2021 PLP 2160 (CLC)

WIQAR AHMAD, J.

This order is directed to dispose of the petition filed by petitioner, under section 115 of Code of Civil Procedure, 1908.

2. Petitioner had filed an application on 22.01.1980 in the Court of Assistant Commissioner, Dir under the Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation, 1975 (hereinafter referred to as "Regulation") for specific performance of the agreement in respect of the sawmill () as well as the land, which had been statedly purchased by him from respondents Nos. 12, 13 and predecessor-in-interest of respondents Nos.1 to

9. The application was accepted by the PATA Court on the basis of majority award but after remand by the appellate forum, same was dismissed vide order dated 09.10.1989. Petitioner had assailed dismissal order before the then appellate forum, who had again remanded the case back to the lower forum with certain directions given in its order dated 10.07.1990. Said remand order was maintained by the Appellate Tribunal vide its order dated 12.11.1991 and finally upheld by this Court vide order dated 01.02.1993 passed in Writ Petition No.2181/1991. After repeal of the Regulation, the case was transferred to regular Court, where petitioner had filed an amended plaint. Written statements were also filed by the respondents. Issues were framed, evidence was recorded and on conclusion of proceedings in the suit, same was partially decreed by the learned Civil Court vide its judgment dated 31.05.2003. Aggrieved there-from, both the parties filed their separate appeals before learned District Judge Dir Upper. The learned appellate Court partially modified judgment of the learned Civil Court and thereby both the appeals were disposed of vide the impugned judgment dated 20.02.2010. Feeling aggrieved there-from, petitioner has then invoked revisional jurisdiction of this Court with the following prayer; "It is therefore, prayed that on acceptant of the revision petition, the impugned judgment/decree of the learned appellate Court and that of the trial Court may be set aside and the suit of the petitioner against the respondents may be decreed with cost as is prayed for in the plaint."

3. I have heard arguments of learned counsel for the parties and perused the record.

4. Perusal of record reveals that material facts of the case have almost been admitted between the parties. The litigation had first started with the application filed before the PATA Courts established and working under the Regulation. In para-1 of said application, petitioner has stated that he had purchased sawmill in dispute from respondents Nos.12, 13 and predecessor-in-interest of respondents Nos.1 to 9 on 19.12.1979 and had paid a sum of Rs. 2000/- for the machinery installed thereon as well as Rs. 20,500/- for the land. In reply, respondents have stated that they had just negotiated the deal but had not concluded any agreement or contract. They have further asserted that petitioner had desired of purchasing the sawmill, which had been ownership of Nawab of Dir. Receipt of a sum of Rs. 22,500/- was admitted, but it was stated that said amount had been kept with them as a guarantee for the reason that if Nawab of Dir had agreed on selling on the sawmill, said amount would have been paid to him after determination of the amount of consideration. It was also stated in reply that later on Nawab of Dir had transferred said sawmill in favour of respondents Nos.1 to 3, by way of gift but thereafter they had not been ready to sell the property received by them as a gift out of sheer goodwill of the Nawab.

5. On transfer of the suit to the Court of learned Senior Civil Judge, Dir Upper, proceedings had continued. Evidence had also been recorded but the situation had mostly remained the same as it got depicted in the application as well as reply thereto, particularly regarding the nature of transaction. Statement of petitioner had been recorded in the case as PW-1 before its transfer to regular Courts. In his examination-in-chief, this witness had given a narration of the transaction wherein it had also been stated that the total value of consideration had been agreed as Rs.100,000/- between the parties i.e. petitioner and contesting respondents. He has also given some description of the nature of transaction in his cross-examination, which is reproduced hereunder for ready reference; Same was the case with another witness of petitioner namely Haji Kata Baaz Khan examined as PW-2. PW-3 namely Bacha Sher Khan has also stated in his statement that petitioner and respondents Nos.1 to 3 had also agreed at a total price of Rs. 100,000/-.

6. The contesting respondents have also produced two witnesses in their defence. They have mainly been re-agitating the stance taken in their reply as well as in the written statement. Legal heirs of Nawab of Dir had also filed their written statement, wherein they had disowned entering into any transaction for sale of the property with the petitioner, but had admitted the factum of gift in respect of the sawmill. Learned counsel representing them had also been arguing that such admission had only been in respect of a small portion of land situated just beneath the sawmill, but this Court would not enter into that controversy which had been existing between contesting respondents and legal heirs of Nawab of Dir. Such a controversy has been out of the scope of the present adjudication.

