Full Judgment Text & Judicial Ruling

P L D 2019 Lahore 346 Before Amin-ud-Din Khan, J SALEEM SHAHADAT---Appellant Versus Mst. NOOR JEHAN and another---Respondents R.S.A. No.42077 of 2017, heard on 26th February, 2019. (a) Transfer of Property Act (IV of 1882)--- ----S. 54---Agreement to sell immoveable property---Caption of agreement, relevancy of---Intention of parties, determination of---When considering intention of the parties it was the body of the document and not its caption, which was considered---Court had to judge the document keeping in view the whole facts, the pleadings, the evidence produced by the parties and evaluate the matter in the light of the codified law as well as the principles of interpretation of statutes and the law declared by the superior Courts. (b) Evidence--- ----Documentary evidence could not be negated by oral evidence. (c) Transfer of Property Act (IV of 1882)--- ----S. 54---Agreement to sell immoveable property---Payment of token money---Token receipt document---Interpretation---Whether token receipt document amounted to a contract/agreement to sell---Case pleaded by the plaintiff was that the defendants agreed to sell the suit property in his favour through the receipt of token money; that the terms of the token receipt document mentioned that the same terms were to be written on the requisite stamp paper---Defendants contended that they did not agree to sell the property in favour of the plaintiff and agreement was yet to be written---Held, that perusal of the token receipt document ('the document') showed that it was an agreement to sell; that its plain language amounted to a contract when offer, acceptance, the detail of property, the full consideration amount, the mode of payment, the period of payment, amount of earnest money and the receipt thereof were admitted facts---Sentence within the said document ( ) indicated the intention of parties that same (terms) would be written on the stamp paper---Even in the pleadings as well as in the oral evidence or through any other document no case had even been introduced by the defendants that there were any other terms of the agreement except mentioned in the token receipt. The Interpretation of Contracts by Sir Kim Lewison, A Lord Justice of Appeal, 5th Edn. and The Law of Contract by Sir Guenter Treitel, Q.C., D.C.L., F.B.A. ref. (d) Transfer of Property Act (IV of 1882)--- ----S. 54---Agreement to sell immoveable property---Written terms of agreement---Such terms could not be denied by oral assertions. (e) Specific Relief Act (I of 1877)--- ----S. 12---Decree in a suit for specific performance---Scope---Such decree was a declaration of the maturity of the contract which was enforced through its execution. (f) Specific Relief Act (I of 1877)--- ----S. 12---Transfer of Property Act (IV of 1882), S.54---Specific performance of agreement to sell immoveable property---Dishonest intentions of vendors causing delay in performance of agreement---Defendants/vendors came to the court with a dishonest defence refusing the agreement with the plaintiff/vendee---Plaintiff came to the court within four weeks from the day of writing of the agreement to sell, whereas the final payment under the said agreement was to be made within thirteen weeks of the said agreement---One of the defendants appeared in the court as the sole witness and against the oral as well as documentary evidence of the plaintiff no evidence was produced by the defendants except the statement of one of the defendants, which was a lie---Defendants caused the delay in performance of the agreement to sell, therefore, they had to suffer for it---Suit for specific performance with regard to the suit property filed by the plaintiff was decreed in his favour---Appeal was allowed accordingly. Khalid Ishaq, Syed Moazzam Ali Shah, Abid Sial, Babar Afzaal, Adeel Shahid Kareem, Wajahat Ali and Ahmed Saeed for Appellant. Alamdar Hussain for Respondents. Date of hearing: 26th February, 2019. JUDGMENT AMIN-UD-DIN KHAN, J.