PLJ 2023 Islamabad 229
Present: Arbab Muhammad Tahir, J.
Mirza SHAKEEL AHMED and others--Appellants
versus
ATIF TANVEER BHATTI and another--Respondents
R.F.A. No. 14 of 2016, decided on 12.1.2023.
Specific Relief Act, 1877 (I of 1877)--
----Ss. 12 & 35--Suit for specific performance--Decreed--Sale agreement--Earnest money was paid—Execution, terms and conditions of agreement are admitted in written statement filed by Appellant No. 2--Bona fide intention of Respondent No. 1--Remaining sale consideration was deposited in trial Court--Extension of time for performance of sale agreement with mutual consent--Appellant No. 2 was unable to get suit house vacated within time period as per sale agreement--Challenge to--Question of whether or not Respondent No. 1 paid sale consideration within time period specified in sale agreement--Execution of sale agreement and terms and conditions thereof arc admitted in written statement filed by Appellant No. 2--No other specific defence has been set forth in written statement alleging therein that Respondent No. 1 was not ready and willing to perform his part of agreement or that he lacked capability to do so--It is well settled proposition of law that a fact which has been admitted needs no proof--It is an admitted fact that Appellant No. 2 did not issue any notice to Respondent No. 1 requiring latter to come up with remaining sale consideration in order to complete sale transaction--It was Respondent No. 1, who in order to demonstrate his bona fide intension and goodwill sent intimation letter No. 2 to Appellant
No. 2 requesting latter to transfer suit house in his name--Respondent No. 1 also intimated Appellant No. 2 that he arranged entire sale consideration which could be received--Appellant No. 2 could not get suit house vacated within time period mentioned in sale agreement--Appellant No. 2 despite availing extensions qua performance of sale agreement for almost three consecutive months, failed to perform her part of obligation under sale agreement by not getting suit house vacated from tenant and transferring same in name of Respondent No. 1--Thus, it could safely be said that Respondent No. 1 was vigilant enough about his obligation under sale agreement--Appellant No. 2 was unable to
get suit house vacated within time period mentioned in sale agreement--Respondent No. 1 was capable to perform essential term of contract and by demonstrating his ability and willingness to pay remaining sale consideration two days prior to expiry of 90 day period as well as depositing remaining sale consideration in Court--Appeal dismissed.
[Pp. 234, 237, 238, 239, 240 & 242] A, B, C, D, E, F & J
Specific Relief Act, 1877 (I of 1877)--
----S. 12--Performance of contract--Discretionary remedy--A suit for specific performance of contract is aimed at for a discretionary remedy and relief of specific performance, being discretionary in nature, conduct of plaintiff, is of paramount importance--The plaintiff who is seeking performance of a contract in such a suit for specific performance ought to demonstrate his ability, readiness and willingness to effect that he is ready to perform his part of contractual obligation throughout entire proceedings and until passing of decree--Discretion of Court is not arbitrary but sound and reasonable as well as guided by judicial principles and capable of correction by a Court of appeal. [Pp. 240 & 241] G & H
Specific Relief Act, 1877 (I of 1877)--
----S. 24(b)--Enforcement of contract--A specific-performance of a contract cannot be enforced in favour of a person, who remains incapable of performing his obligation and who violates any of terms Lie agreement, which remains to be performed by him.
[P. 242] I
M/s. Mujeeb-ur-Rehman Warraich and Muhammad Abdul Wali Irfan, Advocates for Appellants.
Mr. Wajid Hussain Mughal, Advocate for Respondent No. 1.
Mr. Hasnain Haider Thaheem, Advocate for Respondent
No. 2/CDA.
Dates of Hearing: 13.04.2022, 18.05.2022 and 25.11.2022
Judgment
This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as “C.P.C.”) is directed against judgment and decree dated 19.11.2015, passed by the learned Civil Judge-West, Islamabad through which, the learned Civil Court decreed the suit (i.e. Civil Suit No. 1641/2010) for specific performance and permanent injunction which was instituted by Atif Tanveer Bhatti (Respondent No. 1) in terms that Appellants No. 1, 3 and 4 were directed to appear before the Capital Development Authority (Respondent No. 2) for transfer of the suit house in the name of Respondent No. 1 and Respondent No. 2 was further directed to transfer the suit house after fulfillment of all legal/codal formalities.
