Suit for specific performance

Brief facts of the matter were that the petitioner instituted a suit for specific performance against the private respondent on the basis of an agreement-cum-allotment concerning a commercial plaza, with a total sale consideration of Rs.156,000,000/-, pursuant to which she paid the booking amount after balloting; during pendency of the suit, the Trial Court directed submission of court fee and deposit of the remaining consideration; the petitioner deposited Rs.22,910,000/- in the Treasury; subsequently, the plaint was rejected under O.VII R.11, C.P.C. for non-submission of court fee and balance consideration, and the order attained finality; the petitioner thereafter sought refund of the deposited amount; her application was dismissed by the Trial Court on the ground that no order permitting such deposit existed on the record, and a revision petition was also dismissed for want of pecuniary jurisdiction, leading to the filing of the present constitutional petition

Held: Treasury office admitted in the report submitted before the High Court that the said amount was deposited, therefore, if the factum of allowing the application of the petitioner/plaintiff to deposit balance sale consideration had not been recorded in the order sheet of the Trial Court, said mistake could not be attributed to the petitioner

Suit of the petitioner was dismissed on 24.03.2022 and ever since then her valuable money was being retained and not being returned to her and in the process, not only her money had depreciated over the period coupled with her deprivation form being able to invest the same and/or use the same as per her fundamental right

It was an admitted feature of the case that the challan was issued against which the payment was made and said payment was available in the Treasury and not needed for any other purpose

State had no right over the amount deposited by the petitioner

If the Trial Court after allowing the application of the petitioner/plaintiff to deposit the amount did not record the same in the order sheet, the same was inaction on part of the Court, which could not be made basis of harm to the petitioner

Impugned order was set aside and application of the petitioner to seek refund of the amount ofRs.22,910,000/- was accepted and the Trial Court was directed to procced in the matter enabling the petitioner to seek refund

Constitutional petition was allowed, in circumstances.

Petitioner/ plaintiff filed a suit for specific performance on the basis of an agreement allegedly executed between him and respondent /defendant, however, said document was not a registered document

Moreover, its authenticity was at stake as one of its marginal witnesses had initiated criminal proceedings by registering an FIR against one of its executants i.e. (plaintiff/petitioner) alleging therein that his signature on the alleged agreement were fake

According to the lease agreement executed between the respondent and Mine and Minerals Department, GB, as well as per relevant Mining Rules/Laws any such further agreement was not permissible

Admittedly, on the same subject matter the petitioner/plaintiff also filed another suit which was sub-judice before Civil Court

Record revealed that the Work Order in respect of suit-mine had been issued in favor of answering respondent/defendant by competent authority vide relevant letter

Injunction is a form of equitable relief and is to be issued in aid of equity and justice but not in aid of injustice

For grant of such relief, it is mandatory for the person seeking injunction not only to establish that the petitioner had a prima facie case, but also that balance of convenience is on his side and that he will suffer irreparable injury/loss unless he is protected through an interim relief during the pendency of the suit

As such the essential requirements for grant of interim relief are (i) prima facie case (ii) balance of convenience (iii) irreparable loss

In the present case, after going through the facts mentioned in the plaint, supported documents attached with the plaint, and the law on the subject; the prayer for specific performance of contract by the plaintiff/petitioner, become itself contrary to the fact that prior to issuance of work order from the concerned competent authority, how an agreement could be executed over a subject matter not in existence that too, in contravention of law and rules which regulate the mining activities in the area

Respondent/defendant, who held a valid lease of the suit mine in his name, executed a valid contract with Minerals and Mining Department, GB, for excavation of suit mine in accordance with the rules/laws regulating the mining activities in the area and validly issued Work Order issued by the competent authorities in his name, had a much better arguable case as compared to the plaintiff/petitioner

Furthermore, all the impugned transportation permits had been issued by competent authorities in favor of respondent/defendant and another suit filed by the plaintiff/petitioner on the same subject matter was sub-judice in Civil Court which made the stance of the plaintiff doubtful

There was also no apprehension of irreparable loss

If the suit of petitioner/plaintiff was decreed as prayed for he may be compensated with the damages as claimed in the plaint, on the basis of which the plaintiffs/petitioner sought temporary injunction for suit mine

Thus, the plaintiff/petitioner neither managed to establish a better case than the defendants/respondents, as his whole claim in the plaint was for payment of damages and his due share in the profit in the suit mine; hence, there was no chance of irreparable loss to the plaintiff as he would be entitled in case of decree of his suit

The balance of convenience was also not in favour of the plaintiff/respondents in the present case, because in case of granting injunction the defendants shall be deprived of a vested right of mining lease which would cause mental agony to him which could not be compensated in money terms

In order to be entitled for interim relief, the claimant must establish all the ingredients for grant of interim relief, in his favour

Thus, the plaintiff had not been able to establish any one of the three ingredients for grant of interim relief

District Court had rightly accepted the appeal filed by the respondent/defendant and had set aside the order passed by the Civil Court and rejected the application under O.XXXIX, Rr.1 & 2, C.P.C., filed by the petitioner/plaintiff

Chief Court maintained the impugned judgment/order passed by District Court

Civil revision, filed by plaintiff, being merit-less, was dismissed, in circumstances.

Suit filed by respondent/plaintiff was decreed in his favour by Trial Court but Lower Appellate Court allowed appeal of petitioners/defendants and dismissed the suit

High Court while disposing of Second Appeal, decreed the suit in favour of respondent/plaintiff

Validity

If findings of facts reached by Lower Appellate Court are at variance with those of Trial Court, the former are to ordinarily prevail although it would not possess the same value or sanctity as that of a concurrent finding

Such findings by Lower Appellate Court are immune from interference in Second Appeal provided they have passed the test prescribed under section 100, C.P.C.

Findings of two Courts cannot be subjected to a Second Appeal, even if erroneous

In the present case judgment passed in Second Appeal was nothing but a replacement by High Court of its own view in an attempt to do equity which was not permissible under section 100, C.P.C.

Second Appeal could not operate as a regular First Appeal under section 96 C.P.C.

Supreme Court set aside judgment and decree passed by High Court in exercise of Second Appeal and restored that of Lower Appellate Court, as it was an interference and was neither justified nor required

Specific performance was only a discretionary relief and such discretion was lawfully exercised by Lower Appellate Court

Appeal was allowed.

