2018 C L C 1195
Before Amin-ud-Din Khan, J
DARAY KHAN through L.Rs. and another—Respondents
R.S.As. Nos.97 of 2009, heard on 2nd October, 2017.
Rana Zia Abdul Rehman Abdul Waheed, M. Atif Ahsan and Nawab-ur-Rehman for Appellant.
Ahmad Waheed Khan and Mian Hameed-ud-Din Kasuri for Respondents.
Date of hearing: 2nd October, 2017.
AMIN-UD-DIN KHAN, J.—Through this single judgment I intend to decide the above captioned Regular Second Appeal as well as Regular Second Appeal No.98 of 2009 as common questions of law and fact are involved.
2. Through this appeal Judgments and decrees dated 19.03.1996 and 09.07.2009 of both the Courts below have been challenged.
3. The brief facts are that the plaintiffs/respondents, Darey Khan as well as Abdul Sattar, filed a suit for specific performance on 16.5.1985 on the basis of registered agreement to sell dated 15.11.1981 titled Abdul Sattar and another v. Bahadar Ali. The written statement was filed and suit was contested mainly on the ground that no agreement to sell was arrived at between the parties and the defendant received no consideration amount for sale of suit property. It was pleaded that the suit property was procured by plaintiff No.2 on five years lease through registered lease deed dated 08.10.1978 for the period of Khareef 1980 to Rabee 1985. Subsequently plaintiff No.2 asked the defendant that he wants to include his brother plaintiff No.1 in the lease agreement, therefore, it was settled that two years fresh lease agreement be prepared and got registered. An amount of Rs.8000/- out of the lease amount was paid. Learned trial court framed the issues on 08.03.1989, which are as follows:-
1. Whether the defendant has entered into a valid contract of sale on 15.11.1981 in respect of the suit land, received Rs.800,000/- as earnest money and as such the plaintiffs are entitled to specific performance thereof? OPP
2. Whether the alleged contract of sale is based on fraud, without consideration, void and ineffective qua the rights of the defendant? OPD
The statement of Malik Khan Muhammad EAC was got recorded on 03.09.1989, thereafter plaintiff No.1 on 11.06.1991 moved an application that actually there was an agreement of lease between the parties and not the agreement to sell. In the light of decision of ‘Punchait’ the applicant wants to withdraw the suit where the next date of hearing was 17.06.1991. The record shows that his statement was recorded on 11.06.1991 and the file was ordered to be placed before the court on the date fixed. Before the fixed date of hearing learned Presiding Officer was transferred. It was adjourned for 27.4.1991, then for 24.9.1991 which was fixed before the transferee court and was adjourned for 12.10.1991 when the learned Duty Judge recorded that statement of plaintiff No.1 which was already recorded on 11.06.1991, therefore, the suit to his extent was dismissed as withdrawn. Therefore, his name from the array of plaintiffs was deleted. Thereafter the remaining evidence of the sole plaintiff was recorded and the defendant also got his evidence recorded. Vide judgment and decree dated 19.03.1996 the suit for specific performance of contract was dismissed, however, a decree for grant of Rs.400,000/- was passed in favour of plaintiff and against the defendant. Both the parties went in appeals. Learned first appellate court vide judgment and decree dated 09.07.2009 accepted the appeal preferred by the plaintiff/respondent and granted a decree for land measuring 257-kanals 2-marlas out of the disputed land subject to deposit of Rs.300,000/- the remaining consideration amount and the defendant was directed to return the possession of half portion of the suit land to the legal heirs of Daray Khan plaintiff. The appeal preferred by the Defendant Bahadar Khan was dismissed. Therefore, these two appeals by the defendant.