2. The necessary facts forming background of the present appeal are that House No. 4, 7l1 Avenue, Sector F-6/1, Islamabad (hereinafter referred to as “the suit house’) was owned by Appellant No. 1 (Nasira Parvecn Sharif) (late), who entered into an agreement to sell dated 20.06.2002 (hereinafter referred to as “the sale agreement”) thereby selling the suit house to Respondent No. 1 in return of a total sale consideration amounting to Rs. 70,60,000/-; that Respondent No. 1 paid an amount of Rs. 1 million to appellant, No. 2 in the shape of cash amounting to Rs. 250,000/- and an amount 7,50,000/- through pay order dated 20.06.2002 drawn on ABN AMBRO Bank, Islamabad Brach; that in terms of the said agreement, the suit house was to be transferred in the name of Respondent No. 1 within a period of ninety days from the date of the execution of the said agreement subject to the payment of the remaining sale consideration by Respondent No. 1; that Appellants No. 1, 3 and 4 were under legal obligation to clear all the dues, utilities bills, taxes till transfer of the suit house in Respondent No. 1’s name; that the suit house was in possession of a tenant, which was to be vacated in terms of the sale agreement; that since the suit house could not be vacated, the said sale agreement was extended twice for a period of one month each; and that the non-performance of the said agreement caused Respondent No. 1 to institute the above-mentioned suit, which stood decreed in his favour, hence, the present appeal.
3. Learned counsel appearing on behalf of the appellants contended that the findings arrived at by the learned trial Court are erroneous in nature; that while decreeing Respondent No. 1’s suit, the learned trial Court has erred by not considering the fact that in the year 2015 the value of the suit house was increased substantially as against its value which was in the year 2002; that the learned trial Court has disregarded the vested rights of the appellants; that Respondent No. 1 had categorically admitted in the plaint that there was a pre-requisite as to the finalization of the sale transaction; that Respondent No. 1 did not honour his commitment in terms of the sale agreement; that the sale agreement executed between the predecessor of the appellants and Respondent No. 1 was contingent upon fulfillment of certain conditions enumerated in the sale agreement; that Respondent No. 1 failed to perform his part of obligation; that since the terms and conditions set forth in the said agreement were not complied with by Respondent No. 1, thus the performance of the said agreement could not have been sought by Respondent No. 1; that no agreement to sell which created vested rights in Respondent No. 1’s favour was finalized; that all these aspects of the matter escaped Notice of the leaned trial Court; that the learned trial Court brushed aside the “appellants” stance while decreeing Respondent No. 1’s suit; that the impugned judgment and decree arc the result of mis-reading and non-reading of the evidence/record available before the learned Court below, concluded the learned counsel for the appellants. Learned counsel has prayed for the,present appeal to be allowed and in consequence thereof the setting aside of the impugned judgment and decree was sought. While concluding the arguments, learned counsel relied upon the cases reported as 2017 SCMR 2022, 2021 MLD 15 (Islamabad), 2021 SCMR 686 and 2021 MLD 15 (Islamabad).
4. Conversely, learned counsel appearing on behalf of Respondent No. 1 has opposed the contentions advanced by the learned counsel for the appellants by contending that the agreement to sell in question did exist in Respondent No. 1’s favour; that it was the predecessor of the appellants who failed to perform her obligations towards performance of the sale agreement; that Appellant No. 1 while appearing as DW-1 did not utter a single word as to the fact that Respondent No. 1 was not in a position or was unwilling to perform his part of contract during the cross-examination; that the said DW has categorically admitted that the delay in transferring the suit house was caused due to the non-vacation of the suit house by the tenant; that it is well settled principle of law that the parties are under an obligation to abide by their pleadings; that the appellants have failed to perform their part of obligation in terms of the sale agreement; that the conduct of Respondent No. 1 prior to the execution of the said agreement and till its finalization and even till instituting of the suit remained unchanged; that the Court is under legal obligation to see as to which party was under a default and escalation in the price during the litigation cannot be considered as refusal to give effect to the legally executed sale agreement; that the learned Court below applied its judicial mind by appreciating the evidence in its true perspective; that the impugned judgment is well-reasoned and thus, docs not call for interference by this Court; that the learned Court below committed no illegality while decreeing Respondent No. 1’s suit. Learned counsel for Respondent No. 1 prayed for the dismissal of the present appeal. While concluding his arguments, he placed his reliance upon the judgments reported as PLD 1964 Dhaka 202, 1994 SCMR 1858, 1988 SCMR 1696, 2000 SCMR 1845, 2001 SCMR 1992, 2006 SCMR 562, 2014 SCMR 1621, 2015 SCMR 21, 2016 SCMR 1248, PLD 2016 SC 730, PLD 2012 Sindh 92 and 2017 YLR 794.
