-No number was mentioned on back side of stamp paper- purpose of selling of his land nor put any signatures on back side of stamp paper-

 PLJ 2021 Lahore 116

Specific Relief Act, 1877 (I of 1877)--

----Ss. 12 & 21(a)--Civil Procedure Code, (V of 1908), S. 100--Suit for specific performance--Dismissed--Appeal--Allowed--Agreement to sell--Denial of execution of agreement--No number was mentioned on back side of stamp paper--Non producing of stamp vendor in evidence--Duty of plaintiff--Discretionary powers of Court--There is no number of stamp paper written on back side of stamp paper it means that stamp paper was neither obtained by appellant/defendant for purpose of selling of his land nor put any signatures on back side of stamp paper--Furthermore, stamp vendor has not produced by respondent/ plaintiff--If a contract agreement contains stipulation of adequate compensation, in case of non-performance whereof, performance of same can be refused by Court--Respondent/plaintiff himself while appearing as PW-2 failed to prove his possession over suit property as well as execution of alleged agreement to sell--When appellant/defendant while filing written statement denied execution of alleged agreement to sell it was duty of respondent/plaintiff to produce trustworthy affirmative evidence to prove valid execution of agreement well as payment of consideration amount but he failed to prove agreement as well as possession through evidence--Grant of decree for specific performance comes within discretionary power of Court which can even refuse to grant relief on basis of equities despite suitor has proved case--Respondent failed to prove agreement to sell (Exh.P-1) as he has not produced stamp vendor--Agreement to sell is barred under Section 21(a) of Specific Relief Act and is not enforceable under law, as such, impugned judgment & decree passed by appellate Court is based on mis-reading and non-reading of evidence as mentioned above, as such finding of appellate Court on Issue No. 1 is hereby reversed--Appeal was allowed.

                                                      [Pp. 119, 120 & 121] A, B, C, D & E

PLD 2004 SC 860, 2019 SCMR 524 & 2010 SCMR 1630 ref.

M/s. Fateh Khan Niazi, Malik Matee Ullah & Syed Wajid Ali, Advocates for Appellants.

M/s. Muhammad Mushtaq Ahmad Dhoon & Mian Muhammad Ismail Thaheem, Advocates for Respondent.

Dates of hearing: 25/26.06.2019.

 PLJ 2021 Lahore 116
Present: Ch. Muhammad Iqbal, J.
INTIZAR SHAH etc.--Appellants
versus
ALAM SHAIR--Respondent
R.S.A. No. 86 of 2016, heard on 26.6.2019.

Judgment

Through this RSA, the appellant has challenged the validity of judgment & decree dated 23.01.2016 passed by the learned Addl. District Judge, Piplan District Mianwali whereby appeal of the respondent was accepted while setting aside the judgment & decree dated 10.09.2014 passed by the learned Civil Judge, Piplan and decreed the suit for specific performance of agreement to sell along with declaration filed by the respondent.

2. Brief facts of the case are that the respondent/plaintiff filed a suit for specific performance of agreement to sell dated 4.11.2010 alongwith declaration alleging therein that defendants No. 1, 4 to 10 were allottees of the suit property. Defendant No. 1 agreed to sell the property measuring 18-Kanals 09-Marlas to the plaintiff against consideration of Rs. 5,80,000/- through written agreement to sell dated 04.11.2010. Respondent/plaintiff paid Rs. 5,00,000/- in the presence of the witnesses and it was settled between the parties that after two months the mutation would be attested after payment of remaining consideration. Defendant No. 1 got proprietary rights through Mutation No. 477 dated 31.01.2011 from the Provincial Government and on the same day transferred the property to defendants No. 2 & 3 through Mutation No. 478 dated 31.01.2011. Respondent/plaintiff is in possession of the suit property and Mutation No. 478 was also incorporated in the revenue record which is illegal. The appellants /defendants filed contesting written statement. The learned trial Court framed issues, recorded pro and contra evidence of both the parties and vide judgment & decree dated 10.09.2014 dismissed the suit of the respondent/plaintiff. Respondent/plaintiff filed appeal which was accepted by the learned appellate Court while setting aside judgment & decree dated 10.9.2014 of the learned trial Court and decreed the suit of the respondent/plaintiff as prayed for vide judgment & decree dated 23.1.2016. Hence, this appeal.

