Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Syed ARIF SHAH VS Respondent: ABDUL HAKEEM QURESHI
Court Name: Supreme Court of Pakistan Judge(s): Saleem Akhter, Ajmal Mian Title: Syed ARIF SHAH vs ABDUL HAKEEM QURESHI Case No.: Civil Appeal No,204-K of 1986 Civil Revision Application No,70 of 1982 Date of Judgment:1991-05-08 Reported As: PLD 1991 Supreme Court 905 Result: Appeal allowed
JUDGMENT
JUDGMENT ' AJMAL MIAN, J.--This is an appeal with the leave of the Court against the judgment dated 12-7- 1984 passed by a learned single Judge of the High Court of Sindh in Civil Revision Application No,70 of 1982, filed by the appellant against the order dated 21-10-1982 passed by the learned IIIrd Senior Civil Judge, Hyderabad, dismissing appellant's review petition whereby review was sought of the judgment and decree dated 8-4-1982 passed by the said Court in Suit No,65 of s.1979, declining the same. Leave to appeal against the above judgment was granted to consider the following questions:-- (a) Whether the discretion exercised by the trial Court in not granting the decree for specific performance was contrary to law? (b) Whether the High Court had wrongly assumed that the trial Court had declined to grant decree of specific performance on account of peculiar circumstances of the case which had allegedly reference to the plea of coercion and undue influence and if so, what is its effect? (c) Whether the High Court had erred in refusing to allow the relief prayed for exercising its power under section 115 of the C.P.C. On the ground that the power was discretionary and that the judgment of the trial Court could only have been interfered with if an appeal had been filed against it? 2. The facts to be noted are that the appellant entered into an agreement on 12-11-1978 with the respondent, hereinafter referred to as the agreement, to purchase a residential unit, bearing No,2773/B in the building situated on the second floor on plot of land bearing survey No,2773, Market Road, Hyderabad, hereinafter referred to as the suit house, for a consideration of Rs,60,000. Against the above sale consideration, the appellant paid a sum of Rs,20,000, balance
---
## Page 2
consideration was to be paid at the time of execution and registration of the sale-deed, which was to be executed and registered within one month. It appears that the respondent did not execute and get a sale-deed registered. The appellant filed aforesaid suit for specific performance of the agreement. In the prayer clause, the following reliefs were claimed:-- "12. The plaintiff prays for following judgment and decree:-- (a) That defendant do specifically perform his part of contract dated 12-11-1978 and be ordered to execute the sale-deed after receiving balance amount of Rs,40,000 from the plaintiff or in case of failure the Nazir of this Hon'ble Court be directed to execute the sale-deed in favour of plaintiff and in the alternate the defendant to return the amount of Rs,20,000 alongwith penalty of Rs,20,000 and the damages of Rs,20,000 which are suffered by the plaintiff. (b) The costs of the suit be borne by the defendant." ' The above suit was resisted by the respondent, inasmuch as a written statement was filed in which inter alia it was averred that there was no question of resiling from the contract as in fact there was no lawful contract between the parties and that the defendant had refused to sell the suit house, he and his son Aftab were made to sit at the Police Station in the night, where the then S.H.O. Mr. Jiskani threatened them to put them in the police lock-up and also used third-degree methods if they were not to agree to sell the suit house. It was also pleaded that the sale consideration was inadequate. On the basis of pleadings of the parties, the learned trial Court framed the following six issues:- (1) Whether the defendant executed agreement for sale-deed dated 12-11-1978 in respect of the suit property in favour of the plaintiff. If yes, whether the same was done under the coercion and undue influence? (2) Whether the agreement dated 12-11-1978 is valid and liable to be specifically enforced against the defendant? (3) Whether defendant received the amount of Rs,20,000 from S.H.O. Jiskani forcibly? (4) Whether the defendant is Benami owner of the suit property and the real owner in his son Aftab? (5) Whether the market value of suit property is Rs,1,50,000? (6) What should the decree be? ' In support of his claim in the suit, the appellant examined himself (Exh.23) and one Bashir (Exh.17), whereas the respondent examined himself (Exh.63), one Bashir Ahmad, a Clerk of S.D.M. (Exh.47), Liaqat Ali (Exh.49), Abdul Wahid (Exh.51), Dur Muhammad (Exh.52), Mst. Razia (Exh.54), Aftab Ahmad (Exh.59) and Shafi (Exh.72). 3. The learned trial Court, after hearing the arguments of the learned counsel for the parties, held under Issue No,1 that the respondent failed to prove that the agreement was executed under coercion and undue influence, whereas under Issue No,2, it held that the agreement was enforceable, but instead of granting specific performance of the agreement, granted damages. On Issues No,3, 4 and 5, it recorded findings in the negative, whereas under Issue No,6, it decreed the suit through the judgment dated 8-4-1982 for a sum of Rs,40,000 i,e, Rs,20,000 being the earnest money and Rs,20,000 as the agreed amount of liquidated damages. However, it declined to grant a decree for specific performance as stated hereinabove as it was of the view that since the appellant could be compensated with money, the agreement could not be specifically enforced. 4. Thereupon, the appellant, instead of filing an appeal, filed a review petition on 2-5-1982 in the trial Court, which was dismissed through the order dated 21-10-1982. Against the above order, the appellant filed aforesaid civil revision on 10-11-1982 which was declined by the judgment under appeal. After that, the appellant filed a petition for leave, which was granted to consider the above questions.
