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Petitioner: BASHIR AHMED and others VS Respondent: AKBAR ALI and others
Court Name: Lahore High Court Judge(s): Mian Saqib Nisar, Tanvir Bashir Ansari Title: BASHIR AHMED and others vs AKBAR ALI and others Case No.: Regular First Appeal No.35 of 2001 and R.S.A. No.52 of 2004 Date of Judgment:2004-09-29 Reported As: 2005 MLD 283 Result: Appeals dismissed
JUDGMENT
JUDGMENT ' TANVIR BASHIR ANSARI, J.---The captioned appeal (R.F.A. No.35 of 2001) as also R.S.A. No.52 of 2004 arise out of consolidated suit between the parties and are against the single judgment and decree of the learned trial Court and hence, are being disposed of together. 2. Briefly stated the facts of the case, given by Mr. Ahmad Waheed Khan Advocate learned counsel for appellants are that on 11-6-1998, Akbar Ali, respondent No.!, brought a suit for the specific performance against the appellants/defendants, claiming that they, through an agreement to sell dated 10-12-1988, which subsequently was extended through different acknowledgements/agreements dated 5-1-1989, 6- 3-1989 and 30-4-1989 agreed to sell their land measuring 758 Kanals, situated inside and outside of District Kasur, for a consideration of Rs.3,625 per Kanal, which comes to Rs.29,000 per acre. It is the case of respondent No.1 that in pursuance of the aforesaid agreements on different occasions, the respondent has been making the payments of various amounts to the vendors and as against the total consideration of Rs.27,47,750, he has paid Rs.29,18,886. In this manner, an excess payment of Rs.2,33,116, has been made, yet, the appellants have failed to perform their part of the agreement by finalizing the transaction of sale in favour of respondent No.1, therefore, the said suit. 3. The defendants-appellants contested the suit by filing the written statements in the manner that Haji Bashir Ahmad and Iftikhar Ahmad filed joint written statement, whereas, Mst. Mukhtar Begum and Imtiaz Bashir, filed another joint written statement. The defence of all the defendants, primarily, was that the suit is bared by time. Haji Bashir Ahmad though has accepted the execution of the agreement to sell but has denied the receipt of the payment of the total consideration, as alleged by the plaintiff. He has also set out a plea that, in fact, the plaintiff was not ready and willing to
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perform his part of the contract and therefore, is not entitled to enforce agreement to sell. Furthermore, the time was the essence of the agreement and as the plaintiff/respondent failed to perform the same, resultantly, he on account of the above, is not entitled to the specific performance. Besides that, Haji Bashir Ahmad had suffered colossal loss for failure of the respondents to abide by the terms of the agreement. As regard the other three defendants, though they have not denied the execution of the sale agreement by Bashir Ahmad but Iftikhar took the plea that he had revoked the power of attorney in favour of his father whereby otherwise was manoeuvred whereas, Mukhtar Begum. And Imtiaz Bashir both have taken up the stance that the same was under undue influence of Haji Bashir Ahmad, their husband and father and as consequence such agreement being invalid under the law, cannot be enforced. ' It may be relevant to mention here that appellants Nos.3 and 4, before the suit for specific performance, brought a suit on 24-7-1997, for the declaration and cancellation challenging the aforesaid agreement to sell in favour of respondent No.1 on the same ground. They in the suit, had also impleaded their father/husband Haji Bashir Ahmad and Iftikhar Bashir, brother, as respondents, who conceded the suit, whereas, it was contested by respondent No.1 alone. 