Revision allowed.