Specific Relief Act, 1877 IN BANGLADESH
PART I PRELIMINARY
Preamble
1. Short title, Local extent, & Commencement
2. [Repeal of enactment.] Rep.
3. Interpretation clause
4. Savings
5. Specific relief how given
6. Preventive relief
7. Relief not granted to enforce penal law
PART II OF SPECIFIC RELIEF
CHAPTER I Of Recovering Possession
of Property
8.
Recovery of specific immovable property
9. Suit by person dispossessed of immovable property
10. Recovery of Specific movable property
11. Liability of person in possession, not as owner, to deliver to person entitled to immediate possession
9. Suit by person dispossessed of immovable property
10. Recovery of Specific movable property
11. Liability of person in possession, not as owner, to deliver to person entitled to immediate possession
CHAPTER II Of the Specific
performance of Contracts
12.
Cases in which specific performances enforceable
13. Contract of which the subject has partially ceased to exist
14. Specific performance of part of contract where part unperformed is small
15. Specific performance of part of contract where part unperformed is large
16. Specific performance of independent part of contract
17. Bar in other cases of specific performance of part of contract
18. Purchaser’s right against vendor with imperfect title
19. Power to award compensation in certain cases
20. Liquidation of damages not a bar to specific performance
21. Contracts not specifically enforceable
22. Discretion as to decreeing specific performance
23. Who may obtain specific performance
24. Personal bars to the relief
25. Contracts to sell property by one who has no title or who is a voluntary settler
26. Non-enforcement except with variation
27. Relief against parties and persons claiming under them by subsequent title
27-A. Specific performance in case of part performance of contract to lease
28. What parties cannot be compelled to perform
29. Bar of suit for breach after dismissal
30. Application of preceding sections to awards and testamentary directions to execute settlements
13. Contract of which the subject has partially ceased to exist
14. Specific performance of part of contract where part unperformed is small
15. Specific performance of part of contract where part unperformed is large
16. Specific performance of independent part of contract
17. Bar in other cases of specific performance of part of contract
18. Purchaser’s right against vendor with imperfect title
19. Power to award compensation in certain cases
20. Liquidation of damages not a bar to specific performance
21. Contracts not specifically enforceable
22. Discretion as to decreeing specific performance
23. Who may obtain specific performance
24. Personal bars to the relief
25. Contracts to sell property by one who has no title or who is a voluntary settler
26. Non-enforcement except with variation
27. Relief against parties and persons claiming under them by subsequent title
27-A. Specific performance in case of part performance of contract to lease
28. What parties cannot be compelled to perform
29. Bar of suit for breach after dismissal
30. Application of preceding sections to awards and testamentary directions to execute settlements
CHAPTER III Of The Rectification
of Instruments
31.
When instrument may be rectified
32. Presumption as to intent of parties
33. Principles of rectification
34. Specific enforcement of rectified contract
32. Presumption as to intent of parties
33. Principles of rectification
34. Specific enforcement of rectified contract
CHAPTER IV Of The Rescission of
Contracts
35.
When rescission may be adjudged
36. Rescission for mistake
37. Alternative prayer for rescission in suit for specific performance
38. Court may require party rescinding to do equity
36. Rescission for mistake
37. Alternative prayer for rescission in suit for specific performance
38. Court may require party rescinding to do equity
CHAPTER V Of the Cancellation of
Instruments
39.
When cancellation may be ordered
40. What instrument may be partially cancelled
41. Power to require party for whom instrument is cancelled to make compensation
40. What instrument may be partially cancelled
41. Power to require party for whom instrument is cancelled to make compensation
CHAPTER VI Of Declaratory Decrees
42.
Discretion of Court as to declaration of status or right
43. Effect of declaration
43. Effect of declaration
CHAPTER VII Of the Appointment of
Receivers
44.
Appointment of receivers discretionary
CHAPTER VIII Of The Enforcement of
Public Duties
Ss
45 -- 51 Omitted
PART III Of Preventive Relief
CHAPTER IX Of Injunctions
Generally
52.
Preventive relief how granted
53. Temporary injunctions
53. Temporary injunctions
CHAPTER X Of Perpetual injunctions
54.
Perpetual injunction when granted
55. Mandatory injunction
56. Injunction when refused
57. Injunction to perform negative agreement
55. Mandatory injunction
56. Injunction when refused
57. Injunction to perform negative agreement
SCHEDULE
Enactments Repealed
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Preamble
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I
of 1877
An Act to define and amend the law relating
to certain kinds of Specific Relief.
Preamble.
Whereas it is expedient to define and amend the law relating to certain kinds of specific relief obtainable in civil suits’ It is hereby enacted as follows: -- |
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1. Short
title, Local extent, & Commencement
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This Act may be
called the Specific Relief Act, 1877.
[It extends to the whole of Pakistan]. And it shall come into force on the first day of May, 1877. |
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2. [Repeal
of enactment.] Rep.
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Rep. By the
Amending Act, 1891 (XII of 1891).
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3.
Interpretation clause
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In
this Act, unless there be something repugnant in the subject or context. -
‘obligation’ includes every duty enforceable by law: ‘trust’ includes every species of express, implied, or constructive fiduciary ownership; ‘trustee’ includes every person holding, expressly, by implication, or constructively, a fiduciary character; Illustrations (a) Z. bequeaths land to A, ‘not doubting that he will pay thereout an annuity of Rs. 1,000 to B for his life’. A accepts the bequest. A is a trustee, within the meaning of this Act, for B to the extent of the annuity. (b) A is the legal, medical or spiritual adviser of B. By availing himself of this situation as such adviser, A gains some pecuniary advantage which might otherwise have accrued to B. A is a trustee for B, within the meaning of this Act, of such advantage. (c) A, being B’s banker, discloses for his own purpose, the state of B’s account. A is trustee, within the meaning of this Act for B, of the benefit gained by him by means of such disclosure. (d) A, the mortgagee of certain lease-holds, renews-the lease in his own name. A is a trustee, within the meaning of this Act, of the renewed lease, for those interested in the original lease. (e) A, one of several partners, is employed to purchase goods for the firm. A, unknown to his co-partners, supplies them, at the market price, with goods previously bought by himself when the price was lower and thus makes a considerable profit. A is a trustee for his co-partners within the meaning of this Act, of the profit so made. (f) A, the manager of B’s indigo factory becomes agent for C, a vendor of indigo-seed, and receives, without B’s assent, commission on the seed purchased from C for the factory. A is a trustee, within the meaning of this Act, for B, of the commission so received. (g) A buys certain land with notice that B has already contracted to buy it. A is a trustee, within the meaning of this Act, for B of the land so bought. (h) A buys land from B having notice that C is in occupation of the land. A omits to make any inquiry as to the nature of C’s interest therein. A is a trustee, within the meaning of this Act for C, to the extent of that interest. ‘settlement’ means any instrument other than a will or codicil as defined by the Succession Act whereby the destination or devolution of successive interest in movable or immovable property is disposed of or is agreed to be disposed of. Words defined in Contract Act. And all words occurring in this Act, which are defined in the Contract Act, 1872, shall be deemed to have the meanings respectively assigned to them by the Act.
Court
Decisions
Consent--
"consent" or free-consent in Contract Act, 1872 applies to
provisions of Specific Relief Act under residuary clause of S. 3 of Specific
Relief Act. 1982 SCMR 741.
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4. Savings
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Except
where it is herein otherwise expressly enacted, nothing in this Act shall be
deemed-
(a) to give any right to relief in respect of any agreement which is not a contract; (b) to deprive any person of any right to relief, other than specific performance, which he may have under any contract; or (c) to affect the operation of the Indian Registration Act, on documents.
Court
Decisions
Sindh People's
Local Government Ordinance: Factum of such contract was denied by defendant
(KMC) Effect, neither any formal contract as provided under s. 42 Sindh People's
Local Government Ordinance, 1972 (since repealed) was executed nor the same
was.placed before Local Council/Corporation which was mandatory. There was no
concluded and binding contract between plaintiffs and defendants for lease or
sale of property in question. P.L.J.1999 Kar. 114 = 1999 CLC 1547.
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5. Specific
relief how given
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Specific relief is
given-
(a)by taking possession of certain property and delivering it to a claimant; (b)by ordering a party to do the very act which he is under an obligation to do; (c)by preventing a party from doing that which he is under an obligation not to do; (d)by determining and declaring the rights of parties otherwise than by an award of compensation; or (e)by appointing a receiver. |
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6.
Preventive relief
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Specific relief
granted under clause (C) of section 5 is called preventive relief.
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7. Relief
not granted to enforce penal law
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Specific relief
cannot be granted for the mere purpose of enforcing a penal law.
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8. Recovery
of specific immovable property
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A person entitled
to the possession of specific immovable property may recover it in the manner
prescribed by the Code of Civil Procedure.
Court
Decisions
Co-Sharer
dispossess by other co-Sharer. Remedy to regain possession. After dispossession
of a co-Sharer by other co-Sharer he has two remedies for seeking redress,
namely, a suit under section 9 of Specific Relief Act and proceedings for
partition of Joint property. A third remedy that is an ordinary suit for
restoration of exclusive possession wold amount to placing one set of
co-Sharers in a much more advantageous position as compared to other for
which there is no warrant in law or equity. Where evidence on record does not
show that title of appellants in respect of disputed land was superior to
that of respondents. Mere fact that appellants remained in exclusive
possession of disputed land for a long time would not make any difference, as
admitted position in case is that both parties were Joint owners in Abadi Deh
and Shamlat Deh which included disputed portion of land. P.L.J.2000 SC 1071.
Objection against findings of Trial Court-Non-filing of objections in appeal - Plea of adverse possession was raised by the defendants and Trial Court dismissed the suit being time-barred - Lower Appellate Court found the plaintiff in constructive possession and allowed (he appeal as the suit was within limitation-Defendants did not file any cross-objection before the Lower Appellate Court as provided under O.XLI, R.22, C.P.C, - Validity - Where defendants raised no other plea to occupy the disputed property except that which had already been decided against them by Trial Court, the defendants had no legal entitlement to remain in possession of the property - High Court declined to interfere with the Judgment passed by the Lower Appellate Court in circumstances. PLD 2001 Lah.390 PLD 1996 Central Statutes 1296; Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063; Shah Sultan v. Abdul Khaliq 1987 SCMR 1791 and Afzal Khan and 2 others v. Abdul Faheem and 4 others PLD 1994 Quetta 26 ref. Private partition of land. Private partition of land would not invest a co-sharer with possession with exclusive title of land until and unless a regular partition took place between co-owners through Rev. Authorities. Interest of other co-Sharer, who was not in possession of particular survey number, would not extinguish and he would remain a co-Sharer until a co-Sharer in exclusive possession of a specific part of Joint land proved his adverse possession over same. P.L.J.2000 SC(AJ & K) 390. Recovery of possession by co-sharer - Accrual of cause of action - Plaintiffs assailed mutation on the basis that the transferor was owner of limited estate and under S. 3 of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, she could not transfer the property in excess of her legal share - judgment and decree passed by Trial Court in favour of the plaintiffs was set aside by Appellate Court on the ground that the suit was barred by time - Plaintiffs contended that as they were co-sharers, therefore, they had a continuous cause of action - Validity - Entry in the record of rights if was adverse of the interest of the plaintiffs and if on every such entry at every four years there was denial of the right of plaintiffs, the plaintiffs had the option to file a suit on every denial and every denial would furnish a fresh cause of action - Such aspect of the case had not been adverted to by the Appellate Court who passed the judgment – judgment and decree passed by the Appellate Court was set aside and that of the Trial Court was restored. PLD 2003 Lah. 186 Suit for declaration and possession - Plaintiffs claiming to be owners of suit land having been purchased by their predecessor-in-interest, prayed for its possession and for declaration of their title and in alternative having same matured by prescription - Suit was decreed by Trial Court, but was dismissed by Appellate Court - High Court in revision set aside judgment of Appellate Court and restored that of Trial Court - Validity - Important piece of evidence in support of plaintiffs claim was copy of unregistered and unstamped agreement to sell - Photo copy of agreement had been exhibited in evidence without directing production of original document and without leave of court to lead secondary evidence after proof of loss or destruction of original agreement, thus, were guilty of withholding best available primary evidence - Since contents of such document purported to transfer absolute ownership of land, same required compulsory registration irrespective of fact, whether such document was agreement of sale or sale-deed - Such document being inadmissible in evidence, no presumption as to its correctness or validity could arise - Such document lacking necessary particulars in respect of identity of land and being unregistered would not transfer any valid title in favour of plaintiffs - High Court, without adverting to such aspect of the case, had proceeded to accept document as a valid deed of transfer being thirty years old - Such document was executed on 6-10-1947 - Mutation was recorded on 9-2-1957, but was cancelled on 25-2-1957 - Suit was filed on 3-12-1984 - Such inordinate delay on plaintiff’s part in bringing suit created doubts about bona fides of their acts and genuineness of their cause - Plaintiffs were not sure as to which of Khasra numbers was purchased by their predecessor - Construction of shops and production of rent notes executed by tenants was not sufficient to identify land - Entries in record of rights were showing predecessor of defendants as owners, whereas predecessor of plaintiffs as tenant-at-will - If possession of plaintiffs was permissive in nature, then same could not be in their own rights nor adverse to right/interest of real owners - Plaintiffs or their own rights nor adverse to right/interest of real owners - Plaintiffs or their predecessor had not remained in possession of land in their own right in pursuance of alleged agreement - No assertion of open and hostile title adverse to interest of defendants was made - Findings of High Court affirming that of Trial court were suffering from serious misconstruction of evidence and misconception of law as evidence on record had not been appreciated in its true perspective - Supreme Court accepted appeal, set aside judgments/decrees passed by Trial Court and High Court and restored judgment/decree passed by Appellate Court. PLD 2003 SC 410 Suit for possession, mesne profits and damages. Whether a suit'for possession is maintainable without praying for declaration of title. Change of ownership rights and mutation in the name of plaintiff by KDA in their records followed by execution of a valid and lawful indenture of lease in his favour establish that it can be very conveniently and safely held that plaintiff is entitled to sue for recovery of possession without seeking declaration of title. P.L.J.1997 Kar. 76 = 1997 CLC 176=NLR 1997Civil 130. Suit for possession, declaration and mesne profits ‑‑‑Revisional jurisdiction, exercise of‑‑‑Suit was resisted by defendant on grounds that identity of suit property was in dispute and that defendant had claimed title in respect of suit property by virtue of inheritance and on basis .of will‑‑*Validity‑‑‑Full description of suit. property had been given and identity of property had not been disputed by defendant either before Trial Court or before Appellate Court‑‑‑Such controversy could not be urged at revisional stage‑‑‑Defendant could not produce any document to prove his title in suit property by virtue of inheritance or on basis; of alleged Will‑‑‑Plaintiff on the contrary had succeeded in establishing her title in property resting on registered instrument‑‑‑Presumption as to genuineness, .correctness and authenticity of registered documents under Arts.85(5) & 129of Qanun‑e‑Shahadat, 1984 was not dispelled by defendant and oral assertion was not sufficient to rebut registered documents produced by plaintiff in proof of her title in respect of suit property‑‑‑Suit for possession and declaration was rightly decreed by Trial Court and Appellate Court‑‑‑Concurrent findings of Courts below could not be interfered with in revisional jurisdiction of High Court when no illegality was pointed out in concurrent finding of Courts below. 2002 M L D 1397 Moinuddin Paracha v. Sirajuddin Paracha 1994 CLC 247; Muhammad Hussain v. Waheed Ahmed 2000 MLD 281 and Syed Akhtar Hussain Zaidi's case 1988 SCMR 753 ref. Suit for possession – plaintiff having based his claim on suit property on ownership having title, suit could proceed under S. 8 of Specific Relief Act, 1877. PLD 2003 Lah. 204 Suit for possession of immovable property - Where the case was neither of trespassing nor of adverse possession, rather it was a case of permissive possession, provisions of Art. 142 of Limitation Act, 1908, would be attracted- PLD 2001 Lah.390 Suit for specific performance of agreement to sell - Vendor entered into agreement to sell with plaintiff on payment of Rs. 26,000, but later on sold the land to subsequent vendees for Rs. 1,00,000 - Trial Court dismissed plaintiff’s suit - High court in revision enhanced decretal amount of Rs. 26,000 to Rs. 1,30,000 - Vendor had not challenged such increase of decretal amount - thus, he was bound to pay the same - present value of property according to parties was more than Rs. 2,00,000 - if property had so much escalated in value, then amount paid by plaintiff had equally escalated in similar proportion - Value of currency had gone down due to high inflationary trends in economy - Plaintiff and his legal heirs needed to be compensated for torture of protracted litigation for last 22/23 years - Had amount paid by plaintiff been invested, same would have enhanced in value at least ten times - Plaintiff was entitled by all means to such compensation - Supreme Court converted petition into appeal and after partially accepting same granted decree to plaintiff for recovery of Rs. 2,30,000, out of which decree against vendor would be of Rs. 1,30,000 and against subsequent vendees would be of Rs. 1,00,000. PLD 2003 SC 494 Symbolic possession:-- Decree granted in favour of vendee in his suit for possession was for symbolic possession---Even if vendors were in possession of property in question as a co-sharers, they could not object to decree granted to vendees--*Contention that vendors' possession being that of co-sharers, a suit for partition or a suit under S.9, could only have been filed, was repelled being misconceived. 1994MLD461 Fazil etc. v. Manzoor Hussain etc. PLD 1979 Note 9 at p. 6 ref. |
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9. Suit by
person dispossessed of immovable property
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If
any person is dispossessed without his consent of immovable property
otherwise than in due course of law, he or any person claiming through him
may, by suit, recover
(a) possession thereof, notwithstanding any other title than may be set up in such suit. Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof. No suit under this section shall be brought against the Federal Government or any Provincial Government. No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed. (b) Possession of Movable Property Court Decisions
Gift-deed and
delivery of possession. When points relating to an issue are deposed in
evidence and opposite party does not cross-examine that witness on those
points, such portions of statement of witness shall be deemed to have been
admitted by opposite side. After execution of gift-deed plaintiff/respondent
was handed over possession of suit land and subsequently illegal construction
was raised by defendant-appellant a week prior to institution of suit, hence,
suit being within a period of six months from date of dispossession could not
be said to be beyond period of limitation. Appellant did not utter even a
single word with regard to entries of new settlement record in favour of
respondent as being false and fictitious. P.L.J.1999 SC (AJK) 129 = 1999 PLC
4511.