5. Heard the contentions advanced at the bar and perused the record with the able assistance of the learned counsel for the parties.
6. Perusal of the record would transpire that on 7.7.2003, a suit for specific performance and permanent injunction was instituted by Respondent No. 1 praying inter alia for a direction to be issued to the defendants/appellants to do all the acts necessary for the transfer of the suit house in the name of the former including delivery of possession of the suit house to him after receiving the balance sale consideration from him. The said suit was contested by Appellant No. 2 (who passed away during pendency of the suit) as well Respondent No. 2/C.D.A. by way of filing their separate written statement. In the written statement, Appellant No. 2 took the position that Respondent No. 1 did not perform his part of obligation under the agreement to sell. Furthermore, she took a stance that Respondent No. 1 had failed to pay the balance amount of sale consideration in terms of the agreement to sell. The execution of the sale agreement as well as the receipt of the down payment/earnest money has candidly been admitted in the written statement. The divergence in the pleadings of the parties was summed up by the leaned trial Court on 20.03.2015 by framing the following issues:-
1. Whether the plaintiff is entitled to get decree for specific performance of agreement to sell dated 20.06.2002 and permanent injunction as prayed for? OPP
2. Whether the suit of plaintiff is time barred? OPD-1
3. Whether the plaintiff has no cause of action to file the instant suit and suit is liable to be dismissed under Order VII Rule 11, C.P.C..? OPD-1
4. Whether the instant suit is not maintainable? OPD-1
5. Whether instant suit is false, frivolous and vexatious, therefore, defendant is entitled for special cost u/s 35-A CPC? OPD-1
6. Whether the instant suit is barred u/s 49-E of CDA Ordinance, OPD-2
6A Whether the plaintiff has no subsisting right in his favour to file the suit? OPD (IB & 1C)
6B Whether the sale agreement dated 20.06.2002 stood cancelled? OPD (IB & 1C)
7. Relief.
7. Before proceeding to examine the pleas urged by the learned counsel for the appellant, it is expedient to state that the execution of the sale agreement and the terms and conditions thereof are admitted in the written statement filed by Appellant No. 2. Besides this, no other specific defence has been set forth in the written statement alleging therein that Respondent No. 1 was not ready and willing to perform his part of the agreement or that he lacked the capability to do so. It is well settled proposition of law that a fact which has been admitted, needs no proof, especially when such admission has been made in the written statement. Reliance in this regard may be placed upon the judgment reported as PLD 1975 SC 242. Furthermore, it is also well settled that no litigant can be allowed to built and/or to .prove his. case beyond the scope of his pleadings. Therefore, the only plea that remained to be determined by this Court is whether or not Respondent No. 1 paid the sale consideration within the time period specified in the sale agreement.
8. A careful scrutiny of the record reflects that on 20.06.2002, a sale agreement was executed by and between Mrs. Nasira Parveen Sharif Ahmed (Appellant No. 2) (late) (i.e. predecessor in interest of the appellants) and Atif Tanveer Bhatti (Respondent No. 1), whereby the former, being owner of House No. 04, 07th Avenue, Sector F-6/1 Islamabad, measuring (40x110) 488 square yards (i.e. the suit house), agreed to sell the same in return of a total sale consideration amounting to Rs. 70,60,000/- (Rupees seven million and sixty thousand only), which was indeed an irrevocable price. On the very same day i.e. 20.06.2002, Appellant No. 2 received an amount of Rs. 10,00,000/- (one million) from Respondent No. 1 as down payment/earnest money in the following manner:-
a. Rs. 1,00,000/- (Rupees one hundred thousand only) case vide receipt dated 18.06.2002;
b. Rs. 7,50,000/- (Rupees seven hundred and fifty thousand only) vide pay order No. POI 036846 dated 20.06.2002 drawn on ABN AMRO Bank, Islamabad; and
c. Rs.1,50,000 (Rupees one hundred and fifty thousand only) cash on the date of the execution of the said agreement i.e. 20.06.2002.
