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Petitioner: Liaqat Ali Khan Etc. VS Respondent: Falak Sher etc.
Court Name: Supreme Court of Pakistan Judge(s): Anwar Zaheer Jamali, Iqbal Hameed-ur-Rehman, Ejaz Afzal Khan Title: Liaqat Ali Khan Etc. vs Falak Sher etc. Case No.: Civil Appeal No. 835 of 1999 Date of Judgment:2014-01-28 Reported As: 2014 PSC 497 Result: Civil appeal allowed.
JUDGMENT
JUDGMENT ANWAR ZAHEER JAMALI, J. --- This civil appeal is directed against the judgment dated 10.6.1999, in regular first appeal (R.F.A.) No. 25 of 1998, passed by a learned Division Bench of the Lahore High Court, Multan Bench, Multan, whereby the said appeal, filed by the respondents No. 1 to 4 was allowed; judgment and decree dated 28.11.1987, in Suit No. 1116 of 1980., challenged therein, were set aside and consequently the suit for specific performance of contract dated 2.4.1979 was decreed, subject to deposit of a sum of Rs. 4,26,625/- by the vendees/respondents No. 1 to 4 before the Trial Court on or before 15.7.1999. 2. The facts forming background of this litigation are that on 2.4.1979, appellants M/s. Liaqat Ali Khan, Aurangzeb Khan and Akbar Ali Khan all sons of Anwar Ali Khan entered into a registered agreement to sell (Ex.P/1) (in short "agreement") with .Respondents No. 1 to 4, Ws. Falak Sher, Ahmad Ali, Noor Muhammad and Ali Ahmad all sons of Muhammad. Ramzan. Since the whole gamut of controversy in the present litigation, inter alia, revolves around the interpretation and applicability of this admitted document, for ease of reference, in the first place, its contents are reproduced as under:- {{URDU TEXT}} (Some underlining is made by us for ease of reference). 3. Admittedly, this transaction could not materialize as per stipulations made in the agreement.
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Thus, to seek its enforcement, on 7.9.1980, the respondents No. 1 to 4 Falak Sher, Ahmad Ali, Noor Muhammad and Ali Ahmad, filed a suit for specific performance of contract against the appellants and M/s. Khurshid Bibi and Abdul Majeed Khan respondents No. 5 and 6 herein, as two other formal defendants in the suit. In the plaint, they stated that after entering into the agreement they wanted its implementation and execution, but the vendors/appellants avoided to do so. Moreover, due to some other litigation initiated by two formal defendants No. 4 & 5 in the form of their respective suits, which resulted in grant of interim injunctions as regards the suit land, finalization of this deal could not take place. Finally, when the vendees/respondents No. 1 to 4 approached the appellants for this purpose they avoided to honour the agreement on flimsy grounds, which necessitated the filing of suit for specific performance of the agreement. 4. The appellants, who were defendants No. 1 to 3 in the suit filed their joint written statement in the suit on 30.7.1981, wherein they admitted the execution of the agreement and contended that, as evident from the language of the agreement, time was essence of such agreement for its performance, but due to the failure of vendees/respondents No. 1 to 3 in making payment of balance sale consideration amount upto the agreed date i.e. 10.5.1979, this agreement was revoked/cancelled, therefore, the claim of specific performance was no more enforceable before the Court of law. The appellants, however, did not dispute the terms of the agreement dated 2.4.1979 and the fact that before such agreement some litigation was started against them by Respondent No. 5, who was defendant No. 4 in the suit, wherein subsequently interim injunction was also granted in her favour as regards two portions of the suit land. The respondent No. 5, Mst. Khurshid Bibi filed her separate written statement in the suit on 20.2.1982, wherein. She conceded to the claim of respondents/vendees in toto. 5. On the basis of divergent pleadings of the parties, as summarized above, the Trial Court of learned Civil Judge 1st Class Pakpattan, framed five issues in the suit, which read as under:--- "(1) Whether the description of the suit land has not been given correctly in the plaint, if so, what is its effect? (1-A) Whether the plaintiffs are estopped by their words and conduct to file the suit? OPD (1-B) What was the real essence of the Contract as to enforceability of the Contract? OPP (2) Whether the plaintiffs are entitled to the decree for specific performance of the contract in question, if so, on what terms and conditions". OPP (3) Relief." 