Specific performance of agreement

2024 PLD 92 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

S. 23Constitution of Pakistan, Art. 199(1)(a)(i)Specific performance of agreementWrit of mandamus, issuance ofScope

Brother of the petitioner donated his land to the Education Department for up-gradation of local school for which an agreement was executed with the Education Department/respondents

Petitioner asserted that the consideration of said agreement was the employment of his (brother's) relatives with the respondents

Petitioner invoked constitutional jurisdiction of the High Court contending that he was not appointed by the respondents

Held, that the petitioner filed constitutional petition on the strength of an agreement, as such, the petitioner indeed had sought specific performance of agreement through writ of mandamus

In clause (i) of Art. 199(1)(a) of the Constitution, the word "law" meant sub-constitutional piece of legislation; and the relevant law, in the present case, was S. 23 of the Contract Act, 1872

Agreement-in-question was in violation of S. 23 of the Contract Act, 1872, being against the public policy as every agreement against public policy was void ,and as such, not enforceable

Respondents were not under obligation to perform the agreement under provisions of the S. 23 of the Contract Act, 1872, therefore, they could not be compelled to do an act which they were not required by the law to do

Petitioner was not an aggrieved party within meaning of Art. 199(1)(a)(i) of the Constitution because he had no legal grievance to maintain present constitutional petition

Constitutional petition was dismissed, in circumstances.

2024 PLD 92 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

S. 21(9)Contract Act (IX of 1872, S.23Constitution of Pakistan, Art. 199(1)(a)(i)Specific performance of agreementConstitutional petitionMaintainability

Brother of the petitioner donated his ancestral land to the Education Department for upgrading of school and an agreement was executed with the Education Department and the consideration of the agreement was employment of relatives with the respondents (Education Department)

Petitioner invoked constitutional jurisdiction of the High Court contending that he was not appointed by the respondents despite favourable observations of concerned Complaint Redressal Committee (C.R.C)

Held, that apart from provisions under S. 23 of the Contract Act, 1872, regarding public policy etc., the agreement-in-question could not be specifically enforced/performed under S. 21(9) of the Specific Relief Act, 1877, as in the present case, the agreement appeared to be in perpetuity for all times to come, generation after generation

Such an agreement which had cast a duty of performance for a period longer than three years could not, therefore, specifically be enforced

Section 21 of the Specific Relief Act, 1877, related to specific relief which could not be obtained in a civil suit

When a law for the time being enforced places an embargo on the jurisdiction of Court in certain circumstances as prescribed by S. 21 of the Specific Relief Act, 1877, then such embargo could not be brushed away through invoking the constitutional jurisdiction of the High Court

While exercising jurisdiction under Article 199 (1)(a)(i) of the Constitution, High Court could not direct respondents to do an act that they were not required by law to do (under S. 23 of the Contract Act, 1872 and S. 21 of the Specific Relief Act, 1877)

Observations of the C.R.C. in favour of the petitioner were passed on the basis of donation of land for the school, however, said observations in light of provisions of the law were illegal as such bore no binding effect upon the respondents

Constitutional petition was dismissed, in circumstances.

2024 CLC 1549 KARACHI-HIGH-COURT-SINDH Judicial Precedent

O.XXXIX, Rr. 1 & 2Specific Relief Act (I of 1877), Ss. 12, 21(a) & 56(f)Intra Court AppealSpecific performance of agreementInterim injunction, refusal ofPecuniary compensationAgreement not enforceableEffectAppellant / plaintiff company was awarded contract who failed to complete the project

Respondent / defendant company terminated the contract and did not allow appellant / plaintiff company to remove it's equipment from the site

Judge in Chambers of High Court dismissed applications moved by appellant / plaintiff company and restrained it from interfering with completion of works at the site

Validity

Contract had specified and fixed price payable to appellant / plaintiff company for performing works

Stages of payments to appellant / plaintiff company were pinned to milestones which too were identified in the contract

Standard existed in the contract for ascertaining actual damage caused to appellant / plaintiff company by its non-performance so as to attract S.12(b) of Specific Relief Act, 1877

Appellant / plaintiff company was to design and build a gas processing facility for respondent / defendant

Contract did not award any concession to appellant / plaintiff company so as to raise any issue of operating profits for appellant / plaintiff company

Pecuniary compensation for its non-performance would afford adequate relief so as to attract S.12(c) of Specific Relief Act, 1877

Appellant / plaintiff company did not plead special circumstances to demonstrate otherwise, as a consequence, the contract was hit by S.21(a) of Specific Relief Act, 1877, which stipulated that a contract for non-performance of which compensation in money was an adequate relief, could not be specifically enforced

When subject contract was not specifically enforceable, the relief sought in the suit for incidental injunctions were barred by S. 56(f) of Specific Relief Act, 1877, which stipulated that injunction could not be granted to prevent breach of a contract, the performance of which would not be specifically enforced

Division Bench of High Court declined to interfere in orders passed by Judge in Chambers of High Court

Intra Court Appeal was dismissed, in circumstances.