7. Both the Courts below have concurrently held that plaintiff/petitioner had succeeded in proving the basic transaction but the transaction was of such a nature that both the learned Courts had found difficulty in granting the relief prayed for, by the petitioner in the form of specific performance of the claimed agreement. Learned civil Court had given the following relief at the conclusion of trial; Learned appellate Court, on the other hand, had modified the relief, after believing the transaction, to the following effect;

8. Prayer of petitioner in the instant revision petition has been regarding allowing of the relief as prayed for in the plaint, but I am afraid such a relief cannot be granted in circumstances of the case. There has not been any certainty regarding the terms of the contract concluded at the relevant time. Section 21(c) of the Specific Relief Act, 1877 (hereinafter referred to as the "Act") provides that a contract the terms of which the Court cannot find with reasonable certainty, cannot be ordered to be specifically enforced. Said provision being relevant is reproduced hereunder for ready reference; "21:- Contract not specifically enforceable. The following contracts cannot be specifically enforced; a) . b) . c) a contract the terms of which the Court cannot find with reasonable certainty." Hon'ble Supreme Court of Pakistan in the case of Haji Saindino Khan and another v. Mst. Zaibunnissa through Legal Heirs and another reported as 1991 SCMR 972, while giving judgment in a case of specific enforcement of a contract, where the amount of consideration had not been specified, had declined to specifically enforce the contract. Relevant part of observation of the august Court is reproduced hereunder for ready reference; "Now in this case, the lessors were competent to sell the suit land. The purchasers/appellants were competent to purchase the land in dispute. The subject-matter is the land in suit or the agricultural land which the appellants took on lease from the lessors. In my opinion, the lawful consideration i.e the price of agricultural land was an essential term of the contract was not to be found in clause

15. This offer was vague for uncertainty and indefiniteness on the acceptance of which no contract is ever born or comes into being." This Court in its earlier judgment given in the case of Noor Nabuwaat v. Moulvi Muhammad Noor Ali Khan reported as 1999 CLC 1685, had also declined to enforce an agreement and the award based there-upon, when the terms contained in the agreement were found ambiguous. Similarly, Hon'ble Lahore High Court has also dealt the case of an uncertain agreement in a similar manner while giving its judgment in the case of Mst. Mumtaz Maieed and 4 others v. Muhammad Inayat reported as 2016 CLC 780.

9. The contesting respondents have no doubt admitted receipt of the amount of Rs. 22,500/-, but they have stated that the transaction had not gone beyond the stage of negotiations for the agreement and that a binding contract had not been concluded. In such a situation, existence of an enforceable agreement for sale of the property was questionable. Part of the transaction admitted by the contesting respondents may not be construed as an enforceable agreement. Petitioner has not mentioned the entire consideration which he had agreed with the respondents, for transferring ownership of the property in dispute, in his application filed before PATA Court. He has though stated in his testimony before the Court that Rs. 100,000/- had been agreed as sale consideration, but evidence beyond pleadings and that also in respect of material particular of a case, cannot be accepted. Hon'ble Supreme Court of Pakistan while giving its judgment in the case of Government of West Pakistan (Now Punjab) through Collectors Bahawalpur v. Haji Muhammad reported as PLD 1976 Supreme Court 469, had held that no evidence can be led or looked into in support of a plea which has not been taken in the pleadings. Relevant part of observation of the august Court is reproduced hereunder for ready reference; "Adverting now to the contention it is clear from the record that the respondent served as Beldar from 1-9-1938 to 2-11-1950 which post was shown as substantive in his service book. He was appointed as Mali in the Government Technical Institution 2-11-1950 and was removed from service by order dated 21-5-1959. Not having been re-instated in spite of representations he filed a suit and described himself as a permanent Government Servant. The appellant while conceding that he was a temporary Government Servant did not take the stand that the respondent was being paid from the contingency in the written statement. Therefore, no issue was struck and, no evidence was led on that score. The trial Court on the basis of this concession held that there was violation of Article 177 of the 1962 Constitution.' Thereafter it was for the first time that before the learned District Judge it was pleaded that he was being paid from the contingency on which basis the learned District Judge held that his case was covered by Article 179 of the Constitution and as such he was not entitled to the Constitutional protection. It is a well established rule that if a plea of fact is not pleaded no case can be founded on it. This being so, the plea that he was being paid from the contingency has to be ignored and all that is established on the record is that his tenure was temporary but as to what were the terms and conditions of his service, the appellant failed to establish. Therefore, having regard to the period he had served before his removal it cannot be denied that his service though temporary, was for an indefinite period." Emphasize supplied Further reliance in this respect may also be placed on judgment of the Hon'ble Supreme Court of Pakistan given in the case of Binyameen and 3 others reported as Chaudhry Hakim and another reported as 1996 SCMR 336 and the case of Muhammad Iqbal v. Ali Sher reported as 2008 SCMR 1682.

10. The learned appellate Court has already ordered recovery of the amount paid by the petitioner, with 20% annual interest from the date of receipt of such amount by the contesting respondents, till the amount has been realized, which was a proper order in circumstances of the case. Further relief in the instant revision petition cannot be extended in favour of petitioner for the reasons recorded hereinabove.

11. The instant revision petition was therefore found meritless and same is accordingly dismissed. ZH/161/P Revision dismissed.