---
## Page 3
5. It may also be stated that the respondent filed a regular appeal against the above judgment/decree of the trial Court on 1-7-1982 but before any notice of the above appeal could be served on the appellant, he withdrew the same on 26-10-1982 after the dismissal of the above review petition on 21-10-1986. 6. In support of the above appeal, Mr. Fakhruddin G. Ebrahim, learned Sr. ASC appearing for the appellant, has urged as follows:- (i) that the learned trial Court in refusing to give a decree of specific performance of the agreement ignored the law declared by the superior Courts including by this Court though the same was binding; (ii) that the appellant's review petition was to be granted by the trial Court as ignoring of a binding judgment is a recognised ground for the grant of a review petition; (iii) that the High Court erred in declining the appellant's revision on the ground that the grant of a review petition was a discretionary matter for the trial Court, which discretion could not be interfered with by the High Court in exercise of revisional jurisdiction which is also discretionary jurisdiction. ' On the other hand, Mr. Raja Qureshi, learned ASC appearing for the respondent, has submitted as under:- (i) that since the appellant had failed to file an appeal, the trial Court could not have reversed its own judgment in a review petition; (ii) that since the grant of a review petition is a discretionary matter, the trial Court was not bound to grant the same particularly when no ground could have been made out; (iii) that the High Court could not have interfered with the exercise of the discretion by the trial Court in declining the appellant's review petition as there was no jurisdictional error committed by the trial Court as to attract the provision of section 115, C.P.C. Which was itself a discretionary jurisdiction; (iv) that the respondent after the dismissal of the appellant's review petition on 21-10-1982 withdrew his appeal on 26-10-1982 which he had filed against the findings of facts recorded by the learned trial Court against the respondent contrary to the material on record and the grant of the review petition of the appellant at this stage would seriously prejudice the respondent. 7. Before dealing with the above contentions on merits, we may deal with the question, whether it was open to the appellant to have filed a review petition instead of invoking appellate jurisdiction. In this regard, Mr. Fakhruddin G. Ebrahim has invited our attention to Section 114 and Order 47, Rule 1, C.P.C., which read as follows:-- Section 114. C.P.C. "114. Review.--Subject as aforesaid, any person considering himself aggrieved- (a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed by this Code, or (c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit." Order 47 Rule 1. C.P.C. "1. Application for review of judgment. --(1) Any person considering himself aggrieved-- (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes,
---
## Page 4
' and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review." From the above-quoted provisions of the C.P.C., it is evident that a review petition is competent even when an appeal is provided. The effect of non-availing of the remedy of an appeal is that a party in a review petition is to confine to the grounds of review mentioned in above Rule 1 of Order XLVII, C.P.C. Namely, (a) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his (the person invoking the review, jurisdiction) knowledge or could not be produced by him at the time when the decree was passed or order made; or (b) when the decree or order suffers from some mistake or error apparent on the face of the record; or (c) other sufficient reason. 8. The scope of a review is very limited. It cannot be used as a substitute for a regular appeal, which is competent on a question of fact and law. The mere fact that a trial Court has taken an erroneous view on the question of fact or on the question of law, would not attract the review jurisdiction, which grounds are eminently amenable in an appeal. 9. The effect of the omission on the part of the appellant to file a regular appeal against the judgment and decree of the trial Court was that it was not open to him to have impugned any fading of fact recorded by the trial Court or to have advanced any ground even on question of law other than which falls within the ambit of above Rule 1 of Order XLVII, C.P.C. 10. Adverting to the above first submission of Mr. Fakhruddin G. Ebrahim, namely, that the learned trial Court in refusing to give a decree of specific performance of the agreement ignored the law declared by the superior Courts including this Court though the same was binding, it may be observed that in furtherance of his above submission, he has referred to the reasons which prevailed with the learned trial Court in declining the relief of specific performance, which read as follows:- "As such it is clear that agreement itself shows that in the agreement there exists a standard for ascertaining the actual damage caused by nonperformance of the act agreed to be done hence according to the provisions of section 12, clause (b) of the Specific Relief Act the plaintiff cannot ask the specific performance of the contract but he can ask for damages as stipulated in the body of the contract. ' Apart from it, according to the provisions of clause (a), section 21 of the Specific Relief Act, such contract for the non-performance of which compensation in money is an adequate relief, can also not be enforced. ' Under these circumstances according to the provision of section 21(a) of the Specific Relief Act the plaintiff cannot seek remedy for specific performance of contract of sale but he can ask for return of earnest money and penalty provided therein. ' As the plaintiff himself prayed for alternate relief of damages hence in the peculiar circumstances the agreement between the parties and the prayer of the plaintiff that plaintiff is entitled for the earnest money amounting to Rs,20,000 alongwith Rs,20,000 as penalty.