6. In support of their claim for specific performance, from the side of plaintiffs/respondents No. 1 to 4, four witnesses, PW-1 Jan Muhammad, PW-2 Faiz Muhammad, PW-3 Ilam Din and PW-4 Noor Muhammad were examined, who produced twenty-seven documents. In addition to it, in rebuttal PW-5 Malik Akhtar Ali was also examined on their behalf. The present appellants on their turn also examined five witnesses DW-1 Muhammad Hussain, DW-2 Ghulam Bheek, DW-3 Syed Atta Moinuddin, DW-4 Chaudhry Muhammad Chiragh and DW-5 Liaqat All (one of the appellants) and produced nineteen documents in their evidence. After the conclusion of proceedings in the suit, during the arguments issue No. 1 relating to description of the suit land was not pressed by the appellants, while on the basis of evidence, other issues were decided against the respondents,
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precisely, with the observation that time was after the expiry of agreed time for payment of, balance in terms of- the agreement, on 13.5.1979, a registered notice to rescind the agreement and forfeiture of earnest money was sent by the appellants to the respondents No. 1. To 4, which remained un-responded/replied till the institution of suit by them on 27.9.1980. It is also an admitted fact that before the execution of agreement dated 2.4.1979, on 3.1.1979 and 11.3.1979, two civil suits were instituted by respondent No. 5, Khursheed Bibi, in respect of two different portions of the suit land, wherein, in one suit on 24.4.1979, and in the other suit on 9.4.1979, interim injunction was granted, which continued upto the date of dismissal of both these suits for want of prosecution on 26.7.1984. It is again .An admitted fact that a criminal complaint was also lodged against the appellants, wherein they were subsequently discharged. Keeping in view the above-noted facts, the which need to be adjudicated now are as under:- Whether as per the language of agreement dated 2.4.1979 time was not the essence of the agreement? Whether after admitted non-payment of balance sale consideration amount, respondents No. 1 to 4 were still entitled for grant of relief of specific performance in their favour, although more than 34 years have lapsed, while all along the appellants are in cultivating possession of the suit land? Essence of the agreement (Ex.P/1). Accordingly the suit was, dismissed, vide judgment dated 28.11.1987. 7. Respondents No. 1 to 4/plaintiffs in the suit, aggrieved by the judgment of the Civil Court, preferred R.F.A. No. 25 of 1988 before the Lahore High Court, Multan Bench, which was heard by a learned Division Bench of the Lahore High Court and allowed in terms of the impugned judgment. In their favour as the Appellate Court found the present appellants responsible for non- implementation of the agreement. 8. We have heard the arguments of Mr. Gulzarin Kiani, learned Sr. ASC for the appellants, Ch. Mushtaq Ahmad Khan, learned Sr. ASC for the respondents No. 1 to 4 and have also the benefit of going through the concise statements of their respective written submissions filed in Court. We have also carefully examined the material placed on record by the parties in the paper book of this appeal as well as the original record and proceedings of the suit and the appeal file. 9. Some salient features of the case, narrowing down the scope for discussion of present controversy to a great extent, which need to be addressed and adjudicated in this appeal, are summarized as under:- (a) The execution of registered agreement to sale dated 2.4.1979, its contents and signatures of all the parties over this document are admitted. It is an admitted position that the agreement could not be concluded/implemented between the parties within the stipulated period upto 10.5.1979, though timeframe was categorically incorporated and agreed to by both the parties in the words and form, as reproduced in the earlier
