2007 PLP 761 (SCMR)

CH. IJAZ AHMED, J.

Appellants/petitioners have sought leave to appeal against the judgment of the. Lahore High Court dated 14-9-2001, wherein R.S.A. filed by the appellants was dismissed. Brief facts out of which the present appeal/petition arises are that predecessor-in-interest of the appellants/petitioners executed an agreement to sell on 25-12-1997 and 11-2-1978 in favour of the respondents 2 and 3 who at that time were admittedly minors. The contents of the plaint reveal that aforesaid agreements were executed between the parties qua agricultural land in question measuring 129 Kanals and 4 Marlas for consideration of Rs.64,000 out of which Rs.56,000 were paid and only Rs.800 were left to be paid. Initially the date of execution of sale-deed was fixed as 10-10-1979 which was subsequently changed to 15-5-1978. Predecessor-in-interest of the appellants/petitioners filed written statement controverting allegations levelled in the plaint. Out of the pleadings of the parties the trial Court framed 5 issues. The learned Senior Civil Judge, Kasur vide its judgment and decree, dated 24-5-1983 decreed the suit of the respondents. Predecessor-in-interest of the appellants being aggrieved filed appeal against the respondents before Additional District Judge, Kasur who dismissed the same vide judgment and decree, dated 29-6-1987. Predecessor-in-interest of the appellants being aggrieved filed R.S.A. No.109 of 1987 before the Lahore High Court which was accepted vide judgment dated 1-12-1991 by observing that at the time of execution of said agreement to sell, the respondents were minors and the Courts below had failed to consider the effect of their minority on the validity and enforceability of the agreement to sell. Consequently the case was remanded to the First Appellate Court vide aforesaid judgment, dated 1-12-1991 to decide the appeal afresh including the said question. After remand the First Appellate Court through judgment dated 19-2-1992 remanded the case to the trial Court with a direction to frame additional issues on the question of effect on the validity of agreement to sell and the minority of the respondents/plaintiffs on the date of execution thereof. The findings recorded on other issues including execution of the agreement to sell were affirmed and it was specifically stated in the said remand judgment that the case regarding the other findings shall not be reopened and only the question as to the effect of the minority on the legality or otherwise on the agreement of sell would be determined. Respondents filed amended plaint whereas the appellants filed written statement. After remand the trial Court framed additional five issues pertaining to minority of respondents and its effect on the validity of the agreement to sell. After remand, during the pendency of the suit, the respondents attained majority. Respondents filed application under Order XXXII, C.P.C. with the prayer for discharging of next friend and grant of leave to proceed with suit in their own name which was allowed/granted. The learned Senior Civil Judge decreed the suit vide judgment and decree dated 19-12-1992. Appellants being aggrieved filed appeal before the Additional District Judge, Kasur who dismissed the same vide judgment and decree dated 24-9-1995. Thereafter appellants being aggrieved filed R.S.A. No.49 of 1995 in the Lahore High Court which was also dismissed vide impugned judgment, dated 14-9-2001. Appellants being aggrieved filed" Civil Petition No.2799 of 2001 before this Court which was fixed before this Court on 31-10-2001. Leave, was granted. Hence this appeal.

2. Learned counsel of the appellants submits that all the Courts below had erred in law to decide the case against the appellants in violation of the parameters prescribed in the earlier round of litigation by the learned High Court vide its judgment, dated 1-12-1991 passed in R.S.A. No.109 of 1987. He further maintains that said order was not agitated by any of the parties before this Court, therefore, the said judgment attained finality. This fact, was not considered by First Appellate Court while remanding the case to the trial Court. He further urges that trial Court had also erred in law to non-suit the appellants in view of the respondents Nos.2 and 3 have become major during the pendency of the suit. The trial Court had also 'erred in law to decide issue regarding minority along with the issue as to effect of their attaining majority during the pendency of the suit. He further maintains that all the Courts below had erred in law to decide the case against the appellants in violation of the dictum laid down by this Court in Haji Abdullah Khan's case PLD 1965 SC

690. He further submits that Ghulam Shabir and Ghulam Rasul respondents were admittedly minors at the time of execution of agreements in question and therefore, they could not seek specific performance of agreement in question. All the Courts below had decided the case against the appellants without adverting to section 11 of the Contract Act and Order XXXII rule 12(4) read with rule 13 of C.P.C. He further submits that the plea taken by respondents Nos.2 and 3 in the amended plaint amounted either to abandonment of the suit or repudiation thereof or that the suit filed by their next friend was unreasonable or improper, therefore, could not proceed further to their extent. He further maintains that relief for specific performance is always discretionary relief or equitable relief, therefore, both the Courts below erred in law to exercise discretion in favour of the respondents. He sums up his argument that in view of the stand of the respondents Nos.2 and 3, it had become a case of partial performance of the agreement of sale which was not permissible under the law and this aspect of the case was not considered by all the Courts below in its true perspective specially in the circumstances that this aspect of the case came into light on account of aforesaid development which had taken place after remand of the suit having material bearing upon the contention and maintainability of the suit have not been considered by the Courts below in its true perspective.

3. Learned counsel of the respondents has supported the impugned judgment. He submits that agreements were executed for the benefit of the minors therefore, section 11 of the Contract Act is not attracted. In support of his contention he relied upon Noor Muhammad's case 2000 MLD 251 and Sri Kakulan Subrahmanyam's case PLD 1948 PC.

52. He further urges that Order XXXII, rule 12(4) are not attracted in the present case in view of Order XXXII rule I of C.P.C.