4. Learned counsel for the appellant argues that the plaintiffs/ respondents failed to prove the execution of agreement to sell in their favour and payment of earnest money. States that without any reason one of the alleged marginal witnesses Muhammad Iqbal was not produced. Further that one of the proposed vendees withdrew from the claim of specific performance stating that there was no agreement to sell between the parties. When the agreement does not contain the bifurcation of property between the proposed vendees and the consideration amount, therefore, in accordance with Section 17 of the Specific Relief Act (I of 1877) the suit was liable to be dismissed. Relies upon “Farzand Ali and another v. Khuda Bakhsh and others” (PLD 2015 Supreme Court 187), “Khalil-ur-Rehman and others v. Mst. Vakeelan and another” (PLD 2006 Karachi 267), “Samar Ali through his Legal Heirs and 3 others v. Muhammad Malik and 4 others” (1995 CLC 1751), “Wali, Jahania and Allah Dad v. Manak Ali, Lal and Murad” (PLD 1965 Supreme Court 651), “Muhammad Ishaq and another v. Mst. Sufia Begum” (1992 SCMR 1629), “Haji Muhammad Sadiq v. Haji Syed Muhammad Sadiq Sharif and others” (1997 SCMR 1994) and Razia Sultana Bano and 4 others v. Muhammad Sharif and 9 others (1993 SCMR 804).
5. On the other hand, learned counsel for the plaintiffs argue that there are concurrent findings about the existence of agreement between the parties and no fraud or misrepresentation has been alleged. Argue that even in the appellate court an application was filed by the plaintiff that he wants to get the whole of property by payment of remaining consideration amount. He moved an application for amendment of plaint on 07.10.2008, unfortunately the application was dismissed on 26.02.2009. Argue that even the case of respondent before this court is that with regard to the all properties subject matter of the agreement a decree for specific performance in favour of respondent be passed.
6. I have heard the learned counsel for the parties at full length and also gone through the record minutely with their able assistance.
7. One of the marginal witnesses of agreement has not been produced when the agreement was denied by the appellant-defendant. Even in the statements of witnesses, none of the witness including the Sub-Registrar had stated that the payment of earnest money was made before him. No separate receipt of payment of earnest money was produced. PW-2 Munir Ahmad claims to be the witness of document as well as identifier being Lumberdar at the time of attestation of agreement Exh.P-1. He also stated that it was admitted by the proposed vendee-plaintiff that he has received the earnest money but no money was paid in his presence. PW-3 is the person claiming to be the witness of payment of earnest money on 14.11.1982. I have noticed that the figure “2” in the year 1982 has been disfigured afterwards by putting extra ink to disfigure this word. Mentioning of year 1982 is not in the cross-examination. He stated that it is wrong that in the year 1982 forged and fictitious agreement was prepared, whereas the date of writing of agreement is 15.11.1981 and it was registered on the same date. PW-4 claims to be the deed writer. He also stated that no money was paid in his presence. The other important fact that in the agreement at page No.2, figure 8000/- was written which was subsequently substituted with the 800,000/- by making cutting in that agreement and further as per PW-3 the money was paid at his Dera, whereas in the agreement it has been stated on behalf of the vendor that he has received the money in his house. PW-5 is a witness of payment of money. He stated that on the Dera of PW-3 and his Dera the earnest money of Rs.800,000/- was paid.
8. The important notable facts are that as per the story of plaintiff the money was paid one day prior to the writing and registration of the agreement to sell Exh.P-1. The amount of Rs.800,000/- was a huge amount in the year 1981 and there is no record that whether this amount was withdrawn by two original plaintiffs from the Bank or by sale of their any other property or further that after receiving the said amount whether the said amount was used or utilized by the defendant. The further astonishing fact is that even no receipt of payment of money was prepared at the time of payment of money. Therefore, the version of the appellant/defendant gets support from these facts that actually the property was already under lease with one of the plaintiffs when he said that his other brother also wants to join the lease agreement and in the garb of preparation of lease agreement this agreement Exh.P-1 has been prepared.
9. I am further of the view that in the agreement it is written, the important part is reproduced as under:-
There is no evidence that the appellant/defendant purchased any land in the said Chak that the alleged amount received by the plaintiffs.