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part of this judgment. (c) As conceded by Ch. Mushtaq Ahmad Khan, learned Sr. ASC for the respondents No. 1 to 4 508 Pakistan Supreme Court Cases (c) Whether at all the relevant times respondents No. 1 to 4/vendees were willing and ready to perform their part of the agreement? (d) What could be the effect of the operation of interim injunction in the pending suits of respondent No. 5, upon timeframe under the agreement dated 2:4.1979 qua stipulation of cancellation of agreement due to some legal impediment in its performance? 11. Mr. Gulzarin Kiani, learned Sr. ASC for the appellants in his written synopses of arguments (paragraphs No. 1 to 7) has given the whole history and background of this litigation from the perspective of appellants, which seems to be useful for understanding their case properly, the same is, therefore, reproduced as under:-- "1. Mst. Khurshid Bibi daughter of Sardaj respondent No. 5 was owner of land measuring 216 kanals, 19 marlas, situated in mauza Siddique of Tehsil Pakpattan. She was resident of Mauza Qamaruddin Hanse, Tehsil & District Bahawalnagar. Mst. Jannat Bibi widow of Sardar Ali is mother of Mst. Khurshid Bibi. She also owned 100 kanals of land in mauza Siddique in joint khata with her daughter. Land owned by daughter and mother was part of joint khata No. 9 measuring in all, 952 kanals, 14 marlas. It appeared that the two ladies had inherited above piece of land on the demise of Sardar Ali. Mst. Khurshid Bibi appointed her mother Mst. Jannat Bibi as her general attorney, vide registered deed dated 16.10.1978. On the basis of said general power-of-attorney, Mst. Jannat Bibi gave land measuring 108 kanals 91/2 marlas of 216 kanals, 19 marlas owned by Mst. Khurshid Bibi in exchange to Muhammad Akbar Khan (appellant No. 3 (who was then shown a minor) in return for his land measuring 32 kanals 13 marlas situated in Chak Sandhe Khan of Tehsil Pakpattan through a registered exchange deed dated 4.11.1978. Exchange deed is at pages 161-163. Similarly, vide deed, registered on 1.11.1978, Mst. Jannat Bibi gave remaining 108 kanals 10 marlas of Mst. Khurshid Bibi in exchange to Liaqat Ali Khan appellant No. 1 for his 32 kanals, 13 marlas in mauza Ch. Sandhey Khan, Tehsil Pakpattan. Exchange Mutation Ex.P21 dated 19.2.1979 is at page 151. Mst. Jannat Bibi herself exchanged her 100 kanals of land in mauza Siddique in Tehsil Pakpattan to Aurangzeb Khan appellant No. 2 for his 32 kanals 13 marlas land in Chak Sandhey Khan. Exchange deed Ex.D6 is at pages 173-175. Thus, appellants came to on 316 kanals 19 marlas of land in mauza Siddique, where they did not on land prior to exchanges. 2 That on 3.1.1979 at the instance of and collusion with respondents 1 to 4 who are real brothers and residents of mauza Siddique, Mst. Khurshid Bibi instituted a civil suit for revocation of exchange deed dated 4.11.1978 made in favour of Muhammad Akbar Khan (appellant No. 3) on the ground of fraud, misrepresentation and lack of authority in Mst. Jannat Bibi, against, Mst. Jannat Bibi her mother and Muhammad Akbar Khan (then shown as minor) through his real mother Mst. Lrshad Begum as guardian ad item. Plaint, Ex.P2 is at pages 114-119. Initially plaint did not accompany application for temporary injunction restraining alienation pendente lite. However, on 8.4.1979, such an application Ex:p3 (page 120-121) was filed in the Trial Court whereupon, on 24.4.1979 defendants to, the suit were restrained from further alienation of land-in-suit. Stay order continued and was confirmed on 26.5.1981 (Ex.P4 to P10 pages 122 to 132) eventually, suit was dismissed for default in appearance on 26.7.1984 (Ex.P11 at page 133). No suit was filed, however, in respect of transaction made in favour of Aurangzeb Khan.