---Through this second appeal the appellant has challenged the judgment and decree dated 04.05.2017 passed by the learned Additional District Judge, Lahore whereby first appeal filed by the appellant was dismissed and the judgment and decree dated 03.06.2014 passed by the learned Civil Judge 1st Class, Lahore whereby the suit for specific performance filed by the appellant/plaintiff was dismissed. 2. The brief facts of this case are that the appellant-plaintiff on 25.05.2004 filed a suit for specific performance, possession and injunction on the basis of an agreement dated 23.04.2004 of suit property Bungalow No.10, Plot No.14, Survey No.191/P measuring 1318.50 square yards i.e. 1102.40 square meters, situated at Shami Road, Lahore Cantt for total consideration of Rs.2,30,00,000/- fully detailed in Para No.1 of the plaint . The written statement was filed by the defendants on 14.06.2004. Various preliminary objections were raised. In objection No.3 it was mentioned that a token receipt can, in no way, be considered as a valid contract, same is the preliminary objection No.4. It is stated that merely an intention/indication on the part of the parties that they are interested in dealing with the property suit is not competent. The preliminary objection No.6 is very important, which relates to alternate plea. The defence of the defendants was that they received earnest money of Rs.500,000/- from Mr. Muhammad Ashraf and not from the plaintiff and receipt was issued. It is mentioned in reply to Para 2 of the plaint that the receipt, which is attached with the plaint, shows the signatures of plaintiff were affixed later on. In reply to sub-para (i) of Para 2 it is admitted that Rs.3.5 Million was to be paid on or before April 26, 2004. In reply to sub-para (ii) of Para 2 it is stated that after payment of Rs.3.5 Million further terms were to be agreed. Learned trial court framed the issues on 07.07.2004. The suit was dismissed for want of evidence on 25.01.2010. A Regular First Appeal No.134 of 2010 was filed by the plaintiff-appellant, which was allowed by this Court vide judgment dated 05.04.2010 and the case was remanded to the learned trial court with a direction to record evidence and decide the suit on merits. After remand the evidence was recorded. An amount of Rs.1,12,50,000/- (one cror twelve lacs and fifty thousand) was deposited with the learned trial court, as per the order dated 08.03.2010 passed in C.M.No.2-C of 2010 moved in R.F.A.No.134 of 2010. The said amount was invested by the learned trial court vide order dated 15.06.2010 in the profit bearing scheme under the orders of this Court. After recording the evidence of the parties learned trial court was again pleased to dismiss the suit vide judgment and decree dated 03.06.2014. The plaintiff/appellant preferred first appeal before the learned appellate court, which was also dismissed by the learned Additional District Judge, Lahore vide judgment and decree dated 04.05.2017. Hence, this second appeal. 3. Learned counsel for the appellant argues that learned both the courts below ignored the principle of interpretation of contract while dismissing the suit as well as the first appeal. Learned first appellate court has wrongly referred the oral as well as documentary evidence and even the number of P.Ws have wrongly been mentioned, which shows that learned appellate court has not even bothered to go through the evidence, rather the findings of learned trial court have been affirmed. Further argues that both the courts below seem to be influenced by the judgment of august Supreme Court of Pakistan reported as "Mst. GULSHAN HAMID v. Kh. ABDUL REHMAN and others" (2010 SCMR 334). States that the law declared through the said judgment is no more in the field in the light of judgment of Hon'ble apex Court reported as "MUHAMMAD SATTAR and others v. TARIQ JAVAID and others" (2017 SCMR 98). Argues that the agreement Ex.P-1 is though noted as token receipt but it is a complete contract. States that if anything extra is written in the contract over and above the terms of the contract which is not the condition of the contract, it is an expression of desire that how the party will proceed further and the document is to be read as a whole and not bifurcating the same. Further argues that a party cannot take the benefit