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Petitioner: Mian Z AFAR IQB AL and others VS Respondent: BASHIR AHMAD and others
Court Name: Lahore High Court Judge(s): Fazal Karim, Munir A. Sheikh Title: Mian Z AFAR IQB AL and others vs BASHIR AHMAD and others Case No.: Regular First Appeal No,68 of 1988 Date of Judgment:1988-12-19 Reported As: PLD 1989 Lahore 152 Result: Order accordingly
JUDGMENT
JUDGMENT ' FAZAL KARIM, J.--This Regular First Appeal by the plaintiffs, Mian Zafar Iqbal and his brothers, Mian Abdur Razzak, Mian Umar Farooq, Mian Muhammad Zakriya, Mian Khalid Pervaiz and Mian Abdul Ghaffar, is brought from a judgment and decree of the learned Civil Judge, Vehari, dated 13-2-1988, dismissing the plaintiffs' suit for the specific performance of an agreement of sale dated March 29, 1980. 2. The agreement is Exh. P.1. The parties to it were Bashir Ahmad Khan and his wife Mst. Sultan Jahan Begum, defendants, now respondents, of the first part and Mian Zafar Iqbal, plaintiff, now appellant, of the second part. The land agreed to be sold was situate in Mauza Karim Wah Tehsil and District Vehari; it comprised Khewat Nos. 88 and 89 according to the Jamabandi for the year 1977-78 (Exh. P.3). It was also described by its square numbers and Khasra numbers; according to the agreement, the area of the land agreed to be sold was 800 Kanals 7 Marlas. While the land comprised in Khewat No, 88 belonged exclusively to Bashir Ahmad Khan, defendant, the land comprised in Khewat No, 89 was the exclusive ownership of Mst. Sultan Jahan Begum. Bashir Ahmad Khan, defendant, was the general attorney of his wife, Mst. Sultan Jahan Begum, and in the execution of the agreement of sale Exh. P.1, he acted on her behalf in that capacity. 2-A. The terms and conditions of the agreement Ex h. P.1 were as follows:-- (1) The area of the land agreed to be sold was more or less four squares and its agreed sale price was Rs,17,75,000. (2) A sum of Rs,3,75,000, 2,95,000 in cash and Rs,80,000 by means of a bank draft, were to be paid by the vendee to the vendors in the presence of the attesting witnesses at the time of the agreement;
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(3) Of the remaining sale price, Rs,1,00,000 was to be paid by the 2nd of July, 1980, and the remaining Rs,12,75,000 by the end of January, 1981, and the vendors had then to have a deed of sale registered in favour of the vendee; (4) Registration expenses were to be borne by the vendee; (5) The vendee might join with him at the time of the registration of the deed, other persons as vendees; (6) The vendors were not liable for any infringement of the Martial Law Re gulations; (7) The Revenue Officer or the Officer registering the document would be competent at the time of attesting the mutation or at the time of registering the document to correct the Khatta, Khatoni and Khasra numbers as also the area and shares. In short, the vendors were obliged to transfer approximately 800 Kanals 7 Marlas of land, that being their entire holding comprising Khata Nos. 88 and 89 situate in Mauza Karim Wah Tehsil and District Vehari; (8) If the vendors resiled from the contract, the vendee would be within his right to have it specifically enforced and if the vendee resiled, the sum of Rs,3,75,000 was to stand forfeited in favour of the vendors; and (9) The payment of the sale price might be made earlier if the houses etc. Were sold. 3. It appears that before the completion of the execution of the agreement Exh. P.1, the parties agreed that instead of Rs,1,00,000, the vendee would pay Rs, 2,00,000 on 2nd of July, 1980. No consequential amendment was, however, made, so far as it concerned the remaining sale price. 