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That on 11:3.1979, Mst. Khurshid Bibi, respondent No. 5, filed yet another civil suit for declaration for annulment of registered exchange deed dated 1.11.1978, in favour of Liaqat All Khan appellant No. .1 at the instigation of respondents No. 1 to 4, on similar allegations of fraud, misrepresentation and lack of authority in Mst. Jannat Bibi in respect of 108 kanals, 10 marlas. Plaint Ex.P11 is at pages 134- 138. An application for a restraint order was filed on 9.4.1979 (Ex.P12 at pages 139-140). Interim restraining order was passed on 9,4.1979 (Ex.P13, page 141). Restraint order continued till the suit was dismissed for default in appearance on 26.7.1984 (Exh. P13 to P18, at pages 141 to 146). Purpose behind the two suits pertaining to 216 kanals, 19 marlas, owned by Mst. Khurshid Bibi exchanged by her with Liaqat Ali Khan and Akbar All Khan, was to pressurize the appellants No. 1 & 3 to part with their land for a throw away consideration. No suit was filed ,by Mst. Jannat Bibi, for cancellation of exchange of land made by her, because she was being used as an instrument in the civil suits filed by Mst. Khurshid Bibi as her general attorney and impleaded also as defendant No. 1 in the suit to serve the desired purpose. Pressure by the respondents had originated soon after the making of exchanges and later materialized in the two suits by Mst. Khurshid Bibi. 4. That, on 2.4.1979, appellants, namely Liaquat Ali Khan, Aurangzeb Khan and Akbar Ali Khan entered into an agreement for sale of 316 kanals, 19 marlas in favour of respondents No. 1 to 4 for sale consideration of Rs. 356625/- at the rate of Rs. 9000 per acre; received Rs. 30000/- as earnest; balance in the sum of Rs. 326625/- was payable by 10.5.1979, when the sale-deed was to be registered; Rs. 4000/- as price for bricks was also payable on 10.5.1979. In default of payment of due date, it was mutually agreed that earnest money shall be deemed to have been forfeited and sale agreement rescinded. 5 That, as the vendees-respondents No. To 4 had not paid the balance sale consideration and were not ready to go ahead with sale in their favour, appellants served notice (Ex.D1 page 167) dated 13.5.1979 upon them that agreement stood rescinded and earnest forfeited. Respondents No. 1 to 4, despite receipt of notice did not respond. 6. That, on 9.12.1979 through a registered deed Ex.P24---pages 155-157). Mst. Khurshid Bibi sold her, 65 kanals, 6 marlas land (taken in exchange) situated in Chak Sandhe Khan to Abdul Majid son of Hazir Khan a close relation of appellants for Rs. 50000/-. Similarly, Mst. Jannat Bibi also sold her 32 kanals, 13 marlas taken in exchange to said Abdul Majid on 1.11.1979, through a registered sale-deed Ex.P25 (pages 158-160). 7. That, respondents No. 1 to 4 again managed a suit for pre-emption filed by Mst. Khurshid Bibi against the sale of land by her mother Mst. Jannat Bibi in the Court of Civil Judge at. Pakpattan Sharif on 9.11.1980. Suit was contested, and, vide order dated 6.12.1986, pre-emption suit was dismissed. Copy of order dated 6.12.1986 is annexed. Likewise, a suit for pre-emption was managed to have been filed in respect of sale of land measuring 65 kanals, 6 marlas by Mst. Khurshid Bibi, through her; minor son namely, Akhtar Hussain, acting through her grand-mother Mst. Jannat Bibi as his next friend. Suit was contested by the vendee Abdul Majid. Upon trial, suit was dismissed as collusive on 11.4.1985 by learned Trial Court. Appeal against the judgment was also dismissed on 12.4.1987 by learned Additional District Judge-II, Pakpattan Sharif Copy of judgment is annexed.". 12. Making reference to the above synopses, the gist of the submissions of Mr. Kiyani is that whole barrage of such litigation against the appellants was at the behest of respondents No. 1 to 4, with the collusion of respondents No. 5 & 6, as evident from the case record, therefore, benefit of their on misdeed and mischief cannot be extended to them by granting them now the relief of specific
