P L D 2006 Lahore 571 (PLP)

MIAN SAQIB NISAR, J.

The dispute between the parties, relates to the land measuring 165 Kanals, 1 Marla, as stated in the plaint of R.F.A. No.462 of 2004 but it is mentioned as 164 Kanals and 8 Marlas in R.F.A. No.62 of 2005, however, the suit-land, which is situate in Mauza Janjatey Tehsil and District, Lahore, has been fully described in the two plaints; the suit for the specific performance filed by respondent No.1 in R.F.A.No.62 of 2005, against Aziz Ahmad, etc. seeking the enforcement of the agreement to sell dated 7-1-1989, has been decreed, whereas, the suit brought by the appellant in this case against the respondents, to the extent of specific enforcement of their agreement dated 28-3-1990, has been disallowed, but he has been granted a decree against the vendors for the return of the earnest money amounting to Rs.21,09,

270. All the parties aggrieved of this judgment and decrees dated 20-10-2004, have filed these appeals i.e. R.F.A. No.462/2004, K.F.A. No.31/2005, R.F.A. No.36/2005, R.F.A. No.61/2005 and R.F.A. No.62/2005, which are interconnected matters, and thus are being decided through this single judgment.

2. Brief facts of the case are, that on 30-4-1990, respondent No.1, brought a suit for the specific performance against respondents Nos. 2 to 6, claiming that the said respondents being the owners of the suit-land measuring 164 Kanals, 8 Marlas, described in paragraph No.3, of the plaint, have entered into a sale agreement dated 7-1-1989, Exh.P.4, with it for a' total consideration of Rs.60,62,352 i.e. at the rate of Rs.2,95,000 per acre and had received a sum of Rs.12 lac (twelve lacs) as earnest/advance money. It is stated in the plaint that respondent No.3 (defendant No.2) was a minor at that time, thus the agreement on his behalf was entered into by Mst. Sardar Bibi, his real mother, with the stipulation to procure the permission for the sale from the Guardian Court; three months period was fixed between the parties for the finalization of the transaction. It is averred by the plaintiff/respondent No.l, in his plaint, that the respondents Nos. 2 to 6, failed to accomplish the deal and to execute the instrument of sale; hence, the suit was brought against them.

3. Matter was contested by respondents Nos.2 to 6, who admitted the valid execution of the agreement to sell and the receipt of the part consideration, but only to the extent of Rs.5,00,000 however, they denied the remaining consideration by averring that the defendants are illiterate persons and respondent No.1, has played a fraud upon them and procured their thumb-impressions upon certain receipts to show the payment of Rs.12,00,

000. It is also their case that it is the plaintiff/respondent No. l , who failed to pay the balance amount of the consideration within the stipulated time, during which, they have never refused the finalization of the transaction, thus by imputing default to respondent No.1, it was asserted that the agreement Ex.P-4, automatically stands cancelled. In their written statement, respondents Nos.2 to 6, never disclosed that they have also entered into any other agreement to sell with any third party i.e. the appellant.