2022 CLC 1300 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S.12Specific performance of agreementScopeSuch is a discretionary relief under Specific Relief Act, 1877

Even if agreement is proved, Court is not bound to decree the suit in the light of prayer but Court may consider other relevant factors brought before it while deciding fate of the case for specific performance.

2022 CLC 1412 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S.12Arbitration Act (X of 1940), S.35Specific performance of agreementEffect of legal proceedings on arbitrationRemedy to plaintiffScope

When legal proceedings on subject matter of reference to arbitration have commenced, all further proceedings in the reference to arbitration are invalid

Even for assuming that all of factual submission of plaintiff were correct, this would still not entitle plaintiff to a specific performance of contract

Remedy to plaintiff remains of damages.

2022 PLD 346 ISLAMABAD Judicial Precedent

S. 24(b)Civil Procedure Code (V of 1908), O.VII, R. 11(d)Specific performance of agreementOutstanding obligationsEffectRejecting of plaint

In terms of S.24(b) of Specific Relief Act, 1877, it is essential for plaintiff to state unequivocally in plaint that he is in compliance of his obligation under contract he seeks to enforce

Plaintiff to the extent of obligation that remains outstanding, such as payment of balance consideration, is ready, willing and able to discharge the same

Failure of plaintiff to ensure that such representation is included in plaint could invite consequences under O.VII, R.11(d), C.P.C., with Trial Court finding that the suit is barred in view of S.24(b) of Specific Relief Act, 1877.

2022 PLD 346 ISLAMABAD Judicial Precedent

Ss. 12, 22 & 24(b)Civil Procedure Code (V of 1908), O.XV-A & O. XVII, R. 3Specific performance of agreementDiscretion, exercise ofPrincipleAppellant/plaintiff sought specific performance of agreement to sell with regard to suit property

Trial Court dismissed the suit as appellant/plaintiff failed to deposit balance sale consideration as directed by Trial Court

Validity

Discretion was vested under Specific Relief Act, 1877, in Trial Court to determine whether or not a party was entitled to discretionary relief

Failure of appellant/plaintiff to seek to deposit balance consideration with Court upon filing suit, created rebuttable presumption against appellant/ plaintiff regarding his capability and willingness to perform contract at such time

In the event that appellant/plaintiff failed to seek permission to deposit balance consideration at the time of filing suit, a structured and judicious exercise of discretion by Trial Court, in terms of S.22 of the Specific Relief Act, 1877, required that Trial Court order appellant/plaintiff to deposit balance consideration or financial security in lieu thereof, to determine that grant of relief of specific performance was not barred under S.24(b) of Specific Relief Act, 1877, due to incapability of appellant/plaintiff to discharge his obligation under contract specific performance of which was sought

Appellant/plaintiff failed to comply within time fixed without justifiable cause to satisfaction of Trial Court, the Court was vested with authority under O.XV-A, C.P.C. to pass judgment or proceed to decide suit forthwith under O.XVII, R.3, C.P.C. read with S.24(b) of Specific Relief Act, 1877, without need to issue any additional warning to appellant/ plaintiff

Question of extension of time period for deposit of balance consideration did not however apply once Trial Court had issued decree coupled with condition requiring deposit of balance consideration within a certain prescribed period and had held that failing compliance with such condition suit would stand dismissed

Where contract prescribed penal consequences for failure of a contracting party to discharge his obligation within a period prescribed, it would be deemed that it was within the contemplation of parties in relation to sale of immovable property that time was of the essence for performance of obligation under the contract and penal consequences such as forfeiture of any earnest money paid by defaulting party would be given effect by Court if clearly provided in contract, performance of which was being sought

Appellant/plaintiff failed to abide by Court's direction, which established that he was not only in breach of his own obligations under the agreement but also exhibited his inability and lack of intent to discharge his obligations under the agreement

High Court declined to interfere in the judgment and decree passed by Trial Court

Appeal was dismissed in circumstances.

2017 CLC 70 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 13Specific Relief Act (I of 1877), S.12Specific performance of agreementParty to agreement was required to bring on record evidence to connect two pages of document exhibited with each otherFailure of party to connect the pagesEffect

Such deficiency did not establish "consensus ad idem" and on basis of such type of document which was non-compliant of said principle of law, a decree for specific performance could not be issued.

2016 YLRN 203 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S.12Specific performance of agreementPrinciple

In case of breach of alleged agreement to sell, only a suit for specific performance is competent and a suit in any other form is incompetent.