4. We have given our anxious consideration to the contentions raised by the learned counsel of the appellants and perused the record. All the pleas raised before us are exactly the same which were raised before the High Court and were rejected with cogent reasons as evident from the impugned judgment. The principle laid down by this Court in Haji Abdullah Khan's case (supra) does not apply in the case in hand as observed by the learned High Court in the impugned judgment. The relevant observation is as follows:- "The matter is now before this Court when all that was in the contemplation of the Honourable Supreme Court at the time of passing of the judgment in the said case of Abdullah has materialised and taken place." It is a settled law that each and every case is to be decided on its own peculiar circumstances and facts as law laid down by this Court in Muhammad Saleem's case PLD 1994 SC 2213. The relevant observation is as follows:-- "Case is only an authority for what it actually decides."

5. The learned High Court had taken a lot of pain to take into consideration the pleadings of the parties as evident from paragraphs 5 to

9. We have also come to the same conclusion. In this view of the matter the first contention of the learned counsel for the appellants that learned High Court had decided the case against the appellants in violation of the law laid down by this Court in Haji Abdullah Khan's case (supra) has no force. The learned counsel for the appellants has laid much emphasis on section 11 of the Contract Act. Section 11 was interpreted in Sri Kakularn Subrahmanyam's case (supra) and laid down the following principle:-- "It is, however, different with regard to contracts entered into on, behalf of a minor by his guardian or by a manager of his estate. In such a case it has been held by the High Courts of India, in cases which arose subsequent to the governing decision of the Privy Council, that the contract can be specifically enforced by or against the minor, if the contract is one which it is within the competence of the guardian to enter into on his behalf so as to bind him by it, and, further, if it is for the benefit of the minor. But if either of these two conditions is wanting, the contract cannot be specifically enforced at all."

6. The Division Bench of the Lahore High Court in Noor Muhammad's case (supra) had also considered such type of objection and laid down the following principle after considering the case-laws on the subject:

"It was not a case of sale by minor but the minors were prospective, buyer and beneficiary of the agreement." The learned High Court had laid down the aforesaid principle after considering the following judgments:

(i) Narain Das's case ILR 38 All. 154, (ii) Bhagat Rain's case AIR 1927 Lah. 240, (iii) Mst. Amanat's case PLD 1959 Kar. 362 and (iv) Muhammad Hussain's case PLD 1995 Pesh.

98. It is pertinent to mention here that Noor Muhammad's case (supra) was upheld by this Court vide order, dated 14-10-1999 passed in Noor Muhammad and others v. Muhammad Ishaq and another (C.P. No.1308 of 1999).

7. The said proposition is also supported by the following judgments:

(i) Madonlall's case AIR 1935 Born. 353, (ii) Mrs. Danghar's case AIR 1936 Mad. 564, (iii) M.A. Faruqi's case PLD 1957 Kar. 631, (iv) Dr. Khalid Malik's case 1994 MLD 2348 and (v) Haji Noor Muhammad Jamote's case PLD 1993 Kar. 26.

8. It is also a settled law that the non-compliance of the provisions of Order XXXII, rule 12, C.P.C. would be fatal only in those cases where the interest of the minor was not fully protected and prejudice was caused to the interest of minor as result of such non-compliance as the law laid down by this Court in Mst. Afzal Begum's case PLD 1979 SC

30. In the present case minors are beneficiary.

9. In view of the dictum laid down in Mst. Afzal Begum's case (supra) the contention of the learned counsel for the appellants have no force qua the Order XXXII, rule 12, C.P.C. It is also an admitted fact that learned High Court had remanded the case to the First Appellate Court in the earlier round of litigation with certain directions. The learned First Appellate Court had decided the case after hearing the parties and remanded the case to the trial Court with the direction to frame additional issues after allowing the parties to file amended plaint and written statement. In this view of the matter, the contention of the learned counsel for the appellants that Courts below had decided the case in violation of the parameters prescribed by the High Court in the earlier round of litigation have also no force. It is a settled law that Courts can look into the subsequent events at the time of deciding the cases as law laid down by this, Court in Mst. Amina Begum's case PLD 1978 SC

220. It is also an admitted fact that all the Courts below had concurrently decided the case against the appellants after proper appreciation of evidence. However, in the interest of justice and fair play, we have also re-examined the evidence on record and do not find any illegality or infirmity in the impugned judgment. The Courts below had exercised discretion in favour of respondents keeping in view the principles of equity, good conscience and justice. We have also examined this aspect of the case also. We are of the view that the learned High Court was justified to uphold the discretion concurrently exercised in favour of the respondents as the Courts below had exercised discretion on the touchstone of fair play. The learned counsel for the appellants has failed to point out any infirmity or illegality. This Court does not, normally, interfere with the findings of fact reached by the primary Courts or the High Court when it is satisfied that the findings of the Courts below are on the whole reasonable and are not arrived at by disregard of any provision of law or any accepted principle concerning the appreciation of evidence. This would be notwithstanding that a different view might also be possible meaning thereby this Court, as mentioned above, does not interfere in the concurrent conclusions arrived at by the Courts below while exercising constitutional power as law laid down by this Court in Muhammad Ishaque's case PLD 1977 SC 109.

10. For what has been discussed above, the appeal has no merit and the same is dismissed and consequently Criminal Original Petition No.22 of 2002 in the aforesaid appeal also stands dismissed. S.A.K./M-5/SC Appeal dismissed.