4. Both the suits were consolidated and from the divergent pleadings of the parties, following issues were framed on 26-7-2000, whereas, an additional Issue No.11-A was framed on 29-7-2000:- ISSUES (1) Whether the suit is barred under section 53-A of Transfer of Property Act? OPD. (2) Whether the plaintiffs have been estopped by their words and conduct to file the suit? OPD. (3) Whether the suit has been valued incorrectly for the purposes of court-fee and jurisdiction? If so, what is correct valuation? (4) Whether the suit is collusive between the plaintiff and defendants Nos.2 and 3? OPD-1. (5) Whether the defendant No.1 has spent an amount of Rs.21,00,000 on the development of the disputed land, installed four tube wells, constructed two pakka and thee kacha Havelies and planted a garden of Guava on 7 acres of disputed land? If so, its effect? OPD-1. (6) Whether the plaintiffs have no cause of action and locus standi to file the suit? OPD. (7) Whether the suit is false, mala fide and has been filed in order to harass the defendants and the defendants are entitled to special costs under section 35-A of C.P.C.? OPD. (8) Whether disputed agreements to sell were written and executed in favour of Akbar Ali by Haji Bashir Ahmad etc., and have already been received excessive amount of Rs.2,33,136 to that of total consideration amount? If so, whether Akbar Ali is entitled to the decree for specific performance of agreement as prayed for in the titled suit Akbar Ali v. Haji Bashir Ahmad etc.? OPD-1. (9) Whether the agreement to sell dated 10-12-1988, 5-1-1989, 6-3-1989 and 30-4-1989 are based on fraud, misrepresentation and without consideration? OPP. (10) If Issue No.9 is answered in negative, whether the agreement for sale dated 10-12-1988, 5-1- 1989, 6-3-1989 and 30-4-1989 stand cancelled as defendant No.1 has not complied with the term of the said agreement? OPP. (11) Whether the plaintiffs are entitled to a decree for declaration and permanent injunction as prayed for? OPP. (11A) Whether the suit is barred by time? OPD-1. 5. The proceedings were taken up in the suit for declaration and the appellants examined only one witness Imtiaz Bashir as P. W.1 and tendered document Exh.P.1, power of attorney dated 8-8-1987 given by Imtiaz Bashir in favour of Haji Bashir Ahmad, Parchi Khatoonies Exh.P.2, P.3 and P.4, certified copy of cancellation of power of attorney. Akbar Ali in the suit for specific performance has examined Muhammad Iqbal as D.W.1, Muhammad Yaqoob D.W.2, Amanat Ali D.W.3, Muhammad Ashraf D.W.4 and Akbar Ali himself appeared as D.W.S.
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So as for defendant No.1 Bashir Ahmad, he 'examined six witnesses. Ch. Barkat Ali, Advocate appeared as D.W.6, Ghias-ud-Din Patwari D.W.7, Juma Khan D.W.8, Ijaz Hussain D.W.9 and Bashir Ahmad himself appeared as D.W.10. The documentary evidence has been produced by the defendant. Exh.D.1 is the agreement to sell dated 10-12-1988, Exh.D.2 agreement dated 5-1-1989, Exh.D.3 dated 30-4-1989, Exh.D.3/1- dated 6-3-1989, Exh.D.5 is the Mutation No.5221 through which share of Imtiaz Bashir of the property was mortgaged in favour of ADBP for an amount of Rs.2,00,000, Exh.D.6 is the Mutation No.5286 on behalf of Iftikhar Bashir in favour of ADBP for an amount of Rs.1,80,000, Exh.D.7 is the Mutation No.5533 of the same nature from Mst. Mukhtar Begum in favour of ADBP for an amount of Rs.2,00,000, Exh.D.8 and Exh.D.9 are Khasra Girdavaries for the period Kharif 1992-1997, Exh,D.9 (exhibited as such again) is the receipt of the payment of certain amount by Mst. Mukhtar Begum to ADBP dated 28-8-1990, Exh.D.10, Exh.D.11, Exh.D.12 and Exh.D.13 are the further receipts of certain payments made by Iftikhar Bashir to the ADBP. Exh.D.3/1 is the sale- deed from one Chiragh Din, Exh.D-3/3 is agreement by Chiragh Din in favour of Yaqoob, Exh.D.3/4 is general power of attorney dated 15-3-1990 from Chiragh Din in favour of Akbar Ali. Exh.D.3/5 is the agreement from Nizam Din in favour of Yaqoob. Exh.D.3/6 is the power of attorney executed by Nizam Din in favour of Akbar Ali. Exh.D.3/7 is the sale-deed from Nizam Din in favour of Akbar Ali. ' Exh.D.W.5/6 to Exh.D.W.5110 are the copies of sale-deed which though were prepared but were not executed by the parties on the stamp paper. Exh.D.W.5/11 to Exh.D.W.5/15 are the copies of the Jamabandies dated 29-6-1992 on the basis of which the sale-deeds mentioned above were prepared. Exh.D.W.6/1 is the legal notice dated 9-6-1991 sent by Ch. Barkat Ali, Advocate to Akbar Ali, Exh.D.W.6/2 is the postal receipts of the above notice. Exh.D.W.6/3 is the acknowledgement due. Exh.D.W.7/1 is the copy of Rapt Roznamcha dated 19-2-1989 from the Patwari. 