Limitation--* Appellant/plaintiff was owner in possession of the suit land within 12 years of the institution of the suit-Period of limitation for recovery of such possession under Art. 142, Limitation Act, 1908 was 12 years from the date of dispossession or discontinuance-Both the Courts below had wrongly concluded from the evidence on record that the suit was time* barred-Suit was within time and was properly valued-Judgments and decrees of both the Courts below were set aside. 1999 Y L R 1981 Previous possession and wrongful dispossession proved by plaintiffs - Plaintiffs were not required to establish their title to land in question - Defendant was unable to established source of its title as asserted - Findings arrived at by trial court on question of possession of plaintiffs and dispossession on the part of defendant did not call for any interference - Appraisal of evidence by both courts below was neither arbitrary nor suffered from misreading of evidence or misconstruction of any material available on record - Judgments of Courts below were maintained in circumstances. P L J 2004 SC 137 Punjab Tenancy Act, 1887. Petitioner who had been dispossessed through the agency of the police at direction of Deputy Commissioner, could not resort to the filing of civil suit under S. 9 of Specific Relief Act, or under S, 50 of the Punjab Tenancy Act, 1887 as his personal and individual right stood infringed and he had rightly resorted to the filing of Constitutional petition. Provisions of Art. 199 of Constitution of 1973 confer very wide powers on High Court for enforcement of Fundamental and legal rights. P.L.J.1999 Lah. 140 = 1998 MLD 1977 = NLR 1998 Civil 714. Restoration of possession. Contention that petitioner had purchased property in dispute and Respondents obtained decree for possession without impleading him as a party to suit. Any decision/decree rendered or passed by court under Section 9 of Specific Relief Act, is tentative in nature and-is designed to restore possession of an ousted party quickly and without determining title of parties. Such decision is neither subject to incident of appeal nor review. Order passed in execution proceedings being continuation of the suit are not subject to any appeal or review. P.L.J.1995 Lah. 495 = 1995 CLC 777. In order to become entitled to relief under Section 9, plaintiff must prove that he was in possession of property; he has been dispossessed by defendant otherwise than in due course of law and dispossession took place within 6 months of suit. No question of title either of plaintiff or defendant can be raised or gone into in such cases. Such a relief can be granted even against true owner of property himself. P.L.J.2000 SC 1894. When plaintiff is dispossessed during pendency of suit, it is always open to court to grant him relief of possession in suit or declaration. Otherwise also relief for possession can always be granted in suit under section 42 of Specific Relief Act by allowing amendment in plaint. Decree for possession has been rightly granted by learned appellate court. P.L.J.1996 Lah. 372 = PLD 1995 Lah. 617. Appellant/plaintiff was owner in possession of the suit land within 12 years of the institution of the suit-Period of limitation for recovery of such possession under Art. 142, Limitation Act, 1908 was 12 years from the date of dispossession or discontinuance-Both the Courts below had wrongly concluded from the evidence on record that the suit was time* barred-Suit was within time and was properly valued-Judgments and decrees of both the Courts below were set aside. 1999 Y L R 1981 Sharer dispossess by other co-Sharer. Remedy to regain possession. After dispossession of a co-Sharer by other co-Sharer he has two remedies for seeking redress, namely, a suit under section 9 of Specific Relief Act and proceedings for partition of Joint property. A third remedy that is an ordinary suit for restoration of exclusive possession wold amount to placing one set of co-Sharers in a much more advantageous position as compared to other for which there is no warrant in law or equity. Where evidence on record does not show that title of appellants in respect of disputed land was superior to that of respondents. Mere fact that appellants remained in exclusive possession of disputed land for a long time would not make any difference, as admitted position in case is that both parties were Joint owners in Abadi Deh and Shamlat Deh which included disputed portion of land. P.L.J.2000 SC 1071. Suit by tenant dispossessed from shop by force - - Prima facie evidence showing possession of shop by tenant was in the form of electricity and telephone bills--- Such position would not be affected ,if shop was lying locked over a certain period - Tenant was regularly depositing rent in Court and thus was entitled to appropriate relief - In view of conduct of parties, appropriate measures were required to safeguard their interest and prevent property from being wasted or creation of third party interest - High court accepted application and appointed official Assignee as receiver to take all necessary steps to secure and seal shop. Defendant (purchaser) Later on got himself impleaded as party and produced sale-deed in his favour and possession note showing handing over possession of shop by tenant - Tenant denied execution of any document or handing over possession of ship to any of the defendants, and further prayed for cancellation of documents being fraudulent - Contention ot defendants was that on account of additional reliefs clamied through amended plaint, the suit had seized to be one under S. 9 of Specific Relief Act, 1877 - Validity - Cause of grievance in such suit was execution of alleged document of handing over vacant possession of shop by tenant to landlord - Tenant had challenged such document as a fraudulent one - Such document pertained to valuable rights of possession of tenant - Suit challenging such document on ground of fraud instituted by tenant was maintainable. PLD 2003 Kar. 436 Suit by tenant for possession of property under S. 9 of Specific Relief Act, 1877 - Sale of property by defendant-owner - Plaintiff would not be entitled to object to such sale - Suit challenging validity of such sale and transfer of property would not be maintainable. PLD 2003 Kar. 436 Suit for possession. Pre-requisites. In suit for possession of property in terms of S. 9 of the Specific Relief Act plaintiff must prove that he had been dispossessed; such dispossession was from immovable property; dispossession was without his consent; and dispossession was otherwise than in due course of law. Possession of plaintiff in respect of disputed property had been fully established by evidence on record. Possesison of property in question, having been forcibly taken during absence of plaintiff, he had made out case for, restoration of possession. P.L.J.1998 Kar. 69 = 1998 MLD 90. Suit of possession - Essentials - Nature and effect of proceedings under S. 9, Specific Relief Act 1877 - Essential ingredients to be established at the trial in suit for possession are; that plaintiff was in possession of land in question; that he was dispossessed by defendant; that he was dispossessed against his consent and not in accordance with law, and; that such dispossession took place within period of six months of suit - Object of S. 9, Specific Relief Act, 1877 is to discourage forcible dispossession and to provide quicker remedy for recovery of possession where a person was dispossessed from immovable property otherwise where a person was dispossessed from immovable Property otherwise than in due course of law - Plaintiff was not required to prove his title but merely his previous possession and wrongful dispossession. P L J 2004 SC 137 Whether appeal was maintainable. It is clear from concluding part of Section 9 of Act that there is no statutory provision for appeal from an order or decree passed under this section. Even review of such order or decree is not allowed. Even proof of title is not necessary. Plaintiff can succeed merely by establishing that he was unlawfully dispossessed by his rival party. Party feeling aggrieved by order or decree under Section 9 can bring a regular suit for establishing its title and eventually recovering possession. Right of appeal could not have been pressed into service by respondents and appellate order is without Jurisdiction and void ah initio. P.L.J.1995 Pesh. 114 = 1995 CLC 1600. |
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10.
Recovery of Specific movable property
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A
person entitled to the possession of specific movable property may recover
the same in the manner prescribed by the Code of Civil Procedure.
Explanation I. A trustee may sue under this section for the possession of property to the beneficial interest in which the person for whom he is trustee is entitled. Explanation 2. A special or temporary right to the present possession of property is sufficient to support a suit under this section.
Illustrations
(a) A bequeaths
land to B for his life, with remainder to C. A dies. B enters on the land,
but C, without B’s consent, obtains possession of the title-deeds. B may
recover them from C.
(b) A pledges certain jewels to B to secure a loan. B disposes of them before he is entitled to do so. A without having paid or tendered the amount of the loan, sues B for possession of the jewels. The suit should be dismissed, as A is not entitled to their possession, whatever right he may have to secure their safe custody. (c) A receives a letter addressed to him by B. B gets back the letter without A’s consent. A has such a property therein as entitles him to recover it from B. (d) A deposits books and papers for safe custody with B. B loses them and C finds them but refuses to deliver them to B when demanded. B may recover them from C, subject to C’s right, if any, under Section 168 of the Contract Act. 1872 (IX of 1872). (e) A, & warehouse-keeper, is charged with the delivery of certain goods to 7., which B takes out of A’s possession. A may sue for the goods. |
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11.
Liability of person in possession, not as owner, to deliver to person
entitled to immediate possession
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Any person having
the possession or control of a particular article of movable property, of
which he is not the owner, may be compelled specifically to deliver it to the
person entitled to its immediate possession, in any of the following cases:-
(a) When the thing claimed is held by the defendant as the agent or trustee of the claimant; (b) When compensation in money would not afford the claimant adequate relief for the loss of the thing claimed; (c) When it would be extremely difficult to ascertain the actual damage caused by its loss; (d) When the possession of the thing claimed has been wrongfully transferred from the claimant. Illustrations Of clause (a)- A proceeding to Europe, leaves his furniture in charge of B as his agent during his absence. B without A’s authority, pledges the furniture to C, and C knowing that B has no right to pledge the furniture, advertises it for sale, C may he compelled to deliver the furniture, to A, for he holds it as A’s trustee. Illustrations Of clause (b)- Z has got possession of an idol belonging to A’s family and of which A is the proper custodian. Z may be compelled to deliver the idol to A. Illustrations Of clause (c)- A is entitled to a picture by a dead painter and a pair of a rare China vases. B has possession of them. The articles are of too special a character to bear an ascertainable market value. B may be compelled to deliver them to A. |
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12. Cases
in which specific performances enforceable
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Except
as otherwise provided in this chapter, the specific performance of any
contract may in the discretion of the Court be enforced-
(a) when the act agreed to be done is in the performance, wholly or partly, of a trust; (b) when their exists no standard for ascertaining the actual damage caused by non-performance of the act agreed to be done; (c) when the act agreed to be done is such that pecuniary compensation for its non-performance would not afford adequate relief; or (d) when it is probable that pecuniary compensation cannot be got for the non-performance of the act agreed to be done. Explanation. Unless and unless the contrary is proved, the Court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money, and that the breach of a contract to transfer movable property can be thus relieved. Illustrations Of clause (a)- .- Omitted by the Federal Laws (Revision & Declaration) Ordinance, XXVII of 1981. Of clause (b)- A agrees to buy, and B agrees to sell, a picture by a dead painter and two rare China vases. A may compel B specifically to perform his contract for there is no standard for ascertaining the actual damage which would be caused by its non-performance. Of clause (c). A contracts with B to sell him a house for Rs. 1,000. B is entitled to a decree directing A to convey the house to him he paying the purchase-money. In consideration of being released from certain obligations imposed on it by its Act of Incorporation, a Railway Company contracts with Z to make an arch way through their railway to connect lands of Z served by the railway to construct a road between certain specified points, to pay a certain annual sum towards the maintenance of this road and also to construct a siding and a wharf as specified in the contract. Z is entitled to have this contract specifically enforced for his interest in its performance cannot be adequately compensated for by money ; and the Court may appoint a proper person to superintend the construction of the archway, road, siding and wharf. A contracts to sell and B contracts to buy, a certain number of Railway shares of a particular description. A refuses to complete the sale. B may compel A specifically to perform this agreement, for the shares are limited in number and not always to be had in the market, and their possession carries with it the status’ of a share holder, which cannot otherwise be procured. A contracts with B to paint a picture for B who agrees to pay therefor Rs. 1,000. The picture is painted, B is entitled to have it delivered to him on payment or tender of Rs. 1,000. Of clause (d)- A transfer without endorsement, but for valuable consideration, a promissory note to B. A becomes insolvent, and C is appointed his assignee. B may compel C to endorse the note, for C has succeeded to A’s liabilities and a decree for pecuniary compensation for not endorsing the note would be fruitless.
