2004 PLP 894 (MLD)

7. Whether the agreement of sale can be executed regarding the suit‑land? OPP The learned trial Court further framed additional issues on 28‑6‑1984:‑‑ 13‑A Whether the plaintiffs have spent Rs.4,00,000 on the suit‑land? If so, its‑effect OPP 13‑B. Whether the predecessor‑in‑interest of defendants Nos. 1 to 6 (late) Muhammad Afzal Hassan Khan received a consideration amount from the plaintiffs as referred in para No.3 of the plaint? If so, effect?

4. The learned trial Court after recording the, evidence, dismissed the suit to the extent of specific performance of the agreement to sell dated 21‑3‑1968 and decreed the suit in favour of the appellants‑plaintiffs to the extent of Rs.54,000 vide judgment and decree dated 31‑7‑1985. The appellants being aggrieved filed R.F.A. No. 234‑1985 before this Court and status‑quo order was also passed. Subsequently by operation of law, the appeal was transmitted to the learned Additional District Judge, Sheikhupura, who dismissed the same vide impugned judgment and decree dated 2‑7‑1989, hence the present second appeal.

5. The learned counsel of the appellants submits that execution of the agreement to sell was proved on record. The consideration was also proved on record but the learned Courts below erred in law not to pass the decree qua specific performance of the agreement to sell in favour of the appellants‑plaintiffs merely on the ground that the appellants plaintiffs have not filed suit qua total land measuring 2012 Kanals mentioned in the agreement to sell dated 21‑3‑1968 in spite of the fact that the appellants were ready to perform their part of payment to respondents. Nos.1 to 6 with regard to total consideration mentioned in the agreement. He further submits that the execution and part payment of consideration have been proved. The learned Courts below were erred in law to dismiss the suit on the ground of part performance, which is not in accordance with law laid down by the superior Courts. In support of his contention, he relied upon the following judgments:‑‑ "Rao Aqeel Ahmad Khan and other v. Mst. Ruqiya Begum, and others 2002 YLR 1053 and "Mian Zafar Iqbal and others v. Bashir Ahmed, and others (PLD 1989 Lahore 152). He further submits that the Courts below decided Issues Nos. 1 to 4, 6, 7 and 12 in favour of the appellants‑plaintiffs and the remaining issues were decided against the appellants‑plaintiffs by misreading and non reading of the evidence on record and in violation of mendatory provisions of Specific Relief Act i.e. sections 15 to

18. He further submits that the first part of Issue No.5 was decided in favour of the appellants‑plaintiffs and second part of Issue No.5 was decided against the appellants‑plaintiffs by the Courts below, which is not in accordance with dictum laid down by the superior Courts in the aforesaid judgments. He further submits that respondents Nos. 1 to 6 had executed exchange deeds in favour of the remaining respondents simply to frustrate the right/interest of the appellants‑plaintiffs qua the land in‑question on the basis of agreement to sell executed‑between the appellants and the original owner on 21‑3‑1968 and the respondents, who secured land from respondents Nos. 1 to 6 are not bona fide purchasers and ingrediences mentioned in section 41 of the Transfer of Property Act, are not attracted in the present case in favour of respondents but this .fact was not considered by the Courts below in its true perspective. He further submits that the agreement to sell is a complete sale in terms of section 54 of the Transfer of Property Act. He further submits, that the exchange deeds are also not fulfilling the requirements of sections 118 and 119 of Transfer of Property Act, but this fact was not considered by the Courts below in its true perspective. He further submits that the first Appellate Court erred in law to dismiss the application of the appellants plaintiffs for impleading of legal heirs of respondent No.8, which is not in accordance with law laid down by the superior Courts. In support of his contention, he relief upon the following judgments:‑‑ "Mst. Afzal Begum and others v. Y.M.C.A. through its G.S." (PLD 1979 SC 18); "Mst. Sardar Begum v. Muhammad Anwar Shah and others (1993 SCMR 363) "Muhammad Suleman and others v. Muhammad Ibrahim." (1985 SCMR 67) "Maulvi Khurram Khan Panni, v. Province of East Pakistan." (PLD 1971 SC 82).

6. Mr. Tariq Masood, Advocate for respondents Nos. 1 to 6 submits that the appellants filed a suit for specific performance of the agreement against the respondents on 19‑1‑1981 in the Court of Civil Judge 1st Class, Ferozwala and the same was decreed on 31‑7‑1985. The appellants filed R.F.A. No.234‑85 before this Court without impleading the legal heirs of respondent No.8. The appellants filed C.M. No.1739‑C/86 before this Court with the prayer to bring on record legal heirs of respondent No.8; whereas the respondents have filed C.M. No. 2001‑C/86 with the prayer for dismissing of the appeal on the ground of non‑impleading of legal heirs of respondent No.8. These two applications were ordered to be enlisted and shall be heard at the time of final hearing of the appeal. The appeal was transmitted to the first appellate Court by the operation of law. The first Appellate Court dismissed the application vide impugned judgment dated 2‑7‑1989 as is evident from para Nos.26 and

27. The appellants filed present R.S.A. before this Court on 9‑1‑1990 without impleading of legal heirs of Shah Muhammad, respondent No.8.