4. The plaintiffs instituted this suit on 4-9-1980, that is much before the last date, viz. The end of January, 1981, fixed in the agreement for the payment of the remaining sale price and the registration of the deed of sale. 5. It is convenient to mention here that the land mentioned in the plaint is, in some respects, which will be highlighted later, different from the land mentioned in the agreement of sale Exh.P.1. It suffices to say here that it was averred in the plaint that according to the Jamabandi, Bashir Ahmad Khan, defendant, was owner of Square No, 58, Khasra Nos. 1 to 25, but before the execution of the agreement of sale, he had, by way of exchange given effect to by Mutation No, 569 attested on 28-1-1979, obtained certain Khasra numbers of Square Nos. 35 and 36 mentioned in para 2 of the plaint in lieu of certain Khasra numbers of square No, 58. Later, the plaintiffs were allowed by an order of the learned trial Judge dated 17-4-1983 to further amend their plaint; that amendment also related to certain Khasra numbers. 6. The plaintiffs' case as laid in the plaint was that the defendants had received the sum of Rs,3,75,000 at the time of the execution of the agreement and had acknowledged its receipt. As regards the sum of Rs,2,00,000 which was to be paid before the 2nd July, 1980, they offered that sum to the defendants much before that date but they showed reluctance to accept it and finally refused to accept it on 10-7-1980. The plaintiffs approached the defendants through Punchayat and offered to pay that sum but they refused to accept the money, saying that the plaintiffs should receive back the sum of Rs,3,75,000 and treat the agreement as at an end. The plaintiffs refused to do so. It was said that the plaintiffs had also been placed in possession of the land in suit. The plaintiffs, therefbre, prayed for the specific performance of the agreement of sale dated 29-3-1980 on payment of Rs,14,00,000; in the alternative, if the land could not be sold to them, they asked for a decree for Rs,3,75,000 and damages for the breach of the agreement. 7. The defendants contested the suit by filing a joint written statement; the first written statement was dated 10-1-1982. As observed above, the plaintiffs had amended their plaint and the defendants filed two amended written statements; one dated 2-6-1983 and the second dated 4- 9-1984. They raised a number of preliminary objections; they were that Zafar lqbal, plaintiff, "has no cause of action as he had not performed his part of the contract. Moreover, the suit is premature as it was instituted on 4-9-1980, whereas the last date for completion of sale was 31-1-1981" that the
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suit was bad for misjoinder of parties, for there was no agreement of sale in favour of the plaintiffs other than Mian Zafar Iqbal; that "the agreement stands rescinded and came to an end on 2-7- 1980/31-1-1981 when plaintiff No, 1 failed to perform his own part of the contract"; that the agreement of sale "is violative of the provisions of Martial Law Regulation of 1972, therefore, it is not enforceable at law"; that "the suit is not maintainable in the present form as other land than the one mentioned in the agreement to sell has been made the subject-matter of the present suit"' and that the suit in its present form was not competent. On facts, it was said that the land comprised in Khasra Nos. 35/25/2, 36/4, 7, 8, 9/1, 12 to 14, 36/18 to 24 and 26 was never agreed to be sold. These khasra numbers were not the subject-matter of the agreement to sell. It was admitted that "the agreement dated 29-3-1980 was entered into between the answering defendants and plaintiff No, 1, only and not with plaintiffs 2 to 6". It was, however, averred that "the defendants received at the time of agreement Rs,1,00,000 only as earnest money and the balance amount was neither paid nor tendered within the stipulated period. It has not been paid even till today. Hence the agreement came to an end on 31-1-1981." It was added that "the agreed advance amount of Rs,2 lacs was neither paid nor tendered by the plaintiff No, 1 to the answering defendants on or before 2-7-1980, nor the balance amount was paid or tendered on or before 31-1-1981. Assuming for the sake of arguments (without conceding) that plaintiff No, 1 had tendered the alleged amount, then on the alleged refusal by the defendants, the same could have been deposited in Court." As to possession, the defendants denied that it had been delivered to the plaintiffs in pursuance of the agreement. It was said that "since before the execution of the said agreement, the plaintiffs 2, 4, 5 and one Muhammad Rafiq were already in possession of the suit land as lessees which expired on Rabi, 1983. They have also defaulted in the payment of lease money and now they are no more than trespassers". According to the defendants, the plaintiffs other than Mian Zafar Iqbal, had been joined in the suit "with a mala fide intention, just to retain illegal possession under the garb of status quo order". 