Trial Court decreed the suit of the plaintiff directing him to pay the remaining sale consideration within thirty days, which judgment was maintained by the Appellate Court

Contention of the petitioner/plaintiff was that he paid amount of Rs. 500,000/- to female respondent / defendant subsequently, which (payment) was required to be adjudicated on merits by production of evidence and that the Appellate Court made erroneous observations that possession of the suit-property was with him, and that appeal filed by him should not have been dismissed due to non-payment of court-fee

Validity

Notably, non-payment of court-fee was not the basis for dismissal of appeal of the petitioner/plaintiff; it was merely an observation of the Appellate Court that the petitioner was bound to pay the same who had not paid despite repeated opportunities which did not otherwise affect the outcome of the appeal on merits

Further, observation of the Appellate Court that possession of the suit property was with the petitioner was merely an additional observation which also did not affect the outcome of the suit inasmuch as it was explicitly stated in the plaint that an amount (of Rs. 2,895,625/-)was remaining sale consideration and the said claim was conceded by the female respondents, whereafter, the Trial Court rightly decreed the suit of the petitioner/plaintiff directing him to pay the said remaining sale consideration within thirty days but he did not pay the same on the pretext that he had paid Rs. 500,000/- to the respondents on account of marriage of daughter which had nothing to do with the transaction alleged by him in the plaint

Said plea/pretext was merely an afterthought and it had been established on record that the petitioner was never ready and willing to pay the remaining sale consideration within the stipulated period mentioned in the agreement and even failed to do so pursuant to the decree / judgment and the earnest money paid by the petitioner to the respondents surely stood forfeited under the forfeiture clause of the agreement executed between the parties

No illegality or infirmity had been noticed in impugned decrees and judgments passed by both the Courts below

Revision, filed by plaintiff, was dismissed, in circumstances.

Plea of the petitioner (lady defendant/seller) was that the respondent did not have the financial ability to complete the transaction

Validity

(Petitioner) had stated in her written statement that she had issued three notices but the same were not brought on record and were issued after the target date

Although, the respondent had not pleaded that he paid Rs. 2,100,000/- to the petitioner to facilitate her to clear the mortgage qua the suit property yet the same fact was revealed by the petitioner in her written-statement, and perusal thereof showed that the said amount was deposited by the respondent, in the bank account of the petitioner but the same was returned vide cheque of particular date ; both the said dates were beyond the target date which depicted that the said amount was extended merely to redeem the mortgage over the suit property which had not been cleared before the target date

Petitioner had clearly undertaken in the agreement that the suit-property was free from all charges or liens but a document, marked on record, showed that the suit-property had been mortgaged to someone four months before execution of agreement, for a period of two years, redeemable on three months' notice upon payment of mortgage money

Notwithstanding the validity of the mortgage deed, as an attending circumstance, it was established that payment of Rs. 2,100,000/- was infact for redeeming the mortgage since the amount of Rs. 2,100,000/- matched with the amount of mortgage money and further proved that the factum of mortgage was not incorporated in the LDA record which showed the conduct of the petitioner that she not only concealed the fact of mortgage in the agreement but also failed to clear the suit property from all encumbrances before the target date

As such, the petitioner was not in a position to hand over vacant possession of the suit property to the respondent at the target date

Both the Courts below had rendered well-reasoned and sound judgments after due appreciation of evidence and taking into account all aspects of the case requiring no interference in exercise of revisional jurisdiction of the High Court

Civil revision filed by defendant/seller, being merit-less, was dismissed, in circumstances.

Plea of the petitioner(lady defendant/seller) was that the respondent did not have the financial ability to complete the transaction

Validity

Admittedly, the respondent /plaintiff as buyer of the suit-property issued a cross cheque in the name of the Petitioner (defendant/seller) three days before the target date, a copy of which was handed over to the petitioner requiring her to initiate the process of transfer in the relevant authority (LDA)

However, there was no evidence on record that the petitioner took any step for execution of the sale deed or transfer of the suit property in LDA in the name of the respondent

As per the contents of the agreement, the balance sale consideration was payable at the time of execution of sale deed or transfer before the LDA, therefore, the plea of the petitioner (regarding respondent's financial inability to complete the transaction) was immature and based on assumption that he did not have requisite funds in the bank account regarding which he had issued the cross cheque in favour of the petitioner because payment could have been made in cash or through pay order from another account or by any other means

Petitioner was bound to initiate the process of sale transaction and may well have required the payment of balance sale consideration through pay order or cash or by any other mode at the time of execution of sale deed or transfer of the suit property before LDA but that time did not arrive due to lapse on the part of the petitioner

Both the Courts below had rendered well-reasoned and sound judgments after due appreciation of evidence and taking into account all aspects of the case requiring no interference in exercise of revisional jurisdiction of the High Court

Civil revision filed by defendant/seller, being merit-less, was dismissed, in circumstances.

Plea of the petitioner(lady defendant/seller) was that the respondent did not have the financial ability to complete the transaction

Validity

Record depicted that the Trial Court granted restraining order in favour of the respondent but subject to deposit of remaining sale consideration

In consequence of said order, counsel for the respondent recorded his statement that the respondent was ready to pay the remaining sale consideration and deposited original cross cheque in the name of the petitioner with the stipulation that the petitioner could encash the same and the respondent would be liable for the consequences

However, the counsel for the petitioner refused to receive the same

Later, the Trial Court directed the respondent to deposit the balance sale consideration in the Court within one month; in compliance of which he ,after settling mode of payment through the Court, deposited/paid the same in the Court

Thus, it could not be conclusively conferred that the respondent did not have financial ability to complete the sale transaction

This was especially so since the respondent had promptly instituted the suit 1-1/2 months after the target date

Petitioner, in her written statement, while admitting the transaction, did not seek immediate payment of remaining sale consideration by demonstrating her willingness to execute sale deed but sought rescission of the agreement

Both the Courts below had rendered well-reasoned and sound judgments after due appreciation of evidence and taking into account all aspects of the case requiring no interference in exercise of revisional jurisdiction of the High Court

Civil revision filed by defendant /seller, being merit-less, was dismissed, in circumstances.

Assertion of the plaintiffs/petitioners was that transaction of sale was settled with the defendant / respondent and agreement and receipt were scribed, yet said stance was strongly controverted by the latter while raising serious allegations with regard to its genuineness as well as transaction detailed therein

Plaintiffs were concurrently non-suited

Validity

Defendant(respondent/ vendor) was resident of Tehsil "J"(Jaranwala) and suit property was also situated in the said territory, where the Deed Writer and Stamp Vendor were available, but surprisingly the stamp paper was purchased/scribed at "F"(Faisalabad)

Record divulged that Stamp Vendor was not summoned by the petitioners/plaintiffs , who could be the best person to belie the allegation of the respondent/defendant that the stamp paper was never purchased by him

Withholding of said independent witness was enough to draw hostile inference against the petitioners under Article 129 illustration (g) of Qanun-e-Shahadat, 1984 ('the Order, 1984')

When the due construction of alleged agreement and receipt could not be proved per mandate of Art. 79 of the Order, 1984, then there was no scope for the success of the petitioners

No material irregularity/illegality as well as jurisdictional defect or mis-reading of evidence was found in the impugned judgments of two Courts below; thus , no case of interference was made out

Revision filed by plaintiffs , being merit-less, was dismissed in limine.