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performance in the suit, which was belatedly instituted by them after more than one year and four months from the agreed final date for specific performance of the agreement. He further contended that the narrated facts are sufficient to show that grant of interim injunction against the appellants in respect of some portions of the suit land was also collusive. Moreover, if it was considered as some legal hurdle in specific performance of the agreement, then otherwise too it stood automatically cancelled as the agreement specifically Contained such stipulation, which reads as under:---- {{URDU MISS}} 13. He also stressed about the conduct of respondents No. 1 to 3/vendees with reference to the notice dated 13.5.1979, issued to them by the appellants, which admittedly remained un- responded. Further, he referred to the impugned judgment of the Division Bench of the Lahore High Court to show patent misreading of evidence of PW-4 Noor Muhammad, who had categorically stated on oath that {{URDU TEXT}} 11,A15"P 1" 10- 05- 79 but it was wrongly recorded as ,,t "P1"' {{URDU TEXT}} due to interpolation in the original Court record. He stated that such conduct of respondents No. 1 to 4/vendees, who tampered with the original Court record by incorporating the word in- between the words ''"" and '7"-- {{URDU TEXT}} in the deposition of Noor Muhammad, PW-4, further disentitle them for grant of an equitable relief. Finally, in support of his submissions as regards the exercise of discretion in terms of Section 22 of the Specific Relief Act, etc learned Sr. ASC placed reliance on the following cases:--- (i)Muhammad Sharif v. Fajji (1998 SCM R 2485) (ii)Amina Bibi v. Mudassar Aziz (PLD 2003 S.C. 430) (iii)Bootay Khan v. Muhammad Rafiq (PLD 2003 S.C. 5 18) (iv)Chand Rani v. Kama' Rani (AIR 1993 S.C. 1742) (v)Gulshan Hamid v. Abdul Rehman's (2010 SCM R 334) (vi)K. S. Vidyanadam v. Vairavan (AIR 1997 S.C. 1751) (vii)Muhammad Yaqub v. Muhammad Nasrullah Khan (PLD 1986 S.C. 497) (viii)Rab Nawaz v. Mustaqeem Khan (1999 SCM R 1362) (ix)Firm Ramdhonedas v. Obambabala Dassi (AIR 1954 Calcutta 440) (x)Narasappa v. Shaik Hazrat (AIR 1960 Mysore 59) In the end, learned counsel submitted that although the earnest money paid by respondents No. 1 to 4 to the appellants in terms of the agreement dated 2.4.1979, was deposited in Court at the earliest opportunity through proceedings under Section 4 of The Punjab Relief of Indebtedness Ordinance, 1960, but still in order to show their bona fides and following the principles of equity and fair play, they are ready to pay a sum of Rs. 30,00,000/- the respondents No. 1 to 4 as compensation or any other reasonable figure, as deemed just, equitable and fair by the Court. 14. Conversely, relying upon the same admitted facts of the present case, Chaudhry Mushtaq Ahmad Khan, learned Sr. ASC for respondents No. 2 to 4 strongly submitted that firstly; since the agreement dated 2.4.1979 was in respect of the sale of some immovable property, thus, as per settled law, time fixed in it was not the essence of such agreement; secondly, the respondents No. 1 to 4/ vendees were willing to perform their part in terms of the agreement but they were handicapped due to the pendency of two civil suits wherein interim injunction was operating against the appellants. However, he did not dispute that notice dated 13.5.1979 (Ex.D/1) was not responded or replied by the vendees till the institution of suit on 27.9.1980. Moreover, no other steps
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were taken by them, showing their willingness for the performance of the said agreement by tendering the balance sale consideration amount to the appellants vendors. To a query, he also conceded that two civil suits were instituted by respondent No. 5 before the execution of agreement dated 2.4.1979, therefore, pendency of these suits may be within the knowledge of respondents No. 1 to 4, while in her written statement filed in the present suit Mst. Khursheed Bibi she had admitted the claim of the respondents No. 1 to 4. Besides, these suits were not in respect of whole of the subject-matter of the agreement dated 2.4.1979, which was agreed to be purchased by the respondents No. 1 to 4. Learned Sr. ASC for the respondents No. 1 to 