9. It was further agreed by the parties that the remaining sale consideration i.e. Rs. 60,60,000/- (Rupees six million and sixty thousand) was to be paid after ninety days post execution of the said agreement i.e. on or before 20.09.2002. It is pertinent to mention that at the time of the execution of the said sale agreement, the suit house was in possession of a tenant and it was further agreed upon by the parties that the vendor i.e. Appellant No. 2 will get vacate the suit house within a period of ninety days and upon its vacation, will serve a notice of vacation onto Respondent No. 1, who was then obliged to pay the remaining sale consideration within a period of ten days from the date of the receipt of vacation notice. For case of reference, Clauses 03 and 04 of the said sale agreement are reproduced herein below, which read thus:-
“3. That the final amount of Rs-60,60,000/- (Rupees six million and sixty thousand only) will be paid after ninety days of singing this sale agreement.
4. That the first party will get the possession of the house within the above-mentioned time period and will serve a notice of vacancy to the second party which will then pay the remaining amount in 10 days from the date of notification”
(Emphasis supplied)
10. It was further reciprocally agreed upon by the parties that in case Appellant No. 2 (i.e. the seller) fails to transfer the suit house in the name of Respondent No. 1 (i.e. the purchaser) or his nominee or further fails to deliver possession of the suit house to Respondent No. 1 within the stipulated time period, then the former was to return the double amount of the earnest money /down payment to the latter and vice versa if Respondent No. 1 was to fail in payment of the remaining sale consideration within the time frame stipulated in the sale agreement, then the amount (i.e. the earnest money/down payment) already paid by Respondent No. 1 (purchaser) was to be forfeited by Appellant No. 2. It was further agreed upon between the parties that the suit house was to be handed over to Respondent No. 1 after getting it emancipated from all sorts of encumbrances. For the sake of reference, Clauses 06, 10, 11, 12 and 13 of the sale agreement are reproduced as under:-
“06. That time is the essence of this agreement and incase the first party fails to transfer the house in the name of the second party or his nominee or in obtaining possession in the specified period it will pay double the amount he has received. Reciprocally, if the second party fails to pay the remaining amount in the given time period then the first party will forfeit the amount paid by him as down payment.
10. That he first party assures the second party that they have not obtained any loan from any bank or financing institution private or government against the same property and will bear full responsibility in case.
11. That the first party will handover the house in good and acceptable condition with all fixtures to the second party.
12. That the first party is responsible to transfer the house and assures that it is free from all sorts of encumbrances.
13. That the first party after receiving full and final amount of the total sale consideration will transfer the house in the name of the second party or his nominee without hesitation. “
(Emphasis supplied)
11. It is an undisputed fact that the sale agreement was executed between Appellant No. 2 and Respondent No. 1 coupled with the fact as to the receipt of one million as earnest money by the former. As mentioned above, the suit house was .rented out and it was specifically mentioned in the sale agreement that Appellant No. 2 will get possession of the suit house within a period of ninety days from the date of the execution of the sale agreement and as such will serve a notice of vacation upon Respondent No. 1 intimating the latter as to the fact of the suit house’s vacation. Upon receipt of such a vacation notice, Respondent No. 1 was required to pay the remaining sale consideration within a period of 10 days post receipt of such a notice failing which the amount already paid by him, was to be forfeited.
12. Indeed, in order to effectuate the sale agreement, time was of the essence. The time within which the suit house was to be vacated by the appellants was to come to an end on 20.09.2002. It is an admitted fact that Appellant No. 2 did not issue any notice to Respondent No. 1 requiring the latter to come up with the remaining sale consideration in order to complete the sale transaction. The appellants also did not resort to Section 35 of the Specific Relief Act, 1977 (hereinafter referred to as “the Act”) even after the institution of the suit for specific performance by Respondent No. 1. But in effect, it was Respondent No. 1, who in order to demonstrate his bona bona fide intension and goodwill sent intimation letter No. 2 (Exh.P-5) on 18.09.2002 to Appellant No. 2 requesting the latter to transfer the suit house in his name. Furthermore, Respondent No. 1 also intimated Appellant No. 2 that he arranged the entire sale consideration which could be received. In order to see Respondent No. 1’s bona fide intention, it would be apposite to reproduce the said intimation letter in its entirety, which reads as follows:
“(Intimation Letter No. 2)
“Mrs. Nasira Parveen Sharif Ahmed”
Subject: Intimation for Transfer of House No: 4, 71th Avenue, F-6/1, Islamabad Dear Madam!