Assertion of the plaintiffs/petitioners was that transaction of sale was settled with the defendant / respondent and agreement and receipt were scribed, yet said stance was strongly controverted by the latter while raising serious allegations with regard to its genuineness as well as transaction detailed therein

Plaintiffs were concurrently non-suited

Contention of the petitioners / plaintiffs was that as per desire of the very defendant /respondent, his signatures over alleged agreement and receipt were compared with through an expert, thus no further proof was required to establish their construction as well as veracity

Validity

Record revealed that though the disputed documents were referred to the Forensic Lab for comparison, which after some drill-work submitted positive Report, but admittedly its maker was not called for to prove the same, which per se was not admissible and was rightly ignored from being taken into consideration by the fora below

Moreover, it is always risky to base the findings of genuineness of writing or signature on expert's opinion, because such like report cannot be taken as conclusive proof

Even otherwise, a document not part of judicial record can only be proved by examining direct affirmative evidence and any secondary or other mode cannot be taken as a substitute to the former mode of proof, thus the alleged report was of no help to the petitioners

No material irregularity/illegality as well as jurisdictional defect or mis-reading of evidence was found in the impugned judgments of two Courts below ;thus , no case of interference was made out

Revision filed by plaintiffs , being merit-less, was dismissed in limine.

Assertion of the plaintiffs was that transaction of sale was settled with the defendant / respondent and agreement and receipt were scribed, yet said stance was strongly controverted by the latter while raising serious allegations with regard to its genuineness as well as transaction detailed therein

Plaintiffs were concurrently non-suited

Validity

Onus was upon the petitioners / plaintiff to prove the alleged sale and due construction of their hub documents per scheme of law

As alleged agreement and receipt (exhibited by plaintiffs) involved future obligation and financial liability, thus same were to be executed under mandate of Art. 17 of the Qanun-e-Shahadat, 1984 ('the Order 1984') and it was sine qua non for the beneficiary/petitioners to prove the same according to mode provided in Art. 79 of the Order, 1984

Although said two documents at the time of its scribe per spirit of Art. 17 of the Order, 1984 were attested by two persons being marginal witnesses, yet surprisingly ,one of them despite availability was not examined, thus compulsory requirement of Art. 79 was not followed, which requirement is mandatory and without strict compliance thereof any such document (entailing future obligation or financial liability) cannot be used in evidence

Nothing short of two attesting witnesses can even be imagined for proving sale contract, besides testimony of scribe cannot be used to consider it as statement of marginal witness

No material irregularity/ illegality as well as jurisdictional defect or mis-reading of evidence was found in the impugned judgments of two Courts below; thus, no case of interference was made out

Revision filed by plaintiffs, being merit-less, was dismissed in limine.

Claim of the plaintiffs/petitioners was that transaction of sale was settled with the defendant / respondent and agreement and receipt were scribed, yet said stance was strongly controverted by the latter while raising serious allegations with regard to its genuineness as well as transaction detailed therein

Plaintiffs were concurrently non-suited

Contention of the petitioners/ plaintiffs was that second marginal witness was not examined as he was closely related to the alleged vendor (defendant/respondent) and if produced, he would have deposed in his favour, thus for such risk his withholding was justified

Validity

Mandatory provisions of law has to be complied and fulfilled and only for the reason or the perception that such attesting witness if examined may turn hostile does not absolve the concerned party of its duty to follow the law and allow the provisions of Arts. 17 & 79 the Qanun-e-Shahadat, 1984, relating to hostile witness to take its own course

Thus, for any risk, mandatory requirement of law cannot be avoided

No material irregularity/illegality as well as jurisdictional defect or mis-reading of evidence was found in the impugned judgments of two Courts below; thus , no case of interference was made out

Revision filed by plaintiffs , being merit-less, was dismissed in limine.

Assertion of the plaintiffs/petitioners was that transaction of sale was settled with the defendant / respondent and agreement and receipt were scribed, yet said stance was strongly controverted by the latter while raising serious allegations with regard to its genuineness as well as transaction detailed therein

Plaintiffs were concurrently non-suited

Contention of the petitioners/plaintiffs was that the defendant(vendor/respondent) while adducing his own evidence ,during cross-examination , made an admission that if his signature on alleged agreement were proved to be positive under forensic science , then the plaintiffs was be termed as truthful and, they would be entitled for decree in wake of positive report to said effect

Validity

Admission of a party in ignorance of legal rights has no legal effect, which being wrong on point of fact is also not admissible

Respondent/defendant might have been under an illusion or delusion that report would never come against his version, therefore , he had made the aforesaid statement, which even otherwise was shrouded in mystery and was uncertain at the time when it was worded

Said statement of respondent was based upon a result to be received in future

In terms of Art. 34 of Qanun-e-Shahadat, 1984 ('the Order 1984') , an admission even if considered to be a legal right is just a relevant fact, however it cannot be taken as conclusive proof against a party making it

In particular backdrop of the case, the statement made by the defendant / respondent for sending his signatures/thumb impressions to the expert was not an admission as defined in relevant provision of the Order, 1984 as nowhere it was claimed that these were his thumb impressions, who since inception of litigation was claiming those to be forged and fictitious

Petitioners had already concluded their evidence and by mere resort to the aforesaid exercise, they could not be absolved of the mandatory requirement of law as detailed in Art. 79 of the Order, 1984 to prove the execution of alleged agreement, which entailed financial liability and future obligation

No material irregularity/illegality as well as jurisdictional defect or mis-reading of evidence was found in the impugned judgments of two Courts below; thus, no case of interference was made out

Revision filed by plaintiffs, being merit-less, was dismissed in limine.

Petitioner /plaintiff in the plaint of his suit categorically pleaded his readiness and willingness to perform his part of agreement to sell, yet he throughout failed to satisfy the test of law

To substantiate his bona fide claim, the petitioner should have filed an application with the Trial Court for depositing the balance sale consideration

Thus, the findings of the Trial Court with respect to silence of the petitioner to substantiate his readiness and willingness could not be interfered with

No material illegality or irregularity having been noticed in findings contained in the impugned judgments and decrees passed by the Courts below, the same were maintained

Civil revisions were dismissed, in circumstances.

Filing of application for amendment in the plaint by the respondent while changing the entire description of the property in dispute

Dishonest improvements in the evidence on part of the respondent

Irregularity in the report of local commission

Concurrent decisions by trial and appellate courts

Held, that time, date and names of witnesses were mentioned in the plaint, however, exact place and time of the negotiations, which led to the conclusion of the oral agreement, were missing in the plaint

Maxim "Allegans Contraria Non Est Audiendus" (A person who alleges things contradictory to each other is not to be heard) disentitled the respondent to any relief

None of the witnesses stated that the special attorney of the respondent (her husband) was present at the time of conclusion of the oral agreement and that he took the possession

To such extent improvement was made by PW.3

In case of specific performance of the oral agreements improvements beyond pleadings are to be discarded

Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct

Two marginal witnesses of the transaction were also not independent, as PW.1, PW.2 and PW.3 were husband, son and domestic servant of the respondent, respectively

Suit was time barred as oral agreement was stated to have been concluded on 02.06.2007, whereas, the suit was instituted on 18.06.2019

Civil cases are to be decided on the basis of preponderance of evidence

Courts are obligated to overall appreciate the evidence available on record

Report of local commission and a minor weakness in the petitioner's statement had been made basis by Courts below for rendering their findings

Neither report of the local commission, which was full of irregularities, nor weaknesses of the petitioner's case could be made basis of passing a decree in the suit for specific performance of contract instituted on the basis of an oral agreement to sell, which agreement was not concluded in presence of any independent witness and the record clearly depicted glaring contradictions in statements of PWs. qua the execution of said oral agreement

Concurrent findings of the courts below were result of grave misreading and non-reading of evidence and incorrect application of settled principles of law governing grant of decree in a suit for specific performance of oral agreement

Civil revision was allowed, in circumstances.