6. On the conclusion of the trial, the learned Civil Judge allowed the suit for specific performance of the respondent with the direction to deposit certain amount as determined by the Court within the specific period whereas suit for declaration of the appellant was dismissed. Against the decree in specific performance R.F.A. No.35 of 2001 has been filed whereas appellant against the dismissal of the declaratory suit, filed first appeal before the learned lower Appellate Court. The learned Court of appeal by reversing the finding of the learned trial Court on Issue No.3 had come to the conclusion that the form of the suit for declaration was erroneous which should have been for cancellation of documents under section 39 of the Specific Relief Act, thus, treating it to be suit for cancellation had directed the respondents to make up the deficiency of the court-fee on both the suit and appeal. However, the findings on almost all the other issues have been maintained except Issue No.6, holding that the suit of the appellant for declaration/cancellation did disclose cause of action. Findings upon issue No.8 were marginally modified. 7. At this stage, Syed Najam-ul-Hassan Kazmi, Advocate stated that he does not support the finding of the learned Court of appeal on Issue No.3 and therefore, has no objection if the findings of the trial Court to that extent are maintained. 8. Mr. Ahmad Waheed Khan, learned counsel for the appellants has read the impugned judgment of the learned trial Court and has contended that the findings of the Courts below on material issues are absolutely erroneous, illegal and against the record. It is submitted that both the oral as also documentary evidence has not been appreciated; a number of documents such as inchoate sale-deeds executed by the appellants in favour of the respondents have not been considered. Moreover, the Fard Jamabandi in favour of the appellants dated 29-6-1992, which the respondents had appended along with inchoate sale-deeds have not been taken into account. It is also submitted that soon after the agreement, the parties had approached the Patwari and itwas told to the respondents by the Patwari that the land in question in under mortgage. ' It is also submitted that part of the land belonging to the appellants was not even mortgaged with the ADBP. Mr. Ahmad Waheed Khan, Advocate has vehemently urged that the time was the
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essence of the agreement between the parties. This contention is statedly duly reflected in the first agreement dated 10-12-1988, in which the specific date was fixed. Thereafter, vide agreement dated 5-1-1989, the earlier dated 10-3-1989 was extended. Through the agreement dated 6-3-1989, though the date was extended to 1-5-1989, but it was specifically mentioned in this Exh.D.3, that the money, which the respondents have to pay for the purchase of the land is required for the extension of the factory by the respondents and it is thus, stated that the property was being sold and therefore, the time was the essence of the contract. It is submitted that this evidence is .Corroborated by the statement of Malik Bashir, to which there is no cross-examination. Besides, it is submitted that the respondents were not ready and willing to perform its part and it had always been making delays in this regard. Mr. Ahmad Waheed Khan, Advocate has also argued that the appellants had rescinded the agreement and duly informed the respondents vide document Exh.D-5/6 to Exh.D.5/10 and the document dated 11-4-1990, but