Court
Decisions
Specific
performance:– Suit for specific performance alone would be competent in
presence of agreement to sell. Declaratory suit U/S. 42 in such case would be
barred. P.L.J.2000 SC 331.
Plaintiffs being tenants against whom order of ejectment had been passed, had filed suit to the effect that after order of ejectment was passed against .them, there was agreement of sale between parties and that plaintiffs had passed on earnest money to defendants as per terms of agreement of sale. Defendant had totally denied such agreement. Share of defendants being admittedly undivided, even if it was proved that they had agreed to .sell property, such agreement would be deemed to be void. Plaintiffs having failed to make out prima facie case for grant of temporary injunction. Plaintiffs, however, being tenants they would not be dispossessed/ejected otherwise than in due course, of law. Relief claimed could not be granted for no injunction could be granted to stay Judicial proceedings in terms of S. 56, Specific Relief Act, 1877. P.L.J.1999 Kar. 213 = 1998 CLC 1515. Court while passing decree in such suit fixed time for deposit of sale price and provided consequences of dismissal of suit in case of failure to comply with the decree - Extension of such time - Powers of Court - Scope - Such decree was not preliminary, but to all intents and purposes was final in nature - court had no jurisdiction to extend the time under S. 148, C.P.C., on principle of becoming functus officio - Such rule was not absolute, but subject to certain exceptions including situations beyond control of the decree-holder to comply with decree or the act of court which impeded compliance thereof - When judgment and decree was corrected, then time provided in original decree for such deposit would start from the time, when the correction was allowed - Principles and exceptions illustrated. PLD 2004 Lah. 103 Application for amendment of the plaint - Limitation, computation of – proposed amendment in the plaint - Limitation, computation of - proposed amendment in the plaint was allowed by the Trial Court on payment of costs and defendant received the costs and did not challenge the said order - Cumulative effect of the acceptance of the application for amendment of the plaint and the acquiescence of the defendant was that no right had accrued to the defendant by efflux of time - Plaintiff, in the present case, was in possession of the suit-land and in addition of the alternate relief by way of amendment in the plaint had not substituted the cause of action, therefore, the amendment would relate back to the date of institution of the suit and as such he alternate relief was not barred by limitation. PLD 2004 SC 62 Parties by mentioning one month time in agreement had not intended to make the time of the essence of contract - Conduct of parties showed that plaintiff being a property dealer by profession had been anxious for completion of contract with a view to frustrate contract, whereas plaintiff had issued timely notice to her for discharge of her obligation by executing relevant documents - Defendant herself had been found to be in breach f contract and she could not be permitted to take advantage of her own wrong - If plaintiff was in breach of contract, defendant in law and equity was under obligation to provide reasonable time to plaintiff for performance of his part of contract before resorting to hasty and abrupt revocation of contract before expiry of thirty days - No stipulation existed in the agreement that in case of plaintiff’s failure to perform his part of contract, same would stand revoked - Only stipulation in agreement was that on plaintiff’s failure to make payment as indicated earnest money would stand forfeited - Courts below had rightly found that time was not of the essence of contract - Concurrent findings of fact did not suffer from misconception of law or misconstruction of evidence - Supreme court dismissed appeal in circumstances. PLD 2003 SC 430 Vendor entered into agreement to sell with plaintiff on payment of Rs. 26,000, but later on sold the land to subsequent vendees for Rs. 1,00,000 - Trial Court dismissed plaintiff’s suit - High court in revision enhanced decretal amount of Rs. 26,000 to Rs. 1,30,000 - Validity - Vendor had not challenged such increase of decretal amount - thus, he was bound to pay the same - present value of property according to parties was more than Rs. 2,00,000 - if property had so much escalated in value, then amount paid by plaintiff had equally escalated in similar proportion - Value of currency had gone down due to high inflationary trends in economy - Plaintiff and his legal heirs needed to be compensated for torture of protracted litigation for last 22/23 years - Had amount paid by plaintiff been invested, same would have enhanced in value at least ten times - Plaintiff was entitled by all means to such compensation - Supreme Court converted petition into appeal and after partially accepting same granted decree to plaintiff for recovery of Rs. 2,30,000, out of which decree against vendor would be of Rs. 1,30,000 and against subsequent vendees would be of Rs. 1,00,000. PLD 2003 SC 494 Both the parties blamed each other for a not completing the contract - Property in question was sold to another party which took the plea that he was a bona fide purchaser without notice of any prior agreement to sell - Contention of the subsequent purchaser was that he had discharged his burden of proof by stating that he had no knowledge of the prior agreement to sell - Plaintiff stated that they were in possession of the property and resultantly, such fact was sufficient to put the prior agreement to sell - Plaintiff stated that they were in possession of the property and resultantly, such fact was sufficient to put the prior purchaser to the notice of the agreement to sell - Validity - Prior agreement to sell did not mention that the possession had been delivered not any documentary evidence had been led, to prove the fact, which could have put the subsequent vendee to notice to inquire about the nature of the possession - Findings of the Appellate Court on the issue being against the record and the law, could not sustain which were set aside and that of Trial court restored. PLD 2003 Lah. 542 Filing of ejectment petition by petitioner against respondent and suit for specific performance of agreement to sell by respondent against petitioner during pendency of ejectment petition. Striking off defence of petitioner in suit for specific performance. Suspension of operation of impugned order and permission for filing written statement by High Court (Single Bench) When another counsel appeared and requested that he had been engaged on same day by petitioner who was not in Pakistan, rather he was abroad, request could be granted by court as no punative action was called for and court did not indicate in any order that it is last opportunity for submission of written statement. In previous order he had written that only in the interest of Justice one opportunity was given. Moreover, no warning was given in previous order to petitioner that if he does not submit written statement and also written reply punitive action will be taken against him. Moreover, eviction petition is still pending adjudication before Rent Controller and suit for specific performance also relates to same subject matter of property and petitioner cannot be deprivecftrom narrating facts in written statement which enables court to formulate issues on pleadings of parties. Impugned order being violative of settled proposition of law is hereby set aside. P.L.J.1998 Lah. 1082 = 1998 CLC 824.Contention of defendant (allottee) was that such agreement was void and unenforceable owing to restriction placed on her by S. 19(2) of Cooperative Societies act, 1925 and Bye-Law 17(3) of Bye-Laws of Lahore Cantonment cooperative Housing Society - Validity - Defendant in preliminary objections had only asserted that agreement was void and unenforceable, but had not even indirectly pleaded such bar - Such plea had not been pressed before High Court - Fact that plaintiff was not member of society had neither been pleaded nor even alluded to - Restriction on power of an allottee of pot in Society to transfer same to a non-member might be a question of law, but the circumstance, whether plaintiff was or was not a member of society was certainly a question of fact, which ought to be pleaded before building any argument on the same - Common practice between allottee-members of a Society to part with rights and interest in share capital or property allotted to them in Society in favour of a third party and society was generally not arrayed as party to agreement or suit - Dispute essentially remained between vendor and vendee - Supreme court disallowed the defendant to raise such objection and dismissed his appeal. PLD 2003 SC 430 Trial court rejected plaint under O. VII, R. 11, C.P.C. on the ground that jurisdiction of civil Court was barred under Ss. 32 & 33 of Arbitration Act, 1940 - Appellate Court and High court maintained such order in appeal and revision respectively - Validity - Award related to distribution of assets of predecessor of both the parties - Plaintiffs had been simply awarded certain amount and extra land as compensation out of property left by their predecessor - Record showed that defendants had distributed property left by their predecessor on their own at different places - Bar contained in Ss. 32 & 33 of Arbitration Act, 1940 would not be attracted to plaintiffs for being not parties to award - Plaintiffs would be affected by terms of award as property left by their predecessor had been divided and settled thorough same without associating them - Supreme Court converted petition into appeal and allowed the same while remanding case to Trial court for decision afresh. 2004 S C M R 76 Suit for specific performance of sale agreement ended into compromise. As per agreement petitioner failed to deposit said amount by specified date, respondent filed application for execution of consent decree. Court ordered petitioner to ensure completion of sale-deed in favour of respondent by specified date. Petitioner, instead of executing sale-deed in favour of respondent, filed in Trial Court application under S. 12(2), C.P.C. for setting aside decree passed against her. Petitioner's application was-dismissed by Trial Court as also by High Court. High Court in its impugned Judgment had taken note of fact that sale agreement in favour of respondent was witnessed by husband of petitioner. Petitioner had not disowned compromise. Petitioner having moved application for extension of time to deposit amount specified in compromise order would show that she had relied on decree, now challenged to be fraudulent. High Court had correctly found that no fraud had been committed and that Trial Court had passed valid order in dismissing petitioner's application under S. 12(2), C.P.C. P.L.J.1997 SC 1834 = 199'7 SCMR 1608 = NLR 1997 Civil 535. Question before Court was whether agreement to sell is genuine document. When Expert was produced to depose in respect of disputed document, court should have not taken responsibility of comparing signatures of appellant with that of disputed document. In such case it was bounden duty of Respondent No. 1 to 23 to have requested court for sending document for comparing of writings to another Expert. Secondly, when first Appellate Court had assessed evidence produced by parties before trial court, second appellate court ought not have assessed evidence. Scope of reassessment of evidence is limited in second appeal unless its case of non-reading/ misreading. Second Appellate Court has misused its Jurisdiction. Its Judgment suffers from this inherent defect. Appeal accepted. P.L.J.1996 SC 533 = 1996 SCMR 575. Sale agreement which was registered document was produced in Court and besides marginal witness, scriber of document was also produced in Court to support sale agreement. Defendant's claim that he h'ad thumb-marked document in question, on assumption that the same was lease deed and not sale-deed as had been agreed between parties. Defendant thus, had not disputed thumb-impressions on document in question and he had not even disputed, presence of witnesses mentioned in document of sale. Marginal witness and scriber of sale-deed testified before Court that sale deed was executed on instructions of defendant and that after hearing contents of document he had signed the same in their presence. Plaintiff, thus, had discharged onus to prove agreement which was otherwise registered deed. Defendant having taken contra version was legally bound to prove that he did not intend to execute sale agreement but intended to execute lease deed but he failed to do so. Defendnat's objection that second witness was not produced was of no effect, in as much as, besides marginal witness, deed writer was also produced who was practically witness of document as he had claimed that such document was scribed on the instruction of defendant and that the same had been attested in his presence. Objection of recording statement of one of plaintiffs after evidence of defendant having not been raised before Trial Court and even in grounds of appeal could not be allowed to be raised at the stage of argument for the first time before High Court. No misreading of evidence or error of law having been pointed out, no interference was warranted in Judgment and decree of Trial Court. Plaintiff was directed to deposit balance amount in Court by specified date if the same had not been deposited so far. P.L.J.2000 Lah. 1956. Concurrent findings by courts below are in favour of respondent. It would be too much for' respondent to be deprived of property, which was agreed to be sold to him ten years back and of which he paid 5/6 part of price. It would be inequitable as well as immoral to deprive respondent of fruit of sale agreement. P.L.J.1997 SC 681 = 1997 SCMR 1006 = NLR 1997 Civil 558. Concurrent findings of Courts below on basis of weight of evidence. Concurrent findings on sale consideration were correctly arrived at and they were not against weight of evidence. Defendants stand was evasive with regard to their assertions in written statement while it was proved in evidence that litigation had concluded; that upper portion of house in question, had gone to another party; that permanent transfer deed was ready for delivery and that the same had not been collected by defendants to avoid execution of agreement in question. Nothing was brought in evidence by defendants to show that 'transaction m question, was unconsciousable and oppressive, therefore, concurrent findings arrived at by two Courts-below were well reasoned, supported by evidence on record, and being not against law, would not call for interference.-P.L.J.2000 Lah. 474. Suit for specific performance on basis of agreement to sell was dismissed by Appellate Court in post remand proceedings. Appellate Court had incorrectly found that agreement to sell was not valid agreement enforceable under law, in as much as, when defendant had executed the same he was not owner of land in question. Person entering into agreement of sale of property having imperfect title, however, would bound to make the contract on subsequently acquiring interest in such property. Agreement to sell, thus, became enforceable by petitioner (plaintiff) through Courts when' executant/ defendant acquired interest in property in question. Agreement to sell in favour of plaintiff was also prior in time than that of agreement of association entered into between defendants inter se. Evidence on record established that defendant (vendor) had backed out of agreement to sell on acquisition of title and had entered into agreement of association with co-defendant without consent of plaintiff. Plaintiff was thus, bona fide purchaser of property in question, for value co-defendant having subsequently entered into agreement with vendor (defendant) with knowledge of prior agreement to sell, therefore, he was not entitled to protection in terms ofS. 27, of Specific Relief Act 1877. Dismissal of plaintiffs suit being based on misreading of evidence and the law, was set aside and plaintiffs suit was decreed on direction that he would deposit remaining price of land in Court before specified date. P.L.J.2000 Lah. 1987 Plaintiffs suit was decreed by trial Court, while in appeal the same was dismissed. Validity. Deceased owner i.e., predecessor of defendants had entered into valid, agreement with plaintiff through his attorney duly constituted by him. Execution of registered General Power of attorney was not denied by attorney of defendants while appearing as only witness on behalf of defendants. Agreement in question, was even proved through scribe and marginal witness. Trial Court had, thus, rightly decreed plaintiff's suit. Judgment of First Appellate Court dismissing plaintiff's suit was based on mis-leading and mis-construction of oral and documentary evidence, placed on record and the same was not sustainable in the eye of law. Defendants, title having become clear on 11.4.1984 on basis of decision of litigation going on relating to property in question, suit filed on 27.3.1985 was well within time. Judgment and decree passed by First Appellate Court dismissing plaintiffs sent was set aside while that of Trial Court decreeing plaintiff's suit was restored in circumstances. P.L.J.1999Lah. 1795. Suit for specific performance of agreement to sell decreed by Trial Court and the High Court. Concurrent finding of fact could not be interfered with by S.C.in appeal