Respectfully, it is to bring to your kind notice that the finalization date of the Sale Agreement between us regarding sale of House No. 4, 7th Avenue, F-6/1, Islamabad is September, 20, 2002.
According to the sale agreement remaining amount out of the total sale consideration is ready therefore on my behalf the said house may be transferred at any date on or before September, 20, 2002.
It is requested therefore to kindly complete the transfer formalities of your side on or before September 20, 2002 i.e. to obtain the physical possession of the said house, to obtain NOC from CDA for transfer of house and availability date of your physical presence in CDA on the transfer date.
Looking forward for your full cooperation in regard.
Thanking you in anticipation..
—Sd—
Atif Tanvir Bhaili September, 18.2002
Copy to:
1. Mrs. Nasira. Parveen Sharif Ahmed.
2. Mr. Shahid Hassan Kirmani.”
(Emphasis supplied)
13. It is also an admitted fact that Appellant No. 2 could not get the suit house vacated within the time period mentioned in the sale agreement. Perusal of the intimation letter (Exh.P-5) shows that Respondent No. 1 was ready to perform his part of obligation under Clause 4 of the sale agreement by expressing his intention as to the payment of the remaining sale consideration to Appellant No. 2. However, instead of getting possession of the suit house on 20.09.2002 from the tenant as contemplated under Clause 4 of the sale agreement, Appellant No. 2 requested Respondent No. 1 to extend the time for performance of the sale agreement, which request was acceded to by Respondent No. 1. Subsequently, through mutual consent, the time was extended by one month i.e. up to 20.10.2002 through amendment in the sale agreement dated 20.09.2002 (Exh.P-4). The relevant excerpt of the said amendment in the sale agreement is reproduced herein below for ready reference:
“That the first party will get the possession of the above-mentioned house i.e. House No. 4, 7th Avenue, F-6/1, Islamabad within 30 days from today i.e. September 20, 2002 and will serve the notice to the purchase 10-days in advance for final payment within the specified period of 30-days and will also complete other transfer formalities.
However, other terms and conditions remain same as per the Sale Agreement between both parties executed, on June 20, 2002.”
14. Likewise, through further amendments/extensions dated 20.10.2002 and 20.11.2002 (Exh.P-5 and Exh.P-6), time for performance of the sale agreement was extended twice for a further period of one month each. Thereafter, Appellant No. 2 got issued from the CD.A. an application (Exh.P-7) for the transfer of the suit house which was valid up to 09.03.2003, but appellant No. 2 did not honour her commitment by transferring the suit house within the specified time period. Yet again, Appellant No. 2 got issued another application for transfer of the suit house. This letter was valid up to 27.05.2003, but Appellant No. 2 again failed to get vacate the suit house from the tenant.
15. As discussed above, according to the terms and conditions set out in the sale agreement (Exh.P-2), Respondent No. 1 was duty bound to arrange the remaining sale consideration within three months from the date of the execution of the said agreement viz 20.09.2002 which he did arrange on 18.09.2002 (i.e. two days prior to the expiry of 90-day period) and also intimated Appellant No. 2 as to his readiness of payment the remaining sale consideration on the date fixed in the said sale agreement. Additionally, there is no notice on the record from Appellant No. 2 warning Respondent No. 1 that if the latter did not abide by his commitment/obligation in terms of the sale agreement by paying the remaining sale consideration, the earnest money/down payment shall be forfeited.