8. On these pleadings, the following six issues were formulated: (1) Whether the plaint does not disclose cause of action, and is liable to be rejected? O.P.D. (2) Whether the suit is bad for misjoinder of parties? O.P. D. (3) Whether the agreement to sell is violative to provisions of Martial Law Regulation 1972? O.P.D. (4) Whether the suit is not maintainable in its present form? O.P. D. (5) Whether the plaintiffs are entitled to decree for specific performance of contract as prayed for? O.P.P. (6) Relief. 9. The plaintiffs closed their affirmative evidence on 13-5-1982. ' After the close of the defendants' evidence, the plaintiffs were called upon to produce their rebuttal evidence and on 29-9-1984, they made an application for framing an additional issue to highlight the question whether a sum of Rs,2,00,000 required to be tendered by the plaintiffs to the defendants before 2-7-1980 was tendered and whether the defendants had refused to accept that amount. This application was accepted and on 13-10-1984, the following additional issue was framed: 4-A. Whether the plaintiffs have performed their part of contract by tendering a sum of Rs,2,00,000 to the defendants before 2-7-1980 which was, however, finally refused by the defendants and are ready to perform the other part of their contract? 10. The plaintiffs' evidence consisted of the testimony of Nasir Ahmad (P.W.1), Imtiaz Hassan (P.W.2), Muhammad Arif Bokhari, II Officer United Bank Limited (P.W.3), Naeemullah Khan (P. W.5) and Rafique Ahmad (P.W.6). Mian Zafar Iqbal, plaintiff, appeared into the witness-box twice, once as P.W.4 (that was before the framing of issue No, 4-A) and the second time as P.W.7 (that was after the framing of issue No, 4-A).
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11. Nasir Ahmad and Imtiaz Hassan P.Ws. Were attesting witnesses to the agreement Exh. P.1. Nasir Ahmad stated that the defendants had agreed to sell approximately four squares of land fdr Rs,17,75, 000. He was present when the agreement Exh. P.1 was executed; at that time, Rs,2,95,000 was paid in cash and Rs,80,000 was paid by means of a bank draft to Bashir Ahmad Khan, defendant. He added that Rs,1,00,000 was agreed to be paid by 2nd of July, 1980, but on the insistence of Bashir Ahmad Khan, defendant, that sum was raised to Rs,2,00,000. The sale was to be completed by the end of January, 1981. According to him, the parties to the agreement had signed the agreement in his presence. To much the same effect was the testimony of Imtiaz Hassan. It was suggested to him that at the time of the agreement, only Rs,1,00,000 was paid, Rs,80,000 by bank draft and Rs,20,000 in cash. He denied the suggestion. Muhammad Arif Bokhari (P.W.3) deposed to the bank draft of Rs,80,000; according to him, on a written application of Bashir Ahmad Khan, defendant, dated 5-4-1980, the draft amount was deposited in his account and later, Bashir Ahmad Khan, defendant, had withdrawn that sum. Naeemullah Khan (P.W.5), a resident of Shamas Abad Colony, Multan, testified as follows. He had participated in the sale transaction. The sale consideration was agreed to be Rs,17,75,000 and a sum of Rs,3,75,000 was paid as earnest money. The plaintiffs were to pay Rs,2,00,000 by 2-7-1980. In June, 1980, he happened to be in the house of the plaintiff, Mian Zafar Iqbal, and the latter in his presence rang up Munir Khan son of Bashir Ahmad Khan, defendant, and told him that the date 2-7-1980 was approaching and that he was ready with the money. Munir Khan told him that his mother was not agreeable to complete the transaction and that further talk on the subject should be had at Lahore with his father. Then there was a talk with Bashir Ahmad Khan, defendant; he too said that his wife was not inclined to sell the land and that the sale transaction should be treated as cancelled. The plaintiff told him also that he was ready with money and that he could pay it, if so advised, to his son at Multan. He further stated that Bashir Ahmad Khan, defendant, said that he would have further talk on the subject in Multan. All this telephonic talk, he added, was tape-recorded. 