2018 PLP 408 (CLC)

MUHAMMAD NASIR MAHFOOZ, J.-- Petitioner/plaintiff has impugned the judgment and decree dated 11.07.2013 passed by learned Additional District Judge, Chitral, whereby appeal of the respondent was allowed and judgment and decree dated 01.08.2011 passed by learned Civil Judge, Chitral was modified.

2. Brief facts of the case are petitioner/plaintiff filed a suit for specific performance of agreement to sell dated 13.11.2007 Ex.P.W.1/1 whereby respondent on receipt of Rs.20,000/- as advance amount had agreed to sell the suit land for sale amount of Rs.200,000/- to be paid by the petitioner and later on also received Rs.12,000/- more. In total petitioner has alleged to have paid Rs.32,000/- and he is willing to pay the remaining amount but the respondent is adamant to perform his part of the agreement to sell the said land and receive the remaining sale amount. Respondent contested the suit and denied the allegations as leveled in the plaint. He totally denied having executed his sale deed and alleged that the market value of suit land is much higher than as alleged in the plaint.

3. Learned trial court granted decree to the petitioner on 01.08.2011 but failed to pass any order directing the petitioner to deposit the remaining amount in court. Aggrieved thereof, respondent filed an appeal, which has been allowed and the judgment and decree of learned trial court has been modified to the extent that petitioner shall pay market value of the suit property at the time of execution of the decree and the market value shall be determined by the executing court.

4. Petitioner/plaintiff aggrieved of the said judgment and decree of learned appellate court, has filed the instant revision petition. I have heard arguments of the learned counsel for the parties and perused the available record.

5. Though the judgment and decree of learned appellate court to the extent of decree for specific performance of agreement to sell is correct except for the determination of market value by the executing court. If at all, the learned appellate court deemed that the market value of the suit property is not the same as mentioned in the agreement to sell Ex.P.W.I/1 then it was necessary to have remanded the case for ascertaining actual market value of the suit property. Here, respondent has totally denied to have executed the agreement to sell, not because that the sale amount is less than the market value but because that he has not even executed this deed by signing it or accorded approval for the execution of this deed in any manner whatsoever, therefore, findings of learned appellate court which have not been challenged by respondent are based on the proper appreciation of evidence on record and need no interference in revisional jurisdiction of this court except to the extent of conclusion derived from the same. At the time of execution of decree, executing court could not go beyond the judgment and decree and assume jurisdiction as to reopen the whole matter again because for determination of market value he would be required to appoint a commission and that commission may later on be objected to by any of the parties and then the findings passed on the basis of that objection may again result in multiplicity of further proceedings.

6. As I have held above that the learned appellate court has properly appreciated the evidence which has not been impugned by the respondent, learned trial court has also held the petitioner is entitled to the relief as prayed but did not pass any order or direction to the petitioner to deposit the remaining sale amount within a specified period, which was the result of procedural irregularity and, therefore, disturbed by the learned appellate court. It is sine qua non for grant of decree of specific performance of agreement that the plaintiff must prove that he has performed his part of the contract but the other party has failed to perform his own part of the contract. In this case, petitioner has performed the part of the agreement and it is proved on record.

7. There is no other alternative except to allow the present revision petition and remand the case back to the learned appellate court with direction to pass an order afresh in the light of available evidence on record. Parties are directed to appear before the learned appellate court on 20.10.2017. ZC/350/P Case remanded.