7. The appellants have filed C.M. No.1‑C/2002 under Order 22 Rules 3 and 4 read with section 151 of C.P.C. to bring on record legal heirs of respondent No.8. The respondents have raised preliminary objection that the appellants filed an appeal against the dead persons, therefore, the application is not maintainable at this stage. In, support of his contention, he relied upon "Hafiz Brothers (PVT) Ltd. etc. v. M/s. Pakistan Industrial Credit and Investment Corporation Ltd" (2001 SCMR 1). He further submits that both the Courts below have refused to exercise discretion in favour of the appellants‑plaintiffs with cogent reasons as the appellants‑plaintiffs did not file the suit well within time and the suit was fled by the appellants‑plaintiffs almost after 13‑years after execution of the agreement to sell. He further submits that both the Courts below have given concurrent findings of facts against the appellant‑plaintiffs; therefore, the appeal is liable to be dismissed. He further submits that the agreement to sell was executed between the original owner and appellants qua the surrendered land, therefore, both the Courts below were justified to non‑suit the appellants‑plaintiffs. He further submits that this fact was duly proved on record as is evident from the cross‑examination of Abdul Aziz P.W.5. He further submits that the appellants failed to bring on record sufficient evidence to show that the agreement to sell qua the land in‑question is severable with regard to the total land mentioned in the agreement to sell viz‑a‑viz. He further submits that the judgments of both the Courts below are in accordance with law laid down by the superior Courts and the judgments cited by the learned counsel of the appellants are distinguished on fact and law.

8. Mr. Ahmad Waheed Khan, Advocate for remaining respondents submits that the appellants failed to bring on record sufficient material qua knowledge of the remaining respondents with regard to agreement to sell in‑question, therefore, both the Courts below were justified to dismiss the suit of the appellants qua specific performance of the agreement in question as the remaining respondents are bona fide purchasers. In support of his contention, he relied upon the following judgments:‑‑ "Muhammad Nabi, thro: L.H. v. Ghulam Yahya thro, L.H." (1999 CLC 1771). "Akbar Khan thro. L.H. v. Mst. Khair Khanum and others (1999 SCMR 399) "Sh. Saeed Ahmad and others v. Abdul Wahid" (1999 SCMR 1852). Muhammad Jamil and others v. L.D.A. and 3 others" (1999 SCMR 2015) "I.D.B.P. v. Saadi Asamt‑ullah and others." (1999 SCMR 2874).

9. The learned counsel of the appellants in rebuttal submits that the learned counsel of the respondents failed to point out anything on record with regard to Exh. P.5, order of the Deputy Commissioner dated 30‑3‑1980 on the basis of which the mutation was sanctioned on 8‑9‑1980, therefore, the judgments of both the Courts below are the result of misreading and non‑reading of the record. The appellants plaintiffs have brought sufficient evidence on record to show that the land in question is severable from the remaining land; therefore, both the Courts erred in law to dismiss the suit of the appellants.

9. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.

10. It is settled principle of law that the specific performance of the agreement is a discretionary relief in terms of section 22 of the Specific Relief Act. There are certain principles, which are highlighted by the superior Courts to refuse or grant the relief. The principles stated in the said section have to be kept in view while considering the grant or refusal of this equitable relief. It may, however, be noted that laches or wavier is not one of the grounds mentioned in section 22 as disentitling the plaintiffs to specific performance. But in the exercise of the, discretion the conduct of the plaintiffs is also to be considered. If the delay is caused in taking suitable action, which amounts to laches or waiver on the part of the plaintiffs, they would not be entitled to the equitable relief. It is pertinent to mention here that two circumstances always important in such cases are the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or other, so far as it relates to the remedy. In other words delay has two aspects. It may lead to change in the thing sold or it may imply acquiescence so as to bar a plaintiff's remedy. It is very important to keep these two things separate when the consequences of delay have to be considered in a given case.

11. In the light of the aforesaid principle, it is better and appropriate to reproduce the basic facts in chronological order to resolve the controversy between the parties to the extent that the Courts below have rightly exercised its discretion not to grant the relief claimed by the appellants‑plaintiffs in their suit. The agreement to sell was executed between the parties on 21‑3‑1968 with certain condition which is reproduced here:‑‑

1. The appellants did not, perform their part to deposit the instalments and costs of the land in terms of agreement till date.