4 in his written synopses of arguments made reference of following case-law in support of his submissions:- Sandoz Limited v. Federation of Pakistan (1995 SCM R 1431) lnam Naqshband v. Ijaz Ahmad (PLD 1995 S.C. 314) Sinaullah v. Muhammad Rafique (2005 SCM R 1408) Muhammad Sadiq v. Muhammad Ramzan (2002 SCM R 1821) Emssabhoy v. Saboor Ahmad (PLD 1972 S.C. 39) Khan Bahadur A.G. Khan v. Shujauddin Qureshi (PLD 1961 S.C. 1) Mussarat Shaukat Ali v. Safia Khatoon (1994 SCM R 2189) Sughran Bibi v. Aziz Begum (1996 SCM R 137) Naseer Ahmed Siddique v. Aftab Alan (PLO 2011 S.C. 323) Muhammad Hussain v. Zahoor Alam (2010 SCM R 286) (xi) Mehmooda Begum v. Hassan Sajjad (PLD 2010 S.C. 952). 15. Chaudhry Mushtaq Ahmad Khan, learned Sr. ASC, while pressing the claim of his clients for specific performance and responding to the offer made by the learned Sr. ASC for the appellants on their behalf for payment of compensation, also offered on behalf of respondents No. 1 to 4 to enhance the amount of compensation from Rs. 1,00,000/-, as ordered in the impugned judgment, to any other reasonable sum as fixed by the Court. Although respondents No. 1 to 4, after the impugned judgment dated 10.6.1999 have already deposited the balance sale consideration amount in the High Court within the stipulated time allowed to them. 16. Keeping in view such counter offers made on behalf of the contesting parties to this appeal, on the date when this appeal was heard and judgment was reserved, both the learned Sr. ASCs were afforded one week's further time to strike some amicable settlement between the parties with intimation to this Court, but, as subsequently jointly conveyed by them, there has been no progress in this regard despite their best efforts. Thus, efforts for compromise to resolve the dispute have failed. 17. Proceedings with this case on merits, in the first place, it will be useful to reproduce here Section 22 of the Specific Relief Act, 1877, registering some guiding principles for the Court in the exercise of its discretion, which reads thus:--- "22. Discretion as to decreeing specific performance. The jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal. The following are cases in which the Court may properly exercise a discretion not to decree specific performance:---
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I. Where the circumstances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant, though there may be no fraud or misrepresentation on the plaintiffs' part. II. Where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff. Ill. Where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.". 18. A plain reading of above reproduced statutory provision leads to a definite conclusion that the relief of specific performance claimed by respondents No. 1 to 4 in their suit is purely discretionary in nature and the Court is not bound to grant such relief merely as it is lawful to do so. At the same time, the discretion to be exercised by the Court shall not be arbitrary, but it should be based on sound and reasonable analysis of the relevant facts of each case, guided by judicial principles and capable of correction by a Court of appeal. Moreover, in sub-paragraphs No. Ii & i.e of Section 22 (ibis) some instances have been given, where the Court can refuse to exercise its discretion to pass a decree for specific performance. A careful reading of these instances, which are self-explanatory, further amplify vast powers of the Court in the matter of exercise of its discretion for ordering specific performance or otherwise. When the above reproduced provision to law is read in conjunction with the case-law cited at the Bar by both the learned Sr. ASCs, the things as regards powers of the Court in exercising its discretion, become even more clear that there is no two plus two, equal to four formula available with any Court of law for this purpose, which can be applied through cut and paste device to all cases of such nature. Conversely, it will be the peculiar facts and circumstances of each case, particularly, the terms of the agreement between the parties, its language, their subsequent…
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