12. This part of Naeemullah Khan P.W's. Statement, it should be mentioned here, was recorded on 8- 1-1985, when for reasons, which will be presently stated, the recording of his statement was postponed to 31-1-1985. 13. On that date, he went on to say that he along with the plaintiffs, Ch. Rafique, Malik Mumtaz, Ch. Abdul Rahim and another had gone to the bungalow of the defendants in Multan in July, 1980. The plaintiff told the defendant, Bashir Ahmad Khan, that he had brought the sum of Rs,2,00,000 and that he should receive it. Bashir Ahmad Khan, defendant, said that he had already told them that his wife would not sell the land and that the transaction should be treated as at an end and they should receive back the earnest money. Rafique Ahmad P.W. Also testified that on being asked to do so, he had accompanied Mian Zafar lqbal, plaintiff, to the house of Bashir Ahmad Khan, defendant, in Multan Cana; there Bashir Ahmad Khan, defendant, had said that he could not complete the transaction and that when Mian Zafar Iqbal, plaintiff, told him that he had brought the sum of Rs,2,00,000 for payment and that he should accept it Bashir Ahmad Khan, defendant, had told him that on account of his wife's attitude, he could not do so. 14. The substance of the testimony of Mian Zafar Iqbal, plaintiff, was as follows. He and his co- plaintiffs, who were his real brothers, had jointly agreed to purchase the land, his brothers were not present at the time of the sale transaction and he had acted on their behalf and had agreed to purchase the land measuring 805 Kanals 7 Marlas for Rs,17,75,000. The land in suit was the defendants' entire holding in village Mauza Karim Wah; they did not own any other land there. According to the copy of Jamabandi provided by Bashir Ahmad Khan, defendant, he was owner of Square No, 58, Khasra Nos. 1 to 25. However, he had given some Khasra numbers of Square No, 58 to his son Munir Ahmad in exchange and had obtained some land of Square Nos. 35 and 36 by means of Mutation No, 569 (Exh. P.4). He had paid Rs,2,95,000 in cash and 80,000 by bank draft to
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the defendant as earnest money; as regards the remaining sum, Rs,2,00,000 was to be paid by 2- 7-1980 and the rest by the end of January, 1981. He had had a telephonic talk with Munir Khan in the last week of June and the latter had told him that his mother was not agreeable to the sale. He again rang up and this time he arranged to tape-record the talk. Munir Khan told him that the transaction should be treated as at an end, for his mother was not agreeable. He then rang up Bashir Ahmad Khan, defendant, and told him that he was ready with Rs,2,00,000 and asked him if he should reach Lahore with the money or he would come to Multan. Bashir Ahmad Khan, defendant, also told him that he was unable to complete the transaction and that he should receive back the earnest money. He added that he would reach Multan on 15th July and would have a talk with him. According to Mian Zafar lqbal, plaintiff, he went to his house on 15th July and offered the money but he refused to accept it. 15. In cross-examination, he admitted that he had not been authorised by his co-plaintiffs to enter into the sale transaction on their behalf. He also admitted that the land in suit had been on lease with his brothers for the period from Kharif 1978 to Rabi 1983 and that a suit for ejectment was pending against his brothers. He denied the suggestion that the defendants were ready and willing to complete the sale transaction by 31-1-1981 but he was not ready to perform his part. Explaining why he brought the suit before 31-1-1981, he said that the defendants had already refused to accept Rs,2,00,000 and that they had tried to interfere with his possession and had tried to resell the land. 16. Before adverting to the evidence of the defendants, the reason why Naeemullah Khan PW's statement was partly