Plaintiff filed an application for comparison of thumb impressions of defendants on the agreement with their specimen/admitted thumb impressions, which was dismissed by the Trial Court, and revision filed against said dismissal order was also dismissed by the District Court

Ground for dismissal was that report of the finger expert was a corroborative piece of evidence and the application had been filed by the plaintiff/petitioner at belated stage just to linger on the trial, hence, the same could not be allowed

Argument of respondents was that allowing the petitioner to effect comparison of thumb impression of the respondents was likely to result into injustice in so far as one defendant/respondent No.5, was minor at the time of alleged execution of the agreement

Validity

Even if it was proved that alleged thumb impression of said minor respondent on the agreement was genuine, the same would merely go on to prove (or otherwise) the execution of the agreement without having any bearing on the competency of the said respondent who was admittedly minor at the time of execution of the agreement as the competency to contract is a question of law and is to be decided by the Trial Court on the basis of applicable law and not on the basis of the report of the finger expert

Therefore, argument of respondents had no force

High Court set-aide the impugned orders passed by the Courts below, as a consequence, application of the petitioner for conducting comparison of the thumb impression and/or signatures, of respondents, was accepted

Constitutional petition was allowed accordingly.

Plaintiff filed an application for comparison of thumb impressions of defendants on the agreement with their specimen/admitted thumb impressions, which was dismissed by the Trial Court, and revision filed against said dismissal order was also dismissed by the District Court

Ground for dismissal was that report of the finger expert was a corroborative piece of evidence and the application had been filed by the plaintiff/petitioner at belated stage just to linger on the trial ,hence, the same could not be allowed

Validity

Had the petitioner failed to seek comparison of signature, through expert evidence, in the face of express and outright denial as to the execution of the agreement, the same might propel the Trial Court and also the higher forums to harbour adverse inference against the petitioner/plaintiff

Therefore, non-acceptance of the application of comparison of thumb impression would lead to miscarriage of justice and thwart the Trial Court in reaching a just conclusion, which is not permissible under the law and will defeat ends of justice

High Court set-aide the impugned orders passed by the Courts below ,as a consequence, application of the petitioner for conducting comparison of the thumb impression and/or signatures of respondents, was accepted

Constitutional petition was allowed accordingly.

Plaintiff filed an application for comparison of thumb impressions of defendants on the agreement with their specimen/admitted thumb impressions, which was dismissed by the Trial Court, and revision filed against said dismissal order was also dismissed by the District Court

Ground for dismissal was that the report of the finger expert was a corroborative piece of evidence and the application had been filed by the plaintiff /petitioner at belated stage just to linger on the trial ,hence, the same could not be allowed

Validity

Record revealed that when the evidence was recorded, one of the defendants/respondents while appearing as a witness for defendant-side, candidly conceded that they (respondents) would have no objection if their (respondents) signatures were sent to the finger expert for comparison

Both the Courts below had ignored said aspect of the case

In order to ensure that correct conclusion was reached in the present matter, the Court could look around for evidence of un-impeccable caliber such as finger expert, more particularly, when there was a complete denial on part of the respondents/defendants that they had not affixed their thumb impression on the agreement

It was in the interest of justice that the petitioner be allowed to prove his stance by having recourse to the forensic science/handwriting expert

High Court set-aide the impugned orders passed by the Courts below ,as a consequence, application of the petitioner for conducting comparison of the thumb impression and/or signatures, of respondents, was accepted

Constitutional petition was allowed accordingly.

Plaintiff filed an application for comparison of thumb impressions of defendants on the agreement with their specimen/admitted thumb impressions, which was dismissed by the Trial Court, and revision filed against said dismissal order was also dismissed by the District Court

Ground for dismissal was that report of the finger expert is a corroborative piece of evidence and the application had been filed by the plaintiff /petitioner at belated stage just to linger on the trial ,hence, the same could not be allowed

Validity

Admittedly, the suit-property was allotted by the Government to predecessor-in-interest of defendants/respondents and after demise of said predecessor-in-interest, they (defendants/respondents) were in occupation thereof

Suit was instituted by the petitioner on the basis of the agreement purportedly executed by respondents/defendants including one, who was a minor at the time of execution of the agreement

As the execution of agreement was outrightly denied by respondents, case of the petitioner depended upon proving the agreement through which the suit property had allegedly been sold by respondents to the petitioner

Object for production of evidence is assistance to the Courts to reach a just conclusion and an application for comparison of thumb impression is one such mode

Only hinderance in not allowing the application could be if the plaintiff intended to fill in the lacunae of his case after the conclusion of evidence

In the present case, the respondent side had failed to point out any such effort on part of the petitioner

There appeared to be no harm to either side if comparison of thumb impression was made

In fact, the said exercise would be appropriate and in the interest of justice to reach a fair conclusion and render a just and proper decision, even at the cost of some delay in conclusion of the trial

For a Court of law, rendering a fair and just decision is more important than to act hurriedly by drawing a wrong conclusion

Mere fact that application for comparison of thumb impression had been moved at the stage when the entire evidence has been recorded is not a cogent reason to dismiss the application

In said regard, notably, no time has been stipulated in terms of Art. 84 of the of Qanun-e-Shahadat, 1984, for filing the application for comparison of the signatures and/or thumb impression through expert

High Court set-aide the impugned orders passed by the Courts below, as a consequence, application of the petitioner for conducting comparison of the thumb impression and/or signatures of respondents, was accepted

Constitutional petition was allowed accordingly.

Agreement to sell was attested by two persons but none of them was produced by the respondent to prove the genuineness of the agreement to sell

In terms of Art. 79 of the Qanun-e-Shahadat, 1984 ('the Order 1984') if a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive and subject to the process of the Court and capable of giving evidence

Thus, the respondent in view of Art. 79 of the Order, 1984 was bound to examine two marginal witnesses of the agreement in order to prove the same

In the present case, agreement to sell was not proved at all by the respondents/plaintiffs, as an agreement to sell an immovable property squarely falls within the purview of the provisions of Art. 17(2) of the Order, 1984 and has to be compulsorily attested by the two witnesses and this is sine qua non for the validity of the agreement

High Court set-aside impugned judgments and decrees passed by both the Courts below; consequently, suits instituted by the respondents stood dismissed

Revision filed by successors-in-interest of original owner of the suit-property was allowed, in circumstances.

