اگر مدعا علیہ/بائع اقرار نامہ سے ھی انکاری ھو یا اقرار نامہ کو جعلی قرار دے تو اس صورت میں مدعی/مشتری کو بقیہ زر بیع جمع کرانے کا حکم نہ دیا جاسکتا ھے۔

 دعوی تکمیل معاہدہ میں اگر مدعا علیہ/بائع اقرار نامہ تحریر کیا جانا تسلیم کرے تو اس صورت میں عدالت مدعی/مشتری کو بقیہ زر بیع جمع کرانے کا حکم دے گی۔

اگر مدعا علیہ/بائع اقرار نامہ سے ھی انکاری ھو یا اقرار نامہ کو جعلی قرار دے تو اس صورت میں مدعی/مشتری کو بقیہ زر بیع جمع کرانے کا حکم نہ دیا جاسکتا ھے۔

In suit for specific performance of agreement to sell, keeping in view the dicta laid down in "Messrs Kuwait National Real Estate Company (Pvt) Ltd and others vs. Messrs Educational Excellence Ltd. And another" (2020 SCMR 171) the plaintiff/vendee was directed to deposit balance sale consideration in the Court. In the case (supra), it has been observed that party seeking specific performance of agreement to sell is required to deposit balance sale consideration in the Court so as to prove readiness & willingness at its part, but this Court having minutely gone through cited esteemed judgment humbly focused that the Hon'ble Supreme Court held so because subject matter involving that lis was not the immovable property, whereas vendor therein straightaway admitted the transaction as well as execution of sale agreement, besides to propose that if remaining sale price would be paid, then suit might be decreed. After having such fair attitude on the part of vendor, the apex Court required the vendee to make good the balance sale consideration. Thus, the rule so laid down might be for the cases where execution of contract was admitted and in its due compliance the vendor consented to transfer subject property as well. The said canon cannot be applied where the transaction as well as execution of document entailing terms/conditions of alleged deal is questioned from its inception. In the current case subject property is immovable one, possession of which never delivered to the plaintiff and the vendor also specifically asserted sale agreement to be fabricated, deceptive & concocted one, besides has already created third party?s charge by transferring title & possession of subject area to him. The alleged agreement to sell is bilateral document and its genuineness or otherwise as well as ascertainment who is at fault to perform his part besides to search readiness & willingness of either party is, indeed, a fact, which could only be determined after collecting evidence. The three honorable Judges of the august Supreme Court while deciding a lis qua specific performance of contract in case reported as Maksud Ali and others vs Eskandar Ali (PLD 1964 SC 381) held that though invariable for the vendee to expressly plead his readiness & willingness in the plaint, but omission thereto would not be enough to non-suit him. The apex Court, indeed, focused in said judgment that sine qua non for the vendee to prove his readiness from the date of contract to that of hearing. The relevant part of this judgment being advantageous is reproduced as under:- The petitioner not only still to prove his case, but also to rebut stance of his vendor, besides to shatter the claim of the third party. For these reasons, deposit of the balance amount, in fact, will not be in aid of justice to either promote the case of the plaintiff or even beneficial to the other party, who till this time is disputing the settlement of sale, thus there will be no fun to force the vendee in this behalf.

Writ 56759/20
Muhammad Jahanzaib Khan Vs Muhammad Rafique Khan etc
18-02-2021
2021 LHC 630