no steps were taken by the respondents to seek the implementation of the agreement to sell. The learned counsel has laid great emphasis on the proposition that issue No.11-A has been wrongly decided by the learned trial Court, against the appellants and in favour of the respondents. It is submitted that in paragraph No.24 of the plaint, the plaintiff/respondent has alleged that "the cause of action in favour of the plaintiff and against the defendants has arisen when the defendants Nos.2 and 4 filed the suit and defendants Nos.1 and 3, filed their written statement collusively and refused to complete the sale in favour of the plaintiff and also a week back when they refused finally to complete the sale in favour of the plaintiff and the same is continuing one." Whereas the plaintiff/ respondent was duly aware on account of the inchoate sale-deeds Exh.D.5/6 to Exh.D.5/8 allegedly by Iftikhar Bashir, Imtiaz Bashir and Mst. Mukhtar Begum and by Bashir Ahmad, Exh.D.5/9 and Exh.D.5/10 that the property belonging to each of defendants was duly mortgaged. This all happened in the year 1992. Moreover as per Exh.d.5/ll to Exh.D.13, which are the "Fard Malkiyat" of the respondents Nos.2 to 5, it is shown that the property is mortgaged, yet no attempt was made for seeking the execution of the sale- deeds and that the suit was finally filed on 11-6-1998, which is beyond the period of limitation, as enshrined in section 113 of the Qanun-e-Shahadat Order. It is further submitted that through the notice dated 10-6-1991, Exh.D.6/1, got issued by the appellants and other defendants, through a counsel namely Ch. Barkat Ali, it was categorically conveyed that the appellants are refusing to execute the sale-deed in favour of the respondents, still no suit within a period of three years i.e. From the date of final refusal, was instituted. 9. Mr. Saleem Aftab Sheikh, states that the two Courts below have grossly misread and ignored the evidence on the record. In this regard, he has referred to the statement of Muhammad Iqbal D.W.1., who stated that, when he wrote the inchoate sale-deed, "Fard Malkiyat" was available with the other side. It is also submitted that according to Muhammad Yaqoob D.W.2, "Fard Malkiyat" dated 26-9-1992 was available and it had been conveyed to the respondent by Barkat Ali that, the property is mortgaged. Mr. Saleem Aftab Sheikh, Advocate has also argued that, though the appellants and Bashir Ahmad are closely related, yet there had been tiff in the family; wife and the son namely Imtiaz Bashir never wanted to sell the property and on account of this, even Bashir had to leave 53-A Model Town, Lahore where the family was earlier living jointly. He has also argued that the Court below has ignored Exh.D.8 and Exh.D.9. The case also argued that, the Court below has ignored Exh.D.8 and Exh.D.9. The case of the respondents that, someone was in possession of the property in issue and he after paying certain amount, obtained the possession, is absolutely belied for the reason that, no such person was ever examined to prove this bald allegation, nor the receipt of the alleged amount of Rs.50,000 which he paid to some unknown person, has been produced; the possession was with the appellants and while Bashir was in hospital, illegal takeover was made. It is also submitted that, the appellants were though dispossessed in the year, 1993, but when physically Barkat came and started living in the property in question, they thought of filing