---
## Page 5
' As such in view of the specific stipulation in the body of the agreement and as the plaintiff himself has prayed for the compensation as alternate relief, the plaintiff is entitled for recovery of Rs,40,000 from the defendant. Though an amount of Rs,20,000 has been prayed as damages and even, it is beyond the stipulated compensation agreed to by the parties for the non-performance of the contract hence plaintiff is not entitled for the relief of Rs,20,000 as damages. ' Conclusively it is held that contract is enforceable to recover Rs,20,000 of earnest money and Rs,20,000 as admitted compensation. Issue stands decided accordingly." 11. According to Mr. Fakhruddin G. Ebrahim, the above reasons given by the learned trial Court for declining the relief of specific performance of the agreement, are contrary to the law declared by the erstwhile High Court of West Pakistan and by this Court. To re-inforce the above submission, he has referred to the case of Sakinabai and others v. Kurnool Muhammad Bashir PLD 1967 Kar. 158; the case of Abdul Karim v. Muhammad Shafi and another 1973 SCM R 225 and the case of Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344. In the above first case, Qadeeruddin Ahmad, J. (As his Lordship then was), while decreeing a suit for specific performance, made the following observations on the controversy in issue:- "17. He was right to the extent that specific performance is a discretionary relief, but he did not appear to advance a sound view of the provision of law when he contended that the mere fact of a party's willingness to accept compensation in the event of the failure of the opposite-party to perform its part of the contract, is sufficient to establish the, allegation of fact that compensation in money is actually an adequate. 18. The conclusion to which the discussion leads is that the Court itself has to determine whether compensation in money is an adequate relief in a case like this or not. In this respect the Explanation to section 12 of the Specific Relief Act is of obvious importance. It is as follows:- `Unless and until 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.' ' The above is a legal presumption, and it is to be seen whether it has been rebutted in this case or not. All that has been pointed out to rebut it is the portion of Annexure J that has been reproduced above. That, to my mind, is not a sufficient rebuttal of the presumption. Additionally there is apparently a misdirection of thought in Mr. Zari's interpretation of the above quotation." ' In the above second case, this Court, while declining leave to appeal against the judgment of the Peshawar High Court, whereby the judgment and decree of the trial Court granting specific performance of a contract of sale of an immovable property was affirmed, observed as follows:- "It has been contended before us that inasmuch as the contract provided for payment of a specific amount on the vendor's failing to fulfil the contract and transfer the property to the vendee, no specific performance of the contract could be enforced by the Court. In support of this contention the case reported in PLD 1958 PC 150 was cited on behalf of the petitioner. ' We are unable to accept this contention in view of the clear provisions of the Specific Relief Act which are applicable in this country. Section 12 provides that the specific performance of the contract may be enforced in the discretion of the Court. Explanation to section 12 of the Act clearly states that unless and until the contrary is proved, the Court sh.,1 I 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. Section 19 provides that any person suing for specific performance of a contract may also ask for compensation for its breach, either in addition to, or in substitution for, such performance. Section 20 says that a contract, otherwise proper to be specifically enforced, may be thus enforced, though a sum be named in it as the amount to be paid in case of its breach, and the party in default Is willing to pay the same. Section 22 provides that the jurisdiction to decree specific performance is
---
## Page 6
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 aforesaid provisions thus clearly empower the Court to decree a specific performance of the contract even though a sum be named in the contract as the amount to be paid in case of its breach. The case reported in PLD 1958 PC 150 has no application to the present case inasmuch as the law was apparently different in Ceylon. ' Having regard to the presumption mentioned in explanation to section 12 it was for the petitioner to prove that pecuniary compensation could give adequate relief to the vendee. This the petitioner has failed to do." ' Whereas in the above third case, this Court, while affirming the judgment and decree of the Lahore High Court, whereby the decree of the trial Court for granting specific performance of a contract of an immovable property was affirmed, observed as follows:- "19. And lastly it was urged that the jurisdiction of the Court to decree specific performance being discretionary under section 22 of the Specific Relief Act, the Court ought not to have, considering the plaintiff's conduct, granted such relief. The jurisdiction under section 22 is discretionary only in the sense that it cannot be claimed as a matter of right. As enjoined by the section itself, the exercise of the discretion is not to be arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal. The exercise of the discretion to grant or refuse to grant relief will, therefore, depend upon the circumstances of the case and the conduct of the parties. The Courts below have not found the circumstances of the case or the conduct of the plaintiff to justify a denial of the relief to him, and we see no reason to hold otherwise." 