3. Learned counsel for the appellants submits that the impugned judgment & decree of the learned appellate Court is patently illegal, against the law and facts of the case, based on misreading and non-reading of evidence; that the appellants denied the execution of alleged agreement to sell dated 04.11.2010 as well as possession and the respondent/plaintiff failed to prove the execution of agreement to sell through any concrete and solid evidence; that Exh.P-2 is agreement to sell and no detail of property in dispute is mentioned which is based on fraud, as such, judgment & decree of the learned appellate Court is liable to be set aside.

4. Learned counsel for the respondent contends that the respondent proved his case through evidence, as such, judgment & decree was rightly passed by the learned appellate Court which do not require for any interference.

5. Heard.

6. Issue No. 1 is a pivotal issue in this case which is reproduced as under:

“7. Whether plaintiff is entitled for decree of specific performance and cancellation of Mutation No. 478 as prayed for? OPP”

In order to prove the above issue plaintiff produced Zahid Mahmood Chattha (deed writer) PW-1 who stated that on 04.11.2010 he wrote agreement Exh.P-1 and signed the same as Exh.P-1/1. In cross-examination he admitted as under:

درست ہے کہ مبینہ اقرار نامہ معاہدہ بیع Ex.P1 میں رقم 1000000 روپے جو کے ہندسوں میں درج ہے کی لکھائی دوسری لکھائی سے مختلف ہے ۔۔۔۔۔ درست ہے کہ Pointer Ex.P1 سے تحریر شدہ ہے بال پوائنٹ سے تحریر شدہ نہ ہے ۔۔۔۔ درست ہے کہ Ex.P1 کے جاری کرنے کا نمبر درج نہ ہے ۔۔۔۔ درست ہے کہ مذکورہ گواہ امجد جٹ کا کوئی ذکر Ex.P1 میں نہ ہے ۔۔۔۔ درست ہے کہ Ex.P2 پر اکبر گواہ کے نام کے نیچے خان محمد گواہ کے دستخط موجود ہیں ۔۔۔۔۔ درست ہے کہ میرے خلاف مقدمہ نمبر 19/12 تھانہ پیپلاں بجرم 420، 468، 471، پی پی سی درج شدہ ہے جو کہ دو مختلف جاری اسٹام کی بابت ہے ۔۔۔۔۔ میرے سامنے رقم کی ادائیگی نہ ہوئی تھی۔

Alam Sher (PW-2) states that on 04.11.2010 defendant sell out the suit property measuring 18-Kanals, 9-Marlas against consideration of
Rs. 5,80,000/- in the presence of Khan Muhammad and Akbar, at that time, he paid Rs. 5,00,000/- in the presence of the witnesses. In cross-examination he deposed as under:

مجھے علم نہ ہے کہ میں نے دعویٰ میں سودے ہونے کی جگہ درج کرائی ہے یا نہیں ۔۔۔۔۔ مجھے یاد نہ ہے کہ کس روز Ex.P1 اور Ex.P2 تحریر ہوئے ۔۔۔۔۔ درست ہے کہ میں نے اپنے عرضی دعویٰ میں منجانب انتظار شاہ بحق میرے اندراج انتقال کا کوئی ذکر نہ ہے ۔۔۔۔۔ درست ہے کہ انتظار شاہ اس بات کو تسلیم کرتا ہے کہ اس نے ملکیتی اراضی/اراضی متدعویہ محمد عظیم خان وغیرہ کو بیع قطعی کردی ہے۔

Khan Muhammad PW-3 reiterates the same story and in cross-examination he stated that Ghulam Muhammad witness is his real brother; further deposed as under:

درست ہے کہ میں اپنے جتنے بھی جملہ دستخط کرتا ہوں خان محمد بقلم خود تحریر کرتا ہوں ۔۔۔۔ درست ہے کہ وثیقہ نویس محمد حنیف  ہر نولی شہر میں بیٹھتا ہے۔

Akbar and Ghulam Muhammad appeared as PW-4 & PW-5 respectively and reiterated the same facts as mentioned in the plaint.