recorded on 8-1-1985 and partly on 31-1-1985 may be stated here. It was that Mian Zafar Iqbal, plaintiff, had, when he was in the witness-box as PW4 on 20-1-1982, tried to introduce the audio-cassette of the telephonic talk between him and Munir Khan and Bashir Ahmad Khan, defendant, in evidence; this attempt failed for the learned Civil Judge declined to allow it to be produced on the ground that it had not been relied upon. The plaintiffs' revision petition against the learned Civil Judge's order dated 17-1-1985 was dismissed by this Court on 20- 6-1987 and their civil petition for special leave to appeal was dismissed by the Supreme Court's order dated 28-11-1987. The evidence of Naeemullah Khan and Rafique Ahmad PWs was recorded after the framing of issue No,4-A and when Naeemullah Khan was in the witness-box, an attempt to produce the audio-cassette again was made; the defendants again objected and as the plaintiff made an application for permission to produce the audio-cassette and it was necessary to decide that application before proceeding further with the statement of Naeemullah Khan PW, the learned Civil Judge adjourned the matter to 31-1-1985. In the meantime, on 17-1-1985, the plaintiffs' application for permission to produce the cassette (this was an application under Section 164 of the Qanun-e-Shahadat, 1984) was rejected. The order dated 17-1-1985 was challenged before this Court by means of a civil revision, which was dismissed on 20-6-1987. Against that order, the plaintiffs appealed to the Supreme Court and their appeal was dismissed on 28-11-1987 (See Zafar Iqbal v. Bashir Ahmad Khan PLD 1988 SC 109). 17. On the other hand, the defendant, Bashir Ahmad Khan, himself gave evidence and examined Altaf Hussain (D.W.1), Muhammad Akram (P.W.3) and his son Munir Ahmad (PW4). The statement of Bashir Ahmad Khan, defendant, it is noteworthy, was recorded first as D.W.2 and then as D.W.5. 18. Altaf Hussain (DWI) was a deed writer. He stated that he had his place of business in front of the Office of the Deputy Commissioner, Vehari. He had known Bashir Ahmad Khan, defendant, for 8/10 years and had been writing deeds for him. He had once come to him with Zafar Iqbal in January, 1981; he had then come on 31-1-1981 and told him that a deed was to be registered. He kept waiting for the vendee but he did not turn up. He then had an application written and presented it before the Sub-Registrar. He left at 3.00 P.M. Muhammad Akram (D.W.3) stated that he had dealings with Bashir Ahmad Khan, defendant. He had purchased a car from him in January, 1980 for Rs,90,000; he
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had paid Rs,20,000 and had promised to pay the remaining price later. On 2nd of July, 1980, he went to the house of Bashir Ahmad Khan, defendant, but Mian Zafar Iqbal, plaintiff, did not turn up. They kept waiting till the evening. Later Mian Zafar lqbal, plaintiff, confirmed that he had to pay the money saying that he had been unable to arrange for it. He added that Bashir Ahmad Khan, defendant, had paid him the money a month later. Munir Ahmad (DW 4) said that his father, Bashir Ahmad Khan, had entered into the transaction with Mian Zafar Iqbal, plaintiff, and that at the time of the agreement, the plaintiff had paid Rs,20,000 in cash and Rs,80,000 by bank draft. He further stated that the remaining sum of Rs,2,00,000 was shown to have been paid to avoid preemption. As regards the payment of Rs,2,00,000, he said that the plaintiff had not approached them at all for its payment; they had been waiting for him at their house on 2-7-1980. On 31-1-1981, they also went to Vehari and waited for the plaintiff till the evening; then they had an application scribed from Haji Altaf D.W. And had presented it before the Sub-Registrar. He added that he had no authority from his parents to deal with the property in dispute. He admitted having signed the agreement Exh.P1 as an attesting witness. He was literate and had read upto F.A.; he admitted that in the agreement Exh. P1, a sum of Rs,3,75,000 was recorded as having been received by his father. His parents lived in Lahore and he lived in Multan and so did Mian Zafar Iqbal, plaintiff. He denied that he