Stance of predecessor was that attorney being real estate agent assured that he would sell the suit-property at a better rate in presence of principal (owner) but on his betrayal/misusing the general attorney, it was cancelled after three months of its execution, thus, any agreement by the agent/attorney to alleged buyers was not binding on him(owner)

Suit for specific performance by alleged buyers was concurrently decreed

Contention of the respondent (attorney) was that as the power of attorney was coupled with agreement to sell, so it became irrevocable

Validity

Record revealed that regarding said contention, neither any claim was made by either of the respondents (attorney and alleged buyers) in their respective plaints nor they had called in question the validity of the deed of cancellation resulting into cancellation of general power of attorney

Even otherwise, the very agreement-to-sell was not proved, thus, assertion (that the general attorney was irrevocable) was precluded

High Court set-aside impugned judgments and decrees passed by both the Courts below; consequently, suits instituted by the respondents stood dismissed

Revision filed by successors-in-interest of original owner of the suit-property was allowed, in circumstances.

Stance of predecessor was that attorney being real estate agent assured that he would sell the suit-property at a better rate in presence of principal (owner) but on his betrayal/misusing the general attorney it was cancelled after three months of its execution, thus, any agreement by the agent/attorney to alleged buyers was not binding on him (owner)

Suit for specific performance by alleged buyers was concurrently decreed

Validity

Suit for specific performance was instituted by the (attorney) through his own attorney (respondent) at such time when the general power of attorney was already cancelled, so in that eventuality special power of attorney on the basis of which the respondent instituted the suit was no more in field as such suit was not proceedable at all but this important aspect had not been taken into consideration by either of the courts, while decreeing the suit

High Court set-aside impugned judgments and decrees passed by both the Courts below; consequently, suits instituted by the respondents stood dismissed

Revision filed by successors-in-interest of original owner of the suit-property was allowed, in circumstances.

Stance of predecessor was that attorney being real estate agent assured that he would sell the suit-property at a better rate in presence of principal (owner) but on his betrayal/misusing the general attorney it was cancelled after three months of its execution, thus, any agreement by the agent/attorney to buyers (vendees) was not binding on him(owner)

Suit for specific performance by alleged buyers was concurrently decreed

Validity

Though the respondents/plaintiffs (vendees) had produced one of the attesting witnesses of alleged agreement to sell in support of their claim but this would not be sufficient enough to pave way for their claim as with the cancellation of general power of attorney by the original owner (predecessor-in-interest of petitioners),the attorney (respondent) would be left with no right or authority to alienate the suit property in favour of respondents (plaintiffs/buyers)

Plaint of respondents (plaintiffs/buyers) revealed that they entered into alleged sale transaction with respondent (attorney) on the very date when the general power of attorney was cancelled by predecessor-in-interest of the petitioners

Even otherwise, when the respondent/attorney failed to prove the agreement to sell in his favour, respondents (plaintiffs/buyers) would be precluded to claim any right or interest in the suit-property on the basis of any transaction, which was an offshoot of such agreement to sell or the deed of attorney, which was no more in field at the relevant time

High Court set-aside impugned judgments and decrees passed by both the Courts below; consequently, suits instituted by the respondents stood dismissed

Revision filed by successors-in-interest of original owner of the suit-property was allowed, in circumstances.

Section 64 of the Contract Act, 1872, stipulates that the party rescinding a voidable contract shall, if he has received any benefit there under from another party to such contract, restore such benefit, so far as may be, to the person from whom it was received

In view of said provision, the appellant / vendee was entitled to receive back Rs. 1 million that she had paid as advance money, which was to be returned to her with a mark-up of 5% per annum by vendor / respondent

Appeal was disposed of accordingly.

In the present case, the agreement to sell was entered into in the year 2004, which was rescinded within nine months, yet vendee /appellant, in the year 2017( i.e. thirteen years after the agreement to sell was entered into) for the first time showed that she was willing and able to complete the transaction

Even an application accompanying a pay order was produced in Court at the time of the final arguments in the suit, which was an afterthought and her attempt to strengthen the case

No illegality or infirmity was noticed in the impugned judgment

Appeal was dismissed accordingly.

Respondent (vendee) paid earnest money and possession was handed over to him, with the remaining sale consideration to be paid in instalments

Despite full payment, the title was never transferred, constraining the respondents (vendees) to institute a suit for specific performance

The appellants (vendors) contested the suit, claiming that the respondents (vendee) were tenants and that the suit was barred by limitation

Suit was decreed by the Single Judge against which present appeal was instituted

Held: In evidence the respondents (vendees) submitted relevant receipts of payments of sale consideration to the appellants (vendors) and all such receipts were on the letter head of the company being run by appellants (vendors) and were signed by its late proprietor and he was the same person who had signed the agreement to sell

Regarding the signature of the late proprietor/signatory, the respondents (vendees) had got the same examined from the handwriting expert in terms of Art. 84 of Qanun-e-Shahadat, 1984

Said expert deposed positively that the receipts contained signatures of late proprietor who had also signed the agreement to sell

Such receipts were in bulk amount and could not be considered mere payments of rent by respondents (vendees)

Only ground taken by appellants (vendors) to defeat validity of such receipts was that they did not bear any date

Mere non-mention of date on the receipts did not invalidate the same or made them redundant in the eyes of law when otherwise contents thereof were established and the payments made through them were not specifically rebutted or refuted by the appellants (vendors) except the plea that they were made in respect of rent regarding which no evidence was put forth

The benefit of S. 53-A of the Transfer of Property Act, 1882 was also available to the respondents (vendees) as they were put in possession at the time of sale agreement

Single Judge while decreeing the suit took into consideration all pieces of evidence adduced by parties, implication of relevant laws such as Art. 113 of Limitation Act, 1908 and S. 53-A of Transfer of Property Act, 1882 and concluded, duly supported by reasons, in favor of the respondents (vendees) and there was no justification to reverse the same

Appeal being without merit, was dismissed, in circumstances.

Lack of critical explanation by supporting evidence for the purported relationship between the parties, which prompted the applicant not to reduce the agreement into writing

Identical affidavit in evidence

Admissibility

Discrepancies in the statements of prosecution witnesses

Suit and appeal of the applicant were dismissed concurrently

Validity

Only through rigorous and detailed presentation of evidence the court could be persuaded to issue a decree for specific performance based on an oral agreement to sell

Legal threshold for proving an oral agreement was inherently high due to the absence of written documentation, thus necessitating a robust and meticulous evidentiary approach to satisfy judicial scrutiny

Failure to specify essential details, the absence of written evidence of earnest money, and the lack of a credible explanation or supporting evidence for the purported relationship between the parties all cast significant doubt on the validity of the plaintiff's claim

Both marginal witnesses submitted nearly identical affidavits-in-evidence and such uniformity can sometimes call into question the individuality and spontaneity of their testimonies, as overly similar affidavits suggest coordination rather than independent recounting of the events

While consistency is a crucial element in legal testimonies, the absence of distinct details from each witness can significantly impact the perceived authenticity and reliability of their evidence, thus, it was imperative for each witness to provide testimony based on their personal observations and experiences to bolster the overall credibility of the case

Discrepancies in the details provided during cross-examination highlighted significant contradictions in the witnesses' testimonies, undermining the credibility of the plaintiff's claim and raising questions about the reliability of the evidence presented

Civil revision was dismissed, in circumstances.