7. Admittedly, there is no number of stamp paper written on the back side of the stamp paper it means that stamp paper was neither obtained by the appellant /defendant for the purpose of selling of his land nor put any signatures on the back side of the stamp paper. Furthermore, stamp vendor has not produced by the respondent/ plaintiff. In the alleged agreement to sell (Exh.P-1) it is written as under:

فریق اول اگر اس معاہدہ سے منحرف ہوا تو بطور ہرجانہ و جرمانہ مبلغ دس لاکھ 10,00,000/-  روپے ادا کرنے ہونگے جسکے خلاف کوئی عذر یا قانونی چارہ گوئی کا مجاز نہ ہو گا۔ اگر فریق دوئم معاہدہ ہذا سے منحرف ہوا تو بیانہ کی رقم مبلغ  5,00,000/-  لاکھ روپے ضبط تصور کی جائے گی۔

According to Clause (a) of the Section 21 of the Specific Relief Act, if a contract agreement contains the stipulation of adequate compensation, in case of non-performance whereof, the performance of the same can be refused by the Court. For ready reference, Section 21 (a) is reproduced as under:-

“21 Contracts not specifically enforceable. The following contracts cannot be specifically enforced:--

(a)      a contract for the non-performance of which compensation in money is an adequate relief.

It is established on record that in the agreement to sell (Exh. P-1) a clear term is written that in case of non-performance of the contract, the first party/respondent would pay compensation of Rs. 10,00,000/- is an adequate compensation and in case the second party refused
the agreement then the paid advance consideration amount of
Rs. 5,00,000/- would be forfeited. Respondent/plaintiff himself while appearing as PW-2 failed to prove his possession over the suit property as well as execution of the alleged agreement to sell. When the appellant/defendant while filing the written statement denied the execution of alleged agreement to sell it was the duty of the respondent/plaintiff to produce trustworthy affirmative evidence to prove the valid execution of the agreement as well as the payment of consideration amount but he failed to prove the agreement as well as the possession through evidence. The Hon’ble Supreme Court of Pakistan in a case titled as Bolan Beverages (Pvt.) Limited vs. Pepsi Co.Inc. & 4 Others (PLD 2004 SC 860) held as under:

“21 .... There is no cavil with the proposition that money reliefs, like claim of compensation and damages are brought about by the plaintiffs mostly to avoid the mischief of Order II, rule 2 of the C.P.C. yet the calculation of such amount and the claim thereof would automatically give an impression that such loss or, damage is reparable in terms of money. We agree with the learned counsel and believe that, in the circumstances of the present case, the loss cannot be irreparable in case the decree for, compensation and damages etc. As claimed by the plaintiff is ultimately granted.”

Even otherwise, the grant of decree for specific performance comes within the discretionary power of the Court which can even refuse to grant the relief on the basis of equities despite the suitor has proved the case, as settled by the Hon’ble Supreme Court of Pakistan in its latest judgment titled as Sheikh Akhtar Aziz vs. Mst. Shabnam Begum & Others (2019 SCMR 524) held as under:

“13 ….. Where the requisites of a contract are found to be deficient, the plaintiff cannot seek specific performance of a contract. Even otherwise, the decree for specific performance is a discretionary relief which can be refused in case the Court is not satisfied either on the merits or on equities of the case.

16. Finally, there is no cavil with the proposition that relief of specific performance is discretionary in nature and despite proof of an agreement to sell, exercise of discretion can be withheld if the Court considers that grant of such relief would be unfair and inequitable.”

So far as the arguments of the learned counsel for the respondent that the appellants in cross-examination admitted the stance taken by the respondent suffice it to say that admittedly appellant No. 1 alienated the suit property to appellant No. 2 to 10 but party approaching Court for grant of relief would have to discharge the burden of proving his asserted stance in pleading and has to stand on his own legs and could not avail benefit of any weakness in case of opposite party. Reliance is placed on the case titled as Sultan Muhammad & another vs. Muhammad Qasim & others (2010 SCMR 1630).

8. In view of above detail discussion, the respondent failed to prove the agreement to sell (Exh.P-1) as he has not produced stamp vendor. The agreement to sell is barred under Section 21(a) of the Specific Relief Act and is not enforceable under the law, as such, impugned judgment & decree passed by learned appellate Court is based on mis-reading and non-reading of evidence as mentioned above, as such finding of the learned appellate Court on Issue No. 1 is hereby reversed. The instant RSA is allowed and judgment & decree dated 23.01.2016 passed by the learned Addl. District Judge, Piplan District Mianwali is set aside and judgment & decree dated 10.09.2014 passed by the learned Civil Judge, Piplan is upheld. No order as to costs.

(Y.A.)  Appeal allowed