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the suit in the year, 1997, which is within the period of limitation and, therefore, a bit of delay would not be material to defeat their rights, which otherwise stand proved on the record. He has argued that, Jumma Khan D.W.8, who is the Patwari, has categorically stated that Jamabandi dated 19-2- 1989 was issued, meaning thereby that the respondents were fully aware of the mortgage of the property share belonging to that of the present appellants, whereas the share of Bashir was fever mortgaged. Learned counsel has forcefully submitted that, issue No.11-A has been wrongly treated to be an issue in the case of the appellants, which is not so; the reason being that the respondents in their written statement have never set out the ground of limitation; resultantly, the question of limitation, when it is dependent upon the factual investigation and has not been taken up as a ground, cannot be considered, even under the provisions of section 3 of the Limitation Act, because it never remained a question of law alone. Reliance in this behalf has been placed upon the case of Haji Abdullah Khan and others v. Nisar Muhammad Khan and others (PLD 1965 SC690). He has also submitted that, Exh.D.1 to Exh.D.4 have not been proved; for example, on Exh.D.1 there are two attesting witnesses namely Yaqoob and Muhammad Hayat; only. Yaqoob has been examined and there is no reason for non-production of Hayat, and according to the provisions of Articles 17(2) and 79 of the Qanun-e-Shahadat Order, in order to prove the document, the two attesting witnesses must be examined in the Court; as this has not been done, therefore, the agreement is unenforceable. In this behalf, he has placed reliance upon the cases of Abdul Khaliq v. Muhammad Asghar Khan and 2 others (PLD 1996 Lah. 367) and Mst. Rasheeda Begum and others v. Muhammad Yousaf and others (2002 SMR 1089). Similar is the objection on the other three documents mentioned above.. In addition, it is submitted that on Exh.D.4, though there are two attesting witnesses, but none has been produced. On a Court question, that the delay defeats the equity and its reflection upon the conduct of the petitioner in seeking relief, Mr. Saleem Aftab Sheikh, Advocate has relied upon the case of Wali and 10 others v. Akbar and 5 others (1995 SCMR 284) to argue that it is not every of which the petitioner must approach the Court; it is his choice and in this case, the' final attack was made when Barkat came and started living in the disputed property, 'constraining the appellants to sue him. Mr. Saleem Aftab Sheikh, Advocate has also argued that, the agreements are vague and thus, are unenforceable in terms of section 29 of the Contract Act, inasmuch as, these agreements do not specify the details qua the lands, which are allegedly agreed to be sold by respective sellers. He has relied upon PLD 1989 Lah. 152. It is further submitted that the time was the essence of the contract and thus, having failed to perform his part of the agreement, the respondent is not entitled to the equitable relief. Support has been drawn from the judgments reported as Lahore Cantonment Cooperative Housing Society Limited, Lahore through Secretary v. Dr. Nusrat Ullah Chaudhry and others (PLD 2002 SC 1068) and Fazal-ur-Rehman v.. Ahmad Saeed Mughal and others (2004 SCMR 436). Lastly, it is argued that, the view of the Courts below that, because the property was mortgaged and, therefore, the limitation would not debar the plaintiff/respondent to seek the specific enforcement, is in violation of the law laid down by Hon'ble Supreme Court in case of Chief Land Commissioner and another v. Maula Dad and others (1978 SCMR 264). 10. Syed Najam-ul-Hassan Kazmi Advocate for respondent No.1 contends that as far as R.S.A. No.52 of 2004 is concerned, the same is directed against a concurrent finding of act arrived at by the learned trial Court as well as the First Appellate Court an all the issues except Issues Nos.3, 6 and 8. According to him, the concurrent findings of fact cannot be interfered with unless and until gross misreading or non-reading of material evidence is pointed out. It is submitted that the learned counsel for the appellants have neither indicated any such irregularity nor indeed pointed out any other legal infirmity upon the findings upon these issues, as far as they relate to the declaratory suit filed by the appellants. With regards to Issues Nos.3, he has already conceded that the findings upon this issue rendered by the trial Court be maintained.