had had a talk on telephone with Zafar Iqbal, plaintiff, that the latter had told him that he was ready with Rs,2,00,000 and that he had replied that the agreement should be treated as cancelled because his mother was not ready to complete the transaction. He also denied that the plaintiff had come to their house in Multan for the payment of Rs,2,00,000. The substance of the testimony of Sardar Bashir Ahmad Khan, defendant, is as follows, The land in dispute was on lease with Khalid Pervaiz, Rafique and Zakaryya for the period from Kharif 1978 to Rabi 1983 the lease money being Rs,38,000 per year. They had paid the lease money for two years and as they had failed to pay thereafter, he had sued for their ejectment. He admitted the agreement Exh.P1. According to him, the sale consideration was agreed to be Rs,15,00,000 and he had received only Rs,1,00,000 at the time of agreement, Rs,80,000 by way of bank draft and Rs,20,000 in cash. No money was paid to him by Mian Zafar lqbal, plaintiff, on 2nd July, 1980, as he was bound by the agreement to pay. Then the plaintiffs did not do anything towards the completion of the sale by the 31st of January. He went to Vehari on 31st of January, 1981, and remained sitting with Haji Altaf DW. He waited till 4.00 P.M. But Mian Zafar lqbal did not turn up. He then made a written application to the Sub-Registrar. According to him, the agreement had come to an end on 31st of January, 1981. The land in the agreement and the land in the plaint, he added, was the same; he then corrected himself saying that the khasra numbers were different but they were ready to perform their part of the agreement. He admitted in cross-examination that he had entered into another agreement of sale with one Abdus Salam during the pendency of this suit, adding that as the agreement Exh.P1 had come to an end, he had entered into that agreement. He further stated that as he was bound by the terms of the agreement Exh.P1 to complete the sale by 31st of January, 1981, therefore, he had gone to the Sub-Registrar's office in spite of non-payment of Rs,2,00,000. He denied that Mian Zafar lqbal, plaintiff, had a telephonic talk with him and had offered to pay Rs,2,00,000 and he had refused to accept it. In answer to a question in his cross-examination on 29-9-1987, namely, if he had gone to Vehari on 31-1-1981 and had waited for Mian Zafar Iqbal till 4.00 P.M., his reply was that he had not gone to Vehari on that date. His attention was then called to his earlier statement dated 10-2-1983 where he had so stated. He said that he had forgotten what he had stated on that date, adding that whatever he had stated on that date (viz. 29-9-1987) should be treated as correct. He admitted that from the said Abdus Salam, he had received Rs,50,000 for the land in suit and that the latter had instituted a suit against him. That suit, he added, was pending. 19. The learned Civil Judge found issue No,2 against the plaintiffs. In so finding, he referred to clause 5 of the agreement Exh.P1 and observed that though that clause gave an option to Zafar Iqbal,
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plaintiff, to join with him other vendees, yet that option could be exercised "at the time of registration of sale-deed and not before". Further, the agreement was subject to the fulfilment of the terms and conditions and unless they were fulfilled, the plaintiffs had "no locus standi to assert their claim against the defendants". There was no inter se agreement between Zafar Iqbal and his co-plaintiffs nor did any contract exist between the plaintiffs other than Mian Zafar Iqbal and the defendants. As to issue No,3, the finding returned by the learned Civil Judge was that land comprising Square No,35, Khasra No,25/2 and Square No,36, Khasra Nos.4 and 9/1 was never agreed to be sold." These khasra numbers were not the subject-matter of the agreement to sell, whereas the plaintiffs have included the same in the plaint and are seeking claim against it also". In the view of the learned Civil Judge, "it becomes clear that all of the lands belonging to the defendants were not agreed to be transferred in favour of the…
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