in as much as such finding did not suffer from any misreading of evidence or non-consideration of relevant pieces of evidence on record. Such finding being one of fact and based on evidence was un-exceptionable. Execution of agreement of sale having been admitted burden of proving that the same was void or invalid was entirely on appellants which they failed to discharge. Material on record clearly indicated that resolution of gen'eral body of appellants of specified date relating to sale of property in question, was passed validly, therefore, decrees of Courts below including the High Court on such question of fact being valid were maintained in circumstances. P.L.J.2000 SC 1708 = 2000 SCMR 506. Agreement to sell whether executed and proved between parties stamp paper does not indicate to have been purchased from person who was alleged by plaintiff to have sold and Scribed in same-Scribed of alleged agreement was not produced in evidence-Material contradictions were found in statement of marginal witnesses with regard to date, time, place and execution of agreement in question-Marginal witnesses had admitted in their statement that neither any agreement to sell was executed nor any amount was counted in their presence and that they had simply affixed their signatures upon agreement to sell-Discrepancies in their statement, with regard to their relationship with plaintiff was apparent on record-Marginal witnesses had contradicted each other in their statements-Agreement to sell was not proved to have been entered or executed between parties, PLD 2003 Lah.125 Contention that by executing agreement of sale, which had not been proved, and which had been withheld in evidence in spite of several adjournments granted to tenant, finding given by Rent Controller regarding existence of relationship of landlord and tenant and admission of tenant that he did not pay rent from date of execution of alleged agreement, whether order of ejectment passed by Rent Controller was not open to interference by High Court. Leave is granted. Tenant had failed to establish on record that relationship of landlord and tenant did not exist between parties to ejectment proceedings. Rent Controller had given several chances to tenant to produce his eviddnce in support of his contention but in spite of repeated adjournments he failed to produce his evidence resulting to closing of his side and directing his ejectment. Fact that landlords were handed over possession of premises through execution of order of Rent Controller and tenant's suit for specific performance of alleged agreement to sell having been dismissed by Trial Court and appeal there against having been returned to tenant on account of non-payment of court-fee and non-prosecution, would not Justify remand of case by High Court to Rent Controller for fresh decision. Order of High Court remanding case to Rent Controller was set aside and order of ejectment of tenant was restored.-P.L.J.1997 SC 433 = PLD 1997 SC 73. Courts below had concurred that the plaintiff had failed to prove execution of agreement of sale‑‑‑Plaintiff had not produced the vendor of stamp paper nor the scribe of the said agreement in rebuttal‑‑‑No reliable evidence was on record to prove that the plaintiff was inducted in possession of suit land as a tenant‑‑‑Finding of the Appellate Court that agreement to sell had not been proved, was unexceptionable and was upheld‑‑‑No question of law and fact arose which could merit interference with judgment and decree of Appellate Court‑‑*Appeal being meritless -was dismissed. 2001 Y L R 2145 Defendant (owner) neither contested suit nor did he put in appearance in Court despite service-Defendant (owner) had as per proof on record received specified amount from plaintiff under agreement in question-Judgment and decree of Trial Court in favour of plaintiff was set aside and instead decree for recovery of amount in question, was passed in plaintiff's favour against defendant owner. Defendant (vendee) had taken plea in his written statement that he was bona fide purchase for consideration without notice of sale agreement in question-Plaintiff was fully aware of plea taken by defendant in his written statement which plea was incorporated in issue to that effect - Onus of such issue which was in negative, stood discharged by said plea of defendant and his statement in witnesses box - Plaintiff, however, did not lead any evidence either in affirmative or in rebuttal that plaintiff had notice of agreement to sell-Defendant's statement in cross-examination that he was never told by plaintiff about agreement to sell - Such statement was sufficient to shift burden on plaintiff which he never discharged-Judgment and decree in favour of plaintiff on the basis of agreement to sell was set aside, PLD 2003 Lah.170 Defendant denying his signature/thumb‑impression on agreement to sell, whereupon plaintiff applied for summoning defendant for verifying his thumb‑impression on agreement‑deed‑‑‑Trial Court rejected plaintiff's such application but the same was accepted by revisional Court‑‑*Validity‑‑‑Main grievance of defendant was that he was yet to be examined in Court, so there was no need of summoning him for verifying his thumb *impression on agreement in question‑‑‑Perusal of record showed that defendant was being represented through his attorney and there was every likelihood that defendant might not appear in Court‑‑‑Revisional Court had accepted revision to forestall such eventuality and directed defendant to appear in Court to verify contents of document including his thumb‑impression‑‑‑Impugned order of Revisional Court did not suffer from any illegality. 1998 C L C 1325 Document in question was receipt whereby defendant's agent had received specified amount on behalf of his principal with condition attached thereto, that if defendant did not agree to sale of property in question, then the deal would not got through and plaintiff would be entitled to refund the money which he had advanced as earnest amount. Defendant did not agree to sell property in question and sold the same to some one else. Plaintiffs entitlement to seek specific performance agreement to sell. Stipulation in agreement to sell would indicate that Plaintiff at the very inception of the agreement had agreed to abandon his right to seek specific performance of agreement and also absolved defendant of all his liabilities under such agreement whatsoever in case transaction of sale was not compeleted. The receipts produced by the Plaintiff were not showing the essential terms of sale consideration, time for completion of sale, payment of balance of sale consideration thus the receipts were not agreement to sell. P.L.J.1998 Pesh. 166 = 1998 CLC 1397. If contract provided for a specific amount as damages, its specific performance whether can be granted or not. As far as first consideration to refuse specific performance of contract is concerned, explanation to Section 12 of Specific Relief Act to effect that unless and until contrary is proved, Court shall presume that breach of a contract to transfer immovable property cannot be adequately relieved by compensation io money, escaped notice of learned Courts, provisions of Section 20 of said Act also escaped consideration of learned Courts. Refusal to grant specific performance on ground that agreement provided for penalty is not sustainable.-P.L.J.2000.Lah. 1485. In absence of independent evidence regarding execution of disputed agreement of sale and evidence produced by alleged vendee not inspiring confidence, Court below had rightly found that no agreement of sale was executed in favour of vendee by vendor and suit for specific performance of alleged agreement of sale filed by plaintiff/alleged vendee was not maintainable‑‑‑Judgment and decree passed by Court below not suffering from any illegality, could not be differed with. 1993 C L C 2439 Mala fide of plaintiff was apparent from the very prayer of specific performance of contract Situation seemed to be novel where plaintiff (contractor) during execution of contract, performance where of had already started, seeks specific performance thereof against defendant (Government) and at the same time runs away himself leaving structure to obvious wear and tear of seasons--Even defendant Government and its functionaries did not realize that plaintiff contractor should have been dealt with in accordance with the rules as well as the terms of contract--Contract in question, should have been cancelled and re-tendered at the risk and cost of plaintiff contractor--Petition for leave to appeal was, thus, controverted into appeal and Judgments and decrees of Courts below were set aside resulting in dismissal of plaintiffs suit--Plaintiff apart from costs through out was also burdened with special costs. P.L.J. 2002 SC 1173 Parties during pendency of appeal before Additional District and Sessions Judge made statement to the effect that matter be referred to District Judge for decision as a Referee---District Judge gave his decision and also appeared in the Court and got recorded his statement on oath---Parties accepted the same and appeal was disposed of in terms of decision of Referee---Defendant being not satisfied with decision of District Judge filed appeal before High Court which was dismissed--- Validity---Leave to appeal was granted to examine the contention, as to whether statement made by the Referee would be considered as an information made under Art.33, Qanun-e-Shahadat, 1984 or in view of his statement which he got recorded in the Court same would be treated as an Arbitration award in view of Supreme Court decision in Ghulam Farid Khan v. Muhammad Hanif Khan 1990 -SCMR 763. 2000 SCMR 828 Plaintiff an Advocate of vendor lady in different litigations relating to her lands, had claimed that lady had agreed to sell disputed land for consideration through agreements of sale arrived at between him and vendor lady. Lady who allegedly executed contract of sale having died, her grandsons who were made defendants in suit had alleged that deceased who was a Pardanashin lady Was over 100 years of age at time of execution of alleged agreements of sale and was incapable of exercising her free consent and that deceased lady was absolutely illiterate and plaintiff in his capacity as her standing counsel might have got several documents thumb-impressed by her without appraising her of their implications. Court had concluded that alleged agreements of sale executed by lady were not binding on defendants as plaintiff was unable to discharge burden of satisfying Court that she had executed agreements with full knowledge and consent. Status. Vendor lady who was proved to 'be Pardanashin and illiterate was entitled to protection which law had afforded to illiterate and Pardanashin women and said protection was different from open fraud or misrepresentation vitiating a contract. Allegation of fraud must be proved by a person alleging same, whereas when a transaction was made by a Pardanashin lady, onus was always on person claiming advantage of such transaction to show that same was made with free-will of Pardanashin lady. No fault could be found with Judgment of Court on ground that Court had examined said question irrespective of fact that fraud was not proved in transaction.-P.L.J.1999 Kar. 839 = 1999 CLC 1057. Plaintiff in support of his claim introduced forged and fabricated document whereby he had allegedly paid the balance amount to defendant‑‑‑Such document on comparison of signatures was proved to be forged and fabricated one‑‑‑Judgment and decree granted by Court below was set aside by High Court in circumstances. 1996 M L D 269 Plaintiffs producing two agreements one agreement suggested that defendants had agreed to sell property in question and had received earnest money‑‑‑Subsequent agreement contained acknowledgement of defendant that he had received balance amount‑‑*Defendant admitted earlier agreement but subsequent agreement was not acknowledged by him and he stated that the same was forged and fabricated‑‑*Subsequent document being questioned document was sought to be proved and disproved by both parties by producing Handwriting Experts‑‑‑High Court examined Handwriting Experts' reports, photographs prepared and original agreement and after comparing the admitted agreement with the disputed document came to conclusion that signatures of defendant (appellant) was a crude attempt to forge his signatures on the disputed one‑‑‑By comparison of admitted signatures and disputed signatures, there seemed to be a marked difference between both the signatures‑‑‑Admitted signatures showed fluency, same angles, same spacing which one gets used to with passage of time‑‑‑In disputed signatures crude effort had been made to copy the signatures and whole attention of forger was on copying the words and he completely missed other characteristics of signatures viz. size of signatures, words, angles and spaces between different parts of name besides there was no fluency‑‑*Difference in two signatures was so clear that it did not require any expert opinion to hold that signatures on disputed document were forged and that forgery was done in great haste‑‑‑Subsequent document was thus a forged document and claim for specific performance on basis thereof, was not sustainable. 1996 M L D 269 Allah Rakha v. Sadhu Masih and others 1982 CLC 2352; Lt.‑Col. Muhammad Yusuf, Commissioner, Quetta Division v. Syed Ali Nawaz Gardezi PLD 1963 (W.P.) Lah. 141; Nawab Din v. Ghulam Oadir and 9 others 1994 MLD 1275; Muhammad Khan and others v: Muhammad Boota and others 1994 MLD 1622; Muhammad Irshad and others v. The State 1994 MLD 1299; Nowab Meah Chowdhury v. Syed Ezaz‑ud‑Din Ahmad and others PLD 1962 Dacca 655; Mir Hasmat Ali v. Birendra Kumar Ghosh and others PLD 1965 Dacca 56; Bank of Bahawalpur Ltd. v. Punjab Tanneries, Wazirabad Ltd. and 2 others PLD 1971 Lab. 199; Ahmad Bakhsh v. Mst. Zeb Illahi PLD 1981 BJ 60; Ali Muhammad Khan v. Riazuddin Khera PLD 1981 Kar. 170; Abdul Kadir v. Mir Ashraf Ali Khan and 2 others 1982 CLC 110; Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344; Abdul Aziz and another v. Abdul Relunan and others 1994 SCMR 111; Seth Essabhoy v. Saboor Ahmad PLD 1973 SC 39; Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690; Muhammad Anwar Khan Ghouri v. Sheikh Muhammad Taqi PLD 1977 Kar. 391; Fazal Muhammad v. Muhammad Usman PLD 1970 Lah.560; Haji through his Legal Heirs and others v. Khuda Yar through his L.Rs. PLD 1987 SC 453; Muhammad Safdar Ansari and another v. Abdul Majeed PLD 1988 Lah.216; Ch. Nazar Muhammad and others v. Shafiq Ahmad Khan and others PLD 1963 (W.P.) Lah.23; Marker Employees' Union v. Marker Alkaloids Ltd. and others 1976 SCMR 82; Taj Din v. Abdur Rehman PLD 1963 (W.P.) Kar. 825; Abdul Majid v. The State PLD 1976 Kar. 762; Mushtaq Ahmad Gurmani v. ZA. Suleri and another PLD 1958 (W.P.) Lah.747; Ansar Ahmed v. Bank of America, Kar. PLD 1975 Kar. 252; Saleh Muhammad and others v. Subedar Major Muhammad Bakhsh PLD 1960 (W.P.) Lah.231; Rahim Bakhsh v. Ghulam Muhammad and another 1983 SCMR 1137 and Mst. Amina Begum and others v. Mehar Ghulam Dastgir PLD 1978 SC 220 ref. Respondent admitted the execution of agreements in her first written statement and in her cross‑examination; but she subsequently in amended written statement took the plea that agreements were fictitious, forged and fraudulent‑‑‑Trial Court decreed the suit, but was set aside by Appellate and Revisional Court‑‑‑Validity‑‑‑Admission made by respondent in her first written statement would be binding on her under Art.113 of Qanun‑e-*Shahadat, 1984‑‑‑Such admission stood corroborated by, her own further statement made in cross‑examination with regard to due execution of agreements and passing of consideration, besides overwhelming oral and documentary evidence of appellant and her marginal witnesses‑‑‑Subsequent denial of execution of agreements and receipt of amounts stated therein, and non‑mentioning of Identity Cards of respondent and marginal witnesses in the agreements would not make them doubtful‑‑‑Respondent could not be allowed to lead oral agreement or make statement to contradict, vary, add or subtract the terms of agreements, which were reduced into writing under Art.103 of Qanun‑e‑Shahadat 1984‑‑‑Inconsistent conduct and denial of admitted facts by respondent proved that she had not come to Court with clean hands‑‑‑ S. C. allowed the appeal and set aside the impugned judgments and decrees and restored that passed by the Trial Court. 