Applicant, who had filed an application under S. 12(2), C.P.C., died while he had assailed dismissal of his application against ex-parte decree by way of filing revision application before the Appellate/District Court

Petitioner/plaintiff assailed judgment passed by appellate/District Court, which, while setting aside ex-parte decree sent the matter for trial to be contested by the parties including legal heirs of the applicant

Validity

Record revealed that performance was sought by the petitioner/plaintiff in the suit against the person (defendant/respondent), who prima facie was only a partner in the business and not the co-owner of the land/project ('property-in-question'); said defendant might have a dispute with the co-partner within their partnership business related to accounts but could not prima facie be deemed to bean owner of the property-in-question

The preferential right of the parties in relation to the property-in-question, if at all pressed, could only be determined during trial in presence of the legal heirs of respondent (applicant under section 12(2) C.P.C.) and not otherwise

The suit in the shape of a claim of the petitioner being pending would be defended by the parties including the legal heirs of applicant under section 12(2), C.P.C., and fresh evidence in this regard may be recorded by the trial court in the said suit, if so desired

No interference was required in the impugned judgment passed by the Appellate/District Court ordering to send the case for trial while setting-aside ex-parte decree

Constitutional petition was dismissed, in circumstances.

Court of first instance, where suit was pending and sub judice had to be resorted to for redressal of grievance because law had provided a sufficient remedy in the form of filing an application under O.XXXIX, R. 2-C read with S.144 of C.P.C. in case of any violation of the injunctive order passed in favour of a party

Application under Ss.36, 94(c), 151 read with O.XXXIX R.2 and O.XXI, R.101 of C.P.C. was not maintainable before the Appellate Court because R.101 of O.XXI of C.P.C. could not be read in isolation rather the same would be considered and read with preceding R.100

Rules 100 and 101 relate to right of third person, who is in possession of the property, for which a decree is passed and not related to the parties to the suit

In the instant matter the suit was still sub judice before the Trial Court and had not finally been decided, therefore, the proper remedy was before the court of first instance i.e. Civil Court, where the suit inter se the parties was pending

Appellate Court had wrongly exercised jurisdiction vested with Court of first instance while passing the impugned order, which could not be allowed to hold field further

Revision petition was accepted accordingly.

Under S. 22 of the Specific Relief Act, 1877, the grant of decree for specific performance comes within the sole discretionary power of the court which can refuse to grant the relief on the principle of equity even if the suitor has proved the case.

Suit can be refused to be decreed even if the agreement has been proved as it is a discretionary relief and said discretion can be exercised on equitable terms.

One of the appellants (defendants/ladies) while appearing in the witness box consistently denied the alleged fact of entering into purported agreement to sell by them (appellants) with the respondent /plaintiff as well as execution of (exhibited) receipt after receiving of earnest money and in a categorical manner stated that the (exhibited) notice was forged and fictitious

Even said appellant did not show her reluctance for comparison of thumb impressions and signatures, rather she had no objection on sending her signatures and thumb impressions for comparison, however, the respondent, after such a categorical no objection, did not move any application for sending the signatures and thumb impressions of the appellants to the Finger Print Bureau for comparison purposes, which omission went against the respondent and had the same been sent, adverse report would have been received, which would have been against the respondent/plaintiff

Both the Courts below had used pick and choose method while recording its findings especially referring to half suggestion, which otherwise she (appellant/defendant) actually denied e.g. she not only categorically denied backing of the agreement but voluntarily stated that no agreement was executed by her

Impugned judgments and decrees passed by both the Courts below being result of misreading and non-reading of evidence on record, was set-aside and in consequent thereof the suit instituted by the respondent stood dismissed

Appeal was allowed accordingly.

Payment of earnest money of Rs.500,000/- alleged by the respondent/ plaintiff had not been proved , because the appellant /defendant as witness categorically denied the suggestion(s) put by the respondent/plaintiff

Appellant not only denied suggestion that she received Rs.500,000/- as earnest money but also denied (suggestion) that after that (alleged receiving of Rs. 5000,000/) she received Rs.1,000,000/

Respondent /plaintiff himself improved, rather negated the averments made in the plaint in said regard, because the payment of Rs.1,000,000/- subsequently was not pleaded by the respondent

Impugned judgments and decrees, being result of misreading and non-reading of evidence on record, were set-aside and in consequent thereof the suit instituted by the respondent stood dismissed

Appeal was allowed accordingly.

Claim of petitioners in the present suit was based on an agreement of sale purportedly dated 08.07.1996 wherein specific performance was claimed and also annulment of mutation dated 24.01.2001 was solicited

First suit of the petitioners on the same subject and with the same cause of action was instituted on 29.03.2003 which was withdrawn on 25.02.2010 with permission to file a fresh suit

Second suit was instituted again on the same subject in the year 2010 which was withdrawn on 08.05.2014 with permission to file fresh suit, while the third suit out of which the instant petition arose was instituted on 29.05.2014 approximately after more than 17 years from the date of the agreement and 13 years from the date of mutation under challenge

On being confronted that Art. 113 of Limitation Act, 1908, provided for a period of three years to file a suit for specific performance from the date mentioned in the agreement or from the date when the performance was refused and that as per petitioners' own stance, the first suit was instituted on 29.03.2003 when the land had already been sold through mutation dated 24.01.2001 which was indicative of refusal to perform agreement, petitioners submitted that as a matter of fact in terms of oral understanding, the performance of the agreement was to be made after the termination of litigation in respect of the property which explanation did not sound convincing as the petitioners themselves annexed copy of civil revision and also its order-sheet inclusive of order dated 02.03.2005 from where it was evident that revision petition was dismissed on 02.03.2005

Even if the petitioners' stance was considered, yet the suit having been filed on 29.05.2014 after more than nine years, it could not save the petitioners from the repercussion of filing a time-barred suit

Pendency of any litigation otherwise could not be a legally tenable ground for non-filing of suit was unless the filing of suit was claimed to have been stayed by a specific injunctive order of the court which was not the case in the present case

Revision petition being without merits was accordingly dismissed.

Where the allegations in the plaint did not require any roving inquiry to give findings that the suit was barred by limitation and that the plaint on the face of it was based on facts not seriously in dispute was barred by time, then the plaint could be rejected under O. VII, R. 11, C.P.C.

Facts being undisputed in the instant case, the plaint was rightly rejected on the face of it; the suit was filed after 17 years from the alleged accrual of cause of action, though under Art. 113 of the Limitation Act, 1908, the suit could be instituted within three years

No exception could be taken to the orders passed by the courts below in circumstances

Revision petition being without merits was accordingly dismissed.