of its own wrong and further that it is a principle of interpretation that a document is to be saved and not destroyed. Learned counsel argues that the defense taken in the written statement as well as the statement made before the court when one of the defendants appeared as D.W-1 clearly proves the case pleaded by the plaintiff/appellant. Learned counsel for the appellant has produced the Interpretation of Contracts By Sir Kim Lewison, the Law of Contract By G.H.Treitel, Contract Cases and Materials By H. G. Beale, W. D. Bishop, M. P. Furmston and the Construction of Contracts (an analysis of Objectivity and Subjectivity within Contractual transactions By Joseph Dance). Learned counsel has also relied upon "MUHAMMAD SATTAR and others v. TARIQ JAVAID and others" (2017 SCMR 98), "MUHAMMAD MATOOB and 10 others v. JAMSHED K. MARKER and 2 others" (PLD 2006 Karachi 523), "Mrs. SHABEENA FARHAT v. HIGHWAY HOUSING PROJECT and 2 others" (2006 CLC 430), "Messrs PAKISTAN STATE OIL CO. LTD. v. MUHAMMAD TAHIR KHAN and others" (PLD 2001 Supreme Court 980), "SAUDI-PAK INDUSTRIAL AND ARGICULTURAL INVESTMENT COMPANY (PVT.) LTD., ISLAMABAD v. Messrs ALLIED BANK OF PAKISTAN and another" (2003 CLD 596), "HOUSE BUILDING FINANCE CORPORATION v. SHAHINSHAH HUMAYUN COOPERATIVE HOUSE BUILDING SOCIETY and others" (1992 SCMR 19), "UNIPRIX INC. v. GESTION GOSSELIN ET BERUBE INC. and another" (2017 SCMR 1734), "Messrs POWER CONSTRUCTION CORPORATION OF CHINA LIMITED through Authorized Representative v. PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY through Chairman and 2 others" (PLD 2016 Lahore 637), "UNION INSURANCE COMPANY OF PAKISTAN LTD. v. HAFIZ MUHAMMAD SIDDIQUE" (PLD 1978 Supreme Court 279), "AKHTAR IQBAL v. THE STATE" (2015 SCMR 291), "LIAQAT HUSSAIN ZIA v. MUHAMMAD DIN and others" (PLD 2013 Lahore 277), "MUNIR AHMAD KAHLOON v. RANA MUHAMMAD YOUSAF" (PLD 2003 Lahore 173), "MASOOD PERVEZ SAJID v. MST. NAWASH FATIMA and 2 others" (2005 MLD 579), "MST. SAFIA v. MST. BIBI and 14 others" (2005 MLD 646) and "Mst. ZAITOON BEGUM v. NAZAR HUSSAIN and another" (2014 SCMR 1469), "ALOKA BOSE v. PARMATMA DEVI and others" (AIR 2009 SUPREME COURT 1527), "ELAHI BAKHSH through Legal Heirs and others v. MUHAMMAD IQBAL and another" (2014 SCMR 1217), "Messrs JAMAL JUTE BALING & CO., DACCA v. Messrs M. SARKIES & SONS, DACCA" (PLD 1971 Supreme Court 784), "MUHAMMAD AYUB v. Miss AMBREEN NAZ" (2016 YLR 100), "Haji ADAM ALI AGARIA v. ASIF HUSSAIN and 2 others" (1996 MLD 322), "FATEH MUHAMMAD through L.Rs and others v. FIDA HUSSAIN SHAH through L.Rs" (2007 CLC 1885), "MST. BASWAR SULTAN v. MST. ADEEBA ALVI" (2002 SCMR 326), "KARACHI GAS CO. LTD. v. DAWOOD COTTON MILLS LTD." (PLD 1975 Supreme Court 193), "STATE OF HARYANA and others v. MESSRS MALIK TRADERS" (2012 SCMR 1222), "THE TRUSTEES OF THE PORT OF KARACHI v. MESSRS MUHAMMAD BAKHSH AND SONS" (PLD 1959 (W.P.) Karachi 658), "MESSRS M. A. KHAN AND CO. through Sole Proprietor Muhammad Ali Khan v. MESSRS PAKISTAN RAILWAY EMPLOYEES' COOPERATIVE HOUSING SOCIETY LTD. through Principal Officer/Secretary, Karachi" (2006 SCMR 721), "MESSRS ASHIQ HUSSAIN AND SONS v. CANTONMENT BOARD, SARGODHA and others" (2002 MLD 1063) and "SUBHANALLAH and 2 others v. MST. MARYAM and another" (1988 CLC 890). Prays for acceptance of the instant second appeal, setting aside the impugned judgments and decrees passed by both the learned courts below and decree of the suit. 4. On the other hand, learned counsel for the respondents argues that there is no valid contract for sale of impugned property between the parties, plaintiff has not paid the amount of Rs.3.5 Million on 26.04.2004 as agreed through Ex.P-1 the receipt of token money. Further that third party has deposited part of the remaining consideration amount and not by the plaintiff-appellant under the orders passed by this Court in R.F.A.No.134 of 2010. Further that the witness of the plaintiff i.e. P.W-2 Muhammad Ashraf has admitted that now the value of the property is Rs.40 Million and further that there are concurrent findings of fact recorded by two courts below. Relies upon "HAMOOD MEHMOOD v. Mst. SHABANA ISHAQUE and others" (2017 SCMR 2022), "KHUDA BAKHSH