2002 S C M R 326 Muhammad Zahoor v. Lal Muhammad and others 1988 SCMR 322 ref. Respondent's plea was that parties had agreed to execute lease agreement, but appellant in connivance with petition‑writer and marginal witnesses got it executed as agreement to sell ‑‑‑Respondent also filed suit for cancellation of agreement to sell being based on fraud and ineffective on his rights‑‑‑Both the suits were consolidated‑‑‑Trial Court decreed appellant's suit and dismissed respondent's suit holding that appellant had proved by examining one marginal witness and scribe of agreement that it was executed as agreement to sell‑‑‑Respondent's appeal was dismissed by Appellate Court, but his revision petition was accepted by High Court‑‑‑Validity‑‑‑Respondent had neither denied execution of agreement nor appellant's possession over suit‑land nor had claimed relief for getting its possession from appellant in suit for cancellation of agreement‑‑*Neither any jurisdictional defect nor non‑reading and misreading of evidence could be pointed out in judgments/decrees passed by Trial Court and Appellate Court‑‑‑High Court had interfered with such concurrent findings without indicating misreading or non‑reading of evidence or the same being in any way in violation of law‑‑‑High Court had granted relief to respondent on the ground not raised either in written statement or during trial‑‑‑ S. C. accepted appeals with costs and set aside judgment of High Court. as a result of which judgments/decrees of Appellate Court were restored. P L D 2002 S. C. 293 Specific amount had been passed on to defendant as earnest money‑‑‑Plaintiff had mainly based his claim on second agreement whereby he allegedly had passed on the balance sale amount‑‑‑Such document was adjudged to be forged and fabricated one‑‑*Plaintiff at the stage of proceeding or during argument in appeal took up position that in case subsequent agreement was excluded from consideration he was prepared to perform his part of contract in terms of earlier agreement‑‑‑Agreement of sale which had been scribed earlier was only meant to secure amount in question (earnest money) and parties never meant transfer of property‑‑‑Even if everything was accepted High Court would have refused specific performance on account of dubious conduct of plaintiff‑‑‑Discretion of Court neither in case of declaration nor in suit of specific performance could be exercised in favour of a party which indulged in forging and fabricating of document in order to deprive others of their valuable property and try to cheat the Court‑‑‑Plaintiff was thus, not entitled to decree for specific performance of agreement to sell. 1996 M L D 269 Abdul Aziz and another v. Abdul Rehman and others 1994 SCMR 111; Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344; Ali Muhammad Khan v. Riazuddin Khera PLD 1981 Kar. 170; Nawab Meah Chowdhury v. Syed Ezaz‑ud‑Din Ahmad and others PLD 1962 Dacca 655; Mir Hasmat Ali v. Birendra Kumar Ghosh and others PLD 1965 Dacca 56 and Muhammad Khan and others v. Muhammad Boota and others 1994 MLD 1622 rel. Stamp paper does not indicate to have been purchased from person who was alleged by plaintiff to have sold and Scribed in same-Scribed of alleged agreement was not produced in evidence-Material contradictions were found in statement of marginal witnesses with regard to date, time, place and execution of agreement in question-Marginal witnesses had admitted in their statement that neither any agreement to sell was executed nor any amount was counted in their presence and that they had simply affixed their signatures upon agreement to sell-Discrepancies in their statement, with regard to their relationship with plaintiff was apparent on record-Marginal witnesses had contradicted each other in their statements-Agreement to sell was not proved to have been entered or executed between parties, PLD 2003 Lah.125 Subsequent vendee while appearing in witness-box had not stated that he was not aware of previous agreement to sell executed by vendor respondent in favour of plaintiff-Evidence and circumstances clearly showed that subsequent vendee had knowledge of agreement to sell entered into by vendor lady with plaintiff before sale-deed which was executed and registered in his favour - Findings of Courts below non* suiting plaintiff were set aside and plaintiffs suit was decreed with direction to deposit remaining sale price within specified period. PLD 2003 Lah.49 "Lease" and "licence". Nature and distinction. Licence merely would grant licence/permission to enter Upon licensor's property and do something, which in absence of such grant, would be unlawful. Such grant of permission would amount to a licence as per S. 52, Easements Act, 1882. If such a grant would create an interest in property, same could not be construed as a "licence" and in that connection intention of parties would also have to be considered. Plaintiffs to Whom plot in question was allotted had paid substantial amount to defendant Authority. One of terms of allotment was that industrial unit for which plot was allotted, should be completed within specified period, but plaintiffs were unable to do so on account of failure of Authority to provide infrastructure facilities agreed to between parties. Plaintiffs, in circumstances, could not be penalised on that score. Subsequent correspondence between parties also established that right from very beginning, intention of parties was to construct building of permanent nature on plot in question. Transaction between parties, in circumstances, amounted to agreement to "lease" rather than "licence". P.L.J.1999 Kar. 687 (DB) = 1999 CLC 1076. Acknowledgment giving fresh start to the period of limitation - Deed on the basis of which the suit was filed was executed on 28-8-1992 whereas the suit was filed on 11-4-1997 - To bring the suit within limitation the plaintiff relied on an acknowledgement receipt duly made on 24-5-1996 - Defendant contended that the suit was time-barred - Validity - Where the deed was executed on 28-8-1992, the suit was to be brought on or before 28-8-1995 - Acknowledgment alleged by the plaintiff was much beyond the initial period of limitation and the plaintiff could not be benefited from the same - Suit qua the money claim was barred by time accordingly. PLD 2002 Pesh. 1 Agreement to sell. Execution of. Defendant was not owner of land in question, when such agreement was executed. Defendant having subsequently acquised proprietary right, of land in question, effect of previously executed agreement to sell. Agreement to sell, by grantee of property vesting in Government would become effective after vesting of property in grantee. Such transaction was not hit by S. 19, Colonization of Government Lands (Punjab) Act 1912. Agreement of sale had to be proved or disproved on its own and previous'litigation between executant and plaintiffs sons had no bearing on it. Agreement in question, has to be decided in the light of evidence brought on record as to whether such agreement was ever executed by alleged vendor in favour of plaintiff or not. Plaintiff had fully discharged onus of proving agreement to sell in his favour by producing cogent evidence. Defendants having failed to rebut such evidence, presumption has to be drawn, against them-and in favour of genuineness of such disputed documents. Only conclusion -which could be drawn from evidence available on record was, that vendor had executed agreement to sell in favour of plaintiff, therefore, wrong and illegal conclusion had been drawn by First Appellate Corrt Judgment and decree of First Appellate Court dismissing plaintiffs suit was set aside while, that of trial -Court decreeing plaintiff's suit was resorted. P.L.J.2000 Lah. 682. Agreement to sell. Proof. Opening of new bank account in the name of appellate on the eve of agreement to sell. Withdrawal of such amount of appellant. Respondent (Plaintiffs) evidence to the effect that such amount which was a substantial portion of sale amount had been deposited by him in the name and with consent of appellant (defendant) would fully prove that agreement to sell was intact effected especially when appellant produced no evidence in contradiction of such fact. Agreement to sell was thus, proved. Grant of decree for specific performance of agreement being discretionary and equitable relief, S.C.in the interest of Justice exercised its discretion in favour of appellant and raised amount of remaining consideration of Rs. 2000/- to Rs. 1,00,000 on account of inflation in the value of currency. Judgment and decree of High Court in decreeing respondent's suit was maintained in circumstances.- P.L.J.2001 SC 256. Application for ejectment of tenant. Landlord setting up agreement of sale against the same. Effect. Agreement of sale did not confer any title unless the same had been determined in favour of tenant by competent Court of Jurisdiction. Rent Controller, thus, fell in error in holding that relations of landlord and tenant between parties could be determined after final decision of suit pending before Civil Court. Tenant during pendency of suit for specific performance of agreement where landlord was not even a party, could (not be allowed by challenging title of landlord and retain possession of premises in question. Landlord was, therefore, entitled to seek eviction, of tenant. Tenant was directed to vacate premises within specified period. P.L.J.1999 Qta. 27 = 1999 MLD 2117. Breach of contract -- Only two remedies are available to the aggrieved person, either to seek specific performance of the contract, or to seek for damages - Where specific performance cannot be granted under the law, as a substitute, the plaintiff is not entitled to file a suit for declaration or for that matter a suit for perpetual injunction, 2002 CLC 77 Malik and Haq v. Muhammad Shamsul Islam PLD 1961 SC 531; Kar. Shipyard Works v. Muhammad Shakir Sheikh 1993 CLC 330 : Shahid Mahmood v. KESC 1997 CLC 1936; Alvi Sons v. Government of East Pakistan PLD 1968 Kar. 222 and M. Farooq v. Suleman A.G. PanJwani PLD 1977 Kar. 88 ref. Burden of proof‑‑‑Suit for specific performance of contract based on agreement to sell‑‑‑Onus to prove such contract would lie on plaintiff unless its existence was admitted by defendant. 2002 S C M R 1089 Cancellation of Allotment:-- Plaintiff had paid substantial amount for booking/allotment of premises. Allotment could not have been cancelled without giving clear notice "to plaintiff. Terms and conditions showed that defendant was entitled to cancel booking of premises after expiry of 15 days' notice. Letters sent by defendant to plaintiff did not stand test prescribed by defendant itself nor those letters mentioned that premises in question had been allotted to a third party. In absence of valid and lawful cancellation of booking held by plaintiff, no rights could be created in favour of third party who being subsequent allottee could not assert any claim during subsistence of allotment in favour of plaintiff. Defendant or any other person claiming through or under it, could not be permitted to take any further steps in relation to premises in question so as to adversely affect interest of plaintiff. Defendnat was directed to maintain status quo with regard to premises in question, during pendency of suit, subject to plaintiff depositing balance amount of sale consideration with Nazir of Court within specific period. P.L.J.1997 Kar. 1228= 1997 MLD 3049. Cause of action - Agreement of sale which provided basis for institution of the suit was admitted by the defendant and the contract evidenced by said agreement was sought to the specifically enforced - Cause of action had accrued to the plaintiff to bring the suit. PLD 2002 Kar. 333 Condition of deposit of balance consideration amount - Agreement, in the present case, between the parties was not a simple agreement in nature of sale purchase of immovable property, rather it was for development of the suit sales, though within a Specified period as stipulated in the agreement--- Trial Court granted interim injunction with a condition to deposit the balance consideration amount--- Validity - Not rule of law that essentially in all the cases of specific performance, while granting temporary injunction to the plaintiff, the Court should impose condition to deposit of balance consideration--- Imposing of such condition depended upon facts and circumstances of the case enabling the court to exercise its discretionary equitable relief - As the defendants prima facie were found at fault in not handing over the entire suit land to the plaintiffs for the purpose of such development, imposition of condition for the deposit of the balance consideration in the facts and circumstances of the case, would be harsh and against the settled rules for the exercise of discretion - Plaintiffs had established existence of prima facie case in their favour, for it was they who were to suffer irreparable loss in case temporary injection was not issued and the condition of deposit of the remaining amount of consideration was not legally justified - present agreement being not in the nature of direct sale but an agreement for development of the land into plots and thereafter sale of the developed plots and payment of the amount of consideration from the sale proceeds, therefore, the order of deposit of Rs. 42 crores amounted to denial of the relief of temporary injunction to which the plaintiffs were entitled--- High Court set aside the condition of deposit of balance consideration amount imposed by the Trial Court at the time of passing the interim injunction - Interim injunction was allowed in circumstances. PLD 2003 Lah. 17 Consent---Definition of "consent" or free-consent in Contract Act, 1872 applies to provisions of Specific Relief Act under residuary clause of S. 3 of Specific Relief Act. 1982 SCMR 741. Declaratory suit. Based on unproved agreement. Alternate plea of specific performance of contract. Whether can be pressed. So far as alternative plea of specific performance of contract is concerned, same has no substance as how could petitioner press for such plea when agreement contract has not been proved.- P.L.J.1996 Lah. 1418 = 1996 MLD 252. Defendant termed such agreement to be a forged document‑‑‑Trial Court dismissed the suit‑‑‑Validity‑‑‑High Court on plaintiffs' request got thumb‑impression of defendant and compared the same with thumb‑impression on disputed agreement attributed to defendant, and found marked difference between the two‑‑*High Court refused to get an expert opinion in the matter as such difference was evident and clear to naked eyes‑‑‑Stamp paper of disputed agreement as per record was purchased from M, whereas suit‑land was situated at ML and agreement was executed at V‑‑‑Scribe of agreement was neither having licence as petition‑writer nor did he sign same nor he was in possession of relevant register, wherein disputed agreement was entered‑‑‑Marginal witness of agreement had been involved in 8/10 criminal cases‑‑‑Defendant had no male issue and one of the plaintiffs was his cousin, who had tried to grab the property of defendant‑‑*Statement of stamp‑vendor denying to have sold stamp paper of disputed agreement was not subjected to cross‑examination by plaintiffs‑‑‑Number of National Identity Card on disputed agreement attributed to defendant was also found to be incorrect when compared with his original National Identity Card‑‑‑Disputed agreement to sell was a forged document, which could not be relied upon. 2002 C L C 942 Deficiency of court-fee:-- First Appellate Court while disposing of appeal found that court*fee had not been paid-Plaintiff's application for extension in time to make deficiency in court-fee and another application that court-fee already deposited in treasury on specified date be treated to have been paid within time, were dismissed and ,appeal, besides being time-barred, was also dismissed on deficiency of court-fee--Finding of First Appellate Court did not suffer from any infirmity Justifying interference in second appeal--Findings of Appellate Court were maintained in circumstances. 1998CLC417 Assistant Commissioner and Land Acquisition Collector, Badin v. Haji Abdul Shakoor and others 1997 SCMR 919 rel. Doctrine of ratification - One Co-Sharer entered into the agreement with the plaintiff, regarding his share as well as on behalf of the other Co-Sharers - Such agreement was executed without the consent and knowledge of the other Co-Sharers - Executant was not acting as attorney for the other Co-Sharers, while executing the agreement - Trial Court dismissed the suit to the extent of specific performance whereas the lower Appellate Court allowed the appeal arid decreed the suit - Validity - Where the executant was not acting as attorney and the other Co-Sharers were not aware of the agreement on their behalf, doctrine of ratification was inapplicable - Lower Appellate Court failed to take into consideration the essentials of the provisions of S.196 of Contract Act, 1872, but had restricted itself to draw inferences which were not Justified on the basis of evidence adduced by the plaintiff-Judgment and decree of the Lower Appellate Court were set aside and that of the Trial Court were upheld. 