16. It would not be out of context to mention that earlier Respondent No. 1 had filed civil suit No. 227/2003 praying inter alia for performance of the sale agreement in question, which was decreed in his favour vide judgment and decree dated 18.12.2012. In the judgment and decree dated 18.12.2012, the learned Civil Court directed Respondent No. 1 to deposit the remaining sale consideration in the Court within a period of one month from the date of the said judgment and decree. The said directions of the learned Court below were duly complied with by Respondent No. 1 by depositing the remaining sale consideration in the Court on 18.01.2013. However Appellant No. 2 despite availing extensions qua performance of the sale agreement for almost three consecutive months, failed to perform her part of obligation under the sale agreement by not getting the suit house vacated from the tenant and transferring the same in the name of Respondent No. 1. Thus, it could safely be said that Respondent
No. 1 was vigilant enough about his obligation under the sale agreement inasmuch as he intimated Appellant No. 2 on 18.09.2002 i.e. two days prior to the expiry of ninety days that the remaining sale consideration is ready and requested Appellant No. 2 to perform her part of agreement by transferring the suit house in his name. Moreover, through the said letter of intimation (Exh.P-3) Respondent No. 1 also requested Appellant No. 2 to complete the transfer formalities on her part on or before September 20, 2002 i.e. to obtain physical possession of the suit house, to obtain NOC from the CD. A. for transfer of the suit house, and availability date of her physical presence in the CD. A. on the transfer date. But, Appellant No. 2 could not pay any heed towards her obligation under the sale agreement.
17. The appellants assert that the sale agreement was cancelled. Appellant No. 1 appeared in the witness box as DW-1A and deposed on oath that the sale agreement was executed between Respondent No. 1 and Appellant No. 2 to which, he was a marginal witness. He also admitted that Respondent No. 1 had paid an amount of Rs. 1 million to Appellant No. 2. He further deposed that since Respondent No. 1 could not arrange the remaining sale consideration within a period of ninety days, therefore, the sale agreement was not enforceable. However, during his cross-examination, he categorically admitted that Appellant No. 2 was under obligation to serve vacation notice upon Respondent No. 1 and it was not in his knowledge as to whether such a notice was served upon Respondent No. 1 or not. He further admitted that he cannot produce the vacation notice. It was also admitted by him that time for performance of the sale agreement was extended at the request of his mother i.e. Appellant No. 2. He also admitted that Appellant No. 2 could not get vacate the suit house from the tenant till 7.7.2003.
18. Since Appellant No. 2 was unable to get the suit house vacated within the time period mentioned in the sale agreement, it is perhaps for the reason that the suit house was being subjected to non-conforming use and in this regard, in 1996, 1999 and 2003, violation notices had been issued to the appellants. Adeel Hussain, Sub-Assistant Estate Management, CD.A. appeared in the witness box as DW-2 and admitted that when the violation notices were issued, the suit house was being subjected to non-conforming use and it was in possession of one Dr. Sohail Ahmed, who filed a civil suit against the CD.A. as well as Appellant No. 2; and that in the said suit, he (Dr. Sohail Ahmed) got an injunctive order, which was received in the CDA’s office and the same was produced as Mark-G. The said DW has categorically admitted that the suit house is non-transferable unless the violations as pointed out by the CD.A. are removed. Thus, it could safely be observed that indeed Respondent No. 1 had fulfilled his obligation as set out in the sale agreement and it was Appellant No. 2, who failed to perform her part of obligation under the sale agreement.
19. Needless to mention that a suit for specific performance of contract is aimed at for a discretionary remedy and the relief of specific performance, being discretionary in nature, the conduct of the plaintiff, is of paramount importance. The plaintiff who is seeking the performance of a contract in such a suit for specific performance ought to demonstrate his ability, readiness and willingness to the effect that he is ready to perform his part of contractual obligation throughout the entire proceedings and until the passing of the decree. However, in case, the plaintiff does not show his readiness or ability so as to perform his part of contractual obligation through his conduct, then he cannot claim the specific performance of the contract. It is well settled that a plaintiff, who seeks the benefit of the specific performance of a contract, ought to come up with an explanation that his conduct has been without any imperfection during the entire litigation proceedings, entitling him to the relief of specific performance. Furthermore, the conduct of a plaintiff could be adjudged from the fact as to his willingness and ability towards performance of his part of the obligation keeping in view the attending circumstances.
20. As discussed earlier, the discretion of the Court with respect to a specific performance is discretionary in nature, and the Court is not duty bound to grant such a relief merely because it is lawful to do so. It ought to be borne in mind that the discretion of the Court is not arbitrary but sound and reasonable, guided by the judicial principles and capable of correction by a Court of appeal. Section 22 of the Act is relevant with respect to the issue in hand, which, for ease of reference, is reproduced herein below:-
“22. Discretion as to decreeing specific performance:- The 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; but 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.
The following are cases in which the Court may properly exercise a discretion not to decree specific performance:-
I. Where the circumstances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant, though there may be no fraud or misrepresentation on the plaintiff’s part.
