2008 PLP 680 (CLC)

MAULVI ANWARUL HAQ, J.

This judgment shall decide R.S.A. No.85 of 2003 and R.S.A. No.36 of 2003 as these proceed against the same impugned judgments and decrees having been filed by the same partnership firm but through different partners.

2. On 11-3-1969 the appellant firm filed a suit against Ch. Muhammad Siddique, deceased father of the respondents (hereinafter to be referred as the defendants). In the plaint it was stated that the appellant is a registered partnership firm and is filing suit through Malik Allah Ditta partner. The defendant agreed to sell suit-land mentioned in para.2 of the plaint to the appellant for consideration of Rs.75,

000. A sum of Rs.25,000 was received as earnest and balance was to be paid till 30-9-1968. When the sale-deed was to be executed and got registered. The possession was to be delivered at the said time. Notice was served on 28-8-1968 for performance. This was followed by telegram, dated 30-9-1968. The appellant kept on waiting for respondents on the said date but he did not turn up and has refused to perform his part of contract. A decree for specific performance of agreement, dated 15-3-1968 was accordingly prayed for. In his written statement the said defendant took plea that he did not agree to sell the land to the appellant. He had brick kiln near the suit-land and required coal. The appellant agreed to supply coal and as a security for the price of coal the agreement was got executed. The parties never intended either to sell or to purchase land. Reference was made to another agreement executed on the same day. It was also pleaded that the defendant had paid back the price of the coal before 30-9-1968. Then reference was made to some defects in the account being maintained by appellant and rate at which coal was to be paid for. Issues were framed. Evidence of the parties was recorded. Learned trial Court dismissed the suit on 5-5-1982. A first appeal filed by the appellant was dismissed by a learned Additional District Judge, Gujranwala, on 15-4-2003.

3. Learned counsel for the appellant contend that the learned Courts below have acted against law while reading the documents Exh.P.4 and Exh.D.1 together. According to them this was not permissible. Further contend that even upon joint reading of the two documents a valid agreement to sell land subject to the condition i.e. return of price of coal (earnest money) is clearly spelt out and since the said condition was not performed within stipulated period1of time the appellant was entitled to decree for specific performance of agreement Exh.P.4. They also contend that the suit filed by the appellant against the respondents for recovery of price of the coal has wrongly been mixed up with the price of coal that was given as earnest money in the present case. Learned counsel for the respondents, on the other hand, supports the impugned judgments and decrees with the contentions that only possible interpretation upon the reading of the said documents is that the agreement was got executed to secure the price of coal and in view of the unchallenged plea and testimony of the respondents that the price had been paid no case for specific performance stood made out. Further contend that the agreement upon plain reading is unconscionable and could not have been specifically enforced.

4. I have gone through the records of the case, which were reconstructed, with the assistance of the learned counsel for the parties. I have already referred to the pleadings of the parties in some detail above. The plaint only refers to agreement, dated 15-3-1968 which is Exh.P.4 on record and specific performance has been sought on the sole ground that the respondent has refused to perform the same. Written statement, however, categorically referred to all material circumstances including the other agreement of the same date, which is Exh.D.1. The respondent has not denied the execution of agreement Exh.P.4 while son and attorney of the said Allah Ditta appearing as P.W.4 has admitted that Exh.D.1 was scribed by him and bore signatures of his father and Muhammad Siddique deceased defendant.

5. It will thus, be seen that both the said documents are admitted. Exh.P.4 narrates that Muhammad Siddique owner of land mentioned therein has agreed to sell the same to the appellant for consideration of Rs.75,000 and has received a sum of Rs.25,000 as earnest money. He will receive the balance amount upto 30-9-1968 and get a sale-deed registered in favour of the appellant. In case he fails to do so he will not only return the earnest money but will also pay an equal amount as damages. Similarly, in case the appellant does not get the sale-deed registered the earnest money shall stand fortified. Towards the end of said document there is a note that the amount of Rs.25,000 has been received in the form of Coal. Exh.D.1 admittedly executed on the same day by the parties narrates that the appellant has given Rs.25,000 in the form of Coal to Muhammad Siddique defendant and it has been agreed that in case Muhammad Siddique returns Rs.25,000 up to 30-9-1968 then a receipt will be executed and agreement to sell shall stand cancelled.

6. Upon plain reading of two documents there is no manner of doubt in my mind that the real intention of the parties was to secure the price of Coal that was delivered to the defendant by the appellant. Apart I from this notwithstanding the fact that respondents had categorically said in the written statement with reference to Exh. P.1 that he has paid price of Coal before 30-9-1968, said Muhammad Bashir P.W.4 in his entire examination-in-chief did not at all refer to said Exh.D.1 and did not at all state that the amount had not been paid by the defendant. In his cross-examination he could not tell weight of the coal supplied and could not refer to any document in this behalf.

7. On the other hand, Muhammad Siddique appeared as D. W.2 and deposed in absolute accord with the written statement. He categorically stated that he has made payment in accordance with Exh.P.1. It was not even suggested that he had not made payment as stated by him.

8. Having thus, examined the record, I do not find any question of law arising in these R. S. As., which are accordingly dismissed but without any order as to costs. Lower Courts records be immediately remitted back. M.H./M-25/L Appeals dismissed.