12. From the above-cited cases and section 12 of the Specific Relief Act, it is evident that there is legal presumption in view of Explanation to section 12 that the breach of a contract to transfer an immovable property cannot be adequately relieved by compensation in money. This initial presumption is not dislodged by the factum that under the sale agreement, a sum is named as the amount of liquidated damages in case the contract is not performed. The burden to dislodge the above legal presumption is on the person who avers contrary to it. In the present case, the learned trial Court had recorded the above reasons which were contrary to the law inter alia declared in the above referred cases. ' The above first two cited cases were very much holding the ground when the trial Court passed the judgment and decree on 8-4-1982 and, therefore, it leads us to the above second submission made by Mr. Fakhruddin G. Ebrahim, namely, that the appellant's review petition was to be granted by the trial Court as ignoring of a binding judgment is a recognised ground for the grant of a review petition. In this regard, he has referred to the case of Faqir Muhammad Khan v. Mir Akbar Shah PLD 1973 SC 110, the case of Muhammad Zafarullah Khan v. Muhammad Khan and another 1975 SCM R 473, the case of Oil and Gas Development Corporation v. Lt.-Col. Shujauddin Ahmed PLD 1970 Kar. 332 and the case of Province of Sindh through Deputy Commissioner, Hyderabad and another v. Muhammad Hashim PLD 1971 Kar. 793. ' In the above first case, Hamoodur Rehman, C.J. While delivering the judgment of this Court, held as follows:- "This decision does not, in my view, indicate that the proposition that an omission to notice an authority like a Full Bench judgment delivered before the judgment sought to be reviewed will not amount to a failure to apply the appropriate law and, therefore, come within the category "of a mistake or error apparent on the face of the record", particularly where the decision left unnoticed is undoubtedly binding on the Court concerned e.g. a judgment of the Privy Council or of the Supreme Court or even of a Full Bench of the High Court.
---
## Page 7
' Learned counsel for the respondent has conceded that failure to notice a judgment of the Privy Council or of the Supreme Court may amount to an error on the face of the record, because, such judgments declare the law for all concerned and all subordinate Courts are bound to follow that law. I see no difference, therefore, in principle between judgments of these Courts and the judgment of a Full Bench of a High Court. A judgment of a Full Bench also decides authoritatively for the High Court the point of law referred to it and, therefore, to that extent also declares the law with respect to that point. That declaration of law is binding on all other Benches of the High Court until set aside or reversed by another Full Bench of the same High Court or by a superior Court. Failure to notice such an authoritative decision would, therefore, in my opinion, clearly be an error apparent on the face of the record." ' However, the appeal was not allowed against the judgment of the High Court for the reason that this Court was doubtful about the correctness of the judgment of the Full Bench, which was overlooked by the High Court. ' In the second case, this Court, while declining a review petition, inter alia held that a decision based on erroneous assumption of fact is liable to be reviewed but subject to the observations contained in the above first cited case, namely, "The granting of a review is still in the discretion of the Court. It is not bound to grant a review even where adequate ground exists but the discretion must, as in .The case of all judicial discretions, be exercised upon sound judicial principles." ' In the third case, a learned single Judge of the erstwhile High Court of Sindh and Balochistan, while allowing a revision against the grant of an injunction by the appellate Court, inter alia, held that there is ample authority for the proposition that if a subordinate Court fails to take notice or ignores or refuses to follow a decision of a High Court to which it is subordinate, it acts illegally or with material irregularity within the meaning of section 115, C.P.C. To arrive at the above conclusion, reliance was placed on the following judgments of the Indian jurisdiction and of Rangoon High Court:- (i) Surajman Prasad Misra v. Sadanand Misra and others AIR 1932 Pat. 346; (ii) Gupteswa r Chandra Deo v. T.V.V. Narsimham and others AIR 1945 Pat. 132; (iii)Kolipakam Penchelu Varadappa Rao v. Chittor Mahadevish and another AIR 1933 Mad. 94; (iv) U Po Hlaing and another v. Daw Ngwe AIR 1941 Rang. 22. ' In the last case referred to hereinabove at page 14, a learned Single Judge of the erstwhile High Court of Sindh and Balochistan was also of the view that ignoring of authorities by the Additional District Judge, which in law he was bound to follow, was a sufficient ground to interfere with in exercise of revisional jurisdiction. The interlocutory order granted by the Additional District Judge contrary to the law laid down by the superior Courts, was set aside and…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.