Petitioner/plaintiff instituted suit for specific performance, however, he failed to deposit remaining consideration in the Court; thereafter he developed his case and adopted the stance that some tenants were having possession of the suit property and the respondent had breached the condition of handing over vacant possession of the suit property

Held, that said stance was never the case of the petitioner/plaintiff when the suit was instituted as in the entire plaint, no such fact was pleaded, of which, he was mindful during his examination, and even deposed to said effect

Order VI, R. 2 of the Civil Procedure Code, 1908, required that the pleadings should contain a statement, in a concise form, of the material facts, on which the concerned party relied for his claim or defence

Allegations, of failure of condition by not retaining possession or renting out the suit property, formed facta probanda, which was a material fact and was required to be pleaded and then proved through evidence

Such material fact when not pleaded could not be deposed in the evidence

Evidence in departure of pleading of such material fact(s) could not be given any weight

No illegality or infirmity had been noticed in the impugned judgments and decrees passed by both the Courts below

Revision was dismissed, in circumstances.

Petitioner/vendor instituted suit for specific performance of agreement to sell while the respondent instituted suit for partition regarding the suit-property; suit filed by the petitioner was dismissed whereas suit filed by the respondent was decreed and he (respondent) was directed to return the earnest money (of Rs.27,00,000/-) to the petitioner

Appeal filed by the petitioner was also dismissed by the Appellate Court

Plea of the petitioner was that time was not of the essence in the agreement contending that in the cases of immoveable properties mere mentioning of the date in an agreement was not sufficient to construe the intention that the time was of essence

Validity

Contents of the agreement-in-question revealed that the parties specifically agreed that the remaining payment of Rs. 3,800,000/- (thirty eight hundred thousand rupees) was required to be made by a final date (cut-date), which was followed by a stipulation that upon failure of the same, the earnest money of Rs. 2,700,000/- (twenty seven hundred thousand rupees) would be forfeited

There was nothing in the agreement-in-question suggesting that when entering into the agreement real intention of the parties was that time should not be an essential clause so that the petitioner could get support from second part of S. 55 of the Contract Act, 1872

Intention of the parties to ensure the performance of obligations within the given time was further evident from the answer of the petitioner in his cross-examination by virtue of which he not only admitted existence of cut-date but also that he was not present on said cut-date

Unmistaken language of the agreement-in-question and close reading of evidence left no doubt that the time, as postulated, was of essence

In the present case, though the suit was filed soon after the final date settled by the parties for payment of remaining consideration but the petitioner instead of depositing the remaining consideration at the time of filing of the suit, admittedly caused a frustrating delay of about three and half years from institution of the suit for depositing of remaining consideration or in making such request to the Trial Court, in regard of which , he made admission while adducing his evidence

Petitioner had even failed to demonstrate his willingness and/or capacity to perform the agreement as per the agreed terms, by failing to deposit remaining consideration or by making the request to the Trial Court after three and half years of institution of the suit

No illegality or infirmity had been noticed in the impugned judgments and decrees passed by both the Courts below

Revision was dismissed, in circumstances.

Under S.22 of the Specific Relief Act, 1877, the grant of decree for specific performance comes within the sole discretionary power of the court which can refuse to grant the relief on the principle of equity even if the person filing the suit has proved the case.

Claim of the plaintiffs was that the predecessor-in-interest of the defendants entered into agreement to sell with regards to the suit-property with them (plaintiffs)

Suit was decreed in favour of the plaintiffs, which judgment was maintained by the Appellate Court

Validity

Both the Courts had failed to exercise vested jurisdiction as per mandate of law, which had resulted in miscarriage of justice as the plaintiffs / respondents were seeking relief under Specific Relief Act and overwhelming as well as unimpeachable evidence was required to prove their stance, but they failed because they did not produce the marginal witnesses of the alleged original agreement to sell and even did not produce any evidence as to when, at what place and in whose presence the bargain with regards to sale of the disputed property took place, which culminated into execution of alleged agreement to sell

In such circumstances, the discretionary relief of specific performance could not be extended to the respondents/plaintiffs

High Court set-aside the impugned judgments and decrees passed by both the Courts below, consequently suit of the respondents/plaintiffs for specific performance stood dismissed

Revision, filed by the defendants, was allowed accordingly.

Claim of the plaintiffs was that the predecessor-in-interest of the defendants entered into agreement to sell with regards to the suit-property with them (plaintiffs)

Suit was decreed in favour of the plaintiffs, which judgment was maintained by the Appellate Court

Validity

Plaintiffs / respondents pleaded that the defendants / petitioners had redeemed the suit property and intended to sale out the same, but while appearing in the witness box, one of the witnesses plaintiffs during cross-examination deposed that he did not know as to when the property was redeemed and further stated that when suit was instituted the property was still mortgaged with the Bank but the plaintiffs did not implead the concerned Bank in the array of the defendants

Document i.e. exhibited agreement to sell had been maneuvered only to deprive the petitioners(defendants) of their valuable rights

Both the Courts below had misread and non-read evidence of the parties and had committed material illegalities and irregularities

High Court set-aside the impugned judgments and decrees passed by both the Courts below, consequently suit of the respondents/plaintiffs for specific performance stood dismissed

Revision, filed by the defendants, was allowed accordingly.

Claim of the plaintiffs was that the predecessor-in-interest of the defendants entered into agreement to sell with regards to the suit-property with them(plaintiffs)

Suit was decreed in favour of the plaintiffs, which judgment was maintained by the Appellate Court

Validity

Respondents/plaintiffs claimed decree for specific performance of (exhibited) agreement to sell but they (plaintiffs), in order to prove the execution of the same (agreement), had failed to produce its marginal witnesses and only produced two (such) persons in their evidence who were (actually) witnesses of alleged statement having been made overleaf (and not of alleged agreement to sell) incorporated/added after about two and half months of (date of) alleged agreement to sell

Thus, original agreement to sell had not been proved as per requirements of law as enunciated under Arts. 17 & 79 of the Qanun-e-Shahada,t1984

Document i.e. exhibited agreement to sell had been maneuvered only to deprive the petitioners (defendants) of their valuable rights

Both the Courts below had misread and non-read evidence of the parties and had committed material illegalities and irregularities

High Court set-aside the impugned judgments and decrees passed by both the Courts below, consequently suit of the respondents/plaintiffs for specific performance stood dismissed

Revision filed by the defendants was allowed accordingly.

Claim of the plaintiffs was that the predecessor-in-interest of the defendants entered into agreement to sell with regards to the suit-property with them (plaintiffs)

Suit was decreed in favour of the plaintiffs, which judgment was maintained by the Appellate Court

Validity

Admittedly, the plaintiffs/respondents did not agitate the matter before any forum or issued any legal notice to the predecessor-in -interest of the defendants / petitioners for performance of his part of alleged agreement in his life time despite the fact that he (predecessor)remained alive for a considerable period of five years after execution of alleged (exhibited) agreement to sell, which cast doubt about the veracity and authenticity of the same

Document i.e. exhibited agreement to sell, had been maneuvered only to deprive the petitioners(defendants) of their valuable rights

Both the Courts below had misread and non-read evidence of the parties and had committed material illegalities and irregularities

High Court set-aside the impugned judgments and decrees passed by both the Courts below, consequently suit of the respondents/plaintiffs for specific performance stood dismissed

Revision, filed by the defendants, was allowed accordingly.