II. Where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff.
III. Where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.”
21. Perusal of Section 22 ibid provides that the discretion of the Court is not arbitrary but sound and reasonable as well as guided by the judicial principles and capable of correction by a Court of appeal. It is manifest from perusal of the said Section that the exercise of discretion by a Court cannot be arbitrary or illogical but of sound and reasonable, guided by judicial principles and in consonance with the principles of nature justice, equity and fair play. Even otherwise, the Court has to consider all the attending facts and circumstances of the case in order to exercise its discretion so as to whether or not to decree a suit for specific performance and in the said process, the Court ought to take into account the conduct of the parties, ft is well settled that while granting specific performance the Court acts in equity thus it becomes necessary for the Court to ensure that high standard of equitable conduct has been displayed by the plaintiff. As has been held earlier, in order to sec whether the plaintiff is ready and willing to perform his part of the contract under the agreement, the Court must look into the conduct of the plaintiff pre filing of the suit as well as post proceedings in the suit coupled with other attending circumstances.
22. Similarly, Section 24(b) of the Act also sets out a mechanism that a specific-performance of a contract cannot be enforced in favour of a person, who remains incapable of performing his obligation and who violates any of the terms of the agreement/contract, which remains to be performed by him. For ease of reference, Section 24(b) of the Act is reproduced herein below:-
“24. Personal bars to the relief- Specific performance of a contract cannot be enforced in favour of a person:-
(a) who could not recover compensation for its breach;
(b) who has become incapable of performing, or violates, any essential term of the contract that on his part remains to be performed;
(c) who has already chosen his remedy and obtained satisfaction for the alleged breach of contract; or
(d) who, previously to the contract, had notice that a settlement of the subject-matter thereof (though not founded on any valuable consideration) had been made and was then in force.”
(Emphasis supplied)
23. From the above discussion, it is thus manifest that Respondent No. 1/plaintiff was capable to perform the essential term of the contract and by demonstrating his ability and willingness to pay the remaining sale consideration on 18.09.2002 (i.e. two days prior to the expiry of 90-day period) as well as depositing the remaining sale consideration in the Court as directed by the learned Civil Court vide judgment and decree dated 18.12.2012 within a month of the said order dated 18.02.2003, Respondent No. 1, by his such conduct, has made himself entitled for the equitable relief of specific performance.
24. The contention of the learned counsel for the appellant that in the year 2015 the value of the suit house was increased substantially as against its value which was in the year 2002 does not carry due weight since mere escalation of the price of property during pendency of the litigation cannot be a ground to give effect to a lawful agreement. All that the Court is required is to take into consideration the conduct of the defaulting party.
25. Guidance in this regard may be sought from the law laid down by the Hon’ble Apex Court in the case tilted Muhammad Ashiq Khan vs. Muhammad Sharif and others (2016 SCMR 1248), wherein it was inter alia held as follows:-
“3………. the above quoted observations of a three members bench of the Supreme Court of India has discussed the issue with regard to escalation of price of the suit property during the period it remained in litigation and has come to the conclusion that ordinarily the plaintiff is not to be denied the relief of specific performance only on account of escalation of price during pendency of litigation and that as a general rule it cannot be held that the plaintiff cannot be allowed to have the entire benefit of escalation of price of the suit property during pendency of litigation. The Court held that on balancing equities one of the considerations to he kept in view is as to who is the defaulting party and whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant. The totality of the circumstances is required to be seen in this regard. However, ultimately Court found that there being no default on the part of the plaintiff and the breach having been committed by the defendant, therefore, the plaintiff could not be burdened with a. sum of Rs. 40,00,000/- as it would almost amount to denying her specific relief and putting a premium on the breach committed by the defendant. Thus no escalation in price was allowed by the Court. In the second, case of P.S. Ranakrishna Reddy (supra) a two Members bench of the Supreme Court of India had held that rise in the price of immovable property by itself is not a ground for refusal to enforce the lawful agreement to sell.
4. Keeping in view the facts and circumstances of the present case and the slate of law, as discussed above, the Courts below have concurrently found that the respondent who has entered into an agreement to purchase the suit property has proved the agreement and thereafter has established, as a fact, that he has not defaulted in complying with any of his obligations under the said agreement and that it was the petitioner alone who has backed out and breached his obligation under the agreement on account of which the respondent immediately filed a suit and on direction of the High Court had. parted with and. deposited, in Court, whole of the balance consideration for purchasing the suit, property. Thus, apparently there was no default on the part of respondent in making compliance of his obligations under the agreement and such being established, he cannot be blamed for non-performance of the agreement and thus saddled with liability of escalation in price of the suit property during pendency of litigation.