4. The above matter was yet pending, when on 7-1-1991, the appellant of this appeal brought a suit for the specific performance against respondents No. 2 to 6, claiming that they through an agreement dated 28-3-1990 agreed to sell the same land (there is some difference in the total area as mentioned above) to him, at the rate of Rs.4,25,000 per acres and received an amount of Rs.21,09,270 as an advance/earnest money. He asserted that as per the agreement, the said respondents were bound to obtain the demarcation of the property, before the execution of the sale-deed and had to hand over the possession to the appellant, but they failed and surprisingly in breach of the above stipulation, the defendants/vendors through a legal notice dated 19-11-1990, sought the finalization of the deal within a period of seven days, which notice was replied, followed by the suit for the specific performance by the appellant. In this suit, respondents Nos.2 to 6, filed their written statement, in which the agreement to sell and the payment 'of advance consideration was admitted; however, the said respondents, again set out the defence that it is the plaintiff/appellant, who has failed to perform his part of the agreement. It may be pertinent to mention here that respondent No.1 (Saif Nadeem Electro Ltd.) filed an application under Order I, rule 10, C.P.C., to be impleaded as a party in this suit, which was allowed by the Court, vide order dated 29-7-1991 and the company was arrayed in the matter as defendant No.6, the said defendant filed its written statement, by setting out a clear and unequivocal defence that the agreement to sell allegedly entered into between the appellant and respondents Nos.2 to 6, is fraudulent and collusive, and the suit also suffers from the same vice. It may not be out of place to mention here that in the suit of the respondent No. l (the first suit for the specific performance), the application of the appellant under Order I, Rule 10, C.P.C. for impleading him as a party, was rejected through the order dated 20-10-1993; but this order was not further challenged by the appellant. However, upon the application of either side, the two cases were transferred by the learned District Judge, to the same learned Civil Judge and were consolidated and tried together on the following issues:-- (1) Whether the suit is not maintainable in its present form? OPD (2) Whether the plaintiff has not come to the Court with clean hands? (3) Whether the conditions laid down in the agreement of sale were fraudulent? OPD (4) Whether only Rs.5,00,000 was paid as earnest money? OPD (5) Whether the plaintiff was willing to perform his part of contract? OPP (6) Whether the plaintiff has paid Rs.12,00,000 as earnest money? OPP (7) Whether the plaintiff is entitled to decree for specific performance of the agreement as prayed for? OPP (7.A) Whether Muhammad Ramzan, plaintiff in Suit No.9/1/91 titled "Muhammad Ramzan. v. Aziz Ahmed, etc. is entitled to specific performance of agreement to sell or in the alternative to recover Rs.21,09,270 and Rs.25,00,000, as damages? (8) Relief. Proceedings were conducted in the case of respondent No. l ; and it examined P.W. 1 Muhammad Ashraf, the representative of National Bank of Pakistan, who has proved in the evidence the pay orders Exh.P-1, Exh.P-2 and Exh.P-3, all dated 7-1-1989, envisaging the payment of Rs.2,00,000, Rs.2,50,000 and Rs.5,00,000 respectively; P.W.2 Muhammad Akhtar is the marginal witness of the agreement to sell dated 7-1-1989, Exh.P-4; PW-3 is Mushtaq Ahmed Butt, who is an Advocate and has scribed the agreement to sell Exh.P-4; P.W.4, Saif Ashfaq is the representative of the company, whereas, P.W.5 Maqbool Ahmed is another marginal witness of Exh.P-4. As against the above, the defendants of the case produced Manzoor Hussain D.W. I, Ashiq Ali D.W.2 and Aziz Ahmad, himself appeared as D.W.3; they also tendered in evidence the documents i.e. Guardian certificate of Muhammad Siddique minor dated 23-5-1989 Exh.D-1, in favour of Mst. Sardar Bibi, his mother and the order of the Guardian Judge dated 13-6-1989 Exh.D-2, permitting the sale of the property by the said guardian. Muhammad Ramzan, the appellant in his suit examined, P.W.6 Shahnawaz, the Stamp Vendor and the scribe of his agreement to sell dated 28-3-1990 Exh.PW-1/1; P.W.7, Syed Hassan Mehmood Naqvi, is a Manager of Allied Commercial Cooperative Corporation Ltd, who claims to be the marginal witness of Exh.PW1/1; he has also testified about the payment of the earnest money of an amount of Rs.21,09,700 paid by Muhammad Ramzan to vendors Aziz Ahmed, etc; P.W.8 Bilal Ahmed is an attorney of Muhammad Ramzan; P.W.9 is Syed Jawad Haider Jafari Advocate, who proved his reply to the legal notice of the respondents Nos. 2 to 6, which was taken in evidence as Exh. PW-9/