Under Arts. 17 & 79 of Qanun-e- Shahadat 1984, a plaintiff is duty bound to prove the genuineness of the document through cogent, confidence inspiring and independent evidence

Where the law requires an act to be done in a particular manner, it has to be done in that way and not otherwise

Agreement in question was attested by two marginal witnesses; though the petitioner produced only one of them but later failed to produce him for cross examination, therefore, earlier statement/evidence of said marginal witness was of no support to the petitioner and the said statement could not be read against respondent

Although it was apprised to the Trial Court that said witness had died but the petitioner failed to produce the death certificate of said witness till the final decision of the case

Petitioner also failed to produce the second marginal witness

Petitioner while recording his own statement deposed that said (second) witness had died while his counsel got exhibited /produced photo copy of his death certificate but the Courts below did not accept the said photocopy of death certificate as a piece of evidence

Simple oral assertion was not enough to prove the factum of death of both the marginal witnesses of agreement to sell

Article 80 of Qanun-e-Shahadat, 1984, provides the procedure how to prove document when no attesting witness is found

It was obligatory upon the petitioner to prove the fact that his witnesses had died or could not be traced out

Petitioner had a way to prove the factum of death by leading secondary evidence

Best evidence was withheld without showing any justification, thus inference of Art. 129(g) of Qanun-e-Shahadat 1984, had to be drawn against him

Petitioner failed to produce attesting witnesses or to comply with the requirements of Art. 17 & 79 of Qanun-e-Shahadat, 1984

Provisions of Art. 79 of Qanun-e-Shahadat 1984 are mandatory and non- compliance thereof renders agreement as inadmissible in evidence

Petitioner had failed to prove genuineness of a valid agreement to sell in his favour, therefore, the Courts below had rightly concluded and dismissed the suit of the petitioner concurrently

Civil revision ,filed by the plaintiff, was dismissed, in circumstances.

Jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so; however the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal.

person seeking specific performance has to establish that he is enthusiastic and vehement to act upon his obligations as per the contract but the opponent is refusing or denying its execution.

Rational for requiring the vendee to deposit balance sale consideration in Court explained.

Petitioner sought enforcement of an agreement to sell against the defendant, but the intervenor appeared with the stance that, as an owner in joint khewat, he should also be impleaded in the suit

Validity

If petitioner succeeded in obtaining a decree of specific performance, it would not harm the intervenor's ownership rights

Furthermore, there was no legal obstacle to proceeding with the suit without including the intervenor and his presence was not required to resolve the points of contention between the petitioner and the defendant

Intervenor was neither necessary nor proper party to the suit and the application for impleadment was dismissed

Constitutional petition was allowed.

Suit for specific performance instituted by predecessor of the respondents was decreed in his favour, which judgment was maintained by the Appellate Court

Contention of the petitioner/ defendant was that agreement contained a default clause (consequence whereof was cancellation of agreement and forfeiture of earnest money), thus the time was essence of contract; and that the plaintiff (predecessor of the respondents) was neither willing nor had finances to pay balance consideration within agreed time

Validity

Time/date for performance was, admittedly, extended for 5 and 1/4th months from the date of performance earlier agreed upon

Primary case of the petitioner/defendant was that a legal notice was issued by him to the plaintiff (predecessor of the respondents) after two months of extension of time/date of performance, calling for the performance of the conditions of contract but default persisted, however, the said fact, being relevant in the context of the controversy, was not proved by him (petitioner)

Even a copy of the said notice (allegedly sent after two months of extension of time/date of performance) was not produced in evidence, leading to adverse inference

Conversely, case of the respondents' predecessor was that the petitioner was required to perform reciprocal obligations, which performance was delayed, whereupon a legal notice was delivered after more than one year of said extended date (time) and on next date suit was instituted

Reply to the said notice by the petitioner, was brought on record in evidence; and factum of legal notice (having been sent )was admitted in said reply

Extension in the time for performance against part-consideration of Rupees one million was admitted

There was a presumption that time was not always the essence of the contract in agreement relating to the sale of immovable property unless intentions contrary thereto were proved

In the present case, fundamental plea of the petitioner was that legal notice was issued after two months of extension of time/date of performance, to convey intent that non-performance would result in cancellation of the contract and forfeiture of the amounts already paid but factum of the said notice was not proved

Said failure coupled with the factum of extension of time for performance were critical facts which convinced the Courts below to dismiss plea that time was the essence of the contract

Balance consideration was paid during the proceedings before the Trial Court

Absence of willingness and non-availability of funds on the part of plaintiff (predecessor of the respondents) were not proved through convincing evidence by the petitioner/defendant

No illegality or infirmity having been noticed in the concurrent findings of both the Courts below, revision petition was dismissed, in circumstances.

Held, that there was no impartial evidence of any witness of the appellant, sale consideration was not proved and substantial portion of sale consideration was claimed to have been paid in cash, whereas, only meager amount was shown to have been deposited in the accounts of respondents, which in fact was deposited towards part of rent outstanding

In the case in hand, the evidence was unsatisfactory as found by the two Courts below and not convincing

Appeal filed by appellant was allowed setting aside the judgment of appellate court to the extent of mesne profit and possession of rented premises, and appeal filed by respondents was dismissed.

Plaintiff filed a suit for specific performance alleging therein that after payment of partial amount he took over possession of the suit land, however, cause of action accrued to him when the defendant attempted to forcibly take over the possession of the suit land

Defendant filed a suit for cancellation, possession, mesne profits, damages and permanent injunction, admitted execution of agreement, however, claimed that the plaintiff occupied his entire land

Trial Court decreed the suit for specific performance and dismissed the suit filed by defendant

Appellate Court partly allowed the suit filed by defendant while holding the excessive possession of plaintiff to be illegal, directed the defendant to execute registered sale deed in favour of plaintiff and held the plaintiff liable to pay mesne profits

Held; decision of the Appellate Court was based upon sound reasoning and the survey numbers were fraudulently included by the plaintiff which were not under sale

Appeals were dismissed.

Defendant in a suit for specific performance of agreement to sell objected to the execution proceedings on the ground that the suit property had been relocated by the housing society, as such, the Executing Court could not order for the transfer of relocated property to the plaintiff

Held; it was not the case of the defendant that the property did not exist at all or the number of the property (later adjusted with the relocated property) was incorrect

Technicalities of law could not obstruct the way of justice as the rules and procedure are framed to foster the cause of justice and not otherwise

Executing Court had the power to interpret the decree considering the judgment

Constitutional petition was dismissed.