10. The further notable fact is that in accordance with the agreement the date of performance was 15.06.1982 whereas the suit in hand was filed on 16.05.1985 i.e. in the last days of permissible period of limitation of three years. When in a civil matter the time is permitted for filing a suit under the Limitation Act, it does not mean that the plaintiff must wait till the last day of limitation and then to file the suit. The period of limitation is permissive one and its use as a device to get the benefit from the transaction by filing and lodging any suit or claim in the end of permissible period of limitation speaks against the plaintiff if no valid reason is advanced for filing the claim in the last days of permissible period of limitation. In the circumstances of this case when admittedly the suit property was under lease with one of the plaintiffs from Khareef 1980 to Rabee 1985 and as per the claim of plaintiffs they have paid an amount of Rs.800,000/- and remaining amount was Rs.600,000/- which was to be paid on 15.06.1982 and the defendant was to execute an instrument of sale deed in favour of the plaintiffs, why they waited till the end of period of limitation and in this respect had no valid explanation had been given by them except that they were asking the defendant/appellant for performance of his part but he was reluctant. These grounds are general in every suit. Therefore, by considering all these facts in series speak against the plaintiff.
11. So far as the of application of section 17 of the Specific Relief Act (I of 1877) is concerned, admittedly one of the plaintiffs made a statement before the court on 11.06.1991 and also filed an application supported by an affidavit wherein it is mentioned, para 2 of the application is reproduced as under:-
Though in the receipt it is recorded that he has received his earnest money of Rs.400,000/- and on 12.10.1991 upon recording of his statement the suit to his extent was dismissed. It seems that this portion of statement was recorded as precautionary measures so that any of the parties may not misuse the said amount. Actually the statement of one of the plaintiffs Abdul Sattar was that no agreement to sell was arrived at between the parties, only an agreement of lease was constituted and on the basis of decision of “Punchait” he has withdrawn from the suit. Though learned counsel for the respondent moved an application before the learned appellate court in the year 2008 that he be permitted to amend the plaint and he wants whole property on payment of total consideration amount, his application was dismissed on 26.02.2009. When confronted to the learned counsel that whether the said order was challenged before this court; the answer is in the negative. Moreover, Abdul Sattar made a statement on 11.06.1991 qua his settlement with the defendant and withdrew his suit on 12.10.1991. The defendant was present in the Court. Furthermore, filing of application before the learned first appellate court in the year 2008 was otherwise barred, as Abdul Sattar was removed from the array of plaintiffs in the year 1991 and after more than 17 years the application was moved showing willingness by Daray Khan the other plaintiff to get the whole of property. When the property as well as consideration amount in favour of each proposed vendee was not mentioned with bifurcation, therefore, in accordance with Section 17 of the Specific Relief Act, 1877 the suit was not further proceedable and no decree could be passed in the suit in my view.
12. Learned counsel for the respondent/plaintiff has relied upon “Abid Mehmood and others v. Noor Muhammad and others (2016 SCMR 1831) to state that the suit was competent. I am afraid that this judgment is absolutely not applicable to the facts of this case, as noted supra that one of the plaintiffs Abdul Sattar withdrew from his claim in the year 1991 and stated that it was not an agreement to sell whereas an application was moved in the year 2008 at the appellate stage.
13. So far as the findings of learned trial court as well as appellate court that amount of earnest money of Rs.8,000/- was paid by each plaintiff is absolutely against the evidence. It was never pleaded that each plaintiff paid Rs.400,000/- nor it is mentioned in the alleged agreement to sell. Taking this view from the statement of Abdul Sattar that he has received Rs.400,000/- does not mean that other amount of Rs.400,000/- was proved to have been paid by Daray Khan the other plaintiff/respondent. Even otherwise the property was under lease with Daray Khan till Khareef 1985 and admittedly he is enjoying the possession of suit property due to the instant litigation. Therefore, the order of return of Rs.400,000/- by the learned trial court was also not sustainable.
14. In the light of what has been discussed above, both the appeals stand accepted and the judgment and decree dated 09.07.2009 passed by the learned first appellate court whereby the appeal preferred by the appellant was dismissed are set aside and the judgment and decree of learned trial court dated 19.03.1996 to the extent of payment of money Rs.4,00,000/- is also set aside/reversed. Resultantly, the suit filed by the respondent-plaintiff shall stand dismissed with costs throughout.
ZC/B-18/L Appeals allowed.