ANWAR and another v. Mst. SHARIF BIBI and 2 others" (2012 YLR 291), "BASHIR and 6 others v. LAL ARNOLD and 11 others" (2003 MLD 310), "IMTIAZ HUSSAIN v. MUHAMMAD ANWAR KHETANI" (2009 MLD 785), "NASEER AHMED SIDDIQUE through Legal Heirs v. AFTAB ALAM and another" (PLD 2011 Supreme Court 323), "STATE LIFE INSURANCE CORPORATION OF PAKISTAN and another v. JAVAID IQBAL" (2011 SCMR 1013), "MUHAMMAD SHARIF and others v. NABI BAKHSH and others" (2012 SCMR 900), "MATLOOB HUSSAIN and others v. ALAMGIR and others" (2016 MLD 1372) and "MUHAMMAD RASHID and others v. SHAHID AZIZ and others" (2003 SCMR 789). Therefore, prays for dismissal of the appeal. 5. I have heard the learned counsel for the parties at full length and also gone through the record minutely as well as the findings recorded by both the learned courts below and the interpretation of statute and the case law referred to by the learned counsel for the parties. 6. Though there are concurrent findings of fact recorded by two courts below but the question is whether the same are in accordance with law and true interpretation of evidence available on the file. I am conscious of the fact that this Court while dealing with the matter under section 100 of the C.P.C. is to scrutinize the matter in the light of grounds mentioned under section 100 of the C.P.C. Both the courts below have non-suited the plaintiff/appellant on the grounds that:-- (i) Ex.P.1 token receipt is not an agreement to sell between the parties. (ii) Ex.P.1 is not signed by the plaintiff, therefore suit is not competent in the light of judgment of august Supreme Court of Pakistan reported as "Mst. GULSHAN HAMID v. Kh. ABDUL REHMAN and others" (2010 SCMR 334). The third point which is very pivotal and important in this case is recorded as below:- (iii) Who is at fault in performance of terms of Ex.P.1. 7. I take up the first point noted supra for determination. The token receipt Ex.P-1 is an admitted document by the parties. The caption of this document is token receipt. Needless to observe here that it is the body of the document and not the caption, which is considered for intention of the parties. I think it necessary to note that the court has to judge the document keeping in view the whole facts, the pleadings, the evidence produced by the parties and evaluate the matter in the light of the codified law as well as the principles of interpretation of statute and the law declared by this Court and the august Supreme Court of Pakistan. 8. The case pleaded by the plaintiff is that the defendants agreed to sell the suit property in his favour through Ex.P.1 the receipt of token money. The term mentioned therein ( ) was for writing of the same terms on the requisite stamp paper only. Against the version of the plaintiff there is defence that they did not agree to sell the property in favour of the plaintiff and agreement was yet to be written. The matter requires scrutiny of both the claims that who is with dishonest assertion or defence. It is settled principle that the documentary evidence cannot be negated through oral evidence. The document Ex.P-1 clearly shows that both the ladies entered into an agreement of sale of suit property with the plaintiff, Saleem Shahadat through a token receipt getting token money of Rs.500,000/- but in the written statement the agreement was not clearly admitted by the defendants nor clearly denied but it was pleaded that there is no agreement with the plaintiff, Saleem Shahadat. Hence, it will be beneficial if preliminary objection No.6 is reproduced, which is as under:- "That in the alternative, if the token receipt is considered as an enforceable contract, it has already been frustrated as the payment of Rs.3.5 Million as mentioned in the token receipt has not been made by 26/04/2004. Even if the plea of the Plaintiff regarding the payment to be made on 26/04/2004 is accepted, the contract stands frustrated as the term of payment of Rs.3.5 Million has not been made by the Plaintiff nor is it alleged that the Plaintiff or anyone on his behalf visited the defendants to make such payment." It was stated that with one Muhammad Ashraf they intended to agree, when one of the defendants appeared as D.W-1, who admitted that she signed the token receipt Ex.P-1 after reading the said document and her sister also signed the same in her presence. She identified her signatures and the signatures of her sister. A question for cross-examination put to P.W-3 is the most important, which is reproduced as under:-