2. The appellants‑plaintiffs did not secure the receipt from the original owner with regard to payment of Rs.1,46,000.

3. The Deputy Commissioner passed the order for correction in favour of the original owner with regard to land in‑question measuring 609 Kanals and 8 Marlas vide order dated 30‑3‑1980.

4. Mutation No.88 was also sanctioned in favour of original owner on 8‑9‑1980 on the basis of said order.

5. After the death of original owner, mutation of inheritance No.90 was sanctioned in favour of respondents Nos. 1 to 6 qua the land in‑question. 6 Respondents Nos.1 to 6 have executed exchange deeds dated 7‑5‑1980 in favour of remaining respondents.

7. The appellants‑plaintiffs failed to pay the price of surrendered land as mentioned above.

8. Abdul Aziz P.W.5 stated in his statement that Abdul Sattar P.W.1 and Abdul Ghafoor P. W .6 approached his father in the year 1976 and asked him that the some entry in the agreement be made to the effect that original owner Afzal Ahmad, predecessor‑in‑interest of respondents Nos. 1 to 6 was owner of the same land, but his father refused to do so without the presence of the opposite party and further stated that they wanted to get amendment in the agreement without knowledge of the original owner and in secret from him but his father refused to do so.

9. The appellants‑plaintiffs did not approach the original owner for there and then change and requested him to transfer the land in question for which they had approached P.W.5 Abdul Aziz, whose father, was author of the agreement to sell.

10. The appellants‑plaintiffs slept for 13 years, a long period, after the execution of agreement to sell.

11. The original owner filed Constitutional Petition No.1626‑1966 on 20‑9‑1966 with the prayer that the order of the respondents (D.C. and Member Board of Revenue) to the extent of the period fixed for payment of instalments (i.e. by 25‑9‑1966) and also regarding payment of penal interest 9% be declared to be of no legal effect being passed without jurisdiction and the rest of the order may be maintained or any other relief found proper under the circumstances may also be made available to the petitioner (Exh. P‑13).

12. The said writ petition be disposed of by this Court vide judgment dated 30‑11‑1973 in the following terms:‑‑ "Mr. Ahmad Hassan Khan, who appears for the petitioner, gives an undertaking that the entire amount due shall be paid within a period of six months. This appears to be a reasonable offer and the learned counsel appearing for the respondents agrees to this. I accept this offer. The petition is disposed of accordingly. "

12. In case, the aforesaid facts are put in a juxa position, then it is crystal clear that the appellants‑plaintiffs did not approach the Court with clean hands. Coupled with the facts that the appellants had filed a suit after 13 years after the execution of the agreement to sell dated B 21‑3‑1968 on 9‑1‑1981, therefore, both the Courts below were justified to dismiss the suit of the appellants‑plaintiffs for specific performance of the agreement. Coupled with the facts that the appellants‑plaintiffs failed to bring on record sufficient material that the registered exchange deeds were not executed. It is admitted fact that the exchange deeds were registered, therefore, it is heavy duty cast upon the appellants‑plaintiffs to rebut the same with reliable evidence but the appellants‑plaintiffs C failed to produce any evidence to this effect, therefore, both the Courts below were justified to give weight to the deeds of exchange which is in accordance with law laid down in "Rahim Bakhsh's case" (1992 CLC 2433). It is also settled principle of law that registered document has sanctity attached to it and stronger evidence is required to cast aspersion on its genuineness as per law laid down by the Honourable Supreme D Court in "Mirza Muhammad Sharif, etc. v. Mst. Nawab Bibi, etc. 1993 SCMR 462). It is pertinent to mention here that the appellants‑plaintiffs did not implead the legal heirs of respondent No.8‑Shah Muhammad, before this Court in spite of the fact that objection was taken in the earlier round of litigation before this Court after rendering the judgment of the first appellate. It is pertinent to mention here that each and every case is to be decided on its own facts and circumstances. The judgments g cited by the learned counsel of the parties have no relevancy to resolve the present controversy between the parties in view of the aforesaid discussion of circumstances of this case.

13. In view of what has been discussed above, I do not find any infirmity or illegality qua not exercising discretion by the Courts below in favour of the appellants‑plaintiffs; therefore, the appeal is dismissed to this extent. It is admitted fact that the original owner had received Rs.54,000 from the appellants‑plaintiffs at the time of execution of the agreement to sell before the Sub‑Registrar and decree was also passed by both the Courts below in favour of the appellants‑plaintiffs. The said amount has been utilized by the original owner till his life time, therefore, I modify the decree passed by the Courts below and the appellants‑plaintiffs shall be entitled to compound interest at the rate of Rs.6 per annum on the aforesaid amount from the date of agreement to sell dated 21‑3‑1968 untill realization. With these observations, this regular second appeal is disposed of. M.A.W./A‑22/L Order accordingly.