(Emphasis supplied)
26. Similarly, Clause 6 of the sale agreement also gave an option to Appellant No. 2 that in case Respondent No. 1 failed to perform his obligation under the contract agreement by paying the remaining sale consideration within the prescribed time frame, she could forfeit the earnest money and in case Appellant No. 2 fails to deliver possession of the suit house to Respondent No. 1, then she was obliged to pay the double amount of the earnest money to Respondent No. 1. No such an option was ever exercised by Appellant No. 2. Hence, the non-exercising of such an option by Appellant No. 2 cannot render the sale agreement to be void. In this regard, I seek guidance from the dictum laid down by the Hon’ble Apex Court in the case titled Dr. Mian Anjum Habib and another vs. Waseem Ahmed Khan and another (2014 SCMR 1621), wherein it was held inter alia as follows:-
“The eventuality of returning double the amount of earnest money for cancelling the agreement was no more available to the respondent. The only things which the respondent could have done to avoid implementation of the agreement by him was by paying to the appellant double the amount received by him and that too as per market value. Admittedly, the respondent never paid this sum to the appellant. Further, it may be noted, that the cancellation of agreement as per clause 10 of the initial agreement was given up also becomes manifestly clear by the fact that the appellant was allowed to approach the Court for obtaining registry/transfer. The only meaning that can be spelt out from this stipulation is that even if the respondent had paid double the amount received by him as per market value, the agreement will not cease but will remain operative for the appellant to have it enforced through Court of law for obtaining registry/transfer of the said property. Looked from this perspective, the only fair conclusion that can be reached on close scrutiny of the two agreements dated 10-3-2003 and 10-12-2003 is that there remained no option available to the respondent to cancel the agreement and. purported cancellation of the agreement made by him per clause 10 of the agreement dated 10-3-2003 did not at all cancel the agreement made between the parties for selling of the said property.
11. The argument of the learned counsel appearing for the respondent in this regard appears to be too naive and cannot legitimately be accepted. The agreement remained alive and fully operative to be performed by the parties and the suit for specific performance in this regard was fully competent. Reference to various provisions of Specific Relief Act as regards the provision of liquidated damages being provided in the agreement for its cancellation and the discretion of the Court to enforce or not to enforce such agreement, in the facts and circumstances of the matter becomes irrelevant for that as per the agreed terms between the parties the agreement remained alive for its enforcement through a Court of law. For the same reason, we do not consider it necessary to discuss the case-law cited by the counsel for the parties.”
(Emphasis supplied)
27. Furthermore, in the case titled Muhammad Iqbal vs. Muhammad Alam, (2015 SCMR 21), it was inter alia held by the Hon’ble Apex Court as follows:
“4. Notwithstanding the above, when evaluating the conduct of the respondent in so far as his willingness to perform his obligation under the agreement to sell is concerned, and/or when examining his alleged failure to do so, it is pertinent to note that, regardless of the non-issuance of a notice by him and, his inability to prove timely telephonic contact with the appellant (as averred in the plaint), that the respondent filed the suit on 16-5-2003, only a day after the target date i.e. 15-5-2003, further it is conspicuous that in compliance with the Court’s order the respondent also deposited the outstanding consideration amount in Court. This duly established his bona fide, promptness and also his readiness and willingness. On the contrary had the appellant also been willing to perform his obligations, he would have conceded the suit on the first available opportunity, accepted the money and finalized the transaction.”
(Emphasis supplied)
28. It is further observed that the case laws relied upon by the learned counsel for the appellants are distinguishable from the facts and circumstances of the lis in hand since each and every case has its own peculiar facts and circumstances and it is well settled proposition of law that no hard and fact rules can be applied so as to bring the case in hand in conformity with the referred judgments.
29. In sequel to what has been discussed above, I do not find any illegality in the impugned judgment and decree dated 19.11.2015 which is based on sound reasons thus calling for no interference by this Court. Consequently, the instant appeal being devoid of any merit, is accordingly dismissed leaving the parties to bear their own costs.
(Y.A.) Appeal dismissed
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