This very important fact, when the counsel for the defendants put this question, indicates that Saleem Shahadat was available on that date at the time of writing of the token receipt Ex.P-1, which is termed as agreement. The statement of defendant No.2 who appeared in the witness box as D.W-1, she stated that she is unmarried and subsequently in the cross-examination admitted that she is divorcee, shows the truthfulness of the defendants. Defendant No.1 neither appeared nor she appointed her sister as her attorney in the suit to make statement on her behalf. The written statement does not clearly deny the agreement as I have quoted supra the preliminary objection No.6 of the written statement, which is very important. Though as per the pleadings both the defendants are house hold ladies but scrutiny of statement of defendant No.2 who appeared as D.W-1, the only evidence produced by the defendants, clearly shows that she is not a simpliciter household lady. She is very sharp and experienced ( ) lady when she has refused to answer some questions put to her during the cross-examination. 9. Now I come to the point of interpretation of the contract. The bare perusal of the document Ex.P-1 shows that it is an agreement and its plain language shows that it is a contract when offer, acceptance, the detail of property, the full consideration amount, the mode of payment, the period of payment, amount of earnest money and the receipt thereof is admitted fact. The sentence mentioned that:

Though grammatically the aforesaid sentence is meaningless but as per the learned counsel for the appellant it shows that on the stamp paper the agreement will be written. This interpretation seems to be reasonable. Even in the pleadings as well as in the oral evidence or through any other document no case has even been introduced by the defendants that there were any other terms of the agreement except mentioned in the token receipt. The struggle and preparation by the learned counsel for the appellant for interpretation of the Contract, if not referred herein, will be to ignore the efforts of learned counsel for the appellant. The reference of interpretation of Contract argued before the Court, is as follows:- (1) The Interpretation of Contracts by Sir Kim Lewison, A Lord Justice of Appeal, 5th Edition: WHAT IS INTENTION? 2.05 For the purpose of the interpretation of contracts, the intention of the parties is the meaning of the contract. There is no intention independent of that meaning. CONSTRUING THE DOCUMENT AS A WHOLE 7.02 In order to arrive at the true interpretation of a document, a clause must not be considered in isolation, but must be considered in the context of the whole of the document. In Chamber Colliery Ltd v Twyerould, Lord Watson said: "I find nothing in this case to oust the application of the well-known rule that a deed ought to be read as a whole, in order to ascertain the true meaning of its several clauses; and that the words of each clause should be so interpreted as to bring them into harmony with the other provisions of the deed, if that interpretation does no violence to the meaning of which they are naturally susceptible." PARTY NOT TO TAKE ADVANTAGE OF OWN WRONG 7.10 A contract will be construed so far as possible in such a manner as not to permit one party to it to take advantage of his own wrong. This principle has a long history, and can be traced back to Lord Coke's day. In Rede v Farr a tenant who had failed to pay his rent asserted that by reason of a proviso for re-entry which said that the lease would be void in the event of breach of obligation his lease was at an end. Lord Ellenborough said: "In this case, as to this proviso, it would be contrary to an universal principle of law, that a party shall never take advantage of his own wrong, if we were to hold