1. Upon the conclusion of the trial, the learned Civil Judge, by giving findings upon issues Nos.l to 7, in favour of respondent No.1, has decreed the suit, whereas, by deciding issue No.7-A against Muhammad Ramzan, has refused the specific enforcement of his agreement to sell, but has directed the vendors/respondents Nos.2 to 6 to refund/return the amount of Rs.21,09,270 to the appellant, which was received by them as the advance. However, the relief of the damages/compensation as claimed in the suit has been declined. Aggrieved of the above, Muhammad Ramzan has brought the present appeal, Muhammad Siddique has filed two appeals i.e. R.F.A. No.31 of 2005 and R.F.A. No.36 of 2005, challenging both the decrees; similarly Aziz Ahmed has preferred appeals R.F.A. No.61 of 2005 and R.F.A. No.62 of 2005. 5.? Learned counsel for the appellant contends that the agreement to sell dated 28-3-1990, as also the receipt of consideration of Rs.21,09,270, has been admitted by respondents Nos. 2 to 6, therefore, the appellant having paid such a substantial amount of money as the advance, was entitled to the grant of a decree in his favour; it is further stated that the appellant was unaware of any prior agreement to sell between respondent No.1 and respondents Nos. 2 to 6, consequently such an agreement, could not be made the basis of refusing the relief of the specific performance to the appellant; the appellant for all intents and purposes, was the bona fide purchaser and his rights under the law should be protected by enforcing his agreement. It is also submitted that respondent No. 1. failed to prove that he was ready and willing to perform his part of the agreement, inasmuch as, it failed to pay the balance consideration, within the stipulated time therefore, the agreement of the said respondent automatically stood cancelled and his suit was thus liable to be dismissed. It is further urged that the trial Court was bound to grant the compensation to the appellant for the amount of Rs.21,09,270, which has been utilized by respondents Nos. 2 to 6, for such a long period of time. 6.? Heard. The appellant in support of his case, has examined P.W.6, Shahnawaz Bhatti, who claims to be the stamp vendor and the scribe of Ex.P.W.1/1; however, this witness has not provided any proof of selling the paper or scribing the document on the date, as has been shown from the said instrument; he has not produced any record of the Stamp Vendor or the deed writer. When questioned in the cross-examination, he has answered:-- This is very significant answer, as the claiming to be the scribe of the document, but has no clue, as to where it was written; he has also not stated, if the thumb-impressions upon the document were affixed by respondents Nos. 2 to 6, in his presence. P.W.7, Syed Hassan Mehmood Naqvi, who in his examination-in-chief, has stated that he was the Manager of the Bank Allied Commercial Cooperative Corporation Ltd. Ali Town Branch, and that the appellant in his presence has made the payment of an amount of Rs.21 lac to respondents Nos. 2 to 6 and that the vendor took away half of money and remaining half was deposited by them in their bank account in the said bank; he deposed that he is the marginal witness of the agreement to sell Exh.PW-1/1 and has identified his signature as Exh.PW.1/2. In the cross-examination, he deposed that he is the Transporter stationed at Abbotahad; he concedes of having no knowledge about some earlier agreement to sell between respondents Nos. 2 to 6 and respondent No.1; he was not a witness summoned through the process of the Court: he does not know, where Exh.PW-1/1 was scribed; in the examination-in-chief, he deposed that only the appellant and the vendors were present at the time of the execution of Exh.PW-1/1, but in the cross-examination, he contradicts the above, when stated that the deed writer and other marginal witnesses were also there; but Exh.PW.1/1 envisaged the presence of only one other witness and no one else; no documentary evidence through him, has been brought on the record about the withdrawal of Rs.21,00,000 from any bank account of the appellant and a part thereof deposited by the respondents -Nos.2 to 6 in their account as stated by the witness. We are not much impressed with the testimony of P.W.7, which in our view is not much confidence-inspiring, which otherwise, has remained uncorroborated, as the other marginal witnesses were not examined; the appellant has not appeared as a witness in this matter, rather has examined P.W.8, as his attorney; who in the opening part of his examination-in-chief deposed:-- " he further states:-- he also deposed:-- In the cross-examination, this witness stated that he is the property dealer and is engaged in the sale/purchase of the properties and that Muhammad Ramzan, (the appellant) in fact has purchased the property for his society. His above reproduced part of the examination-in-chief and what he mentioned in the cross-examination does not go in line with the appellant's case, set out in the plaint. It may be mentioned here that he is not the marginal witness of the agreement to sell dated 28-3-1990; P. W.9 is Syed Jawad Haider Jafari, who only replied to the legal notice, which has been placed on the record as Exh.PW-9/l; P.W.10, Muhammad Hanif, is again a property dealer, who stated that he had arranged the transaction between the appellant and respondents Nos. 2 to 6; he however, is not a marginal witness of the agreement to sell and there is no independent proof on the record, if he was the go between the parties to Exh.PW-1/1.

7. From the above evidence, we are not convinced, if the appellant has been able to prove the agreement to sell in terms of Articles 79 and 17(2) of the Qanun-e-Shahadat Order, 1984, which they were obliged to prove through examining the two attesting witnesses; Muhammad Shall, the other marginal witness of the instrument has not been examined for any valid reason. There is no independent proof, if such a substantial amount of advance consideration of Rs.21,07,270 was paid by the appellant to respondents Nos.2 to 6, this could have been easily done by the appellant through summoning the record of the bank, in which the transaction of payment is alleged to have taken place, but surprisingly this was not done, which omission to our mind has serious reflection upon the genuineness of the transaction. The argument that as defendants Nos. 2 to 6, who are the executants of the agreement have admitted the same and the payment thereof as well, thus it was not required to examine the other marginal witness; the summoning/production of the record/registers of the Stamp Vendor and the scribe, or the bank record for the purposes of proving the advance payment, suffice it to say that the admission of a co-defendant is not binding upon the others; respondent No. 1 in its written statement had disputed the genuineness of the said agreement and had impugned fraud and collusion between the appellant and respondents Nos.2 to 6; thus in this peculiar situation, it was incumbent upon the appellant to have proved the agreement in accordance with the mandatory provision of Article 79; besides, to have corroborated the proof through the summoning and production of the record of the Stamp Vendor, the deed writer and the bank documents of the payment of advance consideration, but this all is conspicuously missing in the case. Above all, P.W.8, who is key witness of the appellant, has departed and deviated from the contents of the plaint; it is stated by him that he has entered into the agreement to sell with respondents Nos. 2 to 6, whereas, this is not the case set out in the plaint of the appellant, resultantly, we are not convinced, if the appellant has proved his case about the execution of the agreement as against respondent No.l. However, as respondents No.2 to 6, have admitted the said document and also the receipt of payment of the advance money, such admission is binding upon them, therefore, the Court below has rightly directed in the decree for the return of the amount of earnest money received by them from the appellant. 8 As far as the argument that the appellant was entitled to the compensation and damages for the amount, which was given to respondents Nos.2 to 6, as an advance money, suffice it to say that there is no such stipulation in this behalf in the agreement to sell. Besides the appellant, has failed to lead any evidence about this plea, which he had to prove in terms of sections 73 and 74 of the Contract Act 1872.