2001 CLC 595 Abdul Majid and 2 others v. Waris Ali and another 1999 YLR 1668; Imperial Bank of Canada v. Mary Victoria Begley AIR 1936 PC 193; Halsbury's Laws of England, 2nd Edn., p.231; Health v. Chilton (1844) 12 M&W 632 and Easten Construction Co. v. National Trust Co., 1914 AC 197 ref. Entitlement - Plaintiff has first to allege and prove that he was always ready and prepared to perform his part of contracts same really was. PLD 2003 SC 430 Entitlement to claim enhanced sale price. Where agreement of sale was executed 10 years back, and on account of lapse of such a long time value of price had dimished due to de-valuafcion "of currency, vendor was allowed additional compensation. P.L.J.1999 Lah. 1354 = PLD 1999 Lah. 193. Entitlement to specific performance of agreement of sale. Trial Court decreed plaintiffs suit by finding her entitled to specific performance of agreement of sale. Nothing was brought in record to suggest that plaintiff at any point of time was not willing to perform her part of contract. Sale agreement was not executed by defendants on pretext that stay order was in vogue relating to in question and when they informed plaintiff that stay order had been vacated, she demanded copy of vacation of stay order which was not supplied to her and she was obliged to file suit for specific performance of agreement of sale. In contracts relating to immovable properties, however time was not of essence and failure to perform part of contract by date fixed in agreement for sale i.e., executing sale deed was not a ground for refusing specific performance. Plaintiff's suit had thus, been rightly decreed by trial Court. P.L.J.1999 Lah. 1410 = PLD 1999 Lah. 238. Entitlement-Plaintiffs claim of execution of agreement to sell was although admitted by defendant yet he claimed that same was revoked through Panchayat and that had refunded earnest money through receipt which he produced in Court-Material contradiction about refund of earnest money was not correctly appreciated by Trial Court-Appellate Court on basis of evidence on record rightly excluded decision of Panchayat from consideration - No illegality or irregularity had been committed by appellate Court in accepting appeal-Judgment and decree of Appellate Court was maintained and affirmed,-PLD 2003 Lah.123 Essentials to grant Injunction. Mere fact that evidence of plaintiff was complete except recording of statement of plaintiff himself and tendering of certain documents should not have weighed with learned Civil Judge so heavily as to deprive appellant of relief sought by him for which he had to knock various doors and finally go up-to Hon'ble S.C.of Pakistan. Prohibitory order should have been subjected to condition of depositing balance of agreed sale consideration in order to show bona fides of plaintiff. P.L.J.1998 Lah. 140 = 1998 MLD 601. Evidentiary value of entries in Nikahnama - Nikahname is deemed to be a public document whereby in consideration of marriage respondent had transferred land in question, to petitioner - Fault in stating said term against Column No. 20 in stead of column No. 16 would be attributed not any of the parties but to official who under the law was enjoined to fill up said document - Even in Column 20, Word “Mehr” is very much there - Averment that entry in Nikahnama was fictitious stood negated in the very statement of respondent himself in witness box - Judgments and decrees of courts below whereby plaintiff’s suit was dismissed were set aside and plaintiff’s suit was decreed. PLJ 2004 Lah. 280 Failure to cross‑examine a party to suit on vital aspect of case‑‑‑Where statement of defendant on vital aspect had neither been cross‑examined nor was he confronted with documents for purpose of identifying his signatures, such failure would lead to drawing adverse inference against plaintiff. 1989 C L C 2287 PLD 1985 Jour. 283; 1985 CLC 1974; S. Ali Nawz Gardezi v. Lt.‑Col. Muhammad Yusuf PLD 1963 SC 51; Muhammad Sher and others v. Muhammad Azim and another PLD 1977 Lah. 729 and Gaverdhan Dass v. Ahmadi Begum AIR 1953 Hyd. 181 ref. Forfeiture of earnest money - Vendee had performed her part of contract and had paid more than 55% of the consideration amount to the vendor - Instead of performing his part of contract, the vendor did not complete the formalities and failed to execute the necessary transfer documents as per stipulation in the agreement, after receiving the balance consideration - Validity - Threatened action of vendor in forfeiting the amount was unconscionable as the he had received more than 55% of the consideration amount - When there was no condition in the agreement itself and the default in performance of the contract had been committed by the vendor, he was not Justified in equity to forfeit the amount unilaterally - Vendee was entitled to the relief of specific performance of contract and was also entitled to the relief of injunction as admittedly the vendor had threatened the vendee with actions of cancellation of contract and forfeiture of the amounts already paid much against the spirit of the contract - Suit was decreed in circumstances. PLD 2002 Kar. 333 Interim injunction. Pre-requisifces. Plaintiff was required to prove three essential ingredients i.e, prima facie case; balance of convenience and irreparable loss to plaintiff" for grant of injunction. Impugned order whereby injunction had been granted lacked said essential ingredients of injunction in their true spirit and legal sense inasmuch as plaintiff had prima facie failed to prove that there existed valid, proper and legal contract between them, which could be enforced through Court of law. Balance of convenience and irreparable loss to plaintiff in case of non-grant of injunction had not been proved by plaintiff nor the same were considered by Trail Court at the time of grant of injunction. Order of grant of injunction being not sustainable, was recalled in circumstances.-P.L.J.1998 Kar. 867 = 1998 CLC 760, Limitation - Cause of action, in a suit for specific performance of contract, arises from the date fixed for the performance - Stipulated date, in the present case, was 6-7-1986 fro completion of the sale but the vendor died on 2-5-1986 before the stipulated date for completion of the contract - Provisions of S. 17(2), Limitation Act, 1908 would be applicable in circumstances - principles - Question of limitation is a mixed question of law and fact and cannot be decided without recording the evidence – order of District judge remanding the case to the Trial Court to decide the same after framing of the issues and recording of evidence, was not interfered by the High court. PLD 2003 Lah. 409 -->Period of limitation of three years for suit for specific performance has to be computed, in cases, where no date had been fixed for performance of the contract, from the date when plaintiff had notice that performance was refused--Defendant himself in his evidence admitted that he denied right/title of plaintiff about 8/9 months prior to institution of suit and that being the date of notice of refusal to plaintiff, suit was within time. 1995 C L C 309 Muhammad Yasin v. Allah Din 1991 CLC 1457 rel. Mere inadequacy of consideration, held, no ground for refusing specific performance of contract in respect of immovable properties unless inadequacy was shown to be such which would shock conscience of Court while decreeing suit for specific performance or there were fraud or misrepresentation on part of plaintiff which induced defendant to enter into a contract for sale or there were certain circumstances under which plaintiff took improper advantage of his position or difficulties of defendant making him victim of his imposition. 1985 CLC 29.63. Non‑production of scribe or stamp vendor‑‑Plaintiff had neither produced the vendor of stamp paper nor the scribe of the agreement to sell and no explanation had been given for such non‑production ‑‑‑Non production of the scribe of the agreement to sell or the stamp vendor was fatal to the case of the plaintiff and adverse inference would also be drawn against the plaintiff for non production of the same. 2001 Y L R 2145 Payment of earnest money-No receipt relating to payment of money was produced-Marginal witnesses stated that no earnest money was paid in their presence-Trial Court on basis of such evidence had rightly concluded that neither any agreement to sell was executed nor any earnest money was paid-No interference was warranted in judgment and decree of Trial Court. PLD 2003 Lah.125 Pecuniary, compensation :-- Specific performance of contract. Seeking of. Whether Pecuniary, compensation could not afford adequate relief. General rule of equity is that if "a thing is agreed upon to be done, though there is penalty annexed to secure its performance yet very thing itself must be done. On -the other hand it is certainly open to parties entering into contract to agree that in case of breach of contract only a fixed sum of money shall be paid by way of compensation, There is neither any thing in conduct of respondents nor ,-in evidence of parties to show that respondents have ever given up their right to sue for specific performance. There was no force in plea that specific performance .may be refused under S. 22 or 24 of Specific Relief Act, 1877- Money is no compensation in contracts for sale of immovable property. Explanation ofS. 12 is quite clear on point. Corollary was that it could be specifically enforced and promisor could not insist for payment of damages or pecuniary compensation. A court of equity is in general annxious to treat penalty as being merely a mode of securing due performance of act contracted to be done and not as a sum of money really intended to be done.-P.L.J.1998 Lah. 1596 = PLD 1998 Lah. 11. Perpetual injunction, grant of - - Contract of supply of goods was revoked by the appellant - To enforce the contract, the respondent filed suit for declaration and permanent injunction -- Where the respondent was simply purchasing goods from the appellants on the payment of the price and against the delivery of the goods, such dealing between the parties was squarely covered by S.5 of Sale of Goods Act, 1930 - If the appellants, even for malafide reasons, had refused to sell the goods to the respondent, at the best, the respondent could sue the appellant for damages, but no specific enforcement of the agreement could be obtained under the decree of the Court, as per the provisions of S.56(i) of Specific Relief Act, 1877 read with explanation to S.12 of the Act. 2002 CLC 77 Plaintiff examined only one attesting witness‑‑‑Trial Court dismissed the suit on the ground that agreement to sell had not been proved in accordance with Art.79 of Qanun‑e-*Shahadat, 1984‑‑‑Agreement to sell having been attested by two witnesses and executed after promulgation of Qanun‑e‑Shahadat, 1984 ought to have been proved in accordance with Art.79 thereof‑‑‑Evidence on record consisted of only one attesting witnesses‑‑‑Payment of earnest money had not been proved‑ Evidence produced by plaintiff did not meet the requirement of Art.79 of Qanun‑e‑Shahadat, 1984. 2002 S C M R 1089 Preference of registered document over oral agreement - - Possession of suit-land was handed over to plaintiff in execution of oral agreement of sale - Subsequently the owner of the suit-land executed registered sale-deed in favour of defendants on the basis of another agreement of sale in their favour - Suit filed by the plaintiff was dismissed by the Trial court but appellate court allowed the appeal and decreed the suit in favour of the plaintiff - Judgment and decree passed by the Appellate court were maintained by High court in exercise of revisional jurisdiction - Plea raised by the defendants was that the agreement of sale in favour of the plaintiff was unregistered document which could not be termed as agreement of sale, while the agreement in their favour was a registered document, therefore, the document in favour of the plaintiff could not be enforced - Validity - Appellate court and high court, after taking into consideration the terms of the document in favour of the plaintiff could not be enforced - Validity - Appellate court and high court, after taking into consideration the terms of the document in favour of the plaintiff and the evidence produced by the parties, recorded a finding of fact that it was an agreement of sale, therefore, the same could be enforced as such to seek specific performance thereof - Vendee under unregistered document or agreement was delivered possession, the principle that registered document would taken preference over unregistered document would not be applicable in view of S. 48 of Registration Act, 1908 - Defendants, in their written statement had admitted that possession of the land had been delivered to the plaintiff under the agreement of sale, therefore, no benefit could be clamed under S. 48 of Registration Act, 1908, on the ground that agreement in favour of the defendants was a registered document - Execution of sale-deed in favour of defendants by the owner, after execution of the agreement of sale in favour of the plaintiff, could not in any manner detract from the rights of the plaintiff under law as holder of prior agreement of sale vis-à-vis the sale-deed specific performance thereof - Findings of fact recorded by the Appellate court and affirmed by the High court had not been shown to be suffering from any legal infirmity such as misreading or non-reading of any material piece of evidence - Appeal was dismissed. 2004 S C M R 530 Price of plot agreed to between parties. Subsequent increase in price. Effect. Enhancement of price of plot in dispute on part of Authority was a unilateral exercise to which plaintiffs had protested. Once price of plot in dispute had been agreed between parties, merely by efflux of time that could not be varied by Authority and made basis for cancellation of plot upon failure of plaintiffs to pay enhanced price.-P.L.J.1999 Kar. 687 = 1999 CLC 1076. Prima facie case - Non-delivery of possession - Onus to prove - Plaintiffs asserted that the defendants did not deliver possession of the suit land to them as per terms and conditions of the agreement to sell--- Effect - Onus was on the defendants to explain before the Trail Court to justify their failure to deliver possession of the suit land but in order to determine existence of prima facie case, the factum of non-delivery of possession of the suit land could be considered in favour of the plaintiffs. PLD 2003 Lah. 17 Proof of execution‑‑Agreement of sale allegedly entered by respondent with appellant‑‑Appellant examining attesting witnesses to prove execution of agreement but Courts below requiring production of expert evidence‑‑Nothing available on record to show that evidence of attesting witnesses on point was insufficient‑‑Finding of Courts below requiring production of expert evidence for proof of execution of agreement, held, was not justified‑‑No requirement of law existed to prove execution of a document by production of expert evidence‑‑Findings of Courts below set aside and case remanded for disposal in accordance with law. 1987 M L D 2065 Plaintiffs claimed to have paid entire sale consideration, they, however, admitted in evidence that they were not given possession of land in question ‑‑‑ Such fact was highly improbable that plaintiffs having paid full consideration would not have insisted for delivery of possession of land in question; plaintiffs also failed to give any reason for non *delivery of possession of land in question, when they had allegedly paid full sale consideration ‑‑‑ Such circumstances strongly reacted to plaintiff's claim that defendant had agreed to sell land in question under alleged agreement to sell and receipt of sale price ‑‑‑ In absence of very special circumstances, plaintiffs having paid full consideration, would have been put in possession of land in question‑‑*Findings recorded by Courts below were, thus, based on conjectures and surmises. P L D 1996 Supreme Court 256 Re*assessment of evidence‑‑‑First Appellate Court being Judge of law and facts was required to re‑assess evidence and if inferences or conclusions drawn by Trial Court were far from reality then those were to be discarded straightaway‑‑‑Where, however, two opinions about a fact, issue or controversy was possible then conclusion reached by Trial Court was normally to be preferred‑‑‑In plaintiff's case, conclusions of High Court were, however, quite opposite and he was, thus, not entitled to indulgence of Court. 1996 M L D 269 Refusal to enforce :-- It is well settled principle of Law that court may refuse to enforce specific performance of an agreement of sale of immovable property, if purchaser is found to be in default or he is unwilling to perform his part of contract. P.L.J.1996 SC 1777 = 1996 SCMR 137. Registration of document - Power of attorney was executed in the year 1983 and the same was registered in the year 1985 - Attorney on the basis of such power entered into an agreement to sell immovable property owned by the principals - Principals disowned the agreement on the ground that they had revoked the attorney in year 1996 - Effect - Registration of the power of attorney might have been a subsequent event and even if it was accepted that it was delayed due to some dispute between the principals and the attorney and the same was subsequently registered. Implying that such dispute had been settled, principals were bound by the act of their attorney - Plaintiff could not be made to suffer on account of the dispute among the principals and the attorney - Suit was decreed in circumstances, 2001 CLC 1930 Noor Muhammad and another v. Muhammad Ishaq and another 2000 MLD 251; Ahmad Khan v. Settlement Commissioner and others 1975 SCMR 64; Abdul Majeed and others v. Muhammad Akram and others 1989 SCMR 1298; Syed Abdul Khader v. Rami Ready and others AIR 1979 SC 553; Board of Intermediate and Secondary Education, Lah.v. Mst. Salma Afroze and 2 others PLD 1992 SC 263; The Chief Settlement Commissioner, Lah.v. Muhammad Fazil Khan and others PLD 1975 SC 331; Muhammad Ibrahim v. Ibrahim PLD 1965 AJ&K 20; Salma Abbasi v. Ahmed Suleman 1981 CLC 462 and Syed Humayun Zaidi and 4 others v. Mst. Hussain Afroza 1999 SCMR 2718 ref. Relief discretionary :-- Grant of decree in specific performance of contract being discretionary, could be refused even if execution of agreement was proved. P.L.J.1998 Kar. = 867 = 1998 CLC 760. Relief of specific performance, grant of - Considerations by Court stated. PLD 2003 SC 430 Res - judicata, - Earlier suit for declaration was rejected by Trial Court and appeal against the Judgment and decree was dismissed by Lower Appellate Court - Suit for specific performance of agreement to sell was filed subsequently - Validity - Bar contemplated under S.11, C.P.C. would not apply to subsequent suit for specific performance of contract and permanent injunction - Dismissal of appeal by the Lower Appellate Court had no bearing on the subsequent owing to distinct cause of action in both the matters - Principle of res - judicata was not applicable in circumstances. PLD 2002 Kar. 333 Scriber of a document is as good a witness as somebody else:-- Trial Court decreed plaintiffs suit while Appellate Court dismissed the same on the ground that agreement to sell was not proved in accordance with law. Scriber of a document is as good a witness as somebody else if he had signed document in question as a witness. Scriber having not signed such document as a witness, he was not attesting witness in terms of S. 79, Qanun-e-Shahadat Order, 1984, Petitioner has not proved his case in terms of S. 79 of Qanun-e-Shahadat in as much as be failed to produce two attesting witnesses in terms of S, 79 -of Qanun-e-Shahadat. Petitioner could not take benefit of the fact that respondent had also produced only one attesting witness. Petitioner/ plaintiff has to prove his case independently and could not get benefit of short-coming of respondent/defendant. Findings recorded by Court of competent Jurisdiction could not be interfered with by High Court in exercise of its revisional Jurisdiction unless such finding suffers from Jurisdictional defect, illegality or material irregularity. No such illegality or irregularity having been pointed out in impugned Judgment, revision against the same was not maintainable.