that a lease, which in terms is a lease for twelve years, should be a lease determinable at the will and pleasure of the lessee; and that a lessee by not paying his rent should be at liberty to say that the lease is void." This formulation suggests that it is a rule of law. However, the decision could be justified on the basis that the court was construing the word "void" in the proviso for re-entry as meaning "voidable". In New Zealand Shipping Co v Societe des Ateliers et Chantiers de France, Lord Atkinson seems to have treated it as a matter of construction. He said: "It is undoubtedly competent for the two parties to a contract to stipulate by a clause that the contract shall be void upon the happening of an event over which neither of the parties shall have any control, cannot bring about, prevent or retard . But if the stipulation be that the contract shall be void on the happening of an event which one or other of them can by his own act or omission bring about, then the party, who by his act or omission brings that event about, cannot be permitted either to insist upon the stipulation himself or to compel the other party, who is blameless, to insist upon it, because to permit the blameable party to do either would be to permit him to take advantage of his own wrong, in the one case directly, and in the other case in a roundabout way, but in either way putting an end to the contract." In Decoma UK Ltd v Haden Drysys International Ltd the Court of Appeal held that the words of a "crystal clear" clause in a contract could not be overridden by the principle. In Petroplus Marketting AG v Shell Trading International Ltd Andrew Smith J. said: "It is a general principle of construction that prima facie it will be presumed that the parties intended that neither should be entitled to rely on his own breach of duty to obtain a benefit under a contract, at least where the breach of duty is a breach of an obligation under that contract: see Chitty on Contracts, Vol 1 at para 12-082. This is sometimes presented not as a matter of contractual construction but an implied contractual term that a right or benefit conferred upon a party shall not be available to him if he relies upon his own breach of the contract to establish his claim: Chitty on Contracts Vol 1 at para 13-012. However analysed, the principle is not inflexible or absolute: it may be displaced by express contractual provision or by the parties' intention to be understood from the express terms: Richco International Ltd. v Alfred C. Toepfer International GMBH." SAVING THE DOCUMENT 7.16 Where two constructions of an instrument are equally plausible, upon one of which the instrument is valid, and upon the other of which it is invalid, the court should lean towards that construction which validates the instrument. This principle is based on the proposition that "the parties are unlikely to have intended to agree to something legally ineffective." It is expressed in the Latin maxim verba ita sunt intelligenda ut res magis valeat quam pereat. One suggested translation is "validate if possible". In Langston v Langston Lord Brougham L.C. said: "If there are two modes of reading an instrument, and one destroys the instrument and the other preserves it, it is the rule of law and of equity following the law in this respect that you should lean towards that construction which preserves, rather than towards that which destroys. Ut res magis valeat quam pereat is a rule of common law and common sense, and much the same principle ought surely to be adopted where the question is, not between two rival constructions of the same words appearing in the same instrument, but where the question is on so ready an instrument as that you may either take it verbally and literally, as it is, or with a somewhat larger and more liberal construction, and by so supplying words as to read it in a way in which you have every reason to believe that the maker of it intended it should stand. Thus, again, according to the rule ut res magis valeat quam pereat, to supply, if you can safely and easily do it, that which he per incuriam…

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