9. For the question that the appellant is bona fide purchaser, suffice it to say that according to the provisions of section 54 of the Transfer of Property Act, an agreement to sell does not create or purport to create any right or interest in an immovable property, except it confers upon a party the right to seek the specific enforcement thereof, but when the appellant was not yet the owner of property, no defence in terms of section 27(b) of the Specific Relief Act, could have been set out. Besides, the appellant's claims that he was unaware of the agreement to sell between respondents No.1 and respondents Nos.2 to 6, has been set at naught by one of the defendants namely Aziz Ahmed; when appeared before the Court as/DW-3'anddearly deposed that:

This statement has not been subjected to cross-examination by the plaintiff and is enough to show that the appellant had the knowledge of the earlier agreement to sell and therefore, it was his responsibility to have made inquiries to find out, about the fate of the earlier agreement to sell. In the light of whatever has been stated above, we do not find any merit in this appeal, which is hereby dismissed.

10. For the other two appeals filed by Muhammad Siddique, only plea raised is that he was a minor, when the two agreements to sell were executed, therefore, such agreements are void. Admittedly, he was a minor at the relevant time and the agreement Exh. P-4, was entered on his behalf by his real mother; in the agreement, it is specifically stipulated that the mother shall obtain the guardianship certificate and the permission from the learned Guardian Judge for the sale of the minor's share in the joint suit property before the target date; these documents have been produced by the respondents Nos.2 to 6, themselves establishing that the mother had applied for the above purpose and she was appointed the guardian vide order Exh.D-1 dated 29-5-1989; thereafter, she also procured the permission for the sale of minor's share in the suit property, from the court through order dated 16-11-1989, Exh.D-2. When specifically asked in the Court, learned counsel for Muhammad Siddique has categorically stated that this application for the permission under section 29 of the Guardians and Wards Act, 1890, was made pursuant to the agreement to sell Exh.P-4 and the agreement was mentioned in the application and the permission was accordingly sought and obtained on that account; he however, has argued that in view of the judgments reported as Ghulam Nabi. v. Faisal Naveed and 2 others (2003 SCMR 1794) and Hazrat Khan. v. N. Khalid Khan and others (1997 CLC 1765), any sale agreement between the minor without first obtaining the permission from the learned Guardian Judge is void; the above judgments have been considered but found distinguishable on their own facts. We are conscious of the legal position that a contract by a minor is not merely void but void ab initio and hence, cannot be sued c upon. Such a contract has no existence in the eyes of law and entails no liability. But in the present case, it. is not the minor, who has entered into the agreement himself, rather that was through his de facto guardian, the mother. The Agreement to sell is not the sale of an immovable property, rather it is only a promise to do so in future. Therefore, if the agreement has been made on behalf of the minor by a close relative, like the mother and prima facie is in the interest of the minor as in this case, because the other co-sharers were selling their shares, and it was not in the benefit of the minor to retain his share out of the joint khata and there was a clear stipulation in the agreement that the permission shall be obtained from the Guardian Court before the sale is made; such agreement shall not be void or invalid, rather it shall be an agreement, where the competency of the mother to enter into the transaction and the enforceability thereof, shall be dependent upon the requisite guardianship certificate and the permission of the Court; if it is granted, the agreement becomes enforceable, but otherwise it shall have no legal value. In the instant case, we- have noticed with care that there is a clear mention about the permission in the agreement Exh.P-4, it is on account of this agreement by a specific reference, that permission was obtained and granted by the Court, when the application was made by the mother and in the order Exh.D-2, it is clearly mentioned that the sale is in the benefit of the minor and is meant to safeguard his interest, resultantly in the above circumstances, the plea propounded by the appellant's counsel that time Ex. P-4 is void, has no force and is hereby repelled.

11. For the other two appeals filed by Aziz Ahmed, learned counsel for the appellant has not independently argued but has relied upon the submission of learned counsel for the appellant in R.F.A. No.462 of 2004, which pleas have already been answered. In the light of above, we do not find any merits in all these appeals, which are hereby dismissed. M.B.A./M-306/L???????????????????????????????????????????????????????????????????????????????? Appeals dismissed.