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11. Adverting to the merits of R.F.A. 35 of 2001, it is submitted that the execution of the agreements (Exhibits D.1 to D.4) have not been specifically denied by the appellants. In fact, in the notice issued by Mr. Barkat Ali Advocate, Exhibit D.W.6/1 the express admission of these agreements have been made. It is further submitted that the said Advocate while appearing as D.W.6 deposed that he had issued the said notice upon the instructions from all the four persons mentioned therein, namely Haji Bashir, Imtiaz Bashir, Iftikhar Bashir and Mst. Mukhtar Begum. Reference is also made to the statement of Bahsir Ahmed himself who appeared as D.W.10, who admitted the execution of the aforementioned agreements by himself, his wife and son. 12. Continuing in this vein, it is urged that if the execution of the disputed documents is admitted the record, the admissibility of the said documents, or the execution thereof cannot be challenged upon the rule of estoppel and it is futile for the appellants to contend that in view of Article 79 of the Qanun-e-Shahadat Order, 1984 at least two attesting witnesses of the agreements should have been produced. It is further submitted that it has been found upon the evidence on record that the appellants in the suit for specific performance have not been able to establish the exercise of any coercion or the execution of the said agreements under the pressure of any fiduciary relationship between the appellants. The learned counsel has relied upon the cases of Mst. Zainab Khatoon v. Amir Abdullah Khan (PLD 2004 Lah. 330), Daulat Ali through L.Rs. And 2 others v. Ahmad through L.Rs. And 2 others (PLD 2000 SC 792), Hazoor Bukhsh v Mst. Manzoor Mai (2003 MLD 1164) and National Bank of Pakistan v. General Tractor and Machinery Co. Ltd. And another (1996 CLC 79). ' It is further elaborated that in the circumstances of the present case, when the agreement was affirmed by one attesting witness and also the scribe of the documents, the status of the scribe does not remain merely that of a deed writer but he becomes a witness to the transaction, payment and execution of the documents. Reliance is laced upon the cases of Nazir Ahmad v. Muhammad Rafique (1993 CLC 257), Amanat Ali v. Riaz Hussain (1991 MLD 1037) and Zafar Ullah Khan v. Mst. Hakim Bibi and another (2000 YLR 2789). Regarding the objection in respect of the plea that the suit for specific performance was barred by time, it is contended that Article 113 of the Limitation Act deals with two situations that is (a) where the date is specified in the agreement itself for the performance of the contract, and (b) where no date is fixed. It is submitted that although a date was originally fixed for the performance of the agreement to sell and the same was even enlarged by the parties, the cause of action would accrue to a plaintiff in a suit of specific performance when the obligor is in a position to perform his part of the contract effectively. It is submitted that it was only when the encumbrance would have been removed that the cause of action would arise for the first time. According to the learned counsel, as the land in suit remained under mortgage, the obligor could only perform his part of the contract effectively when such encumbrance was removed. Relies upon the cases of Pazhaniappa Chettiyar v. South Indian Planting and Industrial Co. Ltd. And another (AIR 1953 Tray. C. 161), Lakshminarayana Reddiar v. Singaravelu Naieker and another (AIR 1963 Madras 24), Inam Naqshaband v. Haji Shaikh Ijaz Ahmad (PLD 1995 SC 314) and Muhammad Bashir and others v. Haim Ali and others (2000 YLR 368). 13. We have heard the arguments of the learned counsel for the parties and have extensively perused the records. 14. Respondent No.1 Akbar Ail filed his suit for specific performance on 11-6-1998 against Haji Bashir Ahmed, Imtiaz Bashir, Iftikhar Bashir and Mst. Muhtar Begum. The suit was filed in respect of agreement to sell dated 10-12-1998 (Exh.D.1). The salient features of the said agreement were that the executants agreed to sell the suit-land for a sale consideration of Rs.27,47,750. Initially a sum of Rs.2 lacs was paid as earnest money and another sum of Rs.8 lacs was paid vide agreement/acknowledgement dated 5-1-1989 (Exh.D.2). Another sum of Rs.6 lacs was paid vide agreement dated 6-3-1989 (Exh.D.4). Through Exh.D.3, the time for performance of the agreement was extended uptil 5-7-1989. It may also be mentioned that the suit property was claimed by the
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appellants to be unencumbered in the initial agreement. The vendor also undertook to provide the Fard Malkiat. 15. Prior to this Mst. Mukhtar Begum widow of Haji Bashir Ahmed, and Imtiaz Bashir son of Haji Bashir Ahmed filed a suit for declaration against Akbar Ali, respondent to the effect that the agreements to sell and their subsequent acknowledgements were based upon undue influence, fiduciary relationship with Bashir Ahmad and being without consideration were ineffective upon the rights of the…
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