-P.L.J.2000 Lah. 2119. Specific performance of agreement with a condition 'subject to contract' - - Phrase 'subject to contract' is a suspensive condition - Any document or memorandum agreed to by the parties, subject to such condition does not become binding contract, unless such condition is lifted by a subsequent act of the parties. 2002 CLC 218 The Law of Contract by Cheshire & Fifoot, 10th Edn., p. 186 ref. Specific performance of unsigned agreement - Plaintiff as an estate agent entered into an agreement in respect of the property owned by the defendant for getting the subject property vacated and disposing of the same at bargain price within a period of six months from the date of agreement which period was extendable was not even signed by the plaintiff as well as deforest by the plaintiff was not even signed by the plaintiff as well as defendant---validity - Prima facie such document could not be presumed to be concluded or executed document - No document was produced by the plaintiff to prove that there was any proposal of the nature sought to be enforced - Held such unsigned agreement could not be enforced - Claim of the plaintiff, if at all, under the circumstances could be for recovery of the amount spent by him to get the premises vacated--- Plaintiff failed to make out a case concluded or even a negotiated agreement of which specific performance could be claimed--- High Court declined to restrain defendants for dealing with their own property in any manner--- plaintiff, in the present case, had neither prima facie good case nor balance of convenience was in this favour no he would suffer any irreparable loss - If the plaintiff succeeded in establishing amount of expenses incurred by him, he might recover the same subject to proof --- Application was dismissed in circumstances. PLD 2003 Kar. 57 Specific performance, element of hardship would hardly be valid ground for declining specific performance. P.L.J.1998 SC 623. Stamp duty on registration of sale under decree:-- Sub-Registrar was not competent to ignore decree of court or to dictate his own terms or to direct parties to pay stamp duty on self inflated rates calculated, on imaginary basis. Valuation table issued by Collector having no legal basis/sanctity, such-Registrar was duty bound to honour decree of court and to register sale deed on terms as certified by court itself. Order requiring respondent to pay additional stamp duty and also to bear liability of additional corporation fee was palpably wrong and without Jurisdiction. Respondent being not liable to pay such amount had right to seek refund/recovery thereof through civil suit. Decree granted by trial court does not suffer from any error of law or misreading of record. P.L.J.1999 Lah. 171 = 1999 CLC 450 = NLR 1999 Civil 132. Suit for recovery of amount paid towards additional Stamp duty and additional corporation fee. Limitation for filing such suit was governed by Art. 120, Limitation Act 1908. Suit filed within three years of payment of such duty and fee was well within time. P.L.J.1999 Lah. 171 = 1999 CLC 450 = NLR 1999 Civil 132. Subsequent vendee - Plaintiff was bound to implead the subsequent vendee in case his name was in his knowledge - Such duty of the plaintiff was not a mere formality or exercise in routine but a dire requirement of the circumstances - All such three parties were supposed to have interacted among themselves with regard to the sale and purchase of one and the same property - Actions and conduct of such persons individually were most likely to give rise to certain facts which were co-related to the actions and conduct of all others - some facts were alleged while others were withheld by all or some of the parties surrounding one pivotal question in the dispute - Principles. PLD 2003 SC 639 Suit for cancellation of power of attorney followed by suit for cancellation of sale-deed- Omission to sue for cancellation of sale-deed in earlier suit for cancellation of power of attorney - Bar contained in O.II, R.2(2), C.P.C. - Applicability - Plaintiff claming to be owner of suit property filed earlier suit after coming to know about use of her bogus power of attorney by defendant to get possession of her property from tenant - Plaintiff at the time of filing earlier suit had no knowledge that defendant had fraudulently conveyed her property to the other defendants - Held, plaintiff had stated facts giving rise to separate causes of action and had filed two separate suits warrant rejection of plaints under any principle of law - Both suits were, thus, maintainable under Ss. 39 & 42 of Specific Relief Act, 1877 - Principles. 2004 M L D 227 Suit for declaration instead of suit for specific performance of agreement - Document relied upon by the plaintiff had two separate aspects and they were Joined together - On one side the document was relied on as promissory note whereas on the other side the same was treated as agreement - Plaintiff filed suit for declaration for the recovery of certain amount on the basis of the document - Validity - Such mis-joinder of claims given in the deed could provide no benefit to plaintiff because portion of the deed qua the agreement the witnesses were necessary and so associated while claim qua the money in the deed witnesses were not necessary but still they were there - Plaintiff in the present case himself had damaged the quality of the deed as promissory note - Second portion of the deed, prima facie, indicated the same to be an agreement to sell, for the executant undertook to sell certain portion of the land - Plaintiff ought to have had brought a suit for specific performance of contract for the portion relating to agreement to sell - Suit for declaration was not maintainable in circumstances, PLD 2002 Pesh. 1 Suit for specific performance of agreement of exchange of property‑‑‑Defendant admitted his signatures on the agreement of exchange sought to be specifically performed but had alleged that said signatures were procured by plaintiffs through fraud and misrepresentation‑‑*Defendant had failed to prove his allegations by any evidence‑‑‑Execution of agreement of exchange of property having been admitted by defendant by affixing of his signatures, not only in his written statement, but also while appearing as witness, such admitted fact needed no proof as per Art. 113 of Qanun‑e*-Shahadat, 1984‑‑‑Defendant having failed to, prove that his signatures on the agreement were procured through fraud and misrepresentation, concurrent judgments of; Courts below arrived at after properly appreciating evidence on record and after applying judicial mind could not be interfered with. 2000 Y L R 2851 Temporary injunction in favour of plaintiff on depositing specified amount in court. In suit for specific performance where possession of properly had been given to plaintiff in pursuance of agreement to sell defendants could not be permitted to interfere with plaintiffs possession. Defendant having attempted to defeat contract through overt act and having partially succeeded in their such attempt, plaintiff who was in possession through agreement to sell were entitled to protect their possession through agency of court by obtaining temporary injunction. Order of .trial court in granting temporary injunction in favour of plaintiffs on condition of their. depositing remaining sale consideration was quite reasonable which did not warrant any interference by High Court. P.L.J.1996 Pesh. 277 - 1996 MLD 238. Temporary injunction. Entitlement. Contract between parties was of category of contracts which could not be specifically enforced and fell within the mischief of Cl. of S. 21 of the Specific Relief Act, 1877 and bar of injunction as provided in S. 56 of the Act was attracted. Plaintiffs could not make out prima facie case for grant of temporary injunction pending decision of suit, in so far as third party interest had been created in property in question as per plaintiffs' own admission and their failure to implead such persons as party in their suit. Balance of convenience, thus,, would not be in favour, of plaintiffs. Plaintiffs having themselves estimated damages/losses suffered by them on account of breach of agreement in the sum of specified amount, no case for temporary injunction was made out. Where relief asked for could be measured in terms of money and plaintiffs themselves having claimed specified amount as damages in their suit, grant of temporary injunction respecting land in question was not warranted, and, hence, refused. P.L.J.1998 Kar. 822 = 1998 CLC 441. Time as essence of contract. Time, no doubt, was essence of contact arrived at-between parties, but as defendant Authority having failed to perform its obligation of providing infrastructure facilities under contract, plaintiffs could not be nonSuited if they failed to perform their obligation under contract due to corresponding failure of defendant Authority to perform its own obligation. P.L.J.1999 Kar. 687 = 1999 CLC 1076. Transposition of defendant as plaintiff - Plaintiff made an offer not to press the suit subject to refund of earnest money paid by him - One of the defendants accepted offer and refunded earnest money subject to forfeiture in case he failed to find a suitable buyer for a higher value, within four months - Some defendants (other than that, who refunded earnest money) on their own filed amended plaint transposing themselves as plaintiffs seeking relief of mandatory injunction against defendant having refunded earnest money - Validity - Entirely new facts had been pleaded in amended plaint, wherein relief was claimed only, against one defendant, who had refunded earnest money - Complexion, character and nature of the suit of specific performance and injunction had been changed to that of mandatory injunction - Right or interest available to original plaintiff/vendee had not been acquired by said defendants - Rather said rights and interest had been assumed and acquired by defendant, who while refunding earnest money to original plaintiff had undertaken to buy suit property either by himself or through his nominee - Defendant by doing so had stepped into the shoes of original plaintiff, thus, Court transposed him as plaintiff being vendee - Such transposition would not change character, complexion or nature of the suit for specific performance - Amended plaint filed by some defendant was rejected in circumstance. In amended plaint, pleadings in suit for specific performance were no more there, instead entirely new facts were pleaded, relief was directed against one defendant only. Complexion, character and nature of the suit for specific performance and injunction had been changed to that of mandatory injunction seeking implementation of orders passed in the suit. Had there been any claim/suit in respect of administration, partition and distribution of the estate of deceased pending inter se the parties, then of course transposition of some of the defendants as plaintiff in the matter could have been possible. There was no order for the transposition of other defendants as plaintiffs. Contention of said other defendants that when Court granted two weeks further time to file amended plaint, in fact it allowed transposition of parties could not be sustained for the reasons, firstly there was no earlier direction of filing amended plaint or order for transposition of parties; secondly even if it was presumed that by granting time to file amended plaint, transposition of parties was allowed, then there was nothing on record, whereby transposed parties were allowed to amend the pleadings to an extent that entire complexion, nature and character of suit was changed. Amended plaint filed by said defendants transposing themselves as plaintiff was rejected. Transposition of parties could be ordered by the Court both on application of any party or suo motu in case where Court was satisfied that any party to a proceedings had stepped into the shoes of another or interest of any party to the proceedings had either been acquired, transferred, assumed by way of assignment, devolution, transfer in any lawful manner only then transposition of such party could be ordered to avoid multiplicity of the proceedings to cut short the litigation provided nature, character and completion of suit was not changed. Defendants had not acquired any right or interest as vendee in the suit property which were available to original plaintiff/vendee. Rights and interest as vendee of the suit property were assumed and acquired by the other defendant who in fact while refunding the earnest money to original plaintiff undertook to buy the subject property either himself or through his nominee. By doing so in fact he had stepped into the shoes of original vendee/plaintiff. If any person was to be transposed, it was the defendant who could be transposed as plaintiff being vendee. By ordering transposition of said defendant as plaintiff, neither the character, complexion nor nature of the suit for specific performance would be changed. Under the circumstances, defendant was ordered to be transposed as plaintiff, name of original plaintiff was struck off and rest of the defendants were to remain defendants. PLD 2002 Kar. 542 Ahmad Zaman Khan, Barrister v. Government of Punjab through Collector, Multan and 2 others 1993 CLC 1327; Yousaf Aziz v. Aqeela Begum PLD 1978 Kar. 205 and Malik Mumtaz Ali v. Pakistan through Secretary, Refugees and Works, Government of Pakistan, Rawalpindi and 3 others PLD 1971 Lah.395 ref. Undue delay on part of one party - – Equity would not assist, where there had been undue delay on the part of one party to contract, and other party had given him reasonable notice that he must complete contract within a definite time. PLD 2003 SC 430 Unregistered agreement --Agreement relied upon by the plaintiffs pertained to immovable property of value of more than Rs. 100 and the same required compulsory registration-Vendor executed general power of attorney in favour of his daughter who, in consequence of that document, executed mutation of the suit-land in favour of her husband - Contention of the plaintiffs was that the agreement was prior in time to the execution of mutation of the suit land - Validity-Where agreement was an unregistered document, same did not create any title in favour of the plaintiffs - Nothing was available on record to restrain the attorney from executing mutation in favour of any person including her husband - Agreement being an unregistered document did not create any title in favour of plaintiffs and the attorney was perfectly within her right to execute the mutation - Both the Courts below had returned their findings in accordance with law and the suit was rightly dismissed. 2001 CLC 1001 Subedar Muhammad Yousuf v. Muhammad Sarwar Khan and others PLD 1955 Lah.521; Pyare Lal and others v. Mt. Kalawati AIR 1949 All. 340 and Official Receiver of Salem v. Chinna Goundan and another AIR 1957 Mad. 630 distinguished. Moosa and others v. Muhammad Yakoob and others PLD 1966 (W.P.) Kar. 376 ref. When Marginal witness to agreement in question, not supporting agreement to sell. Name of one of witnesses was written on document in question but his thumb-impression was not obtained on the same. Co-vendee 'in whose favour agreement to sell had allegedly been executed filed his written statement categorically admitting therein that agreement in question, was fictitious and false one. Co-vendee also denied that neither he nor other vendees had paid consideration to vendor lady who was illiterate and that defendants wanted to deprive her other property. Plaintiffs had failed to prove that any illegality or material irregularity was committed by Courts below in exercise of their Jurisdiction in dismissing their claim to specific performance of alleged agreement to sell. Plaintiffs were thus, not entitled to any relief. P.L.J.1999 Lah. 1624 = 1999 CLC 967. Whether time was of the essence of contract-- Plaintiff was pursuing the matter and was ready and willing to perform his part of contract - Defendant failed to show the plaintiff clear title to the suit property - Effect - Defendant had acted malafidely and purposely delayed the process - Had the relevant documents been shown clear to the plaintiff, the conveyance would have been concluded, as such the time given in the agreement could not be taken as essence of the contractSuit was decreed accordingly, 2001 CLC 1029 |
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13.
Contract of which the subject has partially ceased to exist
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Notwithstanding
anything contained in section 56 of the Contract Act, a contract is not
wholly impossible of performance because a portion of its subject-matter,
existing at its date, has ceased to exist at the time of the performance.
Illustrations
Punjab Amendment .-Illustration (a) and (b) omitted.
(a) A contracts to sell a house to B for a lakh of rupees. The day after the contract is made the house is destroyed by a cyclone. B may be compelled to perform his part of the contract by paying the purchase-money. (b) In consideration of a sum of money payable by B.A. contracts to grant an annuity to B for B’s life. The day after the contract has been made, B is thrown from his horse and killed. B’s representative may be compelled to pay the purchase-money.
Court
Decisions
Time was of essence
of contract--Appellant entered into agreement to purchase evacuee plot for a
lump sum--Respondent got refund of the price of passage for which appellant
claimed proportionate decrease an price per Marla--Various documents produced
by parties dad not suggest that the passage once sold to respondent was
retained either by the Department itself or for someone else--All copies of
PTD consistently disclosed that the passage had been given free of cost to
respondent, obviously meaning thereby that the title thereto was not taken
back from him otherwise the title to passage must have been clearly retained
by the department for itself for future disposal--Attempt to apply rate per
marla appeared to be a subterfuge under which appellant perhaps purposely
worked to cloak his failure to abide by the contract--Nothing could be easily
imported in written terms and conditions of a contract--Parties were ad idem
and no one-sided interpretation styled later could help the concerned
party*-Case was not that of impossibility under which partial performance
could be claimed--Impossibility envisaged by the provisions of Ss.12 & 14
of the Specific Relief Act was entirely different like a happening beyond
one's control (vis. major) etc.--Respondent proved on record that time was of
the assence of the contract which appellant failed to abide by--Appeal
dismissed in circumstances. 1989 M L D 2770
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14.
Specific performance of part of contract where part unperformed is small
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Where
a party to a contract is unable to perform the whole of his part of it, but
the part which must be left unperformed bears only a small proportion to the
whole in value, and admits of compensation in money, the Court may, at the
suit of either party, direct the specific performance of so much of the
contract as can be performed, and award compensation in money for the
deficiency.
Illustrations
(a)
A contracts to sell to B a piece of a land consisting of 100 bighas. It turns
out that 98 bighas of the land belong to A and the two remaining bighas to a
stranger, who refuses to part with them. The two bighas, are not necessary
for the use or enjoyment of the 98 bighas, nor so important for such use or
enjoyment that the loss of them may not be made good in money. A may be
directed at the suit of B to convey to B the 98 bighas, and to make
compensation to him for not conveying the two remaining bighas; or B may be
directed, at the suit of A, to pay to A, on receiving the conveyance and
possession of the land, the stipulated purchase money, less a sum awarded as
compensation for the deficiency.
(b) In a contract of the sale and purchase of a house and lands for two lakhs of rupees, it is agreed that pan of the furniture should be taken at a valuation. The Court may direct specific performance of the contract, notwithstanding the parties are unable to agree to the valuation of the furniture and may either have the furniture valued in the suit and included it in the decree for specific performance, or may confine its decree to the house.
Court
Decisions
Appellant entered
into agreement to purchase evacuee plot for a lump sum--Respondent got refund
of the price of passage for which appellant claimed proportionate decrease an
price per Marla--Various documents produced by parties dad not suggest that
the passage once sold to respondent was retained either by the Department
itself or for someone else--All copies of PTD consistently disclosed that the
passage had been given free of cost to respondent, obviously meaning thereby
that the title thereto was not taken back from him otherwise the title to
passage must have been clearly retained by the department for itself for
future disposal--Attempt to apply rate per marla appeared to be a subterfuge
under which appellant perhaps purposely worked to cloak his failure to abide
by the contract--Nothing could be easily imported in written terms and
conditions of a contract--Parties were ad idem and no one-sided
interpretation styled later could help the concerned party*-Case was not that
of impossibility under which partial performance could be
claimed--Impossibility envisaged by the provisions of Ss.12 & 14 of the
Specific Relief Act was entirely different like a happening beyond one's
control (vis. major) etc.--Respondent proved on record that time was of the
assence of the contract which appellant failed to abide by--Appeal dismissed
in circumstances. 1989 M L D 2770
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15.
Specific performance of part of contract where part unperformed is large
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Where
a party to a contract is unable to perform the whole of his part of it, and
the part which must be left unperformed forms a considerable portion of the
whole, or does not admit of compensation in money, he is not entitled to
obtain a decree for specific performance. But the Court may, at the suit of
the other party, direct the party in default to perform specifically so much
of his part of the contract as he can perform, provided the plaintiff
relinquishes all claim to further performance, and all right to compensation
either for the deficiency, or for the loss or damage sustained by him through
the default of defendant.
Illustrations
(a)
A contracts to sell to B a piece of land consisting of 100 bighas. It turns
out that 50 bighas of the land belong to A, and the other 50 bighas to a
stranger who refuses to pan with them. A cannot obtain a decree against B for
the specific performance of the contract; but if B is willing to pay the
price agreed upon, and to take the 50 bighas which belong to A waiving all
rights to compensation either for the deficiency or for loss sustained by him
through A’s neglect, or default, B is entitled to decree directing A to
convey those 50 bighas to him on payment of the purchase-money.
(b) A contracts to sell to B an estate with a house and garden for a lakh of rupees. The garden is important for enjoyment of the house. It turns out that A is unable to convey the garden. A cannot obtain a decree against B for the specific performance of the contract; but if B is willing to pay the price agreed upon and to take the estate and house without the garden waiving all rights to compensation either for the deficiency ‘or for loss sustained by him through A’s neglect or default, B is entitled to a decree directing A to convey the house to him on payment of the purchase-money.
Court
Decisions
Specific
performance of part of contract where part unperformed is large:-- Where
legal part of agreement can be severed from illegal and void contract, such
separated part may be enforced. Where Specific performance of agreement to
sell-consisting of two parts i.e., legal part and illegal part - Trial Court
decreed plaintiff's suit to the extent of legal part - Dismissal of suit as a
whole by Appellate Court was not warranted in as much as, legal part of
agreement could have been enforced - Judgment and decree of Appellate Court
was set aside while that of trial Court decreeing legal part of agreement was
restored in circumstances. P.L.J. 2002 Lah.575
Partial performance of contract - Agreement of sale executed between the parties and power of attorney executed by vendor lady in favour of his attorney showed that whole land in dispute and not a part thereof was to be sold to the vendee - Sale of portion of land by attorney in favour of son of deceased vendee was wholly without lawful authority - Courts below bad rightly concluded that transaction smacked of fraud and mala fides being based on collusion with attorney who had tried to deprive the lady of the land. 2001 MLD 988 Plea of non-payment of sale price having not been pressed in High Court, could not be allowed to be raised before Supreme Court. P.L.J.1998 SC 623. |
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16.
Specific performance of independent part of contract
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When a part of a
contract which taken by itself, can and ought to be specifically performed,
stands on a separate and independent footing from another part of the same
contract which cannot or ought not to be specifically performed, the Court
may direct specific performance of the former part.
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17. Bar in
other cases of specific performance of part of contract
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The Court shall not
direct the specific performance of a part of a contract except in cases
coming under one or other of the three last preceding sections.
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18.
Purchaser’s right against vendor with imperfect title
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Where
a person contract to sell or let certain property, having only an imperfect
title thereto, the purchaser or lessee (except as otherwise provided by this
Chapter) has the following rights:-
(a) If the vendor lessor has subsequently to the sale or lease acquired any interest in the property, the purchaser or lessee may compel him to make good the contract out of such interest; (b) Where the concurrence of other persons is necessary to validate the title, and they are bound to convey at the vendor’s or lessor’s request, the purchaser or lessee may compel him to procure such concurrence; (c) Where the vendor professes to sell unencumbered property, but the property is mortgaged for an amount not exceeding the purchase-money, and the vendor has in fact only a right to redeem it, the purchaser may compel him to redeem the mortgage and to obtain a conveyance from the mortgagee; (d) Where the vendor or lessor sues for specific performance of the contract, and the suit is dismissed on the ground of his imperfect title, the defendant has a right to a return of his deposit (if any) with interest thereon, to his costs of the suit, and to lien for such deposit, interest and costs on the interest of the vendor or lessor in the property agreed to be sold or let.
Court
Decisions
Agreement to sell
executed by and between parties on 13.10.1985, when defendant was not owner
of land in question - Defendant acquired title of such land on 27-3-1986 -
Defendant was bound to perform agreement in question executed by him -
Judgment and decree of Appellate court non-suiting plaintiff was set aside
while that of trial court decreeing plaintiff’s suit was restored. PLJ 2004 Pesh. 30
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19. Power
to award compensation in certain cases
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Any
person suing for specific performance of a contract may also ask for
compensation for its breach, either in addition to, or substitution for, such
performance.
If in any such suit, the Court decides that specific performance ought not be granted, but that there is a contract between the parties which has been broken by the defendant and that the plaintiff is entitled to compensation for that breach, it shall award him compensation accordingly. If in any such suit the Court decides that specific performance ought to be granted but, that it is not sufficient to satisfy the justice of the case, and that some compensation for breach of the contract should also be made to the plaintiff, it shall award him such compensation accordingly. Compensation awarded under this section may be assessed in such manner as the Court may direct. Explanation. The circumstances that the contract has become incapable of specific performance does not preclude the Court from exercising the jurisdiction conferred by this section. Illustrations OF THE SECOND PARAGRAPH- A contracts to sell a hundred maunds of rice to B; B brings a suit to compel A to perform the contract or to pay compensation. The Court is of opinion that A has made a valid contract and has broken it, without excuse, to the injury of B, but that specific performance is not the proper remedy. It shall award to B such compensation as it deems just. OF THE THIRD PARAGRAPH’ A contracts with B to sell him a house for Rs. 1,000, the price to be paid and the possession given on the 1st January. 1877. A fails to perform his part of the contract, and B brings his suit for specific performance and compensation. which is decided in his favour on 1st January, 1878. The decree may. besides ordering specific performance, award to B compensation for any loss which he has sustained by A’s refusal. Of the Explanation- A. a purchaser, sues ff, his vendor, for specific performance of a contract for the sale of a patent. Before the hearing of the suit the patent expires. The Court may award A compensation for the non-performance of the contract, and may, if necessary, amend the plaint for that purpose. A sues for the specific performance of a resolution passed by the directors of a public company, under which he was entitled to have a certain number of shares allotted to him, and for compensation for the non-performance of the resolution. All the shares had been allotted before the institution of the suit. The Court may under this section, award A compensation for the non-performance.
Court
Decisions
Compensation
of breach. Person suing performance of contract can also ask for compensation
of breach either in addition to or in substitution for such performance.
Person seeking alternative relief of compensation in addition to or in
substitution of relief of specific performance would not render himself
disentitled to grant of specific performance of contract. Non-performance of
agreement pertaining to immovable property could not be compensated in terms
of money and, therefore, its enforcement could hot be refused unless, extreme
hardship was likely to be caused to other side. P.L.J.1999 Lah. 1354 = PLD
1999 Lah. 193.
Contract between parties was of category of contracts which could not be specifically enforced and fell within the mischief of Cl. of S. 21 of the Specific Relief Act, 1877 and bar of injunction as provided in S. 56 of the Act was attracted. Plaintiffs could not make out prima facie case for grant of temporary injunction pending decision of suit, in so far as third party interest had been created in property in question as per plaintiffs'
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