2002 PLP 3168 (YLR)

(3) Whether the plaintiff is estopped by his words and conduct to file the present suit.? OPD (4) Whether the suit is pre‑mature and is liable to be dismissed? OPD (5) Whether the suit is hit by the principles of res judicata? OPD (6) Whether an agreement to sell was executed between the parties? OPP (7) Whether the plaintiff paid the earnest money of Rs.20,000 to the defendants? OPP (8) Whether the plaintiff is entitled for the decree of specific performance of agreement to sell ? OPP (9) If issue No. 8 proved not in positive the plaintiff is entitled for the damages of 25 lacs rupees from the defendants? OPT (9‑A) Whether the suit is barred under the provision under Order IX, rule 8 of C.P.C.? OPD (9‑B) Whether the plaintiff paid earnest money amounting to Rs.5,00,000 as to the defendants i.e. Rs.20,000 as token money and Rs.4, 80, 000 as earnest money at the execution of the second agreement to sell? OPP (10) Relief.

3. The learned trial Court recorded the evidence of the parties comprising of the statements of P.W.1 Abdul Ghafoor, P.W.2 Shahid Bashir, P.W: 3 Syed Sajad, Advocate; P.W. 4 Abdul Ashfaq and the evidence of the defendants comprised of D.W. 1 Iftikhar Hussain, D.W. 2 Abdul Hafeez, D.W. 3 Safdar Ali and Fazal Ahmad, attorney of the defendants appeared as D. W

4. The suit was found to be within time and maintainable and accordingly Issues Nos. 1 and 2 were answered in favour of the appellant. Issues Nos. 5 and 9‑A were taken up together. It was found that a suit earlier filed for permanent injunction was dismissed for non prosecution on 20‑2‑1989 and notwithstanding the fact that the present suit for specific performance was filed before the said dismissal for non‑prosecution, both these issues were answered, in affirmative. Thereafter, the learned trial Court proceeded to take up Issues Nos. 3, 6, 7, 8 and 9‑B together and for reasons, which we find to be not comprehensive all the issues were answered in favour of the respondents. Issue No.9 was answered in negative. It is amazing that under Issue No. 4 it was held that the suit filed by the appellant is premature, with the said findings the suit was dismissed vide a judgment and decree dated 30‑1‑1991.

4. It is a fact that the plaintiff did file a suit for permanent injunction when his possession was threatened to be disturbed by the defendants, which of suit ultimately was dismissed for want of prosecution. The question is as to whether in this situation the suit for specific performance can be filed by the plaintiff. The present civil suit was instituted on 10‑10‑1988 and it is also admitted proposition that the previous suit for permanent injunction filed by the plaintiff was dismissed for want of prosecution under Order IX, rule 8, C.P.C. on 20‑2‑1989 as such placing reliance on Ghulam Nabi and others v. Seth Muhammad Yaqoob and others (PLD 1983 SC 344) wherein it was observed that when the suit was otherwise barred under section 56 of the Specific Relief Act and had been incompetent, neither the Provisions of Order II, rule 2 of C.P.C. applied nor it was hit by res judicata as the relief in case of breach of contract is only specific performance and where a fresh suit has already been instituted and pending at the time of earlier suit being dismissed the fresh suit was not barred as such the learned trial Court has ignored this legal aspect which was crucial for the disposed of the suit in between the parties.

5. As noted by us above, the findings recorded by the learned trial Court on Issues Nos.3, 6, 7, 8 and 9‑B are shorn of, valid reasons. An examination of the pleadings of the parties would reveal that there is no effective denial on record of the factum of the execution of the agreement in the manner stated in the plaint and payment of the sums thereunder as alleged in the plaint. The question to be decided in the case was as to whether on a reading of the agreement time could be said to be essence of the contract; Or was there evidence available on record that the parties intended time to be of such essence. It was in this context that the plea raised by the appellant as to non‑payment of balance price as agreed was to be considered However, we find that on the one hand the learned trial Court, for all purposes, conceded the plea of the appellant while dealing with Issue No.4 and holding the suit to be premature inasmuch as the title was required to be cleared and on the other hand found the appellant guilty of the breach of contract by non‑payment of price on the plea that the title of the respondents was still defective. We may note that here again while concluding the discussion on the said several issues,, the learned trial Court has not cared to determine the said respective pleas of the parties, rather has held that principle of caveat emptor applies and the appellant should have been vigilant when he entered into agreement. Both the findings on their face are inconsistent, rather destructive of each other. Yet another ground, which found favour with the learned trial Court was the claim of damages contained in the suit. Here again the learned trial Court has committed error inasmuch as the mere fact that by way of an alternate relief damages are sought is by itself not a ground to refuse the relief of specific performance. We, therefore, find that the impugned judgment decides nothing and as such cannot be sustained.

6. In view of the above discussion, we have no option but to set aside the impugned judgment and to remand the case back to the learned trial Court for fresh decision.

7. This Regular First Appeal is accordingly allowed. The impugned judgment and decree dated 30‑1‑1991 of the trial Court is set aside. The result would be that the suit filed by the appellant shall be deemed to be pending in the trial Court where the parties shall appear on 30‑4‑2002. The learned trial Court shall decide all the issues separately except Issues Nos. 5 and 9‑A, findings whereof have been reversed by us. The parties shall be free to rely upon the evidence already on record and may, if so requested, be permitted to lead such further evidence as they deem proper. The suit shall then be decided in accordance with the law as also in the light of the